The hearing by the state Supreme Court two weeks ago and its ensuing decision last week rejecting an attempt by a high-profile bipartisan group to keep former President Donald Trump off the ballot under the disqualifying “insurrection” clause of the 14th Amendment may have asked the wrong questions and evaded the right answers.
At the hearing seeking to bar him from the ballot for having “engaged” in an effort to overthrow the government, new Chief Justice Natalie Hudson, a former Ramsey County and state prosecutor, posed the issues as: 1) whether the tribunal “can” invoke that provision to prevent him being on the Republican primary ballot in March; and 2) whether the jurists “should” do.
But the justices unanimously punted on both questions. In an exercise that the chief justice termed “cautious,” it rebuffed the ballot challengers in order to maintain what she referred to as “the status quo.”
However, with all due respect, as lawyers are wont to euphemistically say when disagreeing with a judge, the chief justice asked the questions in the wrong order and she and her four colleagues (two justices recused themselves) answered them incorrectly.
The initial inquiry ought to have been: “Should” the ex-president be barred from the ballot?
The mountain of evidence that has been gathered reflects the centrality of his involvement in the “insurrection” undertaking, not only in his exhortation to the mob poised to strike at the U.S. Capitol on Jan. 6, 2021, but also in the events leading up to the riot that day and his encouragement, coupled with his inert response while it was occurring.
The historical and judicial record should yield an affirmative answer to the “should” question.
That leaves the “can” question up for grabs as a legal conundrum although there is ample support for the proposition that states have the authority to determine ballot eligibility.
But while the court dodged addressing the two incorrectly juxtaposed questions the chief justice posed, it did give the challengers the opportunity to re-visit the issues next year if Trump is nominated by his party in the summer to be on the presidential ballot next fall. That, however, seems an illusory invitation because by that time the case may be moot. The U.S. Supreme Court, stocked with three of Trump’s radical right-wing nominees, will likely have decided the issue from one of the other states where similar claims are pending, most notably Colorado, where a full-scale trial took place while the Minnesota jurists here were fumbling around with their pair of unanswered questions.
The high court probably will answer both the “can” and “should” questions in the negative, clearing the way for Trump to be safely ensconced on the ballot in here in Minnesota and everywhere else.
While his safe passage to the ballot seems highly probable, his perilous presence there will threaten the safety of the democracy.
That will leave it to the voters to answer the unresolved questions in the Chief Justice Hudson’s phraseology: 1) “Should” the nation allow him back into the White House, and 2) “can” they stop him?
“Should” and “can,” to borrow from Hamlet, those are the questions.
Marshall H. Tanick is a Twin Cities Constitutional and employment law attorney.