by Hans von Spakovsky
Two state courts, the Minnesota Supreme Court and the Michigan Court of Claims, have thrown out the attempts by anti-democratic groups to disqualify former President Donald Trump from the ballot under the 14th Amendment, at least with respect to the presidential primary election.
The attempt to take away the ability of voters to make their own decisions on Trump’s candidacy has been temporarily halted in those states.
But there are still cases ongoing in other states, among them Colorado.
I’ve previously outlined why those claims are constitutionally invalid and why no state court has the legal authority to make such a decision.
The challengers are trying to use Section 3 of the 14th Amendment, which they claim disqualifies anyone like Trump who has been an “officer of the United States” and has engaged in “insurrection or rebellion” from being on the ballot.
As I have explained in detail, Section 3 does not even apply to Trump under Supreme Court precedents holding that only an appointed individual, such as Attorney General Merrick Garland, is an “officer of the United States,” not elected officeholders such as Trump or Joe Biden.
Moreover, the disqualification clause is not self-executing; in other words, Congress has never passed any federal law providing for enforcement of Section 3, and without such legislation, no court has the legal authority to enforce it.
Also, Trump has never been charged with, much less convicted of, insurrection. In fact, he was acquitted by the U.S. Senate of that charge, which was contained in the second impeachment resolution approved by the House of Representatives.
Imagine the electoral chaos that would result from judges in multiple states second-guessing Congress on whether Trump participated in an insurrection.
Finally, there’s a serious question of whether the disqualification provision of Section 3 even still exists as a constitutional matter. Section 3 gives Congress the ability to remove the disqualification provision and void Section 3 by a two-thirds vote of both houses of Congress.
Congress did just that in two Amnesty Acts passed in 1872 and 1898.
In Minnesota, in Growe v. Simon, the state Supreme Court held that it had no reason to even consider all of these constitutional issues because the question of whether Trump should be on the general election ballot in November 2024 is “neither ripe, nor is it ‘about to occur,’” as required by state law, since he has not even been nominated yet and might not be nominated.
The immediate challenge before the court was whether Trump could be listed on the ballot for the presidential primary being held on March 5, 2024, or whether Section 3 disqualifies him.
However, the court concluded Section 3 is not relevant to the primary.
The Legislature enacted the presidential nomination primary process to allow major political parties … to choose a presidential candidate who will subsequently appear on general election ballots. … [T]his is an internal party election to serve internal party purposes … . 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.
While the Minnesota Supreme Court rejected the challenge to Trump being on the presidential primary ballot, it left open the question of whether Trump, if he becomes the Republican Party’s nominee, can be removed from the ballot in the general election next November. Thus, it’s a temporary win for the Trump campaign.
In Michigan in LaBrant v. Benson, Judge James Redford of the state Court of Claims concluded that Trump could not be removed from the presidential primary ballot because he has met all of the state’s legal requirements for a candidate to be on that ballot.
Redford approvingly cited the Minnesota Supreme Court’s decision in Growe that a primary election is an internal political party election and, similar to Minnesota, there is no Michigan statutory prohibition “as to who may be placed on such ballots, irrespective as to whether the individual may either serve as a general election candidate or ultimately serve as President if elected.”
The question of the general election ballot is not ripe for consideration by the court.
But Redford also said that the question of whether Section 3 of the 14th Amendment applies to Trump is a “nonjusticiable political question.”
“Congress,” wrote Redford, “is primarily responsible for taking actions to effectuate Section 3,” and he cited the U.S. Supreme Court’s “caution against becoming embroiled in recurring and highly partisan” political disputes.
Redford noted an exhibit submitted by Michigan’s secretary of state listing 37 “active and recently dismissed state and federal cases, each involving former President Trump.”
“Should this trend continue,” Redford wrote:
[I]t is conceivable that there could be 50 state cases, and a number of concurrent federal ones, each with a judicial officer or officers who ‘even when proceeding with best intentions,’ have the potential to issue partial or even totally conflicting opinions … . The questions involved are by their nature political.
The number of cases presents the risk of completely opposite and potentially confusing opinions and outcomes, which will certainly ‘expose the political life of the country to months, or perhaps years, of chaos.’
In a final admonition that all of the state court judges who are hearing these cases should take to heart, Redford pointed out the “inappropriateness of the judicial branch” deciding this issue, because it “essentially strips Congress of its ability to ‘by a vote of two-thirds of each House, remove … ’” the disability imposed by Section 3.
In fact, Redford wrote, it:
takes the decision of whether there was a rebellion or insurrection and whether or not someone participated in it from the Congress, a body made up of elected representatives of the people of every state in the nation, and gives it to but one single judicial officer, a person who no matter how well-intentioned, evenhanded, fair and learned, cannot in any manner or form possibly embody the represented qualities of every citizen of the nation—as does the House of Representatives and the Senate.
Nor is that judicial officer provided the “power to enforce, by appropriate legislation, the provisions of [Section 3].
State court judges should not ignore that warning.
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Hans von Spakovsky is a senior legal fellow at The Heritage Foundation, a former commissioner on the Federal Election Commission, and former counsel to the assistant attorney general for civil rights at the U.S. Department of Justice. He is a member of the board of the Public Interest Legal Foundation.
