Trump and the ballots: Three strikes and he's on

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The high hopes of Democrats, independents and Never-Trump Republicans to keep former President Donald Trump off the ballot next year have been mortally wounded, by a trio of judicial rulings, including one here in Minnesota, over the last few weeks.

The efforts were long shots to begin with and now are on life-support, unless salvaged by an extremely unlikely source: the U.S. Supreme Court, where three of the ex-president's appointees are among the half-dozen members of the right-wing faction waiting to apply the coup de grace.

Good luck on that one, anti-Trumpers!

The cases had a similar goal — to bar Trump from running again for president. They had the same legal basis — that he "engaged" in a disqualifying "insurrection" under Section 3 of the post-Civil War 14th Amendment to the Constitution. They led to identical outcomes — denial of their requests.

Despite those similarities, the views of the three tribunals that struck out ballot challengers in Colorado, Michigan and here in Minnesota markedly varied.

The Colorado ruling was the most extensive — a 102-page tome by a state court judge in Denver. Following a weeklong, full-scale trial, replete with Jan. 6 firsthand witnesses, expert testimony and other accoutrements of a conventional legal proceeding, the judge dismissed the challenge brought by a group of unaffiliated voters and never-Trump Republicans.

Finding that the ex-president had "engaged" in a proscribed "insurrection," the jurist nonetheless refused to disqualify him from office for two reasons, one of slight plausibility and the other that falls short of even that minimal standard.

One of them was that the contested clause names several positions subject to disqualification but does not specifically mention the presidency, although it seems unlikely that the framers of that post-Civil War provision intended that the South's premier general Robert E. Lee or the Confederate President Jefferson Davis would have the right to occupy the White House.

But the second reason was even less plausible: that the very slight difference in the wording of the oaths of fidelity to the Constitution, administered for the expressly proscribed offices and that of the president, is indicative that the disqualification provision does not extend to the office of the presidency.

Those rulings are in the process of being appealed through the Colorado state judicial system and possibly the high court.

While the Colorado ruling received substantial media attention, the Michigan decision passed more quietly. In it, a state court judge took a decidedly different approach, refusing to rule on the merits because the case raises a "political question" that should be decided by Congress. That declination constitutes a throwback of some 220 years when the high court, under legendary Chief Justice John Marshall, ruled in the landmark 1803 case of Marbury v. Madison that it is the ultimate prerogative of the judicial branch, not Congress, to decide issues of constitutional law.

Then there's the Minnesota matter, in which the state Supreme Court's new chief justice, Natalie Hudson, barely a month in the position, rejected the ballot ban for yet another reason. She reasoned, joined by four colleagues (while two others recused themselves), that it's premature to decide the former president's eligibility unless and until he is nominated by his Republican Party this summer to be placed on the ballot next November.

While dismaying to many, although hardly surprising, the Minnesota ruling has a judicial acumen the two others lack. It's a logical outgrowth of the court's ruling in 2020 in De La Fuente v. Simon refusing to interfere with the GOP's decision not to allow a minor challenger to then-President Trump to appear on its primary ballot in grounds that primaries are controlled by the respective parties.

The chief's decision leaves the anti-Trump challengers here, a coalition of high-profile and lesser DFLers and moderate Republicans, the opportunity to return to the court to seek relief, but by then it might be too late if the U. S. Supreme Court has already stepped into the fray.

Although disappointed by the trio of adverse decisions a year before the election, some of the anti-Trump litigants (but not the Minnesota group) are now pinning hopes on the Supreme Court reversing these rulings — a proposition that, as mentioned above, seems unlikely.

Indeed, there is no assurance that the justices will even address the "insurrection" issue. The high court has discretion over which cases to hear and, even if the question posed by a case is profound, may decline to take it up in the absence of a "split" among lower-court rulings. Thus, because the three cases already decided are favorable to Trump's placement on the ballots, albeit for different reasons, in those states and a few yet to follow, the Supreme Court could exercise its discretion to decline to hear any appeals and leave those rulings intact.

Unless the justices decide to step in and reverse those lower-court rulings, striking down the "insurrection" challenges, for the ex-president, it's three strikes and he's on the ballots.

On the other hand, due to the varying rationales, the justices could choose to address the "insurrection" issue to provide clarity and a precedent in the unlikely event of a similar issue arising in the future: a president fomenting a riot in an attempt to overthrow the newly elected administration and stay in power after losing a fair election.

Nah, couldn't happen here, at least until 2029.

Marshall H. Tanick is a Twin Cities constitutional and employment law attorney.