Minnesota's Supreme Court Heads for the Hills

The Minnesota Disqualification Suit is stalled 'til Spring. All it cost them was a key precedent. But which one?

Some days you get the bunny, and some days the bunny gets you.

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Like the last daily update, this one had to be typed up in unusual haste due to the breaking-newsiness of it, so please forgive typos, poor turns of phrase, wild logical leaps, thinly veiled frustration, and really anything at all you might dislike about this post. As with the last one, I reserve the right to edit over the next 24 hours. As always, key documents in this case, as well as my prior writing on it, are available in the Orientation post.

Minnesota Disqualification Week: Orientation

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This afternoon, the Minnesota Supreme Court handed down its final Order in Phase I of Growe v. Simon, the case to disqualify Donald Trump from the Minnesota presidential ballot: The petition is dismissed.

That’s legalese for: the case is dead and buried. Do not pass Go, do not advance to Phase II, do not collect $200.

Here is the full Order.

There is no possible appeal of this Order. It is a final decision on a question of Minnesota state law decided by the Supreme Court of Minnesota, the final authority on state law in this state. Even the United States Supreme Court, powerful as it is, must defer to the Minnesota Supreme Court on the meaning of Minnesota’s own law. The end.

The Order is, at this point, just an order. There is no opinion yet. We therefore do not yet have the Court’s full reasoning, nor do we know whether the decision was unanimous. SCOMN rushed this Order out, with a written opinion “to follow,” “so as not to impair the orderly election process.”¹ We can expect the full opinion to come out a few weeks or perhaps even a couple months from now.

However, the Order does contain some reasoning. Even if limited, that reasoning is useful for understanding why the Court came out this way—and what we can expect next. If you want the TLDR, you can go read the Red Star’s article,² but this is De Civ, so obviously we will go as deep as we can before we draw any conclusions. (The substance of the Order is only two double-spaced pages long, so that isn’t very deep.)

Let’s just say that I’m looking forward to reading the full opinion, because the Order left me… pretty confused. No party to this case is going to criticize this Order. Both sides may have to come back to this same Court later on, and only a fool alienates the judge. You wonderful readers, however, pay me good money for my honest takes, so that’s what you’re going to get.

Where Petitioners Won

The Court found that petitioners had standing. That’s a little significant, because, as you will recall, the Republican Party of Minnesota (MNGOP) spent a significant portion of its brief torturing the language of Minn. Rev. Stat. 204B.44, trying to argue that the statute doesn’t cover presidential candidates, because presidential candidates do not “file” in this state. Since presidential candidates aren’t covered, MNGOP argued, Growe & Co. had no standing to file a petition against candidate Trump under 204B.44.

The Minnesota Supreme Court apparently agrees with my contention that the MNGOP’s argument here was very silly. However, I can’t be sure until the opinion comes out, because the Supremes don’t explain this conclusion at all in their order. Literally their only reference to standing is the sentence, “We conclude that petitioners have standing,” which isn’t even the end of that sentence!

The petitioners also won on the question of whether the case was ripe (in other words, not too early to decide):

We conclude that petitioners[’]… claims are ripe as to the issue of whether former President Trump should be excluded from the 2024 Republican presidential nomination primary.

Winning on this point is not very surprising. Nobody ever even contested ripeness. The MNGOP made a half-hearted argument that the case is too late to decide (laches), but conceded that the case was ripe. The Minnesota Secretary of State, technically the respondent in this petition, has spent this entire case taking no position whatsoever except to insist, over and over again, that the case is ripe for decision.

Where Petitioners Lost

The Court concluded that it does not matter whether Donald Trump is ineligible for the presidency, because the only election coming up is the presidential primary, not the actual presidential election. The winner of the Republican primary will not become President; he will only become the Republican nominee for President. Section Three of the Fourteenth Amendment only bars oath-breaker insurrectionists from the presidency, not from the nomination, and:

there is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot, or sending delegates to the national convention supporting, a candidate who is ineligible to hold office.

