The Minnesota Disqualification Suit Begins

More than you wanted to know about it

Questions continue to swirl around former President Trump’s eligibility to serve as President of the United States. A few weeks ago, readers, I was the first to inform you of the process in my home state of Minnesota for challenging his eligibility, a legal process called a 204B.44 petition. After a flurry of updates, I went radio silent.

I went silent because I was attempting to start this process myself. I am writing this now only because I failed. (You should therefore not consider me a neutral observer.)

After I finished reading the Baude-Paulsen paper, I was not convinced on every point, but I was persuaded of the most urgent conclusion: President Trump, who was under an oath to the Constitution, nevertheless “engaged in insurrection” against the United States on January 6, 2021 and, therefore, Mr. Trump is disqualified from the presidency by the 14th Amendment, Section 3.

On January 6, during the attack on the Capitol, President Trump secluded himself in his private dining room for hours and watched the TV news live, taking no action whatsoever to forestall the attack as he watched it unfold until several hours had elapsed. However, he repeatedly used the attack as leverage in private phone calls to Republican members of Congress to try to get them to cooperate in his plan to reverse the electoral college outcome, and, at one point, deliberately (and successfully) inflamed the attack and directed it at Vice President Pence. We have no photographs of this historically crucial period, because, once the attack began, the White House photographer was ordered to stop taking pictures. Generated by Stable Diffusion.

Litigating this case was always a matter of tactical urgency. Republicans need to know whether Mr. Trump can appear on the ballot in all fifty states before they decide whether he should be their nominee in 2024. (There are lots of other reasons he shouldn’t be.) Once I was convinced that Trump was actually ineligible, litigating this case became a matter of moral urgency as well. Let justice be done, though the heavens fall. The law was waiting to be enforced, but it needed someone to light the match. I was willing to be that person.

So I started actively seeking legal representation. (Reminder: I write a lot about law, but I am not a lawyer.) It was a very intense couple of weeks. Thanks to all the lawyers—including some I considered way out of my league—who nevertheless gave my case serious consideration.

Despite my efforts, a left-wing¹ outfit called Free Speech For People beat me to the courthouse door. This is no surprise. They were convinced of Trump’s ineligibility a long time before I was, and have been working on it for a lot longer.

I can’t say I’m a fan of Free Speech For People. They were founded to overturn Citizens United (a good and necessary decision I fully support) and they want to repeal the First Amendment in retaliation. Nonetheless, the challenge FSFP is bringing has more resources and more credibility than anything I would have been able to pull together, and I’m grateful that someone will carry this banner into battle. I would have happily lit the match, but they’re poised to do a better job breathing it into flame. It’s weird to be cheering for them, but politics makes strange bedfellows.

FSFP is representing several clients. They are mostly also lefties, but the star-studded list includes Joan Growe (a six-term Minnesota Secretary of State) and Paul Anderson (former Minnesota Supreme Court justice). It is fair to say that Growe and Anderson know more about Minnesota election law than I will in a lifetime. They also enrolled former GOP county chair Dave Thul, a Twitter acquaintance of mine and (possible?) very occasional De Civitate reader. Thul seems to be the only conservative in the batch. That is unfortunate, since they’re going to need to make originalist arguments to the conservative-leaning U.S. Supreme Court, but I like Thul quite a bit, and I’m not sure what I could add to the case that he doesn’t add better. I am content to have him carry the flag.

In this post, I take a look at FSFP’s lawsuit. However, I’m not going to talk in this post about why I think Trump is disqualified, nor why I think objections like the Blackman-Tillman critique² are unavailing. I will get to it, but not today. The Internet is awash in hot takes on the Disqualification Clause, most of them wrong, but there’s precious little reporting online about the actual cases going before actual courts. Only lawyers write about this stuff, and, when they do, their audience is other lawyers who can throw around terms like “Article III jurisdiction” without further explanation.

Thus, this post is pretty dry and unsexy. However, remember: the difference between political spectacle and political action is ruthless attention to dry unsexy points of procedure. Procedure is how you get new basketball hoops at the local park. Procedure is how you cause (or avert) civil war. Other blogs may give you the stakes and a vague outline of an argument for some particular outcome, but my blog wants you, the layman, to actually understand how and when the outcome will come about. That’s what De Civitate is for.

