Minn. Secretary of State says he does not have authority to remove Trump from ballot, but individuals can petition

A University of St. Thomas legal scholar co-wrote a paper saying there's a sound Constitutional argument for secretaries of state to take Donald Trump off their 2024 ballots.

He says the 14th Amendment says people who swear an oath of office and then participate in, or give comfort to participants of, an insurrection cannot return to office.

Minnesota Secretary of State Steve Simon said this week he does not have that sole authority to remove Trump from the ballot. But, any individual can petition for it. He joined Tom Crann on All Things Considered to discuss.

Why can't you remove Donald Trump or anyone else from the ballot for that matter? If it seems they violated the law or the Constitution?

Well, this is an eligibility question. It's an eligibility argument that he is constitutionally ineligible because of the 14th Amendment language that you summarized. The problem is that the Office of Secretary of State in Minnesota is not the eligibility police.

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A lot of people are surprised to know that, but we are not in a position legally, we don't have the authority legally to make eligibility determinations of any kind, whether that's residents, whether that's age, or something else like this. Instead, there's a very definite, very clear procedure in Minnesota law for those who believe someone is ineligible to either be on the ballot or to serve in office.

It's a state statute that allows any individual to petition the Minnesota Supreme Court to change a ballot, either to alter something on the ballot, or in some cases, to strike someone for the ballot. And we have recent history in Minnesota, where that has actually been done.

Some of your listeners might remember as recently as 2016, I was Secretary of State at the time, there was a state representative, who was the subject of just such a challenge. And the assertion was that he didn't live where he said he lived, that though he represented a district in the legislature, he didn't really live in that district.

And that petition, of course, was resolved by the Minnesota Supreme Court. And the Minnesota Supreme Court concluded that the petitioner was correct, that this representative did not live in his district. So they in essence, struck his name from the ballot. And there was a special election held in early 2017, to fill that seat. Because in the 2016 election, his name could not appear, and it was too late to get another candidate in his place.

So the Supreme Court of Minnesota is practiced in using this statute to make determinations about any kind of eligibility.

So someone who feels strongly would have to petition and bring a case before the Minnesota Supreme Court?

That's exactly right. The first two words of the statute that's involved here literally are the words, “any individual,” that's as broad an invitation I've ever seen in a statute in terms of who might have standing to bring this petition.

Now, there are other things in that statute that talks about the timing of doing that. And it's an open question as to whether someone, for example, today or tomorrow could bring such a claim. And that's for the court to decide. But yeah, that is the avenue, that is the vehicle for bringing these kinds of challenges.

So hypothetically, the Supreme Court of Minnesota makes a ruling that the former president or anyone else for that matter is ineligible to run, then you would have to abide by that ruling, and their name wouldn't be able to appear on the ballot or will be struck from the ballot depending on when it happened.

Right. That's exactly the case. And that's what happened in 2016, where a candidate your name was not physically stricken, because the ballots had already gone out, as I recall. But that race, that contest, was voided in favor of a special election some three or four months later.

Do you expect a Minnesota lawsuit in this case under the 14th Amendment?

I'm not aware of a current attempt, although I might not be the person who's first made aware. But we have of course speculated, and it's only speculation, about whether we would be the target. You know, the first such lawsuit was just brought this week in Colorado and was the first one implicating or suing a Secretary of State.

But the one in Colorado this week is the first one implicating one of my colleagues. And so I predict that it won't be the last one — there will be multiple lawsuits in multiple states, how many and where, I'm not sure.

The other issue to consider that I'm sure the court will in Colorado, is whether now is even the proper time to bring it in the sense that what we're talking about now is disqualification from appearing on a presidential primary ballot.

I do predict that we're going to see multiple lawsuits of this kind, invoking this 14th Amendment legal theory in multiple states.

Do you think that Donald Trump engaged in insurrection or rebellion or gave aid or comfort to enemies of the Constitution as it is there in the 14th Amendment?

I'm glad you asked that because January 6 was a blemish on American history. It was a dark day. It was a shameful day. And I think those who orchestrated and supported it will be judged very, very harshly by history. And whether this rises to the constitutional definition of an insurrection or rebellion, I just don't know.

But what I know is that the conduct that day was shameful. And to the extent that former President Trump supported or aided it, that too, is shameful and will be judged extremely harshly by history. Again, but whether it rises to a constitutional definition, I don't know. But I sure do condemn his conduct and his behavior that day.

Are you surprised that Democrats are getting behind this originalist argument?

In recent history, that has been the case, originalism has led to outcomes that are conventionally conservative by the U.S. Supreme Court. So I suppose there's some risk here. But let me just push back a little bit on the premise.

I can tell you having spoken about this with many colleagues across the country, including Democratic colleagues, but my strong assessment is that there's very little appetite to sort of embrace this theory by certainly elected folks. I don't know about other activists or other people, but there is not a wave, or a push to do this or pursue this or embrace this at this point.

Most people are taking the same tack that I have, which is that we really don't have the authority and are moving very cautiously and slowly and trying to be thoughtful about this, and not putting it in partisan terms.