DE-TRUMPING THE 2024 ELECTION? REVIEWING MINNESOTA’S ROLE IN THE MOVEMENT TO BAN DONALD TRUMP FROM THE BALLOT

By Callan Showers, Volume 108 Staff Member

On November 2, 2023, the Minnesota Supreme Court heard oral arguments on whether Donald Trump can lawfully appear on Minnesota’s ballots in the 2024 Presidential election due to his participation in efforts to overthrow the 2020 election, culminating in the January 6, 2021 siege on the Capitol.[1] Six days later, Minnesotans had an answer: we can expect to see Trump’s name on our ballots, at least for now.[2]

The high court in Colorado decided otherwise. On December 19, the Colorado Supreme Court issued its 213-page opinion ordering the former President’s removal from the state’s primary ballot.[3] The Colorado Republican Party then petitioned the United States Supreme Court.[4] And in Maine, state law required Secretary of State Shenna Bellows to initially determine Trump’s eligibility before the case could even reach the state supreme court.[5] On December 28, Bellows deemed Trump ineligible.[6]

Now, as commentators and state leaders alike foresaw, the United States Supreme Court will hear the Colorado Republican Party’s appeal and answer the historic question in the interest of a nationwide consensus before state Secretaries of State start printing 2024 ballots.[7] But what, exactly, is the little-tested constitutional question that got us here? Is keeping Trump off the ballot a check on the former President’s abuse of power or a debate better left to the ivory tower? A win for nonpartisan legalism or a loss for democracy? This Post will explore these questions, starting by outlining the legal theory for keeping Trump off the ballot, popularized right here in Minneapolis.

I. IS BANNING TRUMP FROM THE BALLOT A CONSTITUTIONAL MANDATE OR AN ORIGINALIST’S PLAYGROUND?

The cases to keep Trump off the ballot begin and end with Section Three of the Fourteenth Amendment to the United States Constitution (“Section Three”).[8] Passed after the Civil War and aimed at preventing Southern states from sending former Confederate leaders to Congress, Section Three is also known as “the Insurrection Clause.”[9] The section mandates:

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.[10]

Minnesota is home to one of the scholars who first argued that Section Three demands Trump be blocked from the ballot: Michael Stokes Paulsen of the University of St. Thomas School of Law. Paulsen, along with William Baude of the University of Chicago Law School, posit that “the language of Section Three’s prohibition on office holding is clear and direct; it is hardly doubtful at all.”[11] Because the authors view Section Three as a “valid, enforceable, self-executing, broad, and relevant part of our Constitution,” they argue that Donald Trump and all who engaged in insurrection or rebellion following the 2020 election should be barred from ever holding office.[12] Baude and Paulsen’s scholarship has already taken on a life of its own—including multiple citations by the Colorado Supreme Court in its monumental decision.[13]

Other scholars disagree. The University of Minnesota Law School invited Paulsen, several other constitutional law professors, students, and the public to Mondale Hall for a daylong seminar on October 30, 2023 to discuss and debate the issue of Trump’s involvement in the January 6th uprising, Section Three, and what courts may decide.[14]

While Paulsen, a Federalist Society member,[15] remarked during the seminar that “[y]ou shouldn’t read the Constitution as a secret code,”[16] decoding the text of Section Three is not an easy task for all originalists[17]—let alone all judges, lawyers, law students, and voters. At the seminar, originalists debated the meaning of certain textual provisions of Section Three, such as whether a President is an “officer of the United States” and whether Section Three is “self-executing” or needs to be authorized by Congress.[18] Professors Josh Blackman and Seth Barrett Tillman, two originalists at the seminar, critique Baude and Paulsen on these grounds. Their article argues that “[i]nstead of parsing the Constitution of 1788 and early debates, Baude and Paulsen focus on original intentions and consequentialism,” which produces only “weak evidence of original public meaning [that] do[es] not pass originalist muster.”[19]