Indeed, one of the reasons I am comfortable with the FSFP case is because they aren’t sexing up their filings.³ They’re handling the dry technical matters deftly and with aplomb.

Most filings in the case are posted officially at the Minnesota Judicial Branch case page (Case #A23-1354 in case you get CAPTCHA’d), but one document filed so far (the “Filing Letter”) is only available on the Free Speech For People case page.

The Petition

As I described in my previous post, the process to challenge Donald Trump in Minnesota begins with what’s called a “204B.44 petition,” named for the law authorizing the suit. The petition is a simple, straightforward statement of the facts, the law that has been violated, and a request for specific judicial intervention. Many 204B.44 petitions follow this basic outline:

1. Hi, I’m Bob Smith, a Minnesotan.

2. Alice Jones is running for the Minnesota House in House District 47A.

3. Under the Minnesota Statutes,⁴ a candidate must reside in her district for six months before the election.

4. Alice Jones does not live in House District 47A. She actually lives at 69420 Bigfaker Drive in Forest Lake,⁵ which is in House District 33A.

5. Here are some exhibits and affidavits that prove her true residence.

6. Alice Jones is ineligible for the House election next week. [Yes, next week. These almost always get filed on a super tight deadline.]

7. Please order the Secretary of State, the County Auditor, and anyone else I can think of to take Alice off the ballot.

Here’s a representative example. Candidates are routinely struck from the ballot in this way.⁶

Sometimes, 204B.44 petitions are a bit more complicated. For example, in 2016, the Republican Party of Minnesota badly screwed up submitting the form designating its presidential electors for Trump. Ken Martin, chair of the DFL (the Minnesota chapter of the Democratic Party), filed a 204B.44 petition arguing that Trump was therefore ineligible and should be struck from the ballot. (See? I’m not paranoid when I say the DFL is waiting ‘til the general election to try to strike Trump from the ballot! They ‘ve literally tried it before!) However, a 204B.44 petition is just trying to clearly state the basics of the case, not exhaustively list all evidence. 204B.44 petitions rarely exceed 2,000 words.

However, bringing a primary challenge against a presidential candidate under a fairly dusty provision of the Constitution over a historically unprecedented insurrection where many of the material facts are likely in dispute… that’s a bit more complicated. The draft petition I wrote during my weeks of silence⁷ ran 4,000 words, and I felt like I was skimming. FSFP’s petition runs a brisk 20,000 words, and honestly it felt about right to me in scope. (It’s certainly better than mine.) The petition filed in Colorado by Citizens for Responsibility and Ethics in Washington was 40,000 words, which, even given Colorado’s different rules, was too long.⁸ Despite its length, though, the gist of FSFP’s petition follows the standard template:

1. Hi, we are Joan Growe, Paul Anderson, Dave Thul, and a couple other people, Minnesotans all.

2. Donald Trump is running for president.

3. Under the U.S. Constitution, Amendment XIV, Section 3, a person who took an oath to support the Constitution, then engaged in insurrection or rebellion against it, or offered aid and comfort to its enemies, is not eligible for the presidency.

4. Donald Trump engaged in insurrection / rebellion / aid / comfort.

5. Donald Trump is ineligible for the presidency next year.

6. Please order the Secretary of State to bar his name from the ballot.

The fact that this is only a primary election, not a general election, does not matter under Minnesota precedent. Moe v. Alsop (1970) established as a mater of statutory construction that a candidate ineligible in the general is ineligible in the primary.⁹ In the years since, the Minnesota legislature has acquiesced to that construction by further revising the statute (without displacing Alsop).

Timing

There are two key timing hurdles to filing an election challenge (or any legal case): ripeness and laches. “Ripeness” requires that you can’t file a case too early. “Laches” requires that you can’t file a case too late. You have to file a case as soon as you have a real case—not before, and not (much) after.

