James Dickey: The flimsy legal theory seeking to keep Trump off the ballot

How could the person who offered to protect the Capitol, and who did not do any storming of the Capitol himself, be considered to have engaged in a rebellion or insurrection?

FILE - Former President Donald Trump speaks at a campaign rally in Duluth, Minn., in October 2020. (Rebecca Brannon)

The following is a transcript from Minnesota Law Weekly, a podcast from the Upper Midwest Law Center (UMLC). 

Today, we are discussing the recent petition filed in the Minnesota Supreme Court seeking to keep former President Donald Trump off of Minnesota’s 2024 primary and general election ballots, and also UMLC’s new case against the “Don’t Say Felon” speech code created by the legislature to shut down certain political speech in the days leading up to Minnesota elections.


First, the elephant in the room, so to speak. On Sept. 12, several Minnesota voters, including former Secretary of State Joan Growe and former Minnesota Supreme Court Justice Paul H. Anderson, filed a petition in the Minnesota Supreme Court that seeks to keep former President Trump off of Minnesota’s ballots for the 2024 election. The theory of the case is that Section 3 of the 14th Amendment to the U.S. Constitution bars any person from office who has participated in a rebellion or insurrection against the United States. The petitioners argue that the events of Jan. 6, 2021, and President Trump’s efforts to fight the outcome of the elections in states like Georgia and Arizona, were an “insurrection” or “rebellion,” and therefore Trump is disqualified from office.

The text of the 14th Amendment, Section 3 says:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

I respectfully disagree with the petitioners in this case that former President Trump can be kept off of Minnesota’s ballot based on this constitutional provision. There are several reasons why.

First, throughout our country’s history, the president of the United States has always been the person to call forth the militia when an actual insurrection or rebellion takes place. That is what happened when, in 1794, American whiskey producers objected to a tax, which led to the “Whiskey Rebellion.” That rebellion resulted in substantial violence across the western portion (at that point) of the country, including in western Pennsylvania. At one point, as part of the Whiskey Rebellion, an angry mob marched to drums to the home of a wealthy landowner and tax collector and fought with American soldiers for hours, and then set fire to buildings, which led to the soldiers surrendering. President George Washington then had to call forth the militia to put down the rebellion. Washington assembled more than 12,000 men from surrounding states and eastern Pennsylvania as federal militia to stop the rebellion.

On Jan. 6, Trump was the president of the United States, and clearly did not label the actions of the rioters at the Capitol a rebellion. It seems a very bad idea to allow local officials, secretaries of state, and state courts to decide who can be on ballots for national office based on this concept of “insurrection” or “rebellion,” when throughout our nation’s history the sitting president has been responsible for labeling an insurrection as such.

Likewise, in the Civil War, President Lincoln clearly had a substantial rebellion on his hands and called forth the American military to quell it. These are insurrections.

The actions of the mob on Jan. 6 are nowhere near the near-revolution that the Whiskey Rebellion represented — or the Civil War itself. There is no way that the actions of Jan. 6 constitute a “rebellion” or “insurrection,” as many media figures have continued to say. One point to consider is that President Trump had offered National Guard troops ahead of time to ensure the safety of the Capitol, but was turned down. How could the person who offered to protect the Capitol, and who did not do any storming of the Capitol himself, be considered to have engaged in a rebellion or insurrection?

There are other major problems with the theory presented by the petitioners in this lawsuit. One of these is that in the only case to directly consider the meaning of Section 3 of the 14th Amendment at the time nearest to its passage (Griffin’s Case), the sitting chief justice of the United States Supreme Court held that Congress had to enact legislation to enforce the provisions of Section 3 — it was not a self-executing or standalone provision that existed to bar people from office for all time if they have in fact participated in a rebellion or insurrection. This is strong original-meaning evidence showing that Congress has to take action before anyone can possibly be removed from a ballot for federal office.

My final point here is that Congress itself has, in fact, taken action to remove the impact of Section 3 of the 14th Amendment by passing the Amnesty Acts of 1872 and 1898 by more than a two-thirds majority. This took disqualification from office off the table. In those Acts, there was no statement that disqualification from office was removed only for those who had fought against the Union in the Civil War. It appears that these acts were intended to be open-ended, and Section 3 of the 14th Amendment may be a dead letter.

The United States Supreme Court has stated that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” This is a serious statement by the Supreme Court, and so the attempt to remove Trump from the ballot cannot be taken lightly. We expect the Minnesota Supreme Court to reject this challenge. In any event, while likely, whether Trump ends up on the ballot as the Republican nominee remains to be seen.

‘Don’t say felon’

Moving on to more UMLC-specific news, I told you in our last episode that more lawsuits were set to come because of the legislature’s actions in the 2023 session. Just on Sept. 11, 2023, we filed a new federal lawsuit challenging a new Minnesota law that restricts free speech around election-related issues, including speech about the eligibility to vote in Minnesota elections. The law, which took effect June 15, 2023, imposes criminal and civil penalties on individuals who make “false” statements within 60 days of an election with the intent to impede or prevent another person from exercising their right to vote. The penalties include fines and the potential to be sued by the attorney general and county attorneys in civil court.

The plaintiffs in the case include the Minnesota Voters Alliance and several other grassroots political activists, who argue that this new Speech Code criminalizes political speech during a crucial time leading up to an election. Additionally, the new law poses a threat to political discourse and inhibits the democratic exchange of ideas.

We call this law the “Don’t Say Felon” law because the author of the law provided as an example to a reporter back in March 2023 that the law was aimed at stopping people from saying, “you’re a felon and you can’t vote.” The problem is that our clients believe that those who have been convicted of felonies and have not yet been discharged from their sentences do not have the right to vote under the Minnesota Constitution. They have even brought a lawsuit to ask the courts to decide what the Minnesota Constitution means on this issue.

There is no place under the First Amendment for laws that tell people what they can and cannot say leading up to an election about difficult political issues, and when those laws give power to partisan officials and political opponents anywhere in the state to bring lawsuits against people for their speech — based on their own false claim that our clients or others like them made a false statement — the First Amendment is gravely injured.

We look forward to the federal court in Minnesota striking down this law for good.


James Dickey