By Julie Bosman, Ernesto Londoño and Nicholas Bogel-Burroughs
The Michigan Supreme Court earlier this week gave Donald Trump an important victory in the legal battle over his eligibility to return to the White House by allowing the former president to appear on the state’s primary ballot in February.
But in a narrow ruling, the court left the door open for a new challenge to bar Trump from the general election ballot in the key battleground state over his attempts to overturn the 2020 election.
The decision was the latest in the high-stakes efforts to block Trump from returning to power. It follows the bombshell ruling by the Colorado Supreme Court, which on Dec. 19 determined in a 4-3 opinion that Trump should be removed from the state’s 2024 Republican primary ballot for his role in the Jan. 6, 2021 attack on the U.S. Capitol.
Lawyers across the country are venturing into largely unexplored legal terrain that could have far-reaching implications for future elections as they argue over a constitutional amendment passed after the Civil War.
The provision, Section 3 of the 14th Amendment, disqualifies people who served as federal officers and “engaged in insurrection or rebellion” from holding office. The original intent was to bar Confederate officials from serving in the U.S. government. But the courts and Congress have not clearly established how the provision should be interpreted today, or how much latitude states have to remove candidates from the ballot.
Jocelyn Benson, Michigan’s secretary of state, said in a statement Wednesday that the state’s top court had rightly concluded that she lacked the authority to prevent Trump from appearing on the primary ballot. But she called on the U.S. Supreme Court to promptly provide guidance on his eligibility to run for office.
“I continue to hope they do this sooner rather than later to ensure that we can move forward into 2024’s election season focused on ensuring all voters are fully informed and universally engaged in deciding the issues at stake,” she wrote.
The cases nationwide are being litigated with enormous urgency because primary voters will start casting ballots in Iowa in mid-January.
Trump applauded the Michigan ruling on social media. “We have to prevent the 2024 Election from being Rigged and Stolen like they stole 2020,” he wrote on his platform, Truth Social.
Ron Fein, the legal director of Free Speech For People, which filed the lawsuit seeking to disqualify Trump, said the Michigan Supreme Court ruled narrowly, sidestepping the core questions at the heart of the case.
But, he noted in a statement, “The Michigan Supreme Court did not rule out that the question of Donald Trump’s disqualification for engaging in insurrection against the U.S. Constitution may be resolved at a later stage.”
Michigan’s primary will be held Feb. 27.
The question of Trump’s eligibility is widely expected to be answered by the U.S. Supreme Court. Some form of challenge to his eligibility has been lodged in more than 30 states.
Many of those challenges have already been dismissed, and officials in some states, including California, have signaled that they are wary of the efforts to have the former president removed. But several challenges are still pending.
Maine’s secretary of state is expected to soon decide whether Trump can appear on the ballot there after a challenge from voters under the same section of the 14th Amendment. In Oregon, the same group that filed the Michigan lawsuit is also seeking to have the courts remove Trump from the ballot, although the secretary of state there declined to remove him in response to an earlier challenge.
A key difference between the Michigan and Colorado decisions was that the latter followed a trial that established an evidentiary basis to find that Trump incited a violent uprising after losing the 2020 election. In Michigan, the lawyers challenging Trump’s eligibility sought a similar trial but were turned down by the courts.
The Michigan ruling included a dissent by Justice Elizabeth M. Welch. While she agreed with the decision allowing Trump to remain on the primary ballot, Welch argued that the court should have issued a more detailed ruling tackling the legal questions at play.
Welch said that Colorado state law made clear that political parties could only put forward “qualified” candidates in a primary presidential ballot. Michigan election law includes no such requirement, she wrote. The Michigan secretary of state “lacks the legal authority to remove a legally ineligible candidate from the ballot once their name has been put forward by a political party,” Welch wrote.
The efforts to disqualify Trump present the U.S. Supreme Court with one of its most politically explosive cases since it settled the dispute over the 2000 election in President George W. Bush’s favor. Since then, the court has become far more conservative, largely as a result of the three justices whom Trump appointed.
Ashraf Ahmed, a professor at Columbia Law School who studies election law, said the U.S. Supreme Court would be taking up a case on legal issues that have rarely been decided by courts.
“When we’re talking about how uncharted this is, this is radically new territory,” Ahmed said. “And it’s radically new territory because we’ve never had a president before who could plausibly be implicated under Section 3.”
He said that he expected the court would want to hear the case quickly, but that the justices would most likely avoid delving into the weightiest matters, like defining Section 3 of the 14th Amendment. Instead, he said, they might issue a ruling largely on procedural grounds.
“I suspect the last thing that the U.S. Supreme Court wants to get involved in is the presidential election,” he said.
The Supreme Court in Michigan, a swing state that Trump lost in 2020 to President Joe Biden, is composed of seven justices: Three were elected after being nominated by Democrats, one was recently appointed by the current Democratic governor, and three others were appointed by a Republican governor and later elected.
A lower-court judge previously decided the ballot eligibility case in Trump’s favor. Judge James Robert Redford of the Court of Claims in Michigan ruled in November that disqualifying a candidate through the 14th Amendment was a political issue, not one for the courts. A lower court in Colorado had also ruled in Trump’s favor before the state Supreme Court there took up the case.
Redford also ruled that Michigan’s top elections official did not have the authority alone to exclude Trump from the ballot. Free Speech for People appealed the ruling, asking the state Supreme Court to hear the case on an accelerated timetable.
Benson, the Michigan secretary of state and a Democrat, echoed the request for a quick decision, citing approaching deadlines for printing paper primary ballots. She wrote that a ruling was needed by Dec. 29 “in order to ensure an orderly election process.”
Jan. 13 is the deadline for primary ballots to be sent to military and overseas voters; absentee voter ballots must be printed by Jan. 18.