Because election challenges have a hard, immovable deadline, and because they are so frequently filed mere days away from the start of early voting (sometimes even after!), the Minnesota Supreme Court is deadly serious about laches in election challenges:

We have said before and we reiterate here again, in the clearest terms possible: potential challengers and candidates who assert that an error or omission exists on a ballot cannot tarry. —De La Fuente v. Simon (2020)

In light of the ballot preparation and availability deadlines, the expense associated with ballot preparation and election administration, and the need for voter certainty, petitioners must judge carefully whether they can afford to wait even a few days before acting upon a known right. —Martin v. Dicklich (2012)

Even a few days! Holy cow! They are not kidding around. Remember Martin v. Simon, the case I mentioned above where the DFL tried to get Trump thrown off the 2016 ballot? Martin had the GOP dead to rights (IMHO), but he lost anyway. Why? Laches. Martin waited just nine days to file after hearing about the defect—nine days spent investigating and confirming his facts, conferring with lawyers, writing the petition, and actually filing—and the Minnesota Supremes threw him out, despite a strong case, because they said he’d waited too long. Nine days!

So how do you know when the perfect time to file is, the golden mean after ripeness but before the toll of laches? You don’t. You file your election challenge at what you think is the right time, make your argument, and hope the Minnesota Supreme Court agrees with you.

Free Speech For People made a smart decision by filing sooner rather than later. In a separate letter that was oddly not posted on the Court website, FSFP argues that their case is both ripe and not barred by laches.

They are obviously correct about laches. There are months left before ballot printing, Secretary Simon only got back to them three weeks ago, and, yeah, that’s more than nine days, but, also, Minnesota GOP Chair David Hann hasn’t even submitted his list of candidates yet, nor publicly expressed any intention respecting Trump’s eligibility. (I know, because I wrote him to ask, and am still awaiting his reply.) Laches is not a factor here. Ripeness, though, bears some examination.

The moment when FSFP’s case becomes irrefutably ripe is the day Hann exercises his authority under Minnesota Statutes 207A.13 to submit the candidacy of Donald Trump, an ineligible candidate, to the Secretary of State. However, Hann is not required to do that until January 2, 2024. In 2020, he filed the names in October, but, given the still-fluid dynamics of the Republican primary this year, he is likely to wait until very close to the last moment.

As I learned from the Secretary of State’s booth at the State Fair, ballot printing begins on January 2nd or 3rd, no matter what, because there’s barely time to get them done before early voting starts on January 19th. If Free Speech For People waited to file until then to guarantee that the case was ripe, it would be putting the Minnesota Supreme Court in a terrible pickle, with a huge case of national importance and mere days to resolve it (to say nothing of possible appeals!). At that point, the Supremes would likely look for any excuse to throw it out for laches. Worse still, the Supremes also increase the burden of proof on petitioners when there’s little time for consideration. (See Moe v. Alsop (1970), applying the elevated clearly-established standard of evidence when the Court lacked time for “adequate judicial consideration”.)

Meanwhile, there’s no practical doubt that Hann is going to submit Donald Trump’s name on or before January 2. After all, if Hann would state publicly that he intends not to submit Donald Trump’s name as a presidential candidate, this whole case would go away. Trump has no right to appear on the ballot under Minnesota law, and no apparent right to be considered a candidate by the Minnesota Republican Party under its bylaws. Hann could refuse to name Trump, and Trump would be out of luck, at least for the GOP primary. (A nearly identical question was litigated in De La Fuente v. Simon (2020), mentioned above.) Yet Hann has made no such public statement, and the MNGOP gives every indication of considering Trump not only a candidate, but a frontrunner. They’re definitely going to submit Trump’s name, and so a petition 204B.44 (which allows petitions against errors that are “about to occur”) is ripe.

I think the approach FSFP took to make that point legally is kind of weird. I would have directly asked Hann what he intended to do, then sued him when he either admitted his intention to include Trump’s name or refused to answer the question.¹⁰ FSFP instead asked Secretary of State Steve Simon what he would do if Hann submitted Trump’s name, Simon said he’d accept any names Hann sent him because that’s what Minnesota law says he must do (I agree), and so FSFP sued him. This approach seems a little roundabout to me, but not actually defective. David Hann and the Minnesota Republican Party subsequently asked to join the suit on Simon’s side, and everyone agreed to allow it, so Hann’s still in this suit and we ended up in the same place.

