Can Colorado’s highest court kick Trump off the ballot?

A challenge to his eligibility under the ‘insurrection’ clause could head to the US Supreme Court

Alex Woodward
Wednesday 06 December 2023 14:38 GMT
Colorado Supreme Court hears whether to disqualify Trump from 2024 ballots

A legal effort to disqualify Donald Trump from Colorado’s ballots in 2024 elections could end up in front of the US Supreme Court after arguments in front of the state’s highest court on Wednesday.

The case in Colorado is among dozens of legal challenges across the country that throw Mr Trump’s eligibility into question, pointing to a constitutional amendment that prohibits anyone who “engaged in insurrection or rebellion” from holding public office.

So far, no courts have found Mr Trump ineligible. But after a week-long trial last month, a state judge in Colorado ruled that while the former president supported the insurrection, a ban from office doesn’t apply to presidents.

An appeal to the state’s Supreme Court, where all seven justices are Democratic appointees, challenges not only whether the former president was responsible for provoking his supporters to riot at the US Capitol on January 6, but also whether that should make him ineligible for returning to the White House.

“Who could more easily subvert our democracy from within than a commander in chief, who has already tried to do so before?” Jason Murray, an attorney representing the challengers, asked justices during oral arguments on Wednesday.

Mr Murray argued that Section 3 of the 14th Amendment should apply to presidents, not just other public office holders.

“You’d be saying that a rebel who took up arms against the government couldn’t be a county sheriff, but could be the president,” he said. “You would think we would see some indication in the history of somebody coming back and saying, ‘No, we’re carving this out because it’s somehow different,’ and there’s just no indication of that at all.”

The 14th Amendment, among newly enshrined amendments in the aftermath of the US Civil War, prohibits anyone who has sworn an oath to uphold the constitution and “engaged in insurrection or rebellion” from holding public office.

A lawsuit filed by Citizens for Responsibility and Ethics in Washington on behalf of a group of Colorado voters argued that Mr Trump had “failed” that test, rendering him “constitutionally ineligible to appear on any Colorado ballot as a candidate for federal or state office”.

Last month, Colorado District Judge Sarah Wallace found that not only did Mr Trump incite the attack on the Capitol in an effort to block the peaceful transfer of power after the 2020 election, he also “engaged” with it.

Mr Trump “acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification,” she wrote.

But she determined that she could not remove him from the ballot, a ruling the former president considered a “gigantic court victory” despite the judge’s landmark affirmation of his role in the insurrection.

Judge Wallace concluded that an insurrection should be defined as “public use of force or threat of force … by a group of people … to hinder or prevent execution of the Constitution of the United States.”

During the Colorado Supreme Court hearing on Wednesday, Justice Carlos Samour expressed “concern” that the definition adopted by the district court was “somewhat or potentially overbroad.”

He also wondered why “if it was so important” that presidents be considered among officer holders ineligible for office for insurrection, “why not spell it out?”

Trump attorney Scott Gessler told justices that the assault in the halls of Congress was “closer to being a three-hour riot.”

“The use of force did not involve arms, certainly not the level of arms necessary” to beat back law enforcement, Mr Gessler said.

More than 1,200 people have been charged in connection with the attack, including roughly 120 people charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer.

“There were a lot of makeshift weapons that did a lot of damage,” Justice William Hood noted.

Eric Olson, an attorney for the plaintiffs and a former Colorado solicitor general, said one need only to read text messages from former Trump adviser Brad Parscale during the attack to see it for what it was. At the time, Parscale said January 6 was about a “sitting president asking for a civil war.”

Justice Hood also noted that Mr Trump’s lawyers have argued that by failing to quickly resolve the issue, “we create the potential for chaos in January of 2025.”

He rejected the argument, noting that any decision from the justices will likely be appealed to the US Supreme Court.

Mr Trump is being separately charged at the federal level and in the state of Georgia in connection with his attempts to overturn 2020 results.

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