Outside of originalist dialogue, Professor Eric Segall rejected Paulsen’s assertion during his discussion with Minnesota Law Professor Alan Rozhenstein that constitutional law is “based on the logic of the text,” compared to values-based politics, live-tweeting that “[t]here is nothing true about any of that here on Earth and on the ground.”[20] Professor Segall also warned that keeping Trump off the ballot would activate Trump’s base and further polarize the country, remarking that the “best hope for this country is we beat Trump soundly at the polls.”[21]

In an article with ABC News, however, Harvard Law Professor and liberal Laurence Tribe noted that applying Section Three in this case is “obvious” and remarked that the endorsement by conservative scholars Baude and Paulsen “adds credibility” to what otherwise would be marked a partisan issue.[22] Academics of all legal philosophies are divided on what Section Three means, and whether it does or should apply to Trump.

II. WOULD BANNING TRUMP FROM THE BALLOT INCREASE BIPARTISANSHIP OR THREATEN DEMOCRACY?

As with the uncommon coalitions among conservative and liberal scholars on both sides of the constitutional interpretation issue, views on the consequences of the decision are anything but uniform.[23] While Tribe argues that its bipartisan nature lends credibility to the theory,[24] the meaning of the text of a little-used constitutional provision is hardly digestible for nonlawyers. So, while the issue is certainly worth academic debate, it is questionable whether keeping Trump off the ballot is worth the risk in an already-polarized democracy.[25] For instance, attendees at the Minnesota Supreme Court oral arguments included those wielding Trump 2024 merchandise, incited about the potential of losing their favorite candidate. Segall would argue that giving this voting bloc a new outlet for their rage—perceived disenfranchisement—is too dangerous.[26]

By contrast, Tribe described the Colorado decision as “the most important pro-democracy ruling in recent history.”[27] The conservative former Fourth Circuit Judge J. Michael Luttig agreed, contending that the only antidemocratic aspect of the disqualification is Trump’s past conduct.[28] The retired Judge described the impending United States Supreme Court ruling as the “single most important constitutional decision in all of our history.”[29]

In one view, Trump should answer for the actions on January 6th by losing the chance to hold office. In another, perhaps the key to democracy is for the most popular candidate to win, no matter who it may be. Either way, Section Three of the Fourteenth Amendment will soon take on a twenty-first century meaning.

III. WHAT HAPPENS NOW?

Professor Andrea Katz, who spoke at the October 30 seminar, described the many “off-ramps” to avoid disqualifying Trump from the ballot, including justiciability, ripeness, or the political question doctrine.[30] In Minnesota, the court held there was not yet an “error” to correct because the general election ballots do not yet exist.[31] Importantly, this means petitioners can reopen the case after the March 5 primary.[32] Other states, including California[33] and Michigan[34] have chosen other off-ramps.

The Colorado Supreme Court was unpersuaded by any of these avenues. Reversing the trial court decision that held that though Trump “engaged in insurrection,” he was not an “officer of the United States,” the 4-3 opinion held that Trump is, in fact, an officer of the United States based on the “phrase’s normal and ordinary usage.”[35] Luttig lauded the opinion as “masterful,” and “an unassailable interpretation of the 14th Amendment.”[36] In Maine, Bellows’ opinion finding Trump barred from the ballot concluded that the “text, history, and context” of Section Three all support disqualification.[37]

Despite Katz’s laundry list of off-ramps, with two states finding Trump ineligible, the question is headed to the Supreme Court. As Tribe described, there is now “no easy exit ramp” for the United States Supreme Court, “[e]ven if they are desperate to duck.”[38] And Professor Ilya Somin contended that when it gets to the high court, “there’s a 50-50 chance there will be five votes in favor of disqualification.”[39] Until the Court hears arguments on February 8 and issues its decision,[40] or when the Minnesota lawsuit comes back to life after March 5, we are left to wait, watch, and wonder whether our 2024 ballots may be Trumpless.