Even if FSFP is thrown out on ripeness grounds at this juncture, though, all they have to do is come back in a couple months, the day after Hann submits the candidate names, and file the same case again. The Court will still be in an awful pickle at that point, but it will be a pickle the Court deliberately chose to put itself in, so they couldn’t exactly hold it against the petitioners. Insofar as the Minnesota Republican Party contributed to that pickle by deliberately obfuscating its intentions as a stalling tactic, it might even redound against the GOP.

In short, it’s possible to recover from filing a case too early. You can’t recover from filing a case too late, and this court takes no prisoners when it comes to lateness. So err on the side of early! (This is why I spent the past couple weeks panicking while looking for a lawyer!) I don’t think FSFP erred, though. It has filed appropriately early. I hope the MNGOP has the good sense not to fight on ripeness, for its own sake, and even for Trump’s sake. (The sooner Trump wins this case, the better for his candidacy. The sooner he loses it, the better for the country.)

Petition Minutiae

If you’ve read the statute (from my last post), you may also be wondering about service. According to the statute, a 204B.44 petition must be served on “all candidates for the office.” Yet this petition was served only on Secretary Simon, Chairman Hann, and on Donald Trump himself—but on Trump only as a courtesy, not as a matter of right. Steve Simon and David Hann aren’t running for president, so what gives?

Free Speech For People argues convincingly in its filing letter that there are no presidential candidates yet, not under Minnesota law, because the GOP Chairman¹¹ has not yet submitted any names to the Secretary of State. They served their petition on Hann as the definer-of-the-candidates-list because he has not yet created an actual list of candidates. Thus, there is nobody else for them to serve yet. Personally, if money were no object, I would have just served the petition on everybody listed on Wikipedia as running for president right now, just to be on the safe side, but, of course, money is an object, and I suspect all that service would have been expensive and time-consuming. Even if the Minnesota Supreme Court does decide that FSFP needs to serve this petition on other individuals, past cases suggests that SCOMN can just order FSFP to do so, without throwing the whole case out, so I am not losing sleep over this. Indeed, SCOMN’s scheduling order yesterday didn’t mention the issue at all, so I think they accept FSFP’s argument.

You may also be wondering why the Minnesota Supreme Court received this petition last Tuesday and then did nothing until late yesterday afternoon, given that the statute requires the Supremes to schedule a hearing “immediately” upon receipt. I’m wondering that, too. I suspect it had something to do with the fact that SCOMN wasn’t in session from Thursday through Monday. Perhaps, too, there were behind-the-scenes negotiations going on involving the MNGOP’s motion to intervene (which only posted yesterday morning). I can only speculate.

So that’s the petition explained. What happens next?

The Removal Feint

There is a good chance that Team Trump will attempt to move this trial from the Minnesota Supreme Court to federal court.

They have good reason for doing this: the Minnesota Supreme Court has a 6-1 DFL-appointed majority.¹² The federal District of Minnesota is about 50/50 Republicans vs. Democrats. We all wish party alignment of judges didn’t matter, but of course it does.¹³

They also have good cause: the heart of this case is obviously about a federal law (the Constitution itself). Ordinarily, federal courts are entitled to decide a “federal question” when a case hinges on it, and a case may then be “removed” from a state court to a federal one.

However, this feint (if they even try it) will almost certainly fail, and should be interpreted mostly as a delaying tactic. The reason is federal standing.¹⁴

Under dubious but currently-prevailing federal precedents, federal courts can only decide a case when the plaintiff has “standing” to sue—that is, when the plaintiff has suffered or is about to suffer an imminent, particularized harm from the respondent. Under federal standing doctrines, the simple desire to see the Constitution enforced, or the harm of potentially being governed by an ineligible president, isn’t “particularized” enough. I think that’s silly, but, in this case, it’s handy. None of the plaintiffs in this case even plausibly meets the strict standing requirements of federal courts. Therefore, a federal court can’t hear the case. The federal court must therefore remand the case back to the state court.

Minnesota law does not have the same standing requirements as federal law, so the case can then continue here.