Because Donald Trump is not yet certainly the Republican nominee, the Court further holds, the case is not yet ripe enough to decide for the general election, either.³ Thus, the Court can only decide the primary election issue today, and they decide that, in the primary, they don’t have the authority to second-guess the Republican Party of Minnesota—not even to bump ineligible candidates off Minnesota-printed ballots for the Republican Party.

SCOMN cites only one case in this decision, which it cites twice: De La Fuente v. Simon (2020). De Civitate readers may recognize that case because we’ve often brought it up when discussing laches. De La Fuente is a great decision for bloggers, because it is full of zippy little quotes. Here are the two quotes SCOMN picked out for today’s Order:

[The way Minnesota identifies candidates for the presidential primary ballot] is a process that allows political parties to obtain voter input in advance of a nomination decision at a national convention.

The road for any candidate’s access to the ballot for Minnesota’s presidential nomination primary runs only through the participating political parties, who alone determine which candidates will be on the party’s ballot.

Because De La Fuente held that the road to ballot access runs “only” through the participating political parties, and because the political parties are helping to choose a nominee (immune to Section Three) rather than a President (covered by Section Three), the Supreme Court asserts it has no power to do anything about an ineligible candidate in the primary.

I’ll put their holding another way: if Barack Obama decided to run for President tomorrow, despite the fact that the 22nd Amendment’s term limits make him ineligible, the Minnesota Supreme Court just held that Obama could appear on the Minnesota Democrats’ primary ballot anyway. (Maybe the general-election ballot, too; they haven’t decided that yet.)

Every justice who helped decide Growe v. Simon today was also on the Court in 2020 when De La Fuente came down. De La Fuente was unsigned, but the odds are that one of the justices who signed today’s order in Growe was the principal author of De La Fuente. Nathan Hartshorn, who appeared on behalf of the Secretary of State in De La Fuente, was also a main character at oral arguments in Growe last week. Charles Nauen and David Zoll, who represented the Democrats in De La Fuente, are the top two local lawyers on Growe’s team. In other words, practically everybody involved in Growe was also there for De La Fuente—except me.

It would therefore be a teensy bit cheeky of me to accuse the Minnesota Supreme Court of misreading De La Fuente.

The Minnesota Supreme Court Misread De La Fuente

In De La Fuente, petitioner Rocky De La Fuente, a minor independent political candidate, demanded to be included on the Republican presidential primary ballot.⁴ A self-identified Republican by the name of James Martin demanded the right to vote for De La Fuente in that primary.

Under Minnesota state law (207A.13-2(b)), the Chair of the Republican Party (currently David Hann; at the time, the disgraced Jennifer Carnahan) gets to decide which candidates are on the ballot. The Chair alone gets to winnow the list down from the full universe of millions of possible candidates to the handful of names that actually appear on the ballot, and he gets to use whatever criteria he wants. Mr. De La Fuente argued that this process was unfair—in fact, so unfair that it violated his civil rights.

The Minnesota Supreme Court was somewhat sympathetic to his concern, and that’s the context in which the “road to access” line appears:

Petitioners assert that their associational rights… are impermissibly burdened by a statute that allows the political parties to decide whether a candidate’s name will be on a presidential primary ballot. States cannot keep candidates “off the election ballot,” effectively “den[ying them] an equal opportunity to win votes.” (Williams v. Rhodes, 1968) And the right to vote may be burdened unreasonably if candidate choice is restricted. (Lubin v. Panish, 1974)

Minnesota Statutes § 207A.13 appears to sit uneasily within these principles. The road for any candidate’s access to the ballot for Minnesota’s presidential nomination primary runs only through the participating political parties, who alone determine which candidates will be on the party’s ballot. The political parties also control the decision on the availability of an option for write-in candidacies.

[citations contracted]

In the “road to access” line, the Minnesota Supreme Court is suggesting that the participating political parties’ power over the nominating process might be seen as too absolute—so much so that the parties’ power “appears to sit uneasily” with fundamental equal protection rights granted by the federal Constitution.

