For the second time in a week, a state court – this time in Michigan – has ruled that former President Donald J. Trump cannot be kept off the ballot when that state’s voters cast ballots in the primary election there next year. That election is set for February 27.
Challengers to Trump’s eligibility to run vowed to ask the Michigan Supreme Court to take up the issue immediately. They plan to protest the part of the judge’s ruling declaring that only Congress, not courts, can decide on qualifications to seek the Presidency.
In a separate ruling six days ago, the Minnesota Supreme Court – the state’s highest tribunal — refused to block Trump from the ballot for that state’s primary next year, set for March 5.
In neither decision did the courts rule on Trump’s eligibility to run in the nationwide presidential general election next November 5. In both cases, the opinions said that it was premature to rule on that question at this time.
These two recent rulings emerged amid a number of lawsuits, across the country, seeking to prevent Trump from running for office again on the theory that he is disqualified by the Constitution’s 14th Amendment. The theory is that Trump, by engaging in efforts to overturn his defeat in 2020, has flouted the Constitution, making him ineligible to run again.
Another ruling in a state court is due before Thanksgiving, in Colorado. The state courts generally are moving quickly to deal with the challenges, but the reality is that a final decision on Trump probably will have to await one or more of the cases reaching the U.S. Supreme Court, probably sometime next year.
There could be, simultaneously, the unfolding of primary elections across the nation and the processing of the constitutional challenge in the U.S. Supreme Court in Washington.
The Michigan ruling on Tuesday is on its way in an appeal to that state’s Supreme Court. The Minnesota decision last week was by the state Supreme Court. It is unclear at this point which case has the potential to reach the U,S. Supreme Court first; that depends on choices by lawyers about when and where to appeal and how fast state courts rule.
In the two new state court decisions, the outcome in each was that the primary elections in each state are largely affairs in which the national political parties are primarily responsible for deciding who their candidates for the Presidency will be, and thus state officials have no authority to bar Trump from the primary ballot.
But the two courts got to that result by very different paths. While the Minnesota decision last week was based entirely on state election law, the Michigan ruling was based in significant part upon a sweeping decision that it is up to Congress to decide when the 14th Amendment disqualification clause works to bar a given candidate from running.
There are many unsettled questions about that constitutional provision, the Michigan judge wrote, and they could be given different and conflicting answers by courts in 50 states. Those questions, the opinion said, are not the kind of questions that the courts are equipped to decide; they are “political questions.”
The U.S. Supreme Court has never ruled on how the 14th Amendment disqualification clause applies to those seeking the Presidency. The Michigan judge, though, found Supreme Court precedents on other election law issues that the judge interpreted as reserving to Congress the ultimate choice on who might be disqualified by the Amendment.
The Michigan ruling was made, in a set of three closely similar opinions, by Judge James Robert Redford of Grand Rapids. He has a dual judicial assignment: he is a member of the state’s Court of Appeals but also a member of its Court of Claims, which is a lower-level branch of the Court of Appeals. In Tuesday’s ruling, he was acting in his capacity as a Court of Claims judge.
Under Michigan law, an appeal of Judge Redford’s decision would normally go first to the Court of Appeals, but the group challenging Trump – the Free Speech for People organization – said it would ask the state Supreme Court to take up the case directly, bypassing the Court of Appeals.
Free Speech for People is also involved in the Minnesota case. It appears to be waiting for the release of a full opinion explaining the outcome there before deciding what to do next in Minnesota