The Colorado Supreme Court heard a challenge Wednesday from voters looking to boot former President Donald Trump from the ballot over the attack at the Capitol on Jan. 6, 2021.
The seven justice court — all Democratic appointees — heard the appeal after a lower court judge ruled in favor of Mr. Trump — saying he committed an insurrection, but the court can’t prevent his name from being on the 2024 primary ballot.
Eric Olson, who argued on behalf of the voters looking to overturn the lower court’s decision, said Mr. Trump tried to delay votes and disrupted a peaceful transfer of power. He said Section 3 of the 14th Amendment, which bars anyone who led a rebellion from serving in public office, should prevent Mr. Trump’s name from appearing on the ballot.
“Our Constitution commands no arms, has no police force. All it has is a very limited, self-defense mechanism — and that is Section 3,” he said.
But Scott Gessler, the lawyer representing Mr. Trump and a former secretary of state of Colorado, told the court that the section at issue doesn’t specifically name the president, so it shouldn’t apply to Mr. Trump.
“The drafters of the 14 Amendment made a choice,” Mr. Gessler said. “The drafters chose to exclude the presidency by using specific language.”
The justices did not indicate when they would issue a ruling. They peppered both sides with tough questions during the more than two-hour hearing.
Justice Carlos A. Samour Jr. told Mr. Olson he worried about the fact that Section 3 doesn’t have a uniform enforcement mechanism and what that could mean for different states considering this matter.
“Do we want an approach where each state decides on their own what Section 3 means and how it should apply?” he asked.
Meanwhile, Justice Monica M. Marquez sparred with Mr. Gessler over why the president would be excluded — but others included — under Section 3.
“It seems to make no sense to me … that if the purpose of Section 3 was to punish oath breakers, that you would set up a provision that broke the lesser oath, but exempts people who broke the more serious oath,” she said.
The state’s highest court is hearing the dispute after a lower court judge ruled last month that Mr. Trump could remain on the state’s primary ballot. It was one of several setbacks for Trump opponents who are attempting to use the Constitution’s insurrection clause to block the former president’s bid for reelection.
Colorado state Judge Sarah Wallace, a Democrat appointee, held in a 102-page order that Mr. Trump did incite violence and an insurrection intentionally on Jan. 6 — but she said Section 3 of the 14th Amendment, known as the insurrection clause, did not apply to the office of the presidency — meaning his name could remain on the ballot.
Though Mr. Trump is facing several indictments, he has not been charged or convicted of leading an insurrection during the attack on the U.S. Capitol by Trump supporters on Jan. 6, 2021.
Those hoping to remove Mr. Trump from state ballots point to Section 3 of the 14th Amendment, which reads: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The provision was written into the 14th Amendment with the Civil War in mind, but the former president’s opponents say it should apply to his attempts to stop certification of President Biden’s victory.
Courts in Minnesota, Rhode Island, Florida, Arizona, and Michigan have moved to keep Mr. Trump on the ballot, as has the state of New Hampshire, despite critics claiming Mr. Trump is disqualified.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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