This is not SCOMN’s final word, though. The Court goes on to explain to Mr. De La Fuente (and to Secretary Simon) that the rights of political parties in this context are not as unlimited as they first appear:

The State cannot “completely insulate” political parties from competitive candidates or other parties, nor protect the “parties from the consequences of their own internal disagreements[.]” (Timmons v. Twin Cities Area New Party, 1997) Further, “when the State gives [a political] party a role in the election process,” the party’s rights are “circumscribed” and the State’s interest in “ensuring the fairness of the party’s nominating process” is elevated. (New York State Board v. Lopez-Torres, 2008)

[…] Similarly, the State has an interest, though perhaps limited, see California Democratic Party v. Jones, 2000 (noting that “the processes by which political parties select their nominees are ... [not] wholly public affairs that States may regulate freely”), in regulating the ballot used for this election. Cf. Democratic Party of the U.S. v. Wisconsin, 1981 (recognizing that states’ limited interests in political parties’ national conventions for nominating presidential candidates does “not justify [a] substantial intrusion into the associational freedoms” of a national political party).

The Minnesota Supreme Court further notes Mr. De La Fuente’s other options, once he has been denied a printed slot on the primary ballot: as a qualified candidate for the presidency, he could still stage a write-in campaign in the Republican primary, or gather signatures to appear on the general election ballot as an independent.

All this leads the Minnesota Supreme Court to conclude that the apparent discrepancy between the total power of the state party chairs and the equal-protection guarantees of the Constitution is not a true discrepancy, because the state party chairs do not have the total power after all. The chairs do not, in fact, “alone determine" which candidates will be on the party’s ballot.” The chairs have vast discretion, but their discretion is legitimately “circumscribed” by the state’s right to regulate and “ensure fairness” on state-printed ballots, as well as by the rights of candidates and voters to equal protection. These circumscriptions are limited, because primaries are first and foremost an internal party affair, but they exist, and that is why the law granting so much power to party chairs is compatible with the Equal Protection Clause.

The Order issued today appears (to me) to stand the logic of De La Fuente on its head. The “road to access” line in De La Fuente proposed an extreme, absolute view of party power over the primary election—and then modified that view on subsequent pages by revealing nuances within it. The Order today takes that absolute view and quotes it back to the petitioners with none of that nuance, as if it were the whole truth. That seems (to me) to be just the opposite of what De La Fuente was driving at.

…Or, Then Again, Perhaps Not

On the other hand, maybe the Minnesota Supreme Court wasn’t saying that parties have absolute power over their own primaries. Right after they discuss De La Fuente, SCOMN says this (which I already quoted way up top):

And there is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot, or sending delegates to the national convention supporting, a candidate who is ineligible to hold office.

Maybe what the Minnesota Supreme Court is saying is that, yes, political party primaries are subject to reasonable regulation by the state, just like De La Fuente said they were. The state could pass a law restricting ineligible candidates from appearing on the primary ballot, just like De La Fuente suggested it could. However, the Court finds that the state just simply hasn’t done so! Therefore, the Minnesota Supreme Court’s hands are tied!

This interpretation would be completely consistent with De La Fuente. It’s unclear why SCOMN would spend so much time talking about De La Fuente, but there’s nothing legally problematic with rambling a little, especially in a rushed order like this. In this interpretation, the Court has to dismiss, because there simply isn’t a statute barring an ineligible candidate from a party primary election.

The problem with this interpretation of the Order is that it overturns eighty-five years of consistent Minnesota Supreme Court precedent. Since 1938, this Court has held that Minnesota state law actually does bar ineligible candidates from primary elections.

The Alsop-Erickson Conundrum

This is straightforward:

In State ex. rel. McGrath v. Erickson (281 N.W. 366, 1938), the Minnesota Supreme Court held:

[I]t may be conceded that in respect to primary election ballots[,] courts, in virtue of § 316 of the statutes, may strike the name of a candidate from the ballots who is not a resident of the legislative election district wherein he has filed…⁵

“§316 of the statutes” was a precursor law to today’s §204B.44—the statute Growe & Co. used to file their petition. The district-residency requirement is one of Minnesota’s eligibility criteria. Erickson straightforwardly tells us that you can use §316 (which became §204B.44) to challenge ineligible candidates and bar them even from primary elections.

