Before the lawyers step in front of the Minnesota Supreme Court next week to debate whether Donald Trump can be on the 2024 presidential ballot, their case will be the topic of a daylong session for scholars at the University of Minnesota School of Law.
Trump ballot arguments to be focus of daylong session at University of Minnesota
Scholars will speak about the significant oral arguments coming next week to the Minnesota Supreme Court.
October 26, 2023 at 1:48PM
A key speaker Monday at the U for "Section 3, Insurrection, and the 2024 Election," will be Michael Stokes Paulsen, the University of St. Thomas School of Law professor who kick-started a fervent national debate with a law review article saying the former president's attempt to overturn the November 2020 election bars him from the ballot.
"This will go down as one of the most important law review articles of all time," U associate law Prof. Alan Rozenshtein said.
In the article, Paulsen and his co-author said Section 3 of the Fourteenth Amendment of the U.S. Constitution prohibits former office holders who participated in an insurrection or rebellion from holding future office. The state GOP has countered in court filings that banning Trump would interfere with the party's First Amendment right of association.
The U event, which will be livestreamed, will touch on the history, politics and law behind Section 3.
Oral arguments will be heard at 10 a.m. on Nov. 2 in the Judicial Center in St. Paul. One of the three Minnesota lawyers who will argue for Trump's ban also may appear via Zoom at the U event, according to Charles Nauen, who is joined by law partners Rachel Kitze Collins and David Zoll on the petition.
Their petition was filed on behalf of a coalition that includes the national nonprofit Free Speech for People, former Secretary of State Joan Growe and former state Supreme Court Justice Paul H. Anderson. A similar petition is pending in Colorado.
Paulsen has shied from commenting on his popular article so his discussion with Rozenshtein is a rare opportunity to hear him. "Paulsen is one of the most distinguished constitutional legal scholars of his generation," Rozenshtein said.
Co-author William Baude, a law professor at the University of Chicago, is also a nationally renowned conservative legal scholar. A draft of their 126-page article went viral in August even though it won't be published by the University of Pennsylvania Law Review until next year.
Rozenshtein expects a robust discussion because he said the ballot issue is uniquely unsettled and not divided along party lines. "With so many issues there's a red side or a blue side — people are extremely dug in on their views," he said, citing abortion, affirmative action and same-sex marriage.
As a constitutional scholar himself, Rozenshtein said the petition poses difficult questions. "Every day I think something different," he said. "Welcome to constitutional law — it's quite a trip."
The case will be decided by five justices: Chief Justice Natalie E. Hudson and associate justices G. Barry Anderson, Anne McKeig, Gordon Moore and Paul Thissen.
Justices Margaret Chutich and Karl Procaccini have recused themselves. Neither has provided a reason, but Nauen is listed on state campaign finance documents as the chair of Chutich's election committee.
Secretary of State Steve Simon, who is listed as the respondent on the case, has said he expects the question of whether Trump is on the 2024 ballot to be decided by the U.S. Supreme Court.
If the Minnesota court disqualifies Trump from the ballot, Rozenshtein said it's "100% certain" the high court will take the case.
If the state court doesn't remove Trump, he expects the Growe group to appeal to the Eighth U.S. Circuit Court of Appeals with the possibility that the U.S. Supreme Court could snatch it up directly.
The U professor said he suspects that the Minnesota justices have already spent a lot of time thinking about the case, so they will use oral arguments to "stress test" their theories with the lawyers.
Among the pivotal points Rozenshtein expects the justices to probe:
- Is the president an officer of the United States?
- Was Jan. 6 an insurrection?
- Is Section 3 an automatic disqualification or does it instead give permission to Congress to set up a process to disqualify someone?
Paulsen's article said the president is an officer, Jan. 6 was an insurrection and Section 3 is automatic.
The court doesn't face time limits for ruling, but Rozenshtein said he expects a decision quickly. Absentee voting in the presidential primary begins in mid-January.
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