DENVER — Colorado Supreme Court justices on Wednesday sharply questioned whether they could exclude President Donald Trump from the ballot in a case that seeks to upend his bid for a second term by claiming the Constitution’s insurrection clause bars him from another run for the White House.
At issue is the wording of the Civil War-era clause itself, whether the courts have a right to intervene at this stage if Trump has met the basic requirements to appear on Colorado’s 2024 primary ballot and whether Trump had indeed incited an insurrection when his supporters violently stormed the U.S. Capitol on Jan. 6, 2021.
The language of Section 3 of the 14th Amendment has come under scrutiny because of the way it defines who is barred from holding office if they have “engaged in insurrection or rebellion.” While it refers to the U.S. House and Senate, it does not specifically refer to the person who is president, instead saying “elector of President and Vice President,” along with civil and military offices.
“If it was so important that the president be included, I come back to the question, Why not spell it out?” Justice Carlos A. Samour Jr. said. “Why not include president and vice president in the way they spell out senator or representative?”
Jason Murray, attorney for the petitioners, argued that the clause “applies to any office,” which he said would include the presidency. He cited a law dictionary from the era and and exchanges between lawmakers debating the amendment at the time to underscore the point.
“We think the text here is very clear,” he said.
The oral arguments came after both sides appealed a ruling last month from a district court judge in Denver who found that while Trump engaged in insurrection by inciting the violent attack, Section 3 of the 14th Amendment doesn’t apply to the office of president so he can remain on the ballot. The liberal group that sued on behalf of six Republican or unaffiliated voters appealed the ruling to the state’s high court.
Trump also appealed a different part of the ruling - the judge’s finding of his culpability in the Capitol attack - and whether a state court judge can legally interpret the meaning of the clause’s somewhat obscure two sentences. The provision was added to the Constitution to keep former Confederates from returning to their government offices after the Civil War.
Dozens of lawsuits citing the provision to keep Trump from running again for president have been filed across the country this year. None have succeeded, but the Colorado case is seen by legal experts as among the most significant.
It came closest to achieving its goal as District Court Judge Sarah B. Wallace said Trump’s actions met the definition of engaging in an insurrection. She rejected the argument by Trump’s attorneys that his rallying his supporters to the Capitol was simply an exercise in free speech.
But the judge also found that she was not able to disqualify Trump from the ballot under Section 3.
“Part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three,” the judge wrote in the 102-page ruling.
The Colorado case was filed by a liberal group, Citizens for Ethics and Responsibility in Washington, with significant legal resources. A second liberal group, Free Speech For the People, lost a similar case that went directly to the Minnesota Supreme Court and is appealing a ruling against its separate effort to bounce Trump from the ballot in Michigan.
In the Minnesota case, the justices did not rule on the merits of the case but said state law allows political parties to put whomever they want on the primary ballot. It left open the possibility that the plaintiffs could file a new 14th Amendment case during the general election. In Michigan, the judge found that Trump had followed state law in qualifying for the primary ballot and that it should be up to Congress to decide whether the 14th Amendment disqualifies him. That state’s supreme court on Wednesday declined to hear the appeal immediately, saying it should first be considered by the state court of appeals.
Colorado justices also raised a question that was an issue in the Minnesota arguments - whether the matter is best settled in Congress rather than the states.
Justice Richard L. Gabriel asked attorneys for the petitioners to address the argument that having multiple states potentially decide the issue differently “could create chaos.”
“The concern of a patchwork is overblown,” responded Eric Olson, an attorney for the plaintiffs.
Any ruling from the Colorado Supreme Court, whose seven justices were appointed by Democrats, is likely to be appealed to the U.S. Supreme Court, which has never ruled on Section 3. The provision, which applies to those who broke an oath to “uphold” the Constitution, has been used only a handful of times since the decade after the Civil War.
Those who filed the recent lawsuits argue Trump is clearly disqualified because of his role in the Jan. 6 attack, which was intended to halt Congress’ certification of Democrat Joe Biden’s victory.
Trump has condemned the lawsuits as “anti-democratic” and designed to block voters from having their say. He also has stepped up efforts to link them to Biden because the two liberal groups behind some of the complaints are funded by Democratic donors who support the president’s reelection. On Saturday, Trump accused Biden of having “defaced the Constitution” to stop his candidacy.
Please read our comment policy before commenting.