Moe v. Alsop (1970) was a critical case for Minnesota ballot access law. You can’t draw a thread through Growe v. Simon without hitting Moe v. Alsop in short order. Moe touched on standing in election challenges, the meaning of eligibility, the standard of evidence in election challenges, laches in such challenges, the works.

Its most important holding for today, however, is its holding on primary ballot access.

In Moe v. Alsop, Ms. Gladys Swanson wanted to run in her party primary for state representative (District 64A, my old district!⁶). She did not live in the district at the time (two months before the general election). Under the Minnesota Constitution, candidates who have not lived in the district for at least six months before the general election are ineligible. Swanson argued that she could not be excluded from the primary ballot just because she was ineligible in the general election. If she won the primary, she would not become a state representative; she would only become her party’s nominee for state representative.⁷ Therefore, she could compete in the primary. Is this sounding familiar?

The Minnesota Supreme Court rejected Swanson’s argument wholesale:

The legal issue… is whether a candidate for the office of state representative or state senator who would not be constitutionally eligible to hold that office if nominated in the primary election and elected in the general election may be denied placement upon the primary election ballot by judicial order pursuant to Minn. St. 203.38. Confirming our original order, we hold in the affirmative.

…We conclude… that the legislature, by the enactment of Minn. St. 203.38, intended that this court should rule upon the eligibility of a candidate for nomination at the primary election. First, § 203.38 has existed in relevant substance for more than 50 years. And for more than 30 years this court has assumed that the ineligibility of a candidate for legislative office because of nonresidence in the legislative district constitutes "an error or omission" to be corrected by judicial order. In State ex rel. McGrath v. Erickson, we acted upon an application for an order directing a county auditor to refrain from placing the name of a candidate for the office of state senator on an election ballot because of such constitutional ineligibility to hold the office… The enactment of § 203.38, considered in that historical context, is strong evidence of legislative intent.⁸

Here is (in relevant part) §203.38, the statute that led the Minnesota Supreme Court to conclude that it had the power and responsibility to exclude ineligible candidates from the primary ballot:

When it shall appear by affidavit to any judge of the supreme court in the case of a state election, or of the district court of the proper county in the case of a county election:

(a) That an error or omission in the placing or printing of the name or description of any candidate on official primary or general election ballots has occurred or is about to occur; or…

(d) That any wrongful act, neglect, or error by any election judge, county auditor, canvassing board or member thereof, secretary of state, or other person charged with any duty concerning an election, has been or is about to be done,

then the judge immediately shall order the officer, person, or board charged with the error, wrong, neglect, or failure to correct the same or perform the duty forthwith or show why he should not do so. Failure to obey the order is contempt of court.

Here are the same parts of today’s §204B.44, which, according to one interpretation of today’s Order, leaves the Minnesota Supreme Court powerless to exclude ineligible candidates from a primary ballot (at least a presidential one):

Any individual may file a petition in the manner provided in this section for the correction of any of the following errors, omissions, or wrongful acts which have occurred or are about to occur:

(1) an error or omission in the placement or printing of the name or description of any candidate or any question on any official ballot, including the placement of a candidate on the official ballot who is not eligible to hold the office for which the candidate has filed;…

(4) any wrongful act, omission, or error of any election judge, municipal clerk, county auditor, canvassing board or any of its members, the secretary of state, or any other individual charged with any duty concerning an election.

…The petition shall be filed with any judge of the supreme court in the case of an election for state or federal office or any judge of the district court in that county in the case of an election for county, municipal, or school district office. …Upon receipt of the petition the court shall immediately set a time for a hearing on the matter and order the officer, board or individual charged with the error, omission or wrongful act to correct the error or wrongful act or perform the duty or show cause for not doing so. In the case of a review of a candidate's eligibility to hold office, the court may order the candidate to appear and present sufficient evidence of the candidate's eligibility. The court shall issue its findings and a final order for appropriate relief as soon as possible after the hearing. Failure to obey the order is contempt of court.

You will notice that these statutes are almost identical. The main thing that changed between 203.38 and 204B.44 is that the revision is much more explicit about certain details, like who can file petitions, how the court must proceed, and—especially—about the fact that the courts are now explicitly authorized to consider candidate eligibility. (Under the older law, this authority was only implicit, a fact that the Moe v. Alsop court complained about.)