I’m not sure whether Team Trump will try this. They tried it in Colorado. It seemed likely to fail on standing grounds, then actually failed on technical grounds related to service and party consent. They might try it again here. They might not. I don’t know. At any rate, it only gummed things up in Colorado for about a week, so it would make no material difference to the state trial.

The State Trial: Phase I of Growe v. Simon

Yesterday, SCOMN entered its scheduling order. They are going to split this case up into (at least) two parts.

In this first part, they are not going to consider whether Donald Trump engaged in an insurrection. They are only going to consider certain threshold questions:

1. Is the case ripe? (See, that really was important!)

2. Has the case avoided being barred by laches? (Based on the calendar the Court ordered, they don’t seem concerned about laches, but defendants could raise it.)

3. Is the case otherwise justiciable? That is, do judges have legal authority to decide it? (This encompasses other standard legal questions that seem unlikely to raise a problem here—things like state standing, mootness, the political question doctrine.)

4. Does the Fourteenth Amendment, Section Three disqualify a covered person automatically, or is this provision of the Constitution an “empty vessel” without legal force until empowered by specific federal enforcement legislation?

5. Is the president an “Officer of the United States”?¹⁵ If not, then even a president who directly engages in insurrection is not covered by the Disqualification Clause.

6. Is the presidency an “Office under the United States”?¹⁶ If not, then even an admitted insurrectionist who has been disqualified under the Disqualification Clause and barred from every other federal office may still serve as president.

Throughout October, both sides (and their amicus supporters) will be filing written arguments (“briefs”). FSFP will argue that the answer to all these questions is “yes”. The Minnesota Republican Party and possibly Donald Trump (who has technically not yet joined the suit) will argue that the answer to all these questions is “no.”

Secretary Simon will also file a brief, but I do not know what he will argue. Simon is technically being sued by FSFP, but may agree with them on many legal points.

Finally, on November 2, both sides will fight it out in oral arguments. Soon after that—my guess is around November 9, based on previous practice and the urgency of this case—the Minnesota Supreme Court will rule on all these questions.

If SCOMN answers “no” to any of these questions, the case is over. If they conclude that the case is not ripe, then the case can be revived later. However, if they rule against FSFP on any other point, it’s really over. The Minnesota Supreme Court may not actually rule that Donald Trump is eligible for the presidency, but they will have at least removed every available avenue for challenging his eligibility, at least at the primary stage. Donald Trump will then be on the ballot in Minnesota’s 2024 Republican Primary.

There will remain other paths for the law to recognize Mr. Trump’s disqualification. Disqualification could proceed in another case in another state, although few states are as favorable to plaintiffs as Minnesota. It could proceed from the electors in December 2024, after the general election. It could proceed from Congress itself during the Joint Session to Certify the Election on January 8, 2025. The issue is not going away, at least not until either:

1. Trump exits the race,

2. the U.S. Supreme Court rules on it, or

3. the Democrats are crushed in too many Congressional races to press their views on January 8.

But a “no” from SCOMN on any point would end the argument in Minnesota… at least for the primary.

That’s a very real possibility. The single state supreme court to consider these questions, Arizona’s, ruled against petitioners on Question #4: they held that the Disqualification Clause does nothing by itself, but only authorizes Congress to pass enforcement legislation. Since Congress has not done so, SCOAZ held that this provision of the Constitution currently has no legal effect on any candidates for public office.

UPDATE 22 September: Actually, that was a misinterpretation of SCOAZ’s holding. SCOAZ indicated in dicta—that is, non-binding judicial opinion—that it was skeptical about the Disqualification Clause operating without express Congressional action, but its actual holding was simply that the Arizona state statute petitioners invoked does not create a cause of action for proscribing candidates. The dicta were enough to get journalists to widely report the case differently, and Democratic Secretary of State Adrian Fontes evidently believes the state supreme court would rule that way if pressed, but, look closely at the ruling, and the actual holding was explicitly on state-law grounds only. The trial court did rule against the petitioners on Question #4, but the Arizona Supreme Court refused to follow them on this point.

