Minnesota DQ Suit: Oral Argument Recap

De Civitate live on the scene! (kind of)

View of the courtroom (respondent’s side) minutes after oral argument concluded.

As always, key documents in this case, as well as my prior writing on it, are available in the Orientation post. This update is more dashed off than usual, because I had to type it and post it before the end of the day to be useful to all y’all, and may be unusually typo-prone. I didn’t even have time to do a full reread, so I’ll correct errors if I spot any.

A View From the Courtroom Overflow

Today was oral arguments in Growe v. Simon, the Minnesota Disqualification Case, so I woke up early to make my first-ever visit to the Minnesota Judicial Center!

Then—from what I hear—there were only two people manning checkout at Target, so my wife got stuck in line, so she couldn’t give me the car, so I got there at 9:10 instead of 8:45. At right about 9:05, a school bus pulled up and dropped off a full class of (according to word on the street) high school social studies (or possibly mock trial) students. Courtroom 300 has a capacity of 60, and that was 20 or 30 kids right there. It was a great idea by their teacher, because what a learning experience this must have been for them! However, long story short, I ended up in the overflow auditorium watching the livestream. Alas! Darn Target lines!

I’d like to give a shoutout to the court’s director of public affairs, Kim Pleticha, who was as lovely as could be about the fact that some of us weren’t getting in. There were out-of-staters in line, and I was pleased they got a dose of the ol’ Minnesota charm from her and the deputies. The overflow was indeed very comfortable, as promised. I found myself seated next to Spencer, a paralegal for one of the amicus parties who’d been sent to take notes.

“ACLJ?”

“No.”

“Muller? Muller wouldn’t have his own paralegal, would he?”

“No.”

“You’re not going to tell me, are you?”

“(smiles) No.”

Despite heading to overflow, I had a consolation prize: in the security line, I found myself just behind Joan Growe, six-time secretary of state and lead petitioner in this case. It was weird to encounter her in the flesh after writing about her so much. Obviously, we all know that the people in these articles are real humans, but, over the course of months, they become more like characters in one’s mind, as real as Peter Parker and about as capable of free action. Suddenly, boom, there she is in front of you, shaking your hand as you thank her for bringing the case against Mr. Trump.

I introduced myself as “James Heaney. I’m nobody.” The plaintiffs’ attorney accompanying her up to the courtroom, Charles Nauen, chuckled and said, “He’s not nobody,” which was also ample consolation for being routed to overflow. The unofficial motto of De Civitate has always been “No One Reads This Blog (TM),” but, fam, somebody read this blog!

I know the U.S. Supreme Court quite well—well enough to read the tea leaves of oral arguments as well as anybody. I know the justices’ varied core values, how they behave in oral argument, and how to interpret that. I don’t know the Minnesota Supreme Court at all. I actually had to pull up a photograph during the argument to figure out who was who. That’s a black mark on me. A responsible citizen in a healthy republic should know his own state’s government much better than distant rulers in Washington. We don’t live in a healthy republic, so everything is nationalized, but I still ought to do better. Because I’m clueless, I can’t do much to interpret their questions, except to report and comment on them as a legal matter. That is doubly true because I suspect that, at most, only Justice Anderson (the sole surviving Republican appointee) shares my basic foundation in originalist-textualism. I don’t know how the other justices reason, but it seems a good bet it ain’t that, and that makes it harder for me to follow their reasoning.

What I can say is that the Minnesota Supreme Court was well-prepared for this case. They were able to jump between issues with the suppleness I would expect from judges at the pinnacle of our state’s legal system in a case of national importance. Five participated in the case: freshly-minted Chief Justice Hudson, Justice Anderson, Justice Moore, Justice Thissen, and Justice McKieg. Justice Procaccini is recused from the case, I presume because he only joined the court in October. Justice Chutich is also recused, but I don’t know why. That leaves five justices: four appointed by Democrats, one by a Republican. This is, of course, a consequence of Republicans failing to win a single statewide election in the past fifteen years.

(Ah: the Star Tribune reports that both Procaccini and Chutich have ties to Mr. Nauen in their re-election campaigns and recused for that reason, which makes sense.)

