Insurrectionist ban

Michigan Supreme Court rejects ‘insurrectionist ban’ case and keeps Trump on 2024 primary ballot

By Marshall Cohen

The Michigan Supreme Court has rejected an attempt to remove former President Donald Trump from the 2024 primary ballot based on the US Constitution’s “insurrectionist ban.”

The outcome, which was generally expected, is a victory for the former president, though an effort to remove him could be renewed for the general election. Wednesday’s decision contrasts with the recent ruling from the Colorado Supreme Court, which kicked Trump off its primary ballot because of his role in the January 6 Capitol riot. That decision has been paused pending an appeal.

With these dueling decisions, the expected appeals to the US Supreme Court become even more critical, especially as the nation races toward the start of the 2024 primaries. Unlike in Colorado, the Michigan lawsuit never reached a trial and was dismissed early on in the process. An intermediate appeals court upheld the decision to toss the case on procedural grounds.

The Michigan Court of Claims judge who first got the case said state law doesn’t give election officials any leeway to police the eligibility of presidential primary candidates. He also said the case raised a political question that shouldn’t be decided in the courts.

His decision was upheld by the Michigan Court of Appeals, which said: “At the moment, the only event about to occur is the presidential primary election. But as explained, whether Trump is disqualified is irrelevant to his placement on that particular ballot.”

The order from the Michigan Supreme Court was unsigned, and the court did not release a vote count.

Unlike in Colorado, the Michigan courts rejected the case wholly on procedural grounds. They never reached the questions of whether January 6 was an insurrection and whether Trump engaged in it.

One of the Michigan justices on Wednesday wrote why Michigan is different from Colorado.

The anti-Trump challengers “have identified no analogous provision in the Michigan Election Law that requires someone seeking the office of President of the United States to attest to their legal qualification to hold the office,” Justice Elizabeth Welch wrote, comparing Michigan law to Colorado’s election code.

The lower-court rulings in Michigan kept the door open to future 14th Amendment challenges if Trump wins the Republican nomination. Welch specifically noted this dynamic in the separate opinion she wrote Wednesday.

“I would affirm the Court of Appeals’ ruling on this issue, which still allows appellants to renew their legal efforts as to the Michigan general election later in 2024 should Trump become the Republican nominee for President of the United States or seek such office as an independent candidate,” Welch wrote.

The Minnesota Supreme Court reached a similar conclusion last month, finding that an “insurrectionist ban” case involving Trump should be dismissed with regards to the GOP primary, but that the challengers could try again if he wins the nomination.

On Truth Social, Trump denounced what he said was a “pathetic gambit” to keep him off the ballot and repeated his unfounded warnings that the 2024 was at risk of being “rigged and stolen.”

Ron Fein, the legal director of Free Speech For People, which filed the Michigan case, said the decision was “disappointing” but noted that it “isn’t binding on any court outside Michigan.” Another attorney for the challengers, Mark Brewer, said they would continue the efforts in Michigan.

“The Court’s decision is disappointing but we will continue, at a later stage, to seek to uphold this critical constitutional provision designed to protect our republic,” Brewer said in the statement.

Ratified after the Civil War, the 14th Amendment says officials who take an oath to support the Constitution are banned from future office if they “engaged in insurrection.” The provision was used to disqualify thousands of ex-Confederates. But it has only been applied twice since 1919, and the vague wording doesn’t mention the presidency.

The Michigan lawsuit was filed in September by Free Speech For People on behalf of a group of voters. It also pursued an unsuccessful 14th Amendment challenge against Trump in Minnesota, and recently filed a new case in Oregon. The Colorado lawsuit was initiated by a separate liberal-leaning group.

Also on Wednesday, Trump’s lawyers asked Maine’s secretary of state to recuse herself from deciding whether he should be removed from the 2024 ballot because of the “insurrectionist ban.” Maine is different from other states: ballot challenges are first heard by the secretary of state, not in the courts.

Maine Secretary of State Shenna Bellows, an elected Democrat, presided over an administrative hearing earlier this month about Trump’s eligibility for office. Her ruling is expected this week, and her decision can be appealed in Maine state courts.

The secretary’s office declined to comment on the Wednesday request, but it’s unlikely that she’ll agree to recuse. Trump made a similar request with the trial judge in the Colorado case, but the judge there rejected his motion.