Lansing, Mich. — A Michigan Supreme Court order Wednesday that clears the way for former President Donald Trump to appear on Michigan's presidential primary ballot in February might prolong a legal fight over the Republican candidate's ultimate eligibility until the general election, experts say.

In a brief order Wednesday, the high court said it is "not persuaded that the questions presented should be reviewed by this court." The order means lower court rulings rejecting efforts to block Trump's access to the Feb. 27 primary ballot will remain in place.

But those orders were specific to primary election ballot access and still leave a pathway open for a legal challenge ahead of the November 2024 general election should Trump earn the Republican nomination — a path challengers vowed to take if Trump advances.

"The court’s decision is disappointing, but we will continue, at a later stage, to seek to uphold this critical constitutional provision designed to protect our republic,” said attorney Mark Brewer, who represented four voters seeking to have Trump disqualified from Michigan's primary ballot under the 14th Amendment's insurrection clause.

“Trump led a rebellion and insurrection against the Constitution when he tried to overturn the 2020 presidential election, and he is disqualified from ever seeking or holding public office again," added Brewer, a former chairman of the Michigan Democratic Party.

The Supreme Court's order Wednesday comes after several voters filed to disqualify Trump from the primary ballot under the Insurrection Clause, an argument that lower courts have found is not yet relevant ahead of Michigan's Feb. 27 presidential primary. Opponents seeking to oust Trump from the ballot had asked judges to order Secretary of State Jocelyn Benson to determine Trump's eligibility.

The 14th Amendment's Insurrection Clause says no one can hold office if they have previously taken an oath to support the Constitution but "engaged in insurrection or rebellion." Some legal experts have argued Trump's efforts to overturn his loss to Democrat Joe Biden in 2020 and the Jan. 6, 2021 storming of the U.S. Capitol should block him from the ballot.

Similar efforts have been made in other states to block Trump from primary ballots, including Colorado, where that state's divided Supreme Court deemed Trump ineligible for the White House under the U.S. Constitution’s insurrection clause.

But while Colorado law limits presidential primary participation to "qualified" candidates who submit a statement of intent, Michigan law doesn't have the same requirement.

The decisions of the Michigan Supreme Court on Wednesday and lower state courts in recent weeks were largely based on procedural laws that reserve the right to determine who appears on the primary ballots with the state's political parties.

The decisions, for the most part, did not weigh in on the substantive question of whether Trump's involvement in the Jan. 6, 2021, riot at the U.S. Capitol is grounds to disqualify him from appearing on the ballot.

That question will only be answered if, or when, Trump wins the Republican nomination, said John Pirich, a retired Michigan elections lawyer.

"The substantive issue is, 'Do you qualify to be on the general election ballot?'" Pirich said. "And that’s going to be the real test at that point.”

Trump, for his part, celebrated the reprieve in Michigan amid legal challenges in other states to his eligibility to serve as president again.

"The Michigan Supreme Court has strongly and rightfully denied the desperate Democrat attempt to take the leading candidate in the 2024 presidential election, me, off the ballot in the great state of Michigan," the former Republican president said. "This pathetic gambit to rig the election has failed all across the country, including in states that have historically leaned heavily toward the Democrats."

What the decision said

While the high court's majority decision was brief, a dissent from Justice Elizabeth Welch delved into some of the details of the case as she argued for the Michigan Supreme Court's involvement at this stage.

Welch, one of four Democratic-nominated justices on the seven-member high court, wrote that she would have upheld a Court of Appeals ruling that found Benson is not required to determine the eligibility of a presidential primary candidate since those names are put forward by the political parties in compliance with state law.

Such a ruling, Welch said, would still allow "appellants to renew their legal efforts as to the Michigan general election later in 2024 should Trump become the Republican nominee for president of the United States or seek such office as an independent candidate."

Plaintiffs challenging Trump's eligibility have argued the parties nominating candidates are essentially state actors who also are bound by the U.S. Constitution and should have excluded Trump based on the Insurrection Clause.

But Welch questioned that claim as well, noting it still doesn't address the Secretary of State's limited role in putting a candidate on the primary ballot. And the political parties, if they have such a responsibility, were not named as defendants, she noted.

"While there may be some merit to the argument that political parties are limited purpose state actors who must comply with the United States Constitution when submitting candidate names as part of the presidential primary process, no political party is a party to this litigation," Welch wrote.

The factors still to be weighed

Should Trump win the Republican nomination in Michigan and challengers refile their objections to his presence on the general election ballot, the courts will have to weigh several factors regarding his eligibility under the Insurrection Clause, said Pirich, the retired elections lawyer. And much of that will depend on the status of the charges already brought against the former president in relation to Jan. 6, he said.

"What happens if there’s a conviction?" Pirich said. "Then it’s a different ball game, a completely different ball game.”

Benson said Wednesday that the theory is "far from a slam dunk" and that the U.S. Supreme Court should provide clarity on lingering "legal and factual ambiguities" around the Insurrection Clause and its application to Trump's eligibility.

"These include: when is the proper timing for candidate disqualification (primary or general or post-election), who is the proper authority to make that decision (Courts or Congress), and how will the ongoing criminal proceedings determine the facts relevant to the interpretation and application of Section 3 of the 14th Amendment," said Benson, a Democrat, on social media.

Officials must ensure while weighing the case, Benson said, "that ballot access is not used as a political tool for disqualification."

An earlier Michigan Court of Claims decision on the issue dipped into the substance of the Insurrection Claim while higher courts stuck strictly to procedural objections.

In his Nov. 14 ruling allowing Trump on the primary ballot, Court of Claims Judge James Robert Redford said the question of whether Trump was disqualified under the Insurrection Clause was best left to Congress, lest judges become "embroiled in recurring and highly partisan disputes." A judicial decision on the matter would take away "the decision of whether there was a rebellion or insurrection and whether or not someone participated in it from the Congress, a body made up of elected representatives of the people," Redford wrote.

But Welch on Wednesday said she would vacate Redford's analysis as "unnecessary dicta" or unnecessary commentary, given that he had already ruled the Insurrection Clause wouldn't apply to a presidential primary on procedural grounds.

Welch, in her decision, also acknowledged the precedent set by the Colorado Supreme Court's decision last week to block Trump from the primary ballot — a decision that's been stayed while it is appealed to the U.S. Supreme Court.

But Welch said Colorado's election law differs from Michigan's "in a material way" when it comes to primaries because it limits presidential primary participation to a "qualified" candidate who submits a statement of intent.

Because Michigan law doesn't require the same affidavit, Colorado's decision, if upheld by higher courts, wouldn't necessarily apply to Michigan's primary ballot question, she said.

"The appellants have identified no analogous provision in the Michigan Election Law that requires someone seeking the office of President of the United States to attest to their legal qualification to hold the office," Welch wrote.