Enough woolgathering. Let’s get on with it. I did a liveblog this morning that, in retrospect, I think was pretty bad, so, instead of quoting my bad liveblog, here’s the raw tape from Fox 9 News (thank you, Fox!):

Nothing happens for the first 27 minutes of this video, which, again, is raw video. Key times:

• 20:32: Pre-show announcement to turn off your cell phones, exactly like at a play.

• 27:00: The justices emerge and give the preliminaries.

• 29:00: Ron Fein, lead attorney for plaintiff Joan Growe takes the lectern for his argument.

• 54:29: Nathan J. Hartshorn, attorney representing the Minnesota Secretary of State, rises mainly to answer questions.

• 1:04:17: Nicholas Nelson, representing Mr. Trump and the Trump Campaign, defends Trump.

• 1:25:04: Reid LeBeau of the Republican Party of Minnesota (MNGOP), rises, gets two words out, and gets jumped with questions.

• 1:32:31: Fein retakes the stand for rebuttal.

• 1:45:12: The case is submitted (which means we’re done).

I’m not going to try and recap this for you. I tried that this morning in my liveblog. I lost a lot and added nothing. I will zero in on just a couple of key threads (or, at least, I thought they were key!) and leave the rest on the table.

Because you have been following De Civitate’s writing about this case throughout the process, you are now well-equipped to follow these arguments yourself. Those high schoolers, I imagine, had absolutely no idea what was going on, but you know what’s going on when Mr. LeBeau stammers into (and then quickly retreats from) his bad argument about the difference between “disqualification” and “disability,” because you remember when I wrote about that.

So, honestly, you should sit down and watch it. Oral arguments can sometimes be a zoo, or even a dumpster fire, but this was an unusually great discussion, and it will be more enlightening than anything I can write here. Don’t have an hour and fifteen minutes free? It’s on YouTube, and YouTube has a button that lets you turn it up to 2x speed. That’s how I’m rewatching it right now. You’ll be done in forty, less time than it takes to watch an episode of Star Trek: Deep Space Nine.

Then you can come on back for my commentary.

Argument Analysis

Okay, that was fun, wasn’t it? Aren’t you glad you made the time?

I’m not sure how well you should trust the following impressions. The moment Nicholas Nelson rose to speak on behalf of Team Trump, and I immediately thought, “Look at that smug pasty sumbitch in his fancy suit carrying water for the bad guys and getting handsomely paid for it.”

Later, after the argument, I thought, “Wait a minute, didn’t I go to school with his brother?” I’m pretty sure I did! Good Catholic, family man, lots of kids. It’s possible we shared a Eucharistic Adoration hour at some point. Nelson’s LinkedIn reveals that he worked for the Thomas More Society, a great group, he brags about having taken classes at Notre Dame from ACB, and he wrote a paper on religious accommodations that looks terribly interesting, so I’ve popped it open to read later. This guy could be me! I’m a smug pasty sumbitch on my best days! I was wearing a fancy suit today!

I’m pretty sure this is what cognitive bias is like. I am very much in the tank for petitioners, and I’ve been open about that, so I’m seeing the opposition through crap-covered glasses. It strikes me that, perhaps, this is how lefties see our side all the time, which is sort of a harrowing thought.

Political Questions

Even through my bias, I thought Nelson did a good job. My impression was that the justices were looking for an excuse to get out of this case. Although these judges are overwhelmingly Democrats, ruling in favor of Trump here and dismissing the case would get the judges out of a huge headache of a case that has potentially enormous implications for them personally. (I believe that Justices McKeig and Anderson face their retention elections next fall.) Nelson did his best to give them an excuse.

Before Nelson came up, Ron Fein (lead attorney for the plaintiffs) had faced a barrage of questions about the political question doctrine. Chief Justice Hudson actually opened with a really stark question that reached beyond even political questions into a more fundamental question of justice:

Let’s say you’re right. Let’s say we agree that Section Three is self-executing and that we do have the authority under the relevant statute to keep Mr. Trump’s name off the ballot. Should we? is the question that concerns me the most… Because it does seem to me that you run square into the problem… of the potentiality of fifty different states determining this question differently. …that concerns me that we have this possibility said, as Justice Chase said, of chaos. So should we do it, even if we could do it and we can do it?

