For 70 minutes, five justices of the Minnesota Supreme Court listened to legal reasons why they should bar Donald Trump from the 2024 state presidential preference primary and why they should not.
The case known as Growe v. Simon was filed by a batch of Minnesota voters backed by a national organization called Free Speech for People. It asked the court to order Secretary of State Steve Simon to reject an expected request from the Minnesota Republican Party to include Trump’s name for the March 5 presidential primary.
As argued by Ronald Fein, an attorney for Free Speech for People, the court should find that Trump engaged in insurrection against the U.S. government by encouraging the attack on the U.S. Capitol on Jan. 6, 2021. That should trigger Section 3 of the 14th Amendment that precludes from holding office any officer of government who took an oath to uphold and defend the Constitution but later engaged in insurrection.
“Section 3 of the 14th Amendment protects the Republic from oath-breaking insurrectionists because its framers understood that if they are allowed back into power, they will do the same or worse,” Fein told the court of the post-Civil War amendment. State election law gives the court the power to intervene if someone points out an error or omission in which candidates are placed on ballots by elections officials.
Nicholas Nelson represented former President Trump as well as his 2024 campaign.
“There is no more political question in our Constitutional order than who should be president,” Nelson said. “It’s for that reason that when parties ask the court to step into that process and decide who can and can’t be president, the courts overwhelmingly say that’s not a decision that should be made in the judiciary, it’s a decision that should be made elsewhere.”
That is, Nelson said, judgment of Donald Trump should come either from Congress or from the voters on Election Day. Besides, he added, what happened on Jan. 6 does not meet the definition of insurrection.
The court said a ruling would be issued “in due course.”
The arguments on both sides are extensive, and a video is available here. Summaries of the briefs are here: Instead of a recitation of those, here are six takeaways from a dramatic day in the Minnesota Judicial Center.
1. Based on the questions asked by the justices hearing the arguments, they might prefer not to rule on the merits of the case.
The Minnesota Supreme Court has a practice of allowing lawyers arguing cases three minutes to summarize their points without interruption. Once that time elapses, however, questions can flow. And they usually do.
Among the first to Fein came from Chief Justice Natalie Hudson.
“Let’s say you are right. Let’s say we agree with you that Section 3 is self-executing and we do have the authority under the relevant statute to keep Mr. Trump’s name off the ballot. Should we? is the question that concerns me the most,” Hudson said.
“So should we do it, even if we could do it?” she asked. “Doesn’t that suggest we use caution and use judicial restraint and maintain the status quo?”
Justice Paul Thissen said he found it “weird” that of the offices listed in Section 3, the president isn’t one of them. Instead, it lists “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.”
Justice Anne McKeig asked if someone who is disqualified by Section 3 should be prevented from running for office or serving in that office if elected. Added Thissen: “Is eligibility determined at the time of placing on the ballot or is it determined at the time of taking office?”
Fein told Hudson that state election law does not give the court discretion, but that it must act if it finds that a candidate is disqualified from serving. And he told McKeig and Thissen that the same state law states that a candidate can’t run for an office they are not qualified from serving in, usually because of residency but for any reason, including insurrection under Section 3.
2. Whatever the court says, either way, is not the final word.
Fein said afterward that he expects to win the case here and noted that there are cases in other states — a case in Colorado currently being heard there and another People for Free Speech case in Michigan. If petitioners prevail, he said he expects Trump will appeal it and that the U.S. Supreme Court will be the ultimate deciders.
Fein was asked if he could get the case to the U.S. Supreme Court even if he loses. That is, could he appeal a loss in Minnesota — or a non-decision based on jurisdiction or that the case is best left to the political system?
“We’ll talk about that if and when we get to that point but right now we’re focused on winning in the Minnesota court system,” Fein said.
But Hudson didn’t make a distinction between which party might have to appeal. She said this in response to state GOP lawyer Reid La Beau II’s concern that if each state could act independently, there could be 50 different decisions.
“If a state were to go down that road first, that’s why we have appellate courts, that’s why we have a U.S. Supreme Court, which is where this should be decided and that’s how it will be decided.”
3. Steve Simon just wants them to hurry up
“The secretary’s overriding concern in this matter is ensuring that Minnesota’s elections officials can administer the state’s presidential nomination primary in March in the orderly fashion that Minnesotans expect,” said Assistant Attorney General Nathan Hartshorn.
“Minnesota’s elections officials need this petition to be determined no later than Jan. 5 so they can start the election machinery running.”
4. Is 70 minutes of oral arguments (and 100s of pages of legal briefs) not enough?
It was for the attorneys representing Trump, his campaign and the state GOP. Nelson asked the court “to dismiss the petition for lack of jurisdiction or alternatively on the merits.”
But the lawyers who brought the petition have asked the court to order a hearing where evidence of Trump’s actions could be brought to prove that it meets the definition of insurrection. Such a procedure is currently under way in Colorado, where a similar petition was filed.
An evidentiary hearing could be held in front of the Supreme Court but would more likely be sent to a district court first.
“We ask that the court order a prompt evidentiary hearing,” Fein said at the conclusion of his arguments. Afterward, Fein said while the court could rule with such a hearing, “we are prepared to put on testimony to prove that Jan. 6 was an insurrection, the culmination of a rebellion and that Donald Trump engaged in it.”
While the court could order a hearing, it’s something Trump’s lawyers oppose. It could also decide it has enough facts to rule whether Section 3 has been triggered and insurrection proven. It could also rule that it lacks jurisdiction, as Trump has argued, and dismiss the action.
5. Might minority rule?
Because two justices of the state Supreme Court recused themselves, that is, they took no part in the arguments and will take no part in the decision, the case was heard by only five justices. The two who sat out — Justice Margaret Chutich and Karl Procaccini — do not have to give reasons, but Chutich’s campaign chair is Charles Nauen, a partner in one of the firms bringing the petition. Procaccini, just appointed by Gov. Tim Walz, will face voters next year and could have similar campaign-related conflicts.
Justices aren’t required to say why they are not sitting on a case and rarely do.
That said, with just five judges sitting on the case, a decision can be reached with a majority of those five — or three justices. But should they block a former president from being on the ballot next year with a minority of the seven justices in support, the ruling could raise even more controversy than it would with a full panel and four or more justices in support. Hudson will be challenged to find a decision that brings all five justices who heard the case together.
6. One DFL secretary of state suing another DFL secretary of state?
Technically, yes. Joan Growe served as Minnesota Secretary of State from 1975 to 1999. She is the lead petitioner in a legal action that asks the court to order the current secretary of state to deny Trump’s name on the primary ballot. But Simon, while he says he doesn’t have the authority to do so, has welcomed a ruling from the court and said he will follow their direction. Both are DFLers.
Growe was asked after the court hearing how much involvement she had in the legal case.
“Not very,” she said. “I’m not a lawyer. I don’t speak lawyer-eze. I like to speak in normal language so that everyone can understand me. But I wouldn’t have gotten involved if I didn’t agree.”
Callaghan covers the state government for MinnPost.
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