In the view of today’s Minnesota Supreme Court, what changed? If 203.38 was a state statute that “prohibit[ed] a major political party” from placing “a candidate who is ineligible to hold office” on the primary ballot, then why doesn’t 204B.44, which is far more explicit about evaluating eligibility, do the same thing?

Does the Supreme Court see something fundamentally different about presidential primaries? If so, why? As §207A.12(a) states, “Except as otherwise provided by law, the presidential nomination primary must be conducted, and the results canvassed and returned, in the manner provided by law for the state primary.” In my view, there’s no provision in state law that says presidential nomination primaries are exempt from ordinary primary-stage judicial review of candidate eligibility.⁹ Thus, presidential candidates should be subject to the same eligibility scrutiny as any other primary candidates.

Does the Minnesota Supreme Court intend to overturn Moe and McGrath, perhaps? That’s always a possibility—but it’d be an odd choice to make in this context, when we are interpreting a statute which the Court has repeatedly interpreted to allow primary eligibility oversight, while the state legislature has repeatedly and affirmatively acquiesced to that interpretation. The legislature even added some of the things the Moe court asked them for, like express authority to oversee candidate eligibility! I’m not huge on stare decisis in general, but this is one of the classic situations where you ordinarily follow it. I would be completely taken aback if SCOMN took a different approach here.

The Trilemma

That’s the problem, though: no matter how I interpret this limited Order, I am taken aback by the implications. It seems to me that there are three pretty reasonable ways to read the current Order:

1. The Court is declaring that state political parties have nigh-absolute power to regulate their own primary elections, despite De La Fuente v. Simon (their source for this claim) clearly contemplating reasonable state regulation in the face of compelling state interests—like ensuring all the candidates are eligible for office.

2. The Court is saying that it has no authority to regulate primary elections, despite Moe v. Alsop and State ex. rel. McGrath saying that it does.

3. The Court is saying that there is something fundamentally different about presidential primary elections that make them profoundly unlike the state legislative primary elections in Moe and McGrath, despite §207A.12(a) saying that they should be treated the same except where state law expressly holds otherwise.

No doubt, the Court will clarify its position in the full opinion it plans to issue. If I had to lay money, I would bet that the Court is going to hold some variation of #3. They may even be right! They know state law very well, after all. I would not be at all surprised to learn that they have a great reason, based on a bunch of precedents I’ve never encountered, for dismissing Growe v. Simon at this early stage.

For today, though, I am confused.

Looking Ahead

Growe v. Simon has been dismissed. It is dead, dead, dead.

However, the Minnesota Supreme Court was very explicit that it can come back:

The petition is dismissed, but without prejudice as to the general election.

If and when Donald Trump becomes the Republican nominee for President (or even the presumptive nominee), he will become eligible for placement on Minnesota’s general election ballot. At that time, Growe & Co. can simply file a new §204B.44 petition. None of the grounds for dismissing the decision today will apply at that time.

There’s a pretty good chance, then, that Growe v. Simon (II) will be coming to a Minnesota Supreme Court near you this Spring. The Republican nomination (another area of my weirdly specific expertise) will be decided sometime around May—early June at the latest. I wouldn’t be too surprised to see Trump crush his primary opposition and secure the nomination as early as mid-March!

Unfortunately, that petition will be back almost at square one. Here are the issues we more or less resolved in Growe v. Simon (I):

• Laches

• Ripeness

• Standing

Here are the issues we did not resolve in this iteration of the case:

• Justiciability / the political question doctrine¹⁰

• Whether Section Three is self-executing / self-enforcing / can be enforced by state law.

• Whether the Presidency is an “officer of” / an “officer under” the United States

• Whether January 6 or its surrounding attempt to overturn the 2020 election was an “insurrection or rebellion” for Section Three purposes.

• If so, whether President Trump “engaged in” that insurrection within the meaning of Section Three.

In short, we polished off a couple of the easiest questions, but left all the hard ones for Spring.