Fein (correctly) responded that, well, fifty states is our system! That’s what the Constitution says! Article II doesn’t have us vote for a president, but assigns each state electors who elect state-by-state. Besides, if it comes down to it, there won’t be chaos, because the U.S. Supreme Court will rule. (The Minnesota Supremes seemed to collectively breathe a sigh of relief every time someone said that, because it means they are not, ultimately, on the hook.) He also observed, again, correctly, that the Minnesota legislature allowed the Supreme Court no discretion to avoid eligibility cases. The statute says “shall,” not “may,” so the Minnesota Supreme Court must do it, even if they have concerns about the implications. (Fīat iūstitia ruat cælum! Although I don’t actually think the sky is at risk of falling.)

The justices weren’t ready to let go of this, though. Thissen and Hudson both thought there were constitutional provisions like the 12th Amendment and the Impeachment Clause that at least structurally implied that this is all reserved to Congress.

Fein couldn’t agree, firstly because (again) Article II does make the role of the states primary in our elections. Second, because the Twelfth Amendment doesn’t even explicitly say that Congress has the power to judge qualifications! Even if that power is implicit or residual, it certainly doesn’t make that power exclusive to Congress. The power resides in states. It has to reside in states, first and foremost, if it resides anywhere, because the President is elected by a union of states, not by Congress! (That last sentence was me ranting, not Fein.) Fein brings this home with a real-world example, familiar to De Civitate readers:

Let’s say, Barack Obama, who served two complete terms. Under the 22nd Amendment, he is barred from a third term of office. To say that a state like Minnesota would be obligated to engage in a charade of listing him of its ballots—Many people might like to vote for him, but, since he’s barred from office there’s nothing that says Minnesota would be obligated to play along with that and appoint electors for a constitutionally ineligible candidate.

I am so happy this was brought before the Minnesota Supremes, and I really hope they think seriously about the implications before ruling in this case: are they really going to set a precedent that allows Barack Obama to run again? (I guess they are Democrats, and running Obama would immensely help Dems’ chances in 2024. :) But I don’t think these justices want to subscribe to a theory that turns the Constitution into so obvious a farce.)

Nelson went after.¹ I don’t know whether Nelson changed his plans in response to the justices zeroed in on the political question doctrine, but he opened with, “There is no more political question in our national order than who should be president” and argued that “the weight of authority” favors treating presidential qualifications as a political question. That authority largely consists of pre-2012 lower-court cases where self-represented and badly-represented attorneys tried to get Barack Obama off the ballot for not being a “natural-born citizen,” but it’s out there. One of those decisions is Minnesota’s own decision in Oines, which you know about from the Orientation post. Nelson used his entire three minute opening statement to make this argument, which I thought was putting all the chips in one basket, but he’s the litigator and it was where the Court was probing.

The justices, however, quickly pulled him into choppy waters. Justice Anderson (the sole Republican appointee) asked whether “a factual dispute had ever resulted in a presidential candidate being excluded from the ballot,” and Nelson agreed, then tried to draw out the distinction Team Trump has adopted: you can exclude someone from the ballot if you KNOW they aren’t eligible for the ballot, but not if you have to engage in a FACTUAL DISPUTE over eligibility. That factual dispute is a political question that falls to the political branches. (This, presumably, is also how he distinguishes the case of Obama: we know he can’t run because we saw him be president twice.)

But hang on, gang! Justice Thissen jumps in: “That doesn’t seem like a real distinction to me. It seems like kind of a wordsmithing distinction? Because how do you know you’re ineligible without determining you’re ineligible? They seem to go hand in hand.” Nelson says it’s a very different case from if a 27-year-old wanted to be on the ballot, where it’s very easy to determine—in contrast to a foreigner or insurrectionist who wanted to be on the ballot, where factual determination might be harder. Thissen is skeptical:

Can you explain the rationale for that? Why that is true? Is that just because it would involve us in fact-finding?

