Minnesota Secretary of State: Voters hang back to let presidential primary ballot uncertainty clear

[MUSIC PLAYING] CATHY WURZER: Our top story right now, the US Supreme Court heard oral arguments this morning concerning former President Trump's eligibility to be on the 2024 presidential ballot. The arguments were based around the Section 3 of the 14th Amendment which states, "no person shall hold any office under the United States who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof."

The arguments got technical right away. But the question at the heart of the arguments is this, can Trump, who is once again the front runner for the Republican nomination for president, be excluded from the ballot because of his role in the January 6 attacks on the US Capitol?

Minnesota Secretary of State, DFLer, Steve Simon joins us right now to unpack this morning's arguments. Welcome.

STEVE SIMON: Thanks for having me.

CATHY WURZER: Well, that was two hours of grilling by justices of Trump lawyers and those for the state of Colorado and several Colorado voters. You're in DC, I understand, right now for a secretaries of state conference. And I'm thinking this hearing probably has folks talking where you are. Did you have a chance to listen to the arguments at all?

STEVE SIMON: I did. Yeah, it was fascinating. And it's what you would expect. The stakes are high. Any case that reaches the US Supreme Court means it's important enough that we should all be paying attention, but this one particularly.

And I will tell you from my perspective, what I am looking for and hoping for from the court, and I was thinking about this as I was listening to some of the oral argument, what we're looking for who are in the elections business and the democracy business, whatever they decide, we want finality. We want uniformity. We want one rule that covers the whole country. We want clarity. And maybe most of all, we want this fast.

As your listeners know, sometimes the Supreme Court will wait until the last few days of its term in June to release some of the big headline grabbing decisions. That cannot happen. It just simply cannot happen. They've got to go with lightning speed, at least for the Supreme Court. And they've got to provide some clarity as soon as they can. So whatever they decide, I think all voters, whether it's Trump supporters or other voters, they deserve to know, one way or another, an answer on this case. Is former President Trump eligible or is he not?

CATHY WURZER: Let's talk about some of the arguments. The justices seemed skeptical of the arguments made to keep Trump off the ballot. What was your read?

STEVE SIMON: I think they were asking questions to test the boundaries of the argument. And you're right, in your lead up, you're correct, there was a lot of technical discussion about whether a president of the United States is an officer. And is it enough that this person holds an office? Just because you hold an office, are you an officer? A lot of semantic kind of detail.

But then the other thing that was interesting to me, zooming out a little bit, is all of the justices, those who expressed skepticism and those who maybe didn't as much, they were concerned, at least as I heard it, with sort of the big picture question, which is, OK, what does it mean if we do this? Who has authority to do this? What precedent does it set? And I don't just mean a legal precedent. I mean, what are future folks in this space, 20, 50, 100 years from now, going to do if the court rules a particular way. I found that piece fascinating.

And I think a lot of justices on the court who are tagged different ways ideologically seem to be wrestling with those big picture questions.

CATHY WURZER: Yeah. That comes to mind, listening to Justice Kavanaugh, who was concerned that keeping the former president off the ballot could disenfranchise voters. And isn't democracy about letting folks elect those they feel are, as the justice said, the candidates of their choice?

STEVE SIMON: And that's an absolutely fair point to raise. What I always say, in this case, in any other-- and by the way, our office and I take no position. I want to be very clear. Because we had a Minnesota case-- just as a detour, we and I take no position on the underlying legal merits, that is, we take no position on whether former President Trump is or is not disqualified under this provision.

But what I say generally, whether it's this case or any other, is just like in baseball, the tie goes to the runner. When it comes to elections, the tie ought to go to the candidate. In other words, if it's a really close case on the facts, or on the law, we ought to err in favor of ballot access. That's how I am in every case. I don't care what the office is.

And so I think he was channeling some of that, it seemed to me.

CATHY WURZER: There was a point made by Chief Justice Roberts, if one state can decide to keep a party's candidate or nominee off the ballot, would it not just invite trouble with some states barring Democrats and others barring Republicans, based on these relatively subjective definitions of things like insurrection. What'd you think of that?