Moreover, there will be new issues to worry about by next year. For example, in the presidential primary, the state party chairs have broad discretion to “determine” the legitimate candidates for their party. (207A.13) If they screw up (say, by submitting an ineligible candidate), the Court can (in theory) use 204B.44 to order them to fix it. However, in the general election, state party chairs are required to “certify” the “names of the party candidates for president and vice president” (208.03). Certification sounds a lot less like discretion. Can the Minnesota Supreme Court order the chair to correct his certification of an ineligible candidate, if his certification is not discretionary? Clearly, if an ineligible candidate appears on our general election ballot, an error has occurred (204B.44 is clear about that!), but who committed the error? The party chair? The Secretary? The national party?

This does make me think again of Nathan Hartshorn’s oral argument:

There’s very little interest in the court in those cases to decide, “Hey, who committed an error here?” In Monaghen, the word “error” does not even arise…A law professor question in a Socratic law class might be, “Hey, let’s look at this Monaghen 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!

These new issues (I’m sure there’s others I’ve not thought of) will probably not be insurmountable, but oh gosh it sure would be easier if we just pushed through and resolved the whole thing now, wouldn’t it?

Punting Strategy

In some sort of general utilitarian sense, it probably would be easier for everyone overall if we just pushed on through and resolved all these questions now, assuming the law allows it. (As I’ve made clear, I think the law not only allows but requires it, and I don’t understand why SCOMN disagrees.)

However, in the very particular case of five justices of the Minnesota Supreme Court capable of hearing this case, it might very well be easier to punt. Yes, if the case comes back in March or May or June, they’ll have more work than ever, with vastly higher stakes.

But maybe it won’t come back.

There are disqualification suits going on in Colorado and in Michigan. In a press interview I witnessed after oral arguments (but which I failed to film), Growe’s lead lawyer, Ron Fein, vowed to bring more disqualification suits in more states. (He declined to say which states, because “We aren’t going to tell Donald Trump where we’re going to file next,” or words to that effect.)

Each of those courts is going to do a lot of work between now and March. When Growe v. Simon (II) arises, SCOMN will be able to rely on all that work. There’s a full-blown bench trial going on in Colorado right now about whether Trump did the crimes, which means lots of evidence a future SCOMN can consider and lots of reasoned legal conclusions a future SCOMN can lean on.¹¹ It may even be the case that one of those other courts will find Trump is disqualified, leading to a U.S. Supreme Court case that settles the question nationally, once and for all. If that happens—and the odds are decent that it will—then the case need never return to SCOMN. Those other justices can take the heat! Maybe they’ll be judges in a nice safe blue state, who don’t face a purple-state judicial retention election this fall (like two of the five SCOMN justices who decided this case).

Whatever its legal merits, and whatever its risks, punting this case out a few months has a lot of potential upsides for the Minnesota Supreme Court in particular, even if it’s bad for the nation as a whole.

Punting also gives Growe & Co. some opportunities to rethink one or two things. For example, two Democrat-appointed Minnesota justices had to recuse because of conflicts of interest with the local firm representing Growe. As I admitted after oral argument, I don’t understand the justices of this Court at all, but I’m inclined to think that losing two presumptively sympathetic votes probably made it a little harder to win the case. Perhaps there is some way that conflict of interest can be resolved (or avoided) for the next iteration of the case?

Punting is terrific news for me personally. I’m so tired. I dropped a lot of balls to cover this case as intensely as I did for the past several weeks, and I still didn’t accomplish everything I wanted to accomplish. Give me four extra months, and I’m sure I can write that mini-treatise on Griffin’s Case and self-execution that I wanted to write. Until then, I can pick up all those other dropped balls in my personal life (and maybe write something for De Civ that isn’t legal for the first time in ages).

However, there is one group for which the punt is an unmitigated catastrophe: the Republican Party of Minnesota.

The MNGOP now has to operate a primary with the sword of disqualification hanging over its head. With Trump on the primary ballot, some voters may be dissuaded from voting for him, but others won’t be, increasing the rancor of the primary. Then, when the case comes back… well, they might get lucky and win it, or even luckier, so it never comes back at all.

But what if they aren’t lucky?