To me, that was the key moment in Nelson’s argument. As Fein would say in rebuttal, the political question doctrine properly isolates questions that are properly non-judicial from the judicial branch. But the judicial branch is well-equipped to perform fact-finding. One could call fact-finding the main function of the judicial branch: it’s their job to suss out whether, say, a criminal defendant is guilty or not, which is a finding of fact.

Nelson falls back a little by saying that we see the political question doctrine applies here because the Constitution has lots of provisions about electing presidents, and none about having states determine eligibility.

But hold up, because now Justice Anderson is wondering:

I think your argument about the political question doctrine is a very serious problem for the other side in this case, but, having said that, the Constitution itself says that it gives to states the authority to deal with elections. What do we do with that constitutional language?

I really hate that Anderson said anything was a “very serious problem” for the plaintiffs. Those are not good words to hear as a plaintiff, ever.

Nelson concedes that states have a role in administering elections, that legislatures have a role in “instructing electors,” but that making “binding legal rulings about who’s eligible or not, that’s not something that the Constitution says the states should do.”

That doesn’t make sense! The Constitution doesn’t say anything about allowing states to impose candidate signature thresholds, either, nor issuing “binding legal rulings” about those, but Article II grants plenary power to states in presidential elections! (Nor does the Constitution place the evaluation of qualifications in any body, including Congress.) Article II says the state has just this power!

Fein, in rebuttal, observes that there’s “no case” where fact-finding doesn’t occur, and it isn’t a material distinction whether the facts are undisputed or not. Sometimes facts are easy to determine, sometimes not, but the court is always doing fact-finding, so you can’t just say that doing fact-finding about a politically sensitive issue makes a question a political question! In fact, it’s the opposite: the political question doctrine is for cases that are ill-suited to judicial resolution, which lack manageable fact patterns, and which involve political discretion. This case is very well-suited to judicial resolution, because it’s a straightforward matter of fact-finding—even if that fact-finding is a little harder than digging up a birth certificate.

The justices seemed sympathetic to the idea that looking up a birth certificate, while simple enough, is still fact-finding (and, hey, not everybody has a birth certificate). They also seemed overall pretty concerned by Nelson’s apparent position that this case is beyond the reach of the courts (as Justice Thissen put it) “just because it would involve us in fact-finding.”

Finally, Justice Thissen rather kindly gave Fein a single question in overtime: what about Oines, where the Minnesota Supreme Court did indeed say that it’s a political question?

Fein was ready with my favorite line of the day:

Oines was dictum building on dictum building on dictum that has then been superseded. …There’s a sort of cascade of dicta.

I pointed out in my discussion of Oines that the relevant part of it was obiter dicta, meaning judicial musings that go beyond the scope of the decision and are not binding. I did not make sufficiently clear in that discussion that the decision Oines cited (Keyes v. Bowen) was also (in relevant part) dicta when, and I did not even realize that Keyes was also relying on dicta from a federal court decision called Robinson v. Bowen which has since been overruled by the Ninth Circuit! It would be really unfortunate if the Minnesota Supremes were so desperate to wiggle out of ruling on this case that they fell back on Oines.

I am pretty unhappy that the “political question” ended up being the main line of argument today, because I basically dismissed it last week as a weak argument, but I think Fein won the argument decisively. He made it look easy, and it helped that he was clearly right. I’m so in the tank for his side, though.

Sundries

To my surprise, the “officer of the United States” issue I wrote so much about barely came up, really just briefly, during Fein’s argument, when Justice Thissen inquired about it. My favorite moment of the whole proceeding, and perhaps the whole month, was when Fein, who was doing a very capable job dealing with the issue overall, said:

If it were a technical term of art that lawyers all knew and were expected to learn in an era before law schools, I would have expected Trump to have cited law dictionaries that defined “officers of the United States” as this precise technical term that doesn’t include the President, but they don’t cite any law dictionary definitions of “officer of the United States,” and I think that’s because, if there was a stream of thought that thought the President was not an “officer of the United States,” it was not generally agreed on as a technical term of art.