My own personal bet is that, if FSFP loses this case at all, it loses on Question #5: the definition of “officer of the United States.” This is a much closer question than you’d expect from a natural ordinary-English reading of the text, and hundreds of pages of ink have now been spilled over it.

In my opinion, then, Phase I is actually the hard part of this trial.

However, if SCOMN answer “yes” to all six questions, then it’s on to Phase II.

The State Trial: Phase II of Growe v. Simon

This phase, if it happens, would presumably take place over the course of November, with oral arguments in early December and a ruling before Christmas (?). In this phase, the Minnesota Supreme Court will reach the merits. They will ask whether Donald Trump “engaged in insurrection or rebellion” or gave “aid and comfort to the enemies” of the United States Constitution.

FSFP and its allies will present arguments that Trump did, in fact, do an insurrection. This will involve both legal arguments about the definition of “insurrection,” “rebellion” and “aid and comfort” and material evidence and fact-finding about whether Trump did an insurrection.

Importantly, FSFP will attempt to engage in discovery, a court-supervised evidence-gathering process that will get to the heart of what happened on January 6… and which may expose all-new embarrassments and legal problems for former President Trump.

Trump and the MNGOP, meanwhile, will argue for a very narrow meaning of those terms, and will present whatever material evidence they can dig up that he didn’t do an insurrection. (Good luck with that, fam. The harder I looked, the harder it was not to see what he did. Team Trump would very much prefer to win the case in Phase I and avoid this argument entirely.)

SCOMN may recruit an independent referee or fact-finder to determine the actual matters-of-fact, while restricting themselves to ruling on the questions of law. That has been their usual practice when dealing with disputes of material fact for at least fifty years (for example, in Fischer vs. Simon (2022) and Moe v. Alsop (1970)). However, I don’t know what rules govern this practice, if any.

The parties are already low-key preparing for this phase. The 204B.44 petition contains FSFP’s factual allegations (if not all the evidence to support it yet). In the next couple of weeks, the Minnesota GOP, Mr. Trump, and Sec. Simon have to tell the Court which of those allegations are true and which ones aren’t. The disputed allegations will be the claims contested in Phase II.

A key question at this stage may be the appropriate standard of evidence. In Weiler v. Ritchie (2010), the Court held that the standard of proof in an election challenge is, ordinarily, a preponderance of the evidence. (That is, whichever side presents more convincing evidence wins, without a thumb on the scale for either side.) This is because 204B.44 itself does not prescribe a specific standard of proof, and Minnesota precedent states that, when the legislature creates a cause of legal action but doesn’t specify a standard of proof, preponderance of the evidence applies. This standard would give FSFP the fairest chance at making its case.

Team Trump might reply that Moe v. Alsop (1970) requires a higher standard: in Moe, the Court held that the petitioner’s argument must be “clearly established” before the Court could take the “drastic” step of striking a candidate from the ballot. (Applying the “clearly established” standard would mean a big thumb on the scale for the defense.) However, I think this is a misreading of Moe. Moe did require a higher standard of evidence, but for three specific reasons, none of which apply in Growe v. Simon today:

• In Moe, the Court had almost no time to consider the case. The case evidently arose on August 24, a single fact-finding hearing was held on August 26, and the Court issued its binding order August 31, just in the nick of time for ballot printing for a September 15 election. They were so rushed that they couldn’t publish the actual opinion until September 25, after the election. The Court was very clear that a big part of their reason for insisting on a higher standard of evidence was because of the sharp “limitations upon adequate judicial consideration” and because the “time for consideration… was manifestly most limited.” By contrast, Growe v. Simon has been filed months in advance of the deadline. No time pressure militates in favor of a higher standard of evidence.

• In Moe, the Court was considering a state legislative office, which meant there was a fallback if they got it wrong. (The state legislature could refuse to seat the winning candidate if she was unqualified.) As the Court stated, “This requirement is particularly appropriate in the case of candidacy for legislative office in view of the safeguard of ultimate determination by the legislature if this court declines to act. Other considerations may be present in the situation of candidacy for other offices where the power of corrective action is vested solely in the courts.” (emphasis mine) The Presidency of the United States is just such an office. Congress has clear authority to refuse to seat an unqualified Congressman, but no clear authority to refuse to seat an unqualified president. Even if it did, the Minnesota State Legislature would have no authority to force Congress to act. Minnesota law vests the power of corrective action solely in the courts in this instance, so Moe’s higher standard of evidence is not justified.

