Ronald Fein, attorney for the petitioner, Free Speech for People, gives the ending rebuttal to his case before the Minnesota Supreme Court on Thursday in St. Paul, Minn. Glen Stubbe/Star Tribune via AP, pool
ST. PAUL, Minn. — Minnesota Supreme Court justices appeared skeptical Thursday that states have the authority to block Donald Trump from the ballot, with some suggesting that Congress is best positioned to decide whether the former president’s role in the 2021 U.S. Capitol attack should prevent him from running.
Justices sharply questioned an attorney representing Minnesota voters who had sued to keep Trump, the early front-runner for the 2024 Republican presidential nomination, off the state ballot under the rarely used “insurrection” clause of the U.S. Constitution. Citing Congress’ role in certifying presidential electors and its ability to impeach, several justices said it seemed that questions of eligibility should be settled there.
“And those all seem to suggest there is a fundamental role for Congress to play and not the states because of that,” Chief Justice Natalie E. Hudson said. “It’s that interrelation that I think is troubling, that suggests that this is a national matter for Congress to decide.”
The oral arguments before the state Supreme Court were unfolding during an unprecedented week, as courts in two states were debating questions that even the nation’s highest court has never settled: the meaning of the insurrection clause in the Civil War-era 14th Amendment and whether states are even allowed to decide the matter. At stake is whether Trump will be allowed on the ballot in states where lawsuits are challenging his eligibility.
The Minnesota lawsuit and another in Colorado, where a similar hearing is playing out, are among several filed around the country to bar Trump from state ballots in 2024 over his role in the Jan. 6, 2021, Capitol attack, which was intended to halt Congress’ certification of Democrat Joe Biden’s 2020 win. The Colorado and Minnesota cases are furthest along, putting one or both on an expected path to the U.S. Supreme Court.
Minnesota’s went directly to the state Supreme Court, where five of the seven justices heard the arguments Thursday after two recused themselves. The justices consistently questioned whether it was appropriate for states to determine a candidate’s eligibility to run for president. Hudson also said she was concerned about the possibility “for just chaos” if multiple states decided the issue differently.
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 former president is dominating the Republican presidential primary as voting in the first caucus and primary states rapidly approaches.
An attorney representing Trump, Nicholas Nelson, said states’ roles in determining candidates’ eligibility for president was limited to what he called “basic processing requirements,” such as determining whether they meet the age requirement.
He addressed the chief justice’s concern about the potential for chaos that could result from states deciding differently on the issue.
“Petitioners would like this to be a one-off case, but we are a 50-state democracy,” he said.
The question of whether Trump should be barred from the ballot under the insurrection section of the 14th Amendment should not even be before the court, he said, calling it a political question.
“There’s nothing for the courts to decide about the eligibility question,” Nelson told the justices.
Trump’s team asked the court to dismiss the lawsuit.
The central argument in the Minnesota and Colorado cases is the same – that Section Three of the 14th Amendment bars from office anyone who previously swore an oath to uphold the Constitution and then “engaged in insurrection” against it.
In the Minnesota case, the plaintiffs are asking the state’s highest court to declare that Trump is disqualified and direct the secretary of state to keep him off the ballot for the state’s March 5 primary. They want the court to order an evidentiary hearing, which would mean further proceedings and delay a final resolution, something Trump’s legal team opposes.
A core issue in the cases is how to define an insurrection under the amendment – a question that was debated at some length during Thursday’s arguments in Minnesota.
In their filing with the court, attorneys for the Minnesota voters argued that the storming of the Capitol on Jan. 6 met the definition of an “insurrection or a rebellion” because it was a violent, coordinated effort to prevent Congress from certifying the winner of the 2020 presidential race.
Trump’s lawyers acknowledged in their filings that the question of whether he “is suited to hold the Presidency has been the defining political controversy of our national life” for the last several years. But they came to a different conclusion about how to define the assault on the Capitol, arguing in an earlier court filing that “as awful as the melee was, and as disturbing as the rioters’ actions were, it was not a war upon the United States.”
On Thursday, Nelson told the justices, “It did not reach the scale and scope of what would be regarded as an insurrection.”
The justices themselves seemed to be wrestling with the question: “Insurrection might be in the eye of the beholder, so it depends on who’s doing the beholding,” Hudson said.
Trump’s lawyers noted that the former president has never been charged in any court with insurrection – although he does face state and federal criminal charges for his attempts to overturn his loss to Biden. Trump has criticized the cases as a form of “election interference” intended to prevent a rematch with Biden.
Some of the main arguments put forward by Trump’s attorneys are that Minnesota and federal law don’t allow courts to strike him from the ballot, and that the insurrection clause doesn’t apply to presidents anyway.
The section of the 14th Amendment dealing with insurrection does not mention the office of president directly but instead includes somewhat vague language saying it applies to the “elector of president and vice president.” That was an issue debated during the Colorado case earlier this week, when a law professor, relying on research into the thinking at the time the amendment was adopted, testified that it was indeed intended to apply to presidential candidates.
It also was raised Thursday in arguments before Minnesota’s high court, with one justice calling it “weird” that the word president was not included in Section Three.
In Colorado on Thursday, Trump’s attorneys continued to argue that the attack was not an insurrection and Trump was not responsible for it. They called multiple witnesses who attended Trump’s speech at a rally shortly before the attack who described a happy environment and said they had no interest in violence.
Republican Rep. Ken Buck, who announced his retirement from Congress on Wednesday due partly to the disbelief in election results among his party that Trump has promoted, testified that the House Jan. 6 committee’s report on the attack was a “political” document because the committee consisted of Democrats and two Republicans aligned with them on the Jan. 6 response.
Trump’s case will continue Friday with a law professor arguing that Section Three doesn’t apply to the former president.
Riccardi reported from Denver. Associated Press writers Christina A. Cassidy in Atlanta and Steve Karnowski in St. Paul contributed to this report.
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