 

[1] See generally Oral Argument, Growe v. Simon, 997 N.W.2d 81 (Minn. 2023) (No. A23-1354), https://www.mncourts.gov/SupremeCourt/OralArgumentWebcasts/ArgumentDetail.aspx?vid=1662 [https://perma.cc/5N57-2E8G].

[2] Growe v. Simon, 997 N.W.2d 81, 82 (Minn. 2023) (mem.).

[3] Anderson v. Griswold, No. 23SA300, 2023 WL 8770111 (Colo. Dec. 19, 2023), cert. granted, No. 23-696 (U.S. Dec. 27, 2023).

[4] Petition for Writ of Certiorari, Colorado Republican State Cent. Comm. v. Anderson, No. 23-696 (U.S. Dec. 27, 2023).

[5] Shenna Bellows, Ruling of the Secretary of State, In re: Challenges of Rosen et al. to Primary Nomination Petition of Donald J. Trump 5, Maine Sec. State (Dec. 28, 2023), https://www.maine.gov/sos/news/2023/Decision%20in%20Challenge%20to%20Trump%20Presidential%20Primary%20Petitions.pdf [https://perma.cc/NBF4-LPE6] (describing the Maine law authorizing the Secretary of State to decide ballot qualification questions).

[6] Id. at 33 (“I find that the primary petition of Mr. Trump is invalid.”).

[7] See, e.g., Zach Schonfeld, Supreme Court Agrees to Review Trump’s Colorado Ballot Ban in Historic Case, Hill (Jan. 5, 2024), https://thehill.com/regulation/court-battles/4390938-supreme-court-agrees-to-review-trumps-colorado-ballot-ban-in-historic-case [https://perma.cc/7LYT-GURP].

[8] U.S. Const. amend. XIV, § 3.

[9] See, e.g., William Baude & Michael Paulsen, The Sweep and Force of Section Three, 172 Univ. Penn. L. Rev. 4 (forthcoming 2024) (describing how “Section Three of the Fourteenth Amendment responded to [the] outrage” of former Confederates holding office).

[10] U.S. Const. amend. XIV, § 3.

[11] Baude & Paulsen, supra note 9 at 39 (arguing the words of Section Three should be interpreted “as meaning exactly what they seem to say”).

[12] Id. at 7.

[13] See Anderson v. Griswold, No. 23SA300, 2023 WL 8770111 at *20, 21, 22, 31, 40, 56, 60 (Colo. Dec. 19, 2023.

[14] For general information about the seminar, including attendees and program agenda, see Section 3, Insurrection, and the 2024 Election: Does the Fourteenth Amendment Bar Donald Trump from the Presidency?, Univ. Minn.: Minn. L., https://law.umn.edu/events/section-3-insurrection-and-2024-election [https://perma.cc/PUG9-6F5S].

[15] The American Federalist Society is a conservative and libertarian legal group. About Us, Federalist Soc’y, https://fedsoc.org/about-us [https://perma.cc/554M-XRQK].

[16] Rochelle Olson, Minnesota Supreme Court to Hear Arguments on Whether Trump Is on 2024 Ballot, Star Trib. (Nov. 1, 2023), https://www.startribune.com/minnesota-supreme-court-to-hear-arguments-on-whether-trump-is-on-2024-ballot/600316408 [https://perma.cc/P9LR-27UL] (quoting Paulsen).

[17] Originalist scholars such as Baude and Paulsen generally believe that written text should be interpreted by its objective meaning at the time of enactment. See, e.g., Baude & Paulsen, supra note 9 at 9 (describing originalism as meaning “the meaning of the enactment,” and “not the ostensible purposes or motivations that supposedly lay behind it”).

[18] University of Minnesota Law School, Section 3, Insurrection, and the 2024 Election: Opening Remarks & Panel 1: The History, YouTube (Nov. 20, 2023), https://www.youtube.com/watch?v=x6a6Q-rKJA0.

[19] Josh Blackman & Seth Barrett Tillman, Sweeping and Forcing the President into Section 3, 38 Tex. Rev. L. & Pol. 3 (forthcoming 2024).