• In Moe, the Court was acting on the basis of a statute (the old §203.38) that did not actually give the Court any unambiguous authorization to rule on the eligibility of candidates at all. The Court was reading between the lines of legislative intent and old precedents to act on the petition in the first place. It was understandably cautious about doing so, and thus imposed a heavier burden on the petitioner. They couldn’t presume a preponderance of evidence standard for the statutory cause of action because there was no clear statutory cause of action! Rather than acquiescing to Moe on this point, though, the Minnesota legislature acted to revise the law. Today’s statute, 204B.44, has no such defect: the legislature has now clearly authorized the Court to rule on eligibility, and has imposed no standard of evidence beyond the default preponderance of the evidence.

In my view, then, the standard should be preponderance of the evidence. That’s especially appropriate, since Donald Trump does not face any loss of personal liberty (as he would in a criminal prosecution), but only the august privilege of serving the People of the United States through our most awesome of offices. For the good of the nation, the burden of proof ought to fall on candidates to prove their eligibility, not on the rest of us to contest it! But that’s not what the Minnesota statute suggests. The Minnesota statute suggests a simple preponderance-of-the-evidence standard.

But, of course, both sides will argue this point. It is not out of the question that the case could hinge on this. The preponderance of the evidence may point toward Trump intending to engage in an insurrection, but it may not be “clearly established.”¹⁷

If the Minnesota Supreme Court rules, at this point, that Mr. Trump did not do any insurrection / rebellion / aid and comfort (however defined), then that’s the end of the case. Trump wins and appears on the ballot. Free Speech For People can’t appeal to federal court because (again) it lacks federal standing. (They may try anyway, but, unless there’s a jurisdictional trick I’m unaware of, it would be a desperate move.)

However, if SCOMN rules that Mr. Trump did do an insurrection and therefore is disqualified, then Trump will have been directly harmed by a state court ruling. He now (finally) has federal standing and may appeal. Under 28 USC 1257, I believe he could appeal directly to the U.S. Supreme Court.

The Supreme Court would then decide the matter.

I will put off my analysis of how that might work for now. This post is long enough and, as you can see, there are many hurdles to overcome before the Supremes Supremo get involved. If Growe v. Simon reaches SCOTUS, it would, I presume, be very expedited, and could be decided as soon as early January—conceivably in time for Minnesota ballot printing!

This phase would hinge entirely on the federal questions surrounding the meaning of the Disqualification Clause. The Supreme Court could not ordinarily challenge SCOMN’s findings of fact, so, if SCOMN determined (for example) that President Trump intentionally brought about the attack on the Capitol, SCOTUS would have to accept that, and then decide whether “intentionally bringing about an attack on the Capitol” counts as engaging in insurrection. But SCOTUS has a talent for working around this limitation when expedient, and not always honestly.

Whoops, I started doing SCOTUS analysis after all. Better press Send before I do any more by mistake.

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UPDATE 27 December 2023: My other writing about this case is now gathered here:

1. UPDATE September 22: In fairness, Free Speech for People explicitly identifies as “non-partisan” and is perfectly willing to work with conservatives. It’s just very rare for conservatives to share FSFP’s aims! (Besides reversing Citizens United, FSFP also fought the religious liberty protections in Hobby Lobby, opposes a wide variety of election integrity laws, and wants to pass legislation to help suppress what the government identifies as “misinformation” on social media.)

Most of my favorite special interest groups are explicitly or implicitly non-partisan in this same sense. For example, Americans United for Life is happy to work with Republicans or Democrats on pro-life legislation. It’s just that there aren’t very many pro-life Democrats outside Louisiana anymore.

2. Just to carp for a minute, the Blackman-Tillman critique is even longer than the Baude-Paulsen paper to which it’s responding. At 60,000+ words apiece, each paper technically qualifies as a novel under Hugo Awards guidelines. And I had to read ‘em both!

