Trump’s Potential Disqualification: Primaries versus General Election

Adding briefly to what Derek already has blogged about today’s decision by the Minnesota Supreme Court, I think the distinction that the court drew between primaries and the general election is important. Since writing on this topic in the Washington Post a few months ago, I have thought it unnecessary (even if desirable) for the disqualification issue to be settled before the primaries. On the other hand, I’ve thought it crucial that the U.S. Supreme Court settle the issue before the November general election–and, as a practical matter, that should mean before the Republicans hold their nominating convention in July.

Today’s decision rules that the issue of whether Trump can be on the general election ballot in Minnesota is not yet ripe because Trump has not yet been nominated by Republicans as their candidate. What is potentially worrisome about this ripeness ruling, as Derek suggested, is that the court might not consider the issue ripe until after the GOP’s nominating convention. But delaying the decision until that point would be problematic because it would make it more difficult for Republicans, as a party, to deliberate about what to do if Trump were disqualified after the convention but before the November general election ballots are printed.

It would not be impossible for the party to act during this period. Parties have procedures to replace nominees on an emergency basis if something happens after a convention but before the election–like, tragically, the death or incapacitation of the candidate. In 1972, for example, after the Democratic convention nominated Thomas Eagleton for Vice President, Eagleton withdrew when it was disclosed that he has received psychiatric treatment for depression. The party quickly substituted Sargent Shriver as its VP nominee.

Nonetheless, it would be far better to give Republicans the chance to deliberate at their convention about who should be their presidential nominee if Trump is disqualified. Thus, hopefully, the Minnesota Supreme Court could be persuaded to consider the issue ripe well before the convention, in order to give the U.S. Supreme Court time to rule on the issue also. Today’s ruling, which mostly focuses on the reasons why the Minnesota Supreme Court does not need to decide the disqualification issue before the primaries, need not be read as foreclosing the possibility of a pre-convention resolution of the issue–especially if the plaintiffs refile their case, as today’s order permits them to do, with a persuasive explanation of what an an appropriate pre-convention timetable for decision should be.

Of course, it is possible that the Minnesota Supreme Court may construe existing state law as precluding any pre-convention resolution of the issue. While that would be a shame, it would be an example of what I warned about in my Washington Post piece: the possibility that existing state law may not be well-suited to the adjudication of a disqualification issue under section 3 of the Fourteenth Amendment and thus it may be necessary for a state legislature to amend existing state law in order to provide an explicitly appropriate procedural vehicle for settling the matter before the GOP convention. If Minnesota is unable to provide this procedure, perhaps some other state can.

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