Politico
‘Test case’ for America: Colorado’s top court poised to weigh Trump’s eligibility to run again
Erica Orden, Kyle Cheney and Zach Montellaro – December 6, 2023
The most potent effort to disqualify Donald Trump from the 2024 ballot lands Wednesday in the lap of Colorado’s highest court — and a ruling there could send the case hurtling toward the U.S. Supreme Court just as the election year arrives.
The Colorado case is one of dozens around the country that have challenged Trump’s eligibility to return to the presidency. The cases argue that he is disqualified under section 3 of the 14th Amendment, which states that anyone who “engaged in insurrection or rebellion” after taking an oath of office to support the Constitution is forbidden from holding any public office.
So far, no court has declared Trump ineligible, and few of the cases have advanced beyond initial stages. In Minnesota, the state supreme court dismissed a challenge seeking to bar Trump from that state’s Republican primary ballot, but said the challengers could bring a new case concerning the general election after the primary. In Michigan, a state judge dismissed a challenge there, and an appeals court is expected to issue a ruling after Dec. 8.
The Colorado case, however, is on the fastest track, and the challengers there may have one of their most favorable venues: All seven justices of the Colorado Supreme Court are Democratic appointees.
During Wednesday’s argument, those justices will face two weighty questions: whether Trump provoked and participated in the Jan. 6, 2021, insurrection at the U.S. Capitol and, if so, whether that act requires his removal from the ballot.
After a week-long trial last month in Denver, the district judge who heard the case on an expedited basis ruled that Trump was a willing instigator of the violence that nearly derailed the transfer of power in 2021. But Judge Sarah Wallace also concluded that Trump could remain on Colorado’s presidential ballot because she found that the 14th Amendment’s insurrection clause does not apply to the office of the president.
Colorado Secretary of State Jena Griswold, a Democrat, said the lower court ruling was “pretty surprising.”
“I think it is important that a court of law has decided that Donald Trump engaged in insurrection,” she told POLITICO. “The court’s decision to say the presidency is excluded from section 3 of the 14th Amendment is the really surprising part. Under that decision, Donald Trump is above the law when it comes to insurrection.”
Now, the Colorado justices have a chance to lend the imprimatur of a state supreme court to the debate. And if they rule against Trump, they will trigger a rush to the U.S. Supreme Court, which would be called upon to resolve Trump’s eligibility nationwide.
“I think once that happens, the court will seriously consider getting involved,” said Richard Hasen, an expert in election law who teaches at UCLA Law School.
Sen. John Hickenlooper (D-Colo.), who appointed five of the seven current justices in his former role as the state’s governor, described the issue as a “test case” for the nation to determine the meaning of 14th Amendment provision. He said in an interview that he worries his state becoming the epicenter of the issue isn’t “in Colorado’s best interest.”
“That being said, we need to figure out what that law means,” he added.
Trump contends that the violence at the Capitol on Jan. 6 doesn’t amount to an insurrection at all. He argues that the Colorado challengers seeking to remove him from the ballot — several voters backed by advocacy groups — relied too heavily on the work of the House Jan. 6 select committee and on witness testimony that he argues was subjective.
He also argues that his conduct on Jan. 6 was largely protected by the First Amendment and that he can’t be blamed for the violence that followed his remarks to the crowd.
But Wallace rejected those assertions. “The Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech,” she ruled.
The case may turn on historical understandings about the roots of the 14th Amendment’s insurrection clause, which passed in the aftermath of the Civil War and was intended to prevent former leaders of the Confederacy from returning to power. The clause has rarely been applied in the modern era, and it has never been applied to a presidential candidate — nor has any former president been accused of aiding an insurrection against his own government.
The Jan. 6 select committee spent a year interviewing hundreds of witnesses in Trump’s orbit, amassing a trove of evidence that has formed the backbone of multiple civil and criminal investigations of Trump’s efforts to subvert the 2020 election. Though the committee’s conclusions were the subjective judgment of its nine members — seven Democrats and two Republicans — the hundreds of witness transcripts and exhibits laid bare an extraordinary effort by Trump to use his office to pressure federal and state officials to prevent Joe Biden from taking office.
That effort culminated with Trump’s incendiary speech to a crowd of supporters on Jan. 6 near the White House, where Trump urged them to “fight like hell” to “stop the steal” and told them to march on the Capitol. Violence was already underway during his speech, and thousands of his supporters began the 1.5-mile march before hearing him implore them to go “peacefully.”
Wallace’s trial featured testimony from the Jan. 6 committee’s chief investigator, Tim Heaphy, who described the panel’s evidence-gathering process. Other witnesses included D.C. Police Officer Daniel Hodges, who was famously assaulted by Jan. 6 rioters while he was wedged in a Capitol doorway; former Trump Pentagon aide Kash Patel; retiring Rep. Ken Buck (R-Colo.); and several experts in constitutional history and right-wing extremism.
Wallace’s ruling perplexed many legal advocates by concluding that Trump engaged in an insurrection but nevertheless holding that he could remain on the ballot.
Advocacy groups successfully deployed the 14th Amendment to have a local official in New Mexico removed from office last year over his actions related to Jan. 6. A state judge ordered that Couy Griffin, a “Cowboys for Trump” co-founder and then an Otero County commissioner, be removed. That lawsuit was backed by advocacy group Citizens for Responsibility and Ethics in Washington, which is also backing the Colorado case.
Griffin was previously convicted in a federal court for a misdemeanor for entering the grounds of the Capitol on Jan. 6. The state Supreme Court twice turned away his appeal of the 14th amendment ruling.
Activists have pushed election officials across the country to remove Trump from state ballots, but they have largely balked, saying courts — not election officials — should be the ones to make that call. Now, officials across the country are watching the Colorado case for signals on how to proceed in their own states.
Recently, Oregon Secretary of State LaVonne Griffin-Valade, a Democrat, said she would not remove Trump from the state’s primary ballot last week. Her office — relying on legal advice from the state Department of Justice — noted that state law treats presidential primary elections and the general election differently, and that her decision here does not apply to the November election.
“We recognize that the same question may come up with respect to the general election if Donald Trump is nominated,” Benjamin Gutman, the state’s solicitor general, wrote in a letter to Griffin-Valade. But, he concluded, “we think it would be prudent to defer consideration of the general-election question at present.”
Anthony Adragna contributed to this report.