Bingo bongo! I called attention to this problem for Team Trump just yesterday. To the best of my knowledge (which, to be fair, is limited—Tillman & Blackman have written a lot of words), I was the first person to notice the issue. To see it mirrored in oral arguments at SCOMN less than a day later? That felt pretty nifty!

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Nelson walked himself into a straight-up trap. His position is that Section Three does nothing without enforcement legislation from Congress. However, lots of states disqualified people before enforcement legislation was passed. Meanwhile, lots of disqualified people sought amnesty from Congress, again before enforcement legislation was passed. Nelson brought up a statute to help explain this: the Readmission Act of June 25, 1868. I don’t remember this statute at any point in the briefs, but I haven’t gone back to check yet, so maybe it was there. (UPDATE: I went back to check. I can’t find it. It seems to be newly brought up at oral arguments, which is sometimes necessary but never great.) Nelson argued that the Readmission Act required the readmitted states to enforce Section Three (UPDATE: yep, it does), so, naturally, each state did so. According to Nelson, that’s why we saw states enforcing the Fourteenth Amendment before enforcement legislation had passed.

The justices asked whether everyone seeking amnesty from Congress also came from one of those six states. Nelson didn’t know.

Fein knew: they did not all come from those six states.

I went “ouch.”

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The deer-in-headlights award goes to Nathaniel Hartshorn. That’s not to say that he did a bad job at all. I found him affable and effective. However, the Court put him in a very challenging position, and Hartshorn wasn’t quite sure what to do about it.

All Hartshorn wanted to argue was that the case is ripe and that it needed to be resolved by January 5. As it happens, nobody’s disputing that anymore. (The MNGOP is making a bad laches argument, which is the opposite of a ripeness claim.) He spoke, (as all Minnesotans should) of the glory of the Minnesota election system, “the envy of the nation” (this is true), and asked the justices to get the job done by the deadline. He gave his little spiel, which took about sixty seconds, and said, “That’s all I have, your honors!” Then he invited questions, but was clearly prepared to sit down.

They didn’t let him sit down. Instead, they bombarded him with questions about MN Rev. Stat. 204B.44 that touched very close to the key issues in the case. Hartshorn’s boss, Secretary of State Steve Simon, has made very clear that his office is not taking a position on the central issues of the case. Yet the justices are asking for the Secretary of State’s position on issues that are clearly within his ambit as chief enforcer of election laws.

Hartshorn essentially lined up behind Growe, Fein, and the petitioners. At one point, he seemed for a moment to be saying that presidential candidates were excluded from 204B.44 adjudication, heard himself, and doubled back with effusive praise for 204B.44: “The Secretary is, within this room, the biggest fan of 204B.44 as an extraordinarily useful, valuable part of our election system.” Hartshorn resisted the “hyperliteral wordsmithing” that the MNGOP tried to pull in their brief, for just that reason, which… absolutely was not what that man wanted to do when he got up there.

Hartshorn even went on to say that, yes, while Simon and Fein disagree about whether the Secretary has the right to remove a candidate from the ballot without a court ruling, nobody ever focuses on that in 204B.44 cases, and it would be weird for the court to suddenly start doing so. Once it’s in front of the court, the court rules on the eligibility question, not on who filed against whom:

There’s very little interest in the court in those cases to decide, “Hey, who committed an error here?” In Monahan, the word “error” does not even arise…A law professor question in a Socratic law class might be, “Hey, let’s look at this Monahan case. Who committed an error here?” Petitioners in these cases, including this case, always say “The SECRETARY committed an error! HE put an ineligible name on the ballot!” Well… WRONG, they always say it, they’re always wrong, and yet… it doesn’t really matter!

He says it so much more colorfully than I can replicate in text. Watch the clip (59:35-1:00:32).

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Later, as Chief Justice Hudson continued her tough questioning of Fein (1:37:30ish), she pressed Fein on this same point. She really wanted to know whether he believed the Secretary of State had the power by himself to take a candidate off the ballot. Growe and Fein have always said that he does. (I’ve always said that he doesn’t, and that MNGOP Chair David Hann would have been the appropriate target of the petition.)