Even before I was convinced that Trump was disqualified, I was convinced that it was in the best interests of everyone who wanted to defeat Joe Biden to get the disqualification question litigated ASAP. I explicitly worried that the Democrats might wait for us to nominate Trump, then, just when it’s too late for us to change our minds, they’d spring their disqualification trap on us. In effect, if perhaps not in intention, that’s exactly what the Minnesota Supreme Court has just set up.

If Trump is the Republican nominee, and if Growe & Co. win their next iteration of this case, Trump could be struck from the Minnesota ballot pretty late—maybe even in August or September, after the Republican convention.¹²

Who, then, would be the Republican nominee for President in Minnesota? The state party chair can’t “certify” anyone else, because Trump will be the sole nominee of the national party. If Chairman Hann tries to certify someone else, the DFL will sue Hann and he will lose. The only conclusion that I can draw is that, if we wait until summer to decide that Trump is disqualified, Republicans in Minnesota simply will not have a candidate on the ballot in November.

Could Trump organize a write-in campaign? Yes, he could, but it wouldn’t matter. Under Minnesota state law, write-in votes aren’t counted toward a candidate unless that candidate registers with the state first.¹³ Ineligible candidates (likely) can’t register. (That’s another court case, I expect.) A million Minnesotans could cast write-ins for Trump, but, due to his ineligibility, he would be counted as having received zero votes. Trump can’t (to my understanding) run as a write-in if he’s ineligible.

That leaves the MNGOP in a weird position. It could organize a campaign to run some alternate Republican candidate in this state on an independent ticket (say, former Lt. Gov. candidate Matt Birk). They would have to select 10 presidential electors for that candidate, all of whom would have to pledge to vote for this pseudo-independent. None of the 10 could have voted in the Republican primary. Then, if that ticket won the state, the “Matt Birk” electors could all become faithless electors and vote for Trump at the electoral college. Minnesota does not bind electors legally to their pledges, so there’s no penalty for being a faithless elector, and no obvious state-law mechanism for preventing electors from voting for an ineligible candidate. It would work. But it would be weird. How they gonna explain that one to voters? “To vote for Donald Trump, vote for Matt Birk instead!”

UPDATE 9 November: Actually, this is wrong. In my rush to publish last night, I quite forgot that Minnesota passed a version of the Uniform Faithful Presidential Electors Act in 2015. This law makes it impossible to be a faithless elector. Any elector who violates his pledge is automatically removed as an elector. (208.46(c)) I think this law is a travesty that perverts the basic plan of the electoral college, but it is the law. The 10 Matt Birk electors would be legally compelled to actually cast their electoral votes for Matt Birk. If Minnesota were the decisive state, this could deprive both Trump and Biden of 270 electoral votes. That would throw the presidential election to the House of Representatives under the weird procedures of the Twelfth Amendment, and Trump would most likely win that.

Much, much better for the Minnesota Republicans to get this whole deal resolved now, when there’s still time to adjust, rather than months from now, when they’ll have far fewer options for dealing with an adverse outcome.

Naturally, then, given the competence of the MNGOP over the past decade or so, I expect them to celebrate the punt to the rafters, oblivious to the dangers. (I could be wrong. I’m still waiting for their press release about the decision.)

Whatever. I can wargame Republican procedural quirks ‘til the cows come home, but I think I’ve made my point.

See ya back here in a few months for Growe v. Simon (II)! Or maybe not.

1. I expected them to do the “opinion to follow” thing if the case were going to proceed, because the case was on a tight timetable. However, since the case is not going to proceed, I don’t see what the rush was.

2. Calling it the Red Star dates me pretty badly, but not as badly as calling it The Star and Sickle would. That’s what they used to call it in the ‘80s. So I’m not that old.

3. This is disappointing, though not surprising. Petitioners had argued that the Court could resolve this issue for the general election immediately, but this was, I think everyone will agree, a bit of a reach, even under the principles of judicial economy that have led SCOMN to interpret the statutory words “about to occur” pretty liberally.