STEVE SIMON: I mean, again, he was fair to raise that point, which is why I think what all of us want is uniformity, right. And I think it seems difficult to imagine that the Supreme Court is going to-- and by the way, this could be the case, regardless of how they rule-- I can't imagine the Supreme Court allowing an outcome where some cluster of states would go one way and another cluster of states would go another way.

My strong sense is that they all seem to agree that we need a uniform rule here. Because as Chief Justice Roberts said, do we really want a patchwork? The answer, it seems to me, is we don't. However they decide, we want there to be one rule. Former President Trump, if he's the nominee of his party, should either be on the ballot everywhere or nowhere.

CATHY WURZER: So thanks for bringing up the state supreme court's decision on to keep the former president on the ballot. And if I'm recalling correctly, the court didn't address Trump's eligibility, though, right?

STEVE SIMON: Right. What the Minnesota Supreme Court said, in essence, was this case is not yet ripe, as they call it, meaning, hey, what we're talking about now-- I'm channeling them a bit-- but what they basically said is, look, what we're talking about at this point is an intramural, intraparty contest. He's not the nominee of anything or anyone. This is just a delegate selection process right now in the primary process.

And so in essence what they said-- I'm taking a little license here-- but what they basically said is, look, we're going to dismiss this case for now, but if we get to that point, if he's the nominee, if he's on the cusp of being in office, then we might entertain this case again. So it was sort of a limited dismissal. But of course, the outcome of this case, the present case at the US Supreme Court, might take care of all of that, right. They seem likely to come up with a uniform rule that will make a Minnesota case unnecessary.

CATHY WURZER: You know what I was wondering, though, I was listening and I was thinking, are there off ramps that the high court could take to avoid deciding this issue?

STEVE SIMON: Well, indirectly yes. And I've heard that term off ramps used. I think it's a good one. So if the issue, if you mean, did former President Trump engage in or assist in insurrection, that sort of thing, yeah, I mean, they could determine, for example-- and this took up quite a bit of time at the oral argument-- they could determine that, well, this isn't for the states at all. Only Congress can make these decisions under the 14th Amendment. And so we're dismissing it on that basis.

Or they might say, the president of the United States is not an officer of the United States. And so we are turning away this litigation on that basis. So there are, as you suggest, there are ways that they could decide the case without really deciding the ultimate question that's posed here.

CATHY WURZER: So if, and I know you all are looking for the justices to make a decision in a timely manner here, as you said, if the Supreme Court decides to take the former president off the ballot, how could that decision impact, say, Super Tuesday?

STEVE SIMON: That's a great question, and one that a lot of people are asking. If, for example, tomorrow or next week that outcome happened, then there are other-- I can only speak for Minnesota. Minnesota, as you say, is a Super Tuesday state. Tuesday March 5 is Super Tuesday. And there are other candidates on the ballot.

The way the system works in Minnesota is individuals don't file for president. Political parties submit a list of people to appear on the ballot to our office. And so the Republican Party of Minnesota has submitted a list that includes several other candidates, including several who have already exited the race, but nonetheless, a long list that includes others other than former President Trump.

So in Minnesota, the way that would play out is only those ballots would effectively be counted, or votes for those candidates, the non-Trump candidates would be counted.

CATHY WURZER: Before you go, I need to ask this question, because early voting has started for the presidential primaries. What's the impact of a ruling against Trump on the ballots? What about those ballots that have been cast?

STEVE SIMON: You know, it's interesting. I think voters are smart. And they're particularly smart in Minnesota. And we just looked at some of the numbers-- and this pertains to your question. We've had about 175,000 people in Minnesota so far that have ordered an absentee ballot for the presidential nominating primary. But only a fraction, fewer than 10%, have sent them back.

And I think the reason for that is voters sense and know that in this kind of contest, which is distinct from, say, a general election, you have the possibility that candidates drop out. That doesn't happen in the general election very often. So in a presidential primary, you sort of want to wait and hedge your bets. So I think people have already been waiting to cast even their absentee ballot until closer to game day, closer to March 5, because they want to get a lay of the land. They want to get a sense of things.

And so I don't think, because of that impulse, I think we'll be in sort of a less challenging situation in Minnesota.

CATHY WURZER: All right. I know you're busy out there. Thank you so much for your time.

STEVE SIMON: My pleasure. Thank you.

CATHY WURZER: We've been talking to Steve Simon, the Minnesota Secretary of State.