The Minnesota Supreme Court (five of the Court's seven Justices) heard arguments yesterday in a petition to disqualify Donald Trump from again serving as president. The case was brought under Section 3 of the Fourteenth Amendment, a provision that prohibits a former officer of the United States from holding federal office if he engaged in insurrection or rebellion against the Constitution.
The Minnesota Secretary of State took no substantive position in the case but asks for a final order by January 5 so ballots can be printed for the March 5 primary.
Although the members of the Court (four Democrats and one Republican with two Justices recused) questioned whether states should assert such a prominent role in the eligibility of a presidential candidate, the text of the Fourteenth Amendment and available, yet limited, precedent suggests the Court can indeed determine the applicability of the Fourteenth Amendment insurrection provision to former President Trump. Assuming such applicability, the Court would subsequently determine whether Trump's post-election conduct to obstruct the constitutional process for the transfer of power to President Joe Biden meets the definition of "insurrection."
The Justices challenged the legal position and arguments of both sides in this dispute and raised institutional concerns with the power of state officials to disqualify a candidate seeking the Presidency of the United States. The theoretical prospect of having 50 states issuing diverse rulings on Trump's eligibility made the Court uncomfortable, and the Justices wondered aloud whether this case is the type of political hot potato that is best resolved by Congress. Under the political questions doctrine, courts stand down on matters that are best left to the political branches of government. We doubt that the political questions doctrine applies in this case and expect the Court to address the merits of the key issues.
The Court offered few reliable hints of its ultimate disposition. Regardless of the Court's questioning during yesterday's hearing, we suspect the five sitting Justices engaged in a lively post-argument debate among themselves as they reached a tentative decision, a ruling that will not be known until the final majority opinion is released. The Court will probably issue its decision before Thanksgiving.
If the Court concludes that the Fourteenth Amendment does not prohibit Trump from holding the Presidency, the petition will be denied and the case would move to the U.S. Supreme Court. The Chief Justice of the State Supreme Court Natalie Hudson, suggested the U.S. Supreme Court is where this dispute needs to be resolved and an appeal from the State Supreme Court goes straight to the High Court.
Contrast the posture of this case with the trial now underway in a Colorado state court where plaintiffs contend Trump is disqualified because he allegedly incited the riot at the Capitol on January 6, 2021. The litigation in Denver would need to pass through state appellate courts before reaching the U.S. Supreme Court. Accordingly, we think the Minnesota case is on the expedited track to U.S. Supreme Court review. Given the importance of this matter, we would expect the Supreme Court to grant review and resolve the case as soon as possible.
If the Minnesota Court rejects the petition, concluding the Fourteenth Amendment restriction does not apply to Trump, the case would be teed up for High Court review. If, however, the Minnesota Court rules that Trump is subject to potential disqualification, the Court would move to an evidentiary phase, commencing a mini-trial (with the assistance of a judicial fact-finder, perhaps a state trial judge) to determine whether Donald Trump factually engaged in insurrection against the Constitution. If the Court moves to the insurrection inquiry, the case would likely focus on the elaborate effort to derail the certification of Joe Biden as President, including the submission of alternative slates of electors and the pressure on Vice President Mike Pence to reject certified electoral counts from several states won by Joe Biden.
The Minnesota Court will move quickly, recognizing that it is likely a stepping stone on the way to the U.S. Supreme Court. Yesterday's oral arguments in Minnesota show the underlying case is not frivolous. The members of the State Supreme Court struggled to develop a coherent legal approach for resolving this dispute. The end of the year will likely produce a flurry of Fourteenth Amendment court decisions that will eventually turn the spotlight on the Supreme Court.
