Is Donald Trump disqualified from holding future office on the theory that he engaged in insurrection or rebellion against the United States, pursuant to Section 3 of the 14th Amendment? As I have written previously, (see here and here), he is not — at least, not if the law is faithfully applied as originally understood. But before Republicans begin going to the polls to choose a nominee — starting January 15 in Iowa — it is imperative to know whether the legal system will conclude otherwise. Thus, as I have argued, the Supreme Court has a constitutional duty to resolve the matter at the earliest possible opportunity, however much it may wish to steer clear of the question.
The problem is that it’s hard to get standing to get in the door of a federal courthouse. State courts, however, often have more lenient standing rules, and all it takes is one to rule to get us much closer to a judicial resolution. Moreover, if Trump were to lose in even one state, he’d have a strong case for standing to appeal that ruling to the Supreme Court.
There is, at least, one state court that seems ready to bite. A group called Free Speech for the People has recruited plaintiffs including former Minnesota secretary of state Joan Growe (a Democrat) and former Minnesota Supreme Court justice Paul Anderson (a Republican appointee) to file a petition directly with the Minnesota Supreme Court seeking a ruling that Trump is ineligible for the presidency and should thus be excluded from the primary ballot on March 5 (and from the November general election ballot). The statutory authority for such a petition is Minnesota Stat. 204B.44, which provides that “any individual may file a petition . . . for the correction of any of the following errors, omissions, or wrongful acts which have occurred or are about to occur: (1) an error or omission in the placement or printing of the name or description of any candidate or any question on any official ballot, including the placement of a candidate on the official ballot who is not eligible to hold the office for which the candidate has filed.” The Minnesota Supreme Court, promptly upon receiving the filing, set an argument date of November 2, 2023. There is thus some reason to hope that the legal system will close the book on this question in advance of the primaries.