4. Although de la Fuente was suing to be on the Republican ballot, I can find no evidence in the docket that the MNGOP directly responded to the petition. The Minnesota DFL filed a friend-of-the-court brief, which is how Nauen & Zoll ended up in the case, but the Republicans are nearly invisible. Their response to the case was to authorize a write-in line on their ballot (as described in the Declaration of David Maeda), but they appear to have left the actual legal argument in the hands of the Secretary of State.

5. There doesn’t seem to be a good copy of McGrath online, but it’s short, so I’ll post it in its entirety here:

PER CURIAM.

This court issued an order to show cause why respondent should not desist and refrain from placing on the official election ballots of the county of Hennepin, in the 31st legislative district thereof, as an elector seeking the election as a state senator at the November, 1938, general election, the name of Walter P. Wolfe, and in response thereto said Wolfe appeared specially and moved to quash and discharge said order to show cause on the ground that by § 3 of Art. 4 of the state constitution it is provided that ‘Each house [of the legislature] shall be the judge of the election, returns, and eligibility of its own members.’ If this court now determines that Wolfe is not to go on the ballot, of course, he will not receive the votes at the election that would come to him had his name been duly printed on the official election ballot. He was a candidate at the primary election, and holds a proper certificate of election. In answer to the motion it is claimed that this court is authorized by Mason's Minn.St.1927, § 347, to correct the ballot, and that it was done in an identical case, State ex rel. Beck v. Erickson, 175 Minn. 393, 221 N.W. 245. It does not appear that John M. Nelson, the nominee there involved, appeared and moved to dismiss the proceeding. Notwithstanding Lauritsen v. Seward, 99 Minn. 313, 109 N.W. 404, it may be conceded that in respect to primary election ballots courts, in virtue of § 316 of the statutes, may strike the name of a candidate from the ballots who is not a resident of the legislative election district wherein he has filed; but when it comes to inquire concerning the eligibility of one who has obtained a proper certificate of nomination at a primary election for a state senator, we think the courts must yield the determination thereof to the senate of the state upon receiving the votes cast in his favor at the general election. This is in line with our decision in State ex rel. 25 Voters v. Selvig, 170 Minn. 406, 212 N.W. 604, Allen v. Lelande, 164 Cal. 56, 127 P. 643 sustains Wolfe's motion. And so does Attorney General v. Board of Canvassers, 155 Mich. 44, 118 N.W. 584.

We think Wolfe's motion to dismiss the proceedings should prevail.

So ordered.

All citations: 203 Minn. 390, 281 N.W. 366

The reference to Lauritsen v. Seward, which was decided way back in 1906, confuses me a bit. Lauritsen (also called In re Lauritsen in some sources) held that the Court did have the power to decide election cases that could be resolved with “certain extraordinary writs, such as mandamus, quo warranto, and habeas corpus.” State ex. rel. McGrath was such a case, or so I thought.

6. Well, my old district number, anyway. District 64A is today in the Mac-Groveland / Merriam Park neighborhood of St. Paul. (More Merriam Park, tbqh.) In 1970, 64A was way up in Beltrami County, which is where Ms. Swanson was running. Redistricting!

7. This may sound like a silly plan: what was she planning to do if she won the nomination and then the general election? It seems from reading between the lines here that she may have been planning to appeal directly to the state legislature, which is constitutionally entitled to judge the qualifications of its own members, and I guess she was hoping that her party would see her residency issues differently from the Court.

8. The Alsop court gives a second reason, but it is of limited relevance to a presidential primary, so I omit it. You can, of course, go read Alsop if you’re suspicious.

9. MNGOP argued strenuously that there was a difference for presidential candidates, but (1) I thought that was a weak argument and said so, and (2) this seems to be just about the one argument from Team Trump SCOMN actually rejected today.

10. However, SCOMN’s decision not to rely on the political question doctrine in dismissing this case, after focusing on it so much at oral argument, is actually very encouraging to me.

11. I haven’t been following the Colorado case, so I don’t know how that’s all going. The Minnesota case has consumed my full attention.

12. In some ways, it doesn’t even matter; the Republican National Convention is now so tightly bound to the primary results that they can’t do much to alter the outcome after June, although there are ways.

13. I know this because I helped run a write-in campaign once. It was very annoying. Our guy got around 750 votes statewide—but they were counted!