Minnesota Supreme Court to hear arguments on whether Trump is on 2024 ballot

The Minnesota Supreme Court on Thursday will hear a pivotal political question that is on a course to the U.S. Supreme Court: Does the insurrection clause of the U.S. Constitution disqualify former President Donald Trump from the 2024 ballot?

Oral arguments on an attempt to bar Trump from the Minnesota ballot take place at 10 a.m. at the Minnesota Judicial Center. A similar case is pending in Colorado and legal experts predict more petitions in additional states relying on Section 3 of the 14th Amendment.

The insurrection clause prohibits former officers from holding office again if they've "engaged in insurrection or rebellion" or "given aid or comfort" to those who did.

The petitioners are led by the nonprofit Free Speech for People, former Secretary of State Joan Growe and former Supreme Court Justice Paul H. Anderson. Their attorney, Ronald Fein, presenting first, will have 35 minutes to argue that Trump is disqualified from holding future office because of his actions on Jan. 6, 2021.

The petition asks the court to issue an extraordinary order directing Secretary of State Steve Simon to exclude Trump from the primary ballot on March 5, 2024, and from the Nov. 5 presidential ballot. Trump is not yet the Republican nominee.

Assistant Attorney General Nathan Hartshorn will have 10 minutes to argue for Simon. Hartshorn will urge the court to make a speedy decision "so that the county and local officials at the core of the state's election system can conduct the presidential primary in the orderly and professional fashion that Minnesotans expect and deserve."

Nicholas H. Nelson will get 20 minutes to argue on behalf of Trump and Reid LeBeau will have five minutes for the state GOP.

In court filings, Trump's lawyers said that states lack authority to determine presidential qualifications and that allowing states "to make conflicting determinations about who may appear on the ballot for nationwide office would lead to electoral chaos."

Trump's lawyers also maintain that Section 3 doesn't apply to former presidents, that Trump didn't engage in insurrection and that Congress must act before the insurrection clause can be used.

At a daylong seminar at the University of Minnesota Law School on Monday, constitutional and political scholars from across the country pondered the clause and what courts will do.

Ilya Somin, constitutional law professor at George Mason University and chairman of Constitutional Studies at the Cato Institute, said the quality of legal arguments will make a difference and if it goes up to the U.S. Supreme Court, "There's a 50-50 chance there will be five votes in favor of disqualification."

Somin expects that Justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor would vote to disqualify Trump and that Chief Justice John Roberts and Justice Neal Gorsuch would be most likely to join them with Justice Amy Coney Barrett a close third.

This would be the chance for the justices to say once and for all that they're not the MAGA (Make America Great Again) court, Somin said. Trump nominated Gorsuch, Coney Barrett and Justice Brett Kavanagh to the court.

The way Somin sees it, "If Trump is not disqualified, nobody would be."

Also making the case for disqualification was Michael Stokes Paulsen, the University of St. Thomas law professor and Federalist Society member who co-authored a University of Pennsylvania Law Review article.

Paulsen and fellow law Prof. William Baude spent a year researching Section 3 and whether it applied to Trump. In "The Sweep and Force of Section Three," they argue that the Civil War-era clause remains active, that no action by Congress is required to use it and that it is a broad, sweeping disqualification.

The two authors' determination is that the insurrection clause was clear. "You shouldn't read the Constitution as a secret code," Paulsen said.

Only five of Minnesota's seven justices will hear the case: Chief Natalie Hudson along with G. Barry Anderson, Anne McKeig, Gordon Moore and Paul Thissen. Justices Margaret Chutich and Karl Procaccini have recused themselves without providing a reason, but lawyer Charles Nauen, who is working with the Growe coalition, also worked to elect Chutich and will co-chair Procaccini's election effort next year.

After the justices leave the bench Thursday, the question becomes when they will rule and how.

In the leadup to oral arguments, the court sought more information on whether action is required by Congress to invoke the insurrection clause and whether it applies to a former president.

At the U seminar Monday, the discussion ranged from the post-Civil War era history of the clause to the difference between an insurrection and a rebellion and whether Trump participated in either.

Eric Segall, professor at Georgia State University College of Law, said disqualifying Trump could make him stronger among the 70 million people who supported him in 2020 and lead to chaos. "My best hope for this country is we beat Trump soundly at the polls," he said.

Marquette University political science Prof. Julia Azari said the threat of mob action shouldn't be a factor in the decision. "I just don't think that's relevant at all. We don't know that Trump has 70 million voters in 2024," she said.

A livestream of the arguments will be up on the court's website 30 minutes before the session begins so those outside the courthouse can watch and listen. All filings in the case are free and publicly available on the state courts website.