Michigan Supreme Court keeps Trump on the ballot — but leaves opening for a new challenge

Courts ruled officials can't remove Trump from primary ballot. But the general election may be another story

By Tatyana Tandanpolie

Staff Writer

Published December 27, 2023 12:18PM (EST)

Donald Trump | Voting Booth (Photo illustration by Salon/Getty Images)
Donald Trump | Voting Booth (Photo illustration by Salon/Getty Images)

The Michigan Supreme Court declined on Wednesday to hear a case arguing that former President Donald Trump should be booted from the state's primary ballot, allowing the GOP frontrunner to remain a candidate, the Detroit Free Press reports

The Wednesday order aligns with lower court rulings in the state, but departs from a recent ruling removing Trump from the ballot by the Colorado Supreme Court.

The question of whether Trump is an eligible candidate for the presidency hinges on whether his conduct related to the Jan. 6, 2021, Capitol attack should be considered engaging in insurrection. Section 3 of the 14th Amendment to the U.S. Constitution prohibits anyone who has taken an oath to uphold the Constitution to hold office if they have "engaged in insurrection or rebellion" against the nation. Another key concern in the slate of court cases is whether barring a candidate over such a matter would be within state powers or only in the power of Congress. 

In the order, Michigan's highest state court indicated it agrees with the latter option, declaring that it is "not persuaded that the present questions should be reviewed by this court."

It refused to reconsider a mid-December decision by a three-judge panel of a state Court of Appeals, which affirmed a lower court ruling that neither the courts nor Secretary of State Jocelyn Benson can keep Trump from being a candidate in Michigan's Feb. 27 Republican primary. 

Mark Brewer, the lawyer for Michigan voters seeking to have Trump removed from the ballot and a former Michigan Democratic Party chairman, called the decision "very disappointing but extremely narrow." If Trump becomes the Republican nominee, he added, his clients will again challenge his eligibility for the November ballot. 

In a statement, Free Speech For People, a nonpartisan government-ethics organization and one of the plaintiffs in the lawsuit, echoed the attorney's assertion, declaring that the decision does not "preclude FSFP from raising the same claims in Michigan before the general election, if Trump’s candidacy proceeds to that point."

It also doesn't affect the organization's pending challenge in Oregon, challenges it intends to bring in other states, or the status of the Colorado decision, the organization added. 

“The ruling conflicts with longstanding US Supreme Court precedent that makes clear that when political parties use the election machinery of the state to select, via the primary process, their candidates for the general election, they must comply with all constitutional requirements in that process," FSFP Legal Director Ron Fein said in the statement. "However, 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."

Justice Elizabeth Welch, a Democratic appointee, dissented, pointing to the Colorado ruling among other matters. 

She agreed with the Michigan Court of Appeals' argument that under the wording of state law, the secretary of state does not possess the authority to exclude from the primary ballot a prominent candidate like Trump, whose name has been promoted by a political party, regardless of whether the U.S. Constitution would deem him ineligible. But, "political parties might have an obligation to ensure that proposed presidential primary candidates are eligible," Welch wrote.

"Considering the importance of the legal questions at issue and the speed with which the appellants and the judiciary have moved, I believe it is important for this court to issue a decision on the merits," she added.

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Michigan's lower courts, along with the courts of other states, have largely found that whether Trump is disqualified under Section 3 is a decision best left for Congress — at least in terms of a primary election — and not the state's courts or election officials.

But the Colorado Supreme Court's split decision, now on hold pending a decision on whether the U.S. Supreme Court will take up the matter, states that nothing in the 14th Amendment, which was written in response to the Civil War, requires Congress rather than a state to make that determination. It only holds that the U.S. House and Senate can overturn any disqualification if they choose to, the decision said.

The Colorado opinion also noted that its state law describes a duty to "exclude constitutionally disqualified candidates" in a process run through its courts ahead of any election including a primary. Michigan law, however, does not include any similar provision. 

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"The lower court decision (and this refusal by the Michigan Supreme Court to take up the issue) is not about the merits of the underlying 14th Amendment question but more so the mechanisms of state law in placing a person's name on the primary ballot," Georgia State law professor Anthony Michael Kreis clarified on X, formerly Twitter.

While arguing in her dissent that the challengers should be able to retry their challenge in the event Trump wins the nomination, Kreis notes, Welch also highlights that Colorado law and Michigan law are "not analogous."

"The Co. Supreme Court and the Mich. Supreme Court were presented with challenges to Trump's eligibility under the 14th Amendment but have different state law vehicles for placing names on the ballot," Kreis explained. "The MI Court ruling doesn't touch the merits of Trump's eligibility as a result."

Though the Michigan Supreme Court didn't affirm that the challengers could renew their lawsuit for the general election, it did "allow the lower court ruling permitting a second bite at the apple to stand," Kreis added. "Justice Welch would have affirmed that part expressly."

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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