A High-Risk Legal Effort to Keep Trump Off the Ballot

Two and a half months ago, the top election official in Minnesota, Steve Simon, received a letter from Free Speech for People (F.S.F.P.), a small nonpartisan organization that advocates for democratic principles. The letter asked Simon, as secretary of state, to do something that has never been done before: prevent a former President, Donald Trump, from appearing on the state’s 2024 election ballots. “Under the Fourteenth Amendment to the U.S. Constitution, Mr. Trump is constitutionally ineligible to appear on any future ballot for federal office based on his engagement in insurrection against the United States,” it said. “Allowing a known insurrectionist to appear on the ballot is inconsistent with your prior commitments and your oath of office to support the U.S. Constitution.”

Simon, a Democrat, wasn’t so sure. Section 3 of the Fourteenth Amendment says that anyone who has taken an oath to uphold the Constitution, and then participates in an insurrection—or gives aid or comfort to those who have—is disqualified from holding any office, civil or military. But Simon told me that he does not take a position on the eligibility of individual candidates. He wanted a judge to decide whether the ballots could feature Trump’s name. “Our job is to serve the voters, and for courts to do the fact-finding and make conclusions of law,” he told me. “There is an expectation here that the person who holds this office will leave their politics at the door . . . and not do anything that creates the appearance of putting their thumb on the scale for any candidate, any political party, or any ballot question.”

On the day that Simon received the letter, Paul Anderson, a retired justice of the Minnesota Supreme Court, happened to be at the state capitol, preparing to give a tour of the building to some guests. Anderson had sat on the court for nineteen years until he reached the mandatory retirement age of seventy. (He is now eighty.) A moderate Republican for most of his life, he broke with the Party after it named Trump as its Presidential candidate in 2016. He was in the rotunda when Charles Nauen, a prominent lawyer whose clients include the Minnesota affiliate of the Democratic Party, came over for a chat.

Nauen told Anderson about a lawsuit that he and F.S.F.P. were bringing against Secretary of State Simon, which could compel Simon to block Trump from the state’s primary ballot. The case would be heard by Anderson’s former colleagues on the Minnesota Supreme Court. Then, Nauen made an unorthodox request: Would Anderson consider becoming a petitioner in the case?

“I was evasive, and dodged Charlie’s direct question,” Anderson told me. “Charlie seemed resigned to the fact that I would not consent to be part of the lawsuit.” In the days that followed, however, they talked further. Anderson weighed Nauen’s request carefully. If he joined the lawsuit, a longtime Republican would be challenging a Democrat in hope of constraining Donald Trump. “What we’re dealing with here is so much beyond partisan labels,” he told me. In the end, when F.S.F.P. and Nauen filed the lawsuit against Simon, on September 12th, Anderson was one of eight high-profile Minnesotans on the petition.

Minnesota is one of three states in which nonprofits have recruited high-profile voters, including current and former Republicans, to file Section 3 lawsuits. A similar case in Michigan, brought by F.S.F.P. together with local attorneys, aims to compel Secretary of State Jocelyn Benson to leave Trump’s name off the ballot. Meanwhile, in Colorado, Citizens for Responsibility and Ethics in Washington (CREW), a nonpartisan watchdog organization, is suing Trump and Jena Griswold, the Colorado secretary of state. There is some irony that the suit names them both as co-defendants: Griswold deems Trump a danger to the country, blames him for the storming of the U.S. Capitol on January 6th, and considers that day an insurrection.

In the coming year, these cases could inflame political divisions and cast a shadow of uncertainty over the 2024 election. The Trump supporters behind the January 6th attacks claimed that an election was stolen from them; now that their violence, and Trump’s role in it, has led to lawsuits, more claims of a stolen or rigged election could follow. Even Anderson, as a petitioner in Minnesota, worries about what would happen if Trump were actually disqualified from elections. “I am very concerned that it could lead to people being violent,” he told me. “There are people who will want to vote for him, and think it’s their right to vote for him—and that’s a scary proposition.”

On November 2nd, F.S.F.P. made its case before the Minnesota Supreme Court. During the hearing, the justices seemed most interested in figuring out whether a state court has a role to play in constitutional questions about Section 3. Minutes into a presentation by Ron Fein, an F.S.F.P. lawyer, the chief justice, Natalie Hudson, asked him a question: Even if the court has the authority to keep Trump’s name off the ballot, should it? “That’s the question that concerns me the most,” Hudson said.

In response, Fein said that Trump could always “seek review in the U.S. Supreme Court, which could provide a final answer to the question.” His knowledge of case law seemed encyclopedic; he pointed to a Minnesota statute that, he said, gave the justices no choice but to rule here.

On Wednesday evening, they did. The court said that Minnesota law does not prohibit a major political party from placing an ineligible candidate on its primary ballot. In its view, Trump can appear on the ballot regardless of whether Section 3 disqualifies him from the Presidency. Even so, the case may not end there. As Fein pointed out, an appeal could end up in the Supreme Court. Meanwhile, the court gave the petitioners the option of bringing the same claims during the general election. “The court’s opinion was not a surprise,” Anderson told me in an e-mail on Thursday. “The court temporized and put off the main issue for another day.”

CREW’s case against Griswold and Trump, in Colorado, began on October 30th. The CREW brief laid out Trump’s complicity in the January 6th attacks in excruciating detail, arguing that, if Griswold allows Trump to run in the primary, it will be “an impropriety.” Their witnesses included two police officers who had fought off rioters at the Capitol and a Democratic member of Congress who described hiding from the attackers. In response, Trump’s lawyers argued that the former President did not incite the January 6th attack and that it was not an insurrection. They tried and failed to get the judge to separate the former President’s case from Griswold’s.

Griswold and her fellow election officers are in a complicated position. “We’re hoping that the court will clarify whether Section 3 of the Fourteenth Amendment applies to ballot access,” she told me. As the Minnesota ruling suggests, Trump may be found eligible to appear on the ballot regardless of his eligibility to be sworn in as President. But Griswold added, “We’ve never had a President incite an insurrection and attack our democracy like Trump has.” A ruling in the Colorado case is expected by Thanksgiving.