That doesn’t even count reading the paper by Myles Lynch, the Barrett-Tillman paper responding to it, or and the hours of Akhil Amar podcast I listened to. I’ve got multiple tabs still open for even more reading. When I got involved in this, I unknowingly assigned myself a ton of homework!

3. Certain other firms engaged in this controversy, in other states, appear to me to be writing legal filings with at least half an eye toward sharing the filings with donors for fundraising purposes. I think that harms the case and betrays the law. I don’t get that sense from FSFP’s filings to date.

4. Section 204B.06, Subd. 4a(4), but who’s counting?

5. aka “meth capitol of the Twin Cities,” but don’t put that in your petition.

6. To find more examples, use the case search. Search Jurisdiction » Supreme Court and Case Type » Election Challenge. Make sure to uncheck the box that excludes closed and archived cases.

Many of your search results will be “In re:” petitions. These are not 204B.44 petitions. They are generally motions made directly by county election administrators who have screwed up the ballot process in some way. They often need the Supreme Court to give them a direct order authorizing them to fix it.

Most of the “vs.” cases are 204B.44 petitions of various kinds—some winners, some losers.

7. Remember: I’m not a lawyer! Nevertheless, I felt it important to prepare a basic statement of my case while seeking representation. It’s here if you, for some reason, enjoy reading drafts of aborted lawsuits, or if you just want to know on what grounds I think Trump is ineligible and you don’t want to wait until I write about it on De Civ.

8. CREW tried to weave too many irrelevancies into its narrative. Rather than focusing on the Capitol insurrection, it cast its net all the way back to the 2016 campaign and Trump’s reaction to the Charlottesville protest to paint him as a longstanding purveyor of casual violence and racial hatred. They alleged that Trump contested the vote in major urban areas that voted heavily for Biden because they were disproportionately Black, not the far more obvious reason that it was his only way to half-plausibly contest a sufficiently large number of Biden votes.

I find it absurd, as in actually chuckle-out-loud funny, to imagine that Donald Trump is a white supremacist. White supremacy is far too much of an ideology for Trump—a man of utter self-interest, infinite mental and moral flexibility, and the attention span of pasta—to wield for more than two minutes at a time, even if he wanted to, even if he knew how. If you want to understand Donald Trump, you don’t watch Birth of a Nation; you watch Star Trek: Deep Space Nine: Donald Trump is Gul Dukat, minus the eloquence and the competence, but with every ounce of the survival instinct, self-deception, and pettiness. Here is a list of his appearances. Watch them and you, too, can be a Trump Expert.

See also footnote 3, supra.

9. Strictly speaking, Moe only held that general-election ineligibility caused primary ineligibility for state legislative offices, not other state offices or federal ones. However, there’s nothing in the decision’s logic that would seem to limit this part of its holding to state legislative offices. Other parts of its holding are (see the Phase II section in this article), but not the linkage between primary and general elections.

10. Asking Hann what his intentions are also freezes the laches clock while petitioner waits a reasonable length of time for his response. At least, that’s my takeaway from De La Fuente v. Simon (2020)’s approach to laches.

11. FSFP does not mention the Democratic Chair, who will also submit names at some point. Those names will be candidates under Minnesota law who, it seems to me, would need to be served with this petition. However, in fact, DFL Chair Ken Martin hasn’t submitted any names yet, either, so it makes no difference. There are, legally speaking, no presidential candidates in Minnesota from either party.

12. Technically, it’s still 5-2, but it changes to 6-1 on October 1, well before this case will be decided.

13. On the other hand, in this very originalist case, Trump may well benefit from having a living constitutionalist instead of an originalist as his judge! Hard to be certain.

14. The other reason is that defendants usually have to agree to removal, and I see no reason to think Secretary Simon will agree.

15. Remember, here is the text of the Disqualification Clause:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

16. See the text of the Disqualification Clause in the footnote above.

17. One key reason that likely contributed to Trump not being federally prosecuted for insurrection, sedition, or related crimes is because a criminal conviction—correctly—requires the highest standard of evidence, proof beyond a reasonable doubt. That’s absolutely the right standard when someone risks years in prison, but it’s a very difficult standard to meet.