The campaign to use the U.S. Constitution to block Donald Trump’s presidential candidacy moved ahead briskly with new developments on Tuesday. With the presidential primary season approaching rapidly across the nation, there is wide interest in a final ruling – without delay — on Trump’s eligibility.
In Minnesota, a liberal advocacy group, Free Speech for Free People, filed a new lawsuit – the second in recent days – seeking to compel that state’s top election official to exclude Trump from the ballot. That official, the secretary of state, has said he does not have the power to rule on candidate eligibility. The filing deadline for presidential candidates in that state is January 2; its primary election will be on March 5.
That lawsuit was filed in the Minnesota Supreme Court, a move that could help speed the controversy toward the U.S. Supreme Court. A ruling by the state’s highest court would go directly to the U.S. Supreme Court, without any further lower court action.
Meanwhile, the pace was quickening in the first such lawsuit, already pending in Colorado. The attempt by Trump’s lawyers to shift that case from state to federal court is expected to fail shortly, with a federal judge in Denver likely to return the controversy to state court for decision. Such an order could come later today or tomorrow.
Overnight Monday, the Colorado Republican leadership attempted to join in that case, asking the judge to allow the state GOP to begin its own case. It claims that the Colorado secretary of state does not have any authority to bar a political party’s candidate from the ballot, but must accept the party’s choice.
The procedural status of this new maneuver was uncertain, with the likelihood that the case may quickly move back to state court. The GOP appears to have the option of starting an entirely new lawsuit in federal court if this one is found wanting, or of seeking to enter the pending challenge if, as expected, it proceeds in state court in Denver.
In state court, a prompt hearing on the challenge would be required under state law.
These lawsuits, and potentially others like them, are based upon the theory that the 14th Amendment’s Section 3 (part of the Constitution since 1868) excludes from any office – federal or state – any official who has taken an oath to defend the Constitution and later engages in, or supports, an “insurrection” or “rebellion.” Both the Minnesota and Colorado lawsuits contain lengthy recitals of Trump’s actions, and inactions, during the January 6, 2021, attack on the U.S. Capitol and his lengthy efforts to overturn his defeat in the 2020 presidential election.
In both of those cases, challengers to Trump contend that state law explicitly authorizes individual voters to go to court to protest the inclusion of challenged candidates on state election ballots.
The new Minnesota case was filed by eight voters, some of whom have held high state offices or local offices; one is a labor union official, another is a retired law professor, another formerly held a party position in a county GOP.
Their lawsuit disputes the view of Secretary of State Steve Simon that he lacks authority to judge the eligibility of presidential candidates and that he must simply accept the nominee that a party tells him is their choice. The lawsuit argues that Simon is required under state law to certify that the names put on state ballots meet the qualifications for the office sought – and that the 14th Amendment’s Section 3 ban on insurrectionists is a disqualification.
The lawsuit asks the state court to declare formally that Trump is disqualified, and to order the secretary of state to deny him a place on the primary and general election ballots for 2024.
In Colorado, the lawsuit by the advocacy group Citizens for Responsibility and Ethics in Washington (CREW) was originally filed in state court, but Trump’s lawyers promptly attempted to shift it to federal court, arguing that the challenge only raises national issues, about the meaning of the 14th Amendment.
CREW quickly answered, telling the federal judge in charge that the Trump maneuver was procedurally flawed, and thus did not belong in federal court. CREW lawyers told the judge that the Trump team accepted that conclusion; the judge, though, asked for a formal response from the Trump team. Both the Trump lawyers and lawyers for the secretary of state replied that the case should go to state court.
The case up to Monday night did not involve any Republican official or party organization; it was aimed only at Secretary of State Jena Griswold, a Democrat. Griswold has been a critic of Trump, but has said she will abide by what the courts decide on his eligibility to run for the Presidency.
On Monday night, however, the state Republican party – through its state central committee – asked U.S. District Judge Philip A. Brimmer to let the GOP enter the case for the purpose of defending its right to have Trump on the Colorado ballot, if he turns out to be the national party’s nominee. Secretary Griswold, the filing argued, has only a “ministerial” role – that is, she has no discretion to do anything other than put the party nominee on the ballot when the party notifies of its choice.
The GOP needs to be involved, the committee contended, because no one else involved will look after its interest in deciding whom to select as its nominees.
The lawsuit asks the judge to rule that any decision ordering the state to deny Trump eligibility for the ballot will violate the party’s First Amendment rights to engage in political activity without government interference, and to rule that the Colorado secretary of state has no authority to refuse to put Trump’s name on any state election ballot.