[20] Eric Segall (@espinsegall), X (formerly Twitter) (Oct. 30, 2023, 12:33 PM), https://twitter.com/espinsegall/status/1719044924346159122 [https://perma.cc/U58P-KJES].

[21] See Olson, supra note 16 (quoting Segall).

[22] Devin Dwyer & Meghan Mistry, 14th Amendment Challenges to Trump’s Candidacy are Likely Supreme Court Bound, ABC News (Nov. 5, 2023), https://abcnews.go.com/Politics/14th-amendment-challenges-trumps-candidacy-supreme-court-bound/story?id=104587744 [https://perma.cc/UF29-2PY2] (quoting Tribe).

[23] See, e.g., John Hendrickson, Could the Courts Actually Take Trump Off the Ballot?, Atlantic (Oct. 31, 2023), https://www.theatlantic.com/newsletters/archive/2023/10/courts-colorado-case-trump-ballot-2024/675855 [https://perma.cc/KU8T-7EXC] (quoting Colorado Secretary of State Jena Griswold as saying, “At the end of the day, we’re listed as defendants, but I am not defending Donald Trump.”).

[24] See Dwyer & Mistry, supra note 22 (quoting Tribe).

[25] University of Minnesota Law School, Section 3, Insurrection, and the 2024 Election: Panel 3 – The Politics & Closing Remarks at 32:50, YouTube (Nov. 20, 2023), https://www.youtube.com/watch?v=COBnmu4A6UM (specifically, note remarks by Eric Segall beginning at 32:18).

[26] Id.

[27] Christina Pazzanese, Trump’s Cloudy Future, Harv. Gazette (Dec. 20, 2023), https://news.harvard.edu/gazette/story/2023/12/no-easy-exit-ramp-for-scotus-on-trump-harvard-scholar-says [https://perma.cc/8SM4-QF9P].

[28] Sudiksha Kochi, ‘Masterful’: Former Conservative Judge Applauds Decision to Remove Donald Trump from Colorado Ballot, USA Today (Dec. 20, 2023), https://www.usatoday.com/story/news/politics/elections/2023/12/20/former-judge-donald-trump-colorado-ballot/71983728007 [https://perma.cc/4X99-CG54].

[29] Id.

[30] University of Minnesota Law School, Section 3, Insurrection, and the 2024 Election: Panel 2 – The Law, YouTube (Nov. 20, 2023), https://www.youtube.com/watch?v=8gkB9YgHZVw (specifically, note remarks by Andrea Katz at 2:30).

[31] Growe v. Simon, 997 N.W.2d 81, 82 (Minn. 2023) (mem.).

[32] Id. at 82–3 (dismissing claims without prejudice to allow claims to be raised at the general election).

[33] Shirley N. Weber, Certified List of Presidential Candidates and Candidates for Voter-Nominated Offices for the March 25, 2024, Presidential Primary Election, Office of the Sec. of State of Cal. (Dec. 28, 2023), https://elections.cdn.sos.ca.gov//statewide-elections/2024-primary/cert-list-candidates.pdf [https://perma.cc/VNV7-CZM5].

[34] Corey Williams & Nicholas Riccardi, Michigan Supreme Court Will Keep Trump on 2024 Primary Ballot, Assoc. Press (Dec. 27, 2023), https://apnews.com/article/trump-insurrection-14th-amendment-ballot-michigan-colorado-b5a5d9ffa75efa63ab4780b04329e2a2 [https://perma.cc/6TWM-ZK9N].

[35] Anderson v. Griswold, No. 23SA300, 2023 WL 8770111 (Colo. Dec. 19, 2023), cert. granted, No. 23-696 (U.S. Dec. 27, 2023).

[36] Kochi, supra note 28.

[37] Bellows, supra note 5.

[38] Pazzanese, supra note 27.

[39] See Olson, supra note 16 (quoting Somin).

[40] Schonfeld, supra note 7 (noting that Supreme Court oral arguments are set for February 8, 2024).