Despite hundreds of pages written on Section 3 of the Fourteenth Amendment in recent months, the threshold jurisdictional issue bars yet another claim. The Michigan Court of Appeals (opinion here) follows Arizona and Minnesota in concluding there is no power under state law to judge the qualifications of federal candidates. From the opinion, affirming the district court:

There is no support for Davis’s contention that the Wayne County Election Commission is authorized to independently determine whether Trump is disqualified under the Insurrection Clause and then refuse to authorize ballots including him as a candidate on that basis. Pursuant to Southeastern Mich Fair Budget Coalition, the duty at issue here is to “determine that, on its face, the [candidate] is entitled to placement on the ballot.” Southeastern Mich Fair Budget Coalition, 153 Mich App at 378. This Court has implied that a “facial” review amounts to a ministerial review. See Berry v Garrett, 316 Mich App 37, 45; 890 NW2d 882 (2016) (“Rather, by doing nothing more than the ministerial task of completing a facial review of the affidavits [of identity], defendants would undertake to perform their clear legal duty under § 558(4) to ‘not certify to the board of election commissioners the name of a candidate who [had] fail[ed] to comply’ with § 558(2)”). And in Southeastern Mich Fair Budget Coalition, the review at issue was a purely legal matter, concerning the scope of the City Council’s authority. Southeastern Mich Fair Budget Coalition, 153 Mich App at 382-384. The review in that case required no fact-finding and no investigation; it simply amounted to reviewing the proposed ballot questions and determining whether those questions were of a sort that were eligible to be placed on the ballot.

Here, in contrast to that case, Davis would have the Commission determine whether Trump is disqualified by the United States Constitution from holding the office of President of the United States, based on evidence that Davis states he plans to submit to the Commission, but which he has not clearly identified or made part of the record, that he believes proves that Trump engaged in acts of insurrection. Presumably, were this to take place, the Commission would act as both a fact-finder, tasked with reviewing whatever evidence Davis presents, requiring a factual determination regarding what that evidence shows, while acting as constitutional law scholars, tasked with interpreting and applying a provision of the Fourteenth Amendment to the United States Constitution, the meaning of which is subject to significant debate. As the circuit court explained, the type of review Davis envisions would go far beyond the “face” of the matter.

While the district court decided the matter on the “political question” doctrine, the court of appeals chose not to address that issue. It also held that questions about the general election were not yet ripe, reserving the matter for another day.

Back in August, I blogged that this was entirely predictable, in a post entitled “The current waves of Section 3 claims against Donald Trump are likely doomed to fail before they even touch the merits.” This is at the heart of the question of whether states want to use the power that (I believe) they have under the Constitution. These threshold state law jurisdictional issues continue to stymie challenges. Oral argument in the Colorado Supreme Court last week saw extensive questions about whether state law authorized the inquiry. The Oregon Secretary of State has strong precedent suggesting there is no such power there, too. These are two of the claims closer to resolution in the near future. We’ll see how others play out.