A lawsuit to kick Donald Trump off the 2024 ballot in Minnesota may be in trouble after the state Supreme Court justices hearing the case appeared skeptical that states have the authority to take the unprecedented action.
The case centers around the Fourteenth Amendment, specifically Section 3’s “Insurrection Clause.” Plaintiffs argue President Trump’s actions on January 6, 2021, disqualify him from appearing on the ballot.
The clause reads:
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.
Similar lawsuits have been filed in other states, including Colorado, where a state trial judge heard arguments all week.
The Colorado case, heard by Judge Sarah Wallace, who was appointed by Democrat Governor Jared Polis, may eventually be headed to the U.S. Supreme Court.
The Supreme Court has never ruled on this provision of the Fourteenth Amendment, leading to the novel approach to use it to keep Trump off the ballot.
Trump’s attorneys argue that the amendment does not apply to presidents. The text of the amendment references Senators, Representatives, and Presidential electors, as well as other federal officials, but not the presidents.
The oath the amendment specifies, which is sworn by those listed officials, is not the same oath sworn by presidents. The presidential oath is prescribed separately in the Constitution.
Trump’s attorneys further argue that neither Minnesota law nor federal law allow the courts to strike a candidate from the ballot.
Specific to Trump’s case, his legal team insists that what occurred on January 6, 2001 was not an insurrection and that Trump himself was not responsible.
Trump has not been charged in a court of law with insurrection. A Democrat House impeached him on two occasions – roughly the court equivalent of an indictment – but the Senate acquitted him.
Two of the seven Minnesota justices recused themselves.
Several justices, including Chief Justice Natalie Hudson, said it seemed that questions of eligibility should be settled in Congress, given its constitutional roles and powers in certifying presidential electors and impeaching presidents.
“[Those powers] seem to suggest there is a fundamental role for Congress to play and not the states because of that,” said Hudson. “It’s that interrelation that I think is troubling, that suggests that this is a national matter for Congress to decide.”
Hudson also expressed concerns with the possibility for “chaos” if multiple states decide differently on if states can determine a presidential candidate’s eligibility, joining other justices in questioning if it was appropriate for states to determine the matter.
She said even if the court had the authority to keep Trump off the ballot, “Should we is the question that concerns me the most.”
The Fourteenth Amendment was ratified in 1868 in the aftermath of the Civil War. The bulk of the text specifically deals with matters resulting from the war, which Trump’s teams has used to bolster its argument that the insurrection clause refers specifically to those who fought for the Confederacy.
Primaries in Minnesota and Colorado will take place March 5, 2024.
The case is Joan Growe, et al. v. Steve Simon, Minnesota Secretary of State, Case No. A23-1354, in the Minnesota Supreme Court.
Follow Bradley Jaye on Twitter at @BradleyAJaye.