Here at the oral argument, though, Fein (wisely) didn’t appear to want this to cause a derailment, and accepted (if not quite adopted) the Secretary of State’s position: now that it’s at the court, the court is obligated to decide it, but he “backed off” of the position that Simon can do it himself. This, I think, can only help Fein, because the idea of the SecState acting unilaterally was clearly scaring the justices (as well it might). This move shifts the onus back to the court.

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I haven’t said much about Mr. LeBeau, lawyer for the MNGOP. He was the most charming man in the room and won a few hearty chuckles from the courtroom. There was a good bit where he introduced himself and added, “Given my brief time, I would like to invite the court to ask my questions at any point, waiving my uninterrupted time. This petition should be dis—”

Justice Thissen: “Just one question.”

LeBeau: (smiles)

I don’t hear any laughs on the FOX tape, but we all thought that was pretty charming in the overflow.

However, I thought LeBeau did not do well, legally, and I think I would feel that way even if I were on his side. When LeBeau tried to follow Nelson, emphasizing their position that you can challenge eligibility only when there’s no factual dispute, he put it in a way that immediately drew fire from the justices. He later tried to draw the very silly distinction from his brief between disqualification and disability, then immediately retreated when the justices were (naturally) super-skeptical and talked again about underlying factual disputes—but, again, there’s always fact-finding in court proceedings!

All in all, I think LeBeau hurt his side’s case more than he helped it, even though he is the lawyer in this case I’d most enjoy grabbing a burger with. (It’s easy to forget in this case, but I’m still a right-winger! He and I probably agree on a lot of stuff! He definitely would not want to grab a burger with me after all those mean things I said about his brief, though.)

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In the final analysis, I think the Minnesota Supremes were looking for an escape hatch from this case. It’s their job to look for one, and they were determined to do it well. The problem for them is, I don’t think they found one. Now, as you know, I don’t think that such an escape hatch exists, but I also don’t think that anything materialized in today’s arguments that might function as even a convincing mirage of an escape hatch.

They had a good shot for a couple minutes there with the question of timing: Congress could theoretically make Trump eligible again later on by giving him amnesty, so shouldn’t he appear on the ballot today? Then Hartshorn more or less shot that down cold as a non-starter with the Secretary of State’s. If they’re going to dismiss this case, I don’t see how, which makes me inclined to think that they will allow the case to proceed to Phase II.

On the other hand, they sure did talk a lot about the political question doctrine.

Fein drew blood once or twice, nothing fatal, but Nelson landed no blows of his own, and Fein was never on the backfoot, never without a ready answer to the court’s various concerns and attempts to probe its way out. It went as well as I could have hoped.

Wild guesses at the vote count on whether or not to proceed to an evidentiary hearing (aka Phase II)? Why not? Remember I don’t know these people.

Chief Justice Hudson went hard at everyone. I can’t read her.

Justice Thissen asked a lot of questions, but seemed to be vibing with the answers he got from Fein better than the answers from Team Trump. Vote to proceed.

Justice Anderson also asked good questions all ‘round, but he had that line about the political question being a “very serious problem” for petitioners, and he is the court’s only remaining Republican appointee. The smart money says he’s a vote to dismiss the case.

Justice Moore only asked about the definition of insurrection, nothing else. That’s not a lot to work with. However, he seemed satisfied with the nice clear answer he got from Fein and a little squirrely at the suggestion from Nelson that only a Civil War type massive country-rending conflagration counts as an insurrection. Vote to proceed.

Justice McKeig seemed especially interested in finding an out. The only question I wrote down for her was about that timing issue where Congress might grant amnesty. Dunno.

I don’t know what will happen.

But I expect we will have a ruling in no more than two weeks, more likely in one.

I gotta run. I do have a video of Joan Growe giving an interview which I’ll try and edit into this post later tonight. UPDATE: here ya go!

All in all, a pretty good day.

(UPDATE 12:04 a.m.: I have indeed corrected some typos and reworded certain passages.)

1. But not right after.