Colorado Supreme Court justices on Wednesday sharply questioned both sides about whether they could exclude former President Donald Trump from the 2024 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 otherwise met the basic requirements to appear on Colorado's 2024 primary ballot and whether Trump indeed incited an insurrection when his supporters violently stormed the U.S. Capitol on Jan. 6, 2021.
Attorneys who sued to strike Trump from the ballot were appealing a lower court ruling that the former president did indeed engage in insurrection, but that Section 3 of the 14th Amendment doesn't actually bar insurrectionists from the nation's highest elected position. While the clause refers to the U.S. House and Senate and even presidential and vice presidential electors, it does not specifically mention the presidency.
"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 said it would be ridiculous for the amendment's framers, who were trying to keep former members of the Confederacy from retaking power, to have intended otherwise.
"We think the text here is very clear," he said.
An attorney representing Trump, Scott Gessler, said it should be assumed that the amendment's drafters chose the words with care and meant to exclude the presidency. Several of the justices pushed back, questioning whether such an argument would have allowed Jefferson Davis, who was president of the Confederacy, to become president if the electors voted that way.
"That would be the rule of democracy at work," Gessler responded.
The two-hour arguments were the most extensive yet over the push to bar Trump from the ballot.
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 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.
Wallace rejected the argument by Trump's attorneys that his rallying his supporters to the Capitol was simply an exercise in free speech. But the district judge also found that she was not able to disqualify Trump under Section 3 because of the fuzzy wording related to the office of the president.
The Colorado case was filed by a liberal group, Citizens for Responsibility and Ethics in Washington, on behalf of a half-dozen Republican and unaffiliated voters in the state. 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. On Wednesday, it filed a lawsuit in Oregon to remove Trump from that state's primary ballot.
In the Minnesota case, the justices did not rule on the merits 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 challenge 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.
On Wednesday before Colorado's high court, attorneys bickered over the district judge's finding that Trump's actions related to the Capitol attack — which was intended to halt certification of Democrat Joe Biden's victory — met the definition of an insurrection.
"There has to be a real public use of force to prevent or hinder the execution of the Constitution of the United States," said Eric Olson, an attorney for the plaintiffs. "And here there can be no doubt that trying to disrupt the peaceful transition of power by stopping the counting of the electoral votes is hindering the execution of the Constitution."
But Trump attorney Gessler said the Capitol attack would be better described as a riot and argued that Trump did not intend to incite his supporters to violence: "If you look at January 6, his speech said 'go peacefully and patriotically.'"
Several of the justices challenged Gessler on the point, noting how many people were injured during the attack and Trump's own language urging his supporters to fight.
"Why isn't it enough that a violent mob breached the Capitol when Congress was performing a core constitutional function?" said Justice William W. Hood III. "In some ways, that seems like a poster child for insurrection."
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.
Justices asked attorneys to address the argument that having multiple states potentially decide the issue differently before the election could create chaos. But they also raised the prospect that failing to resolve the question now of Trump's ability to appear on the ballot could create the potential for a constitutional crisis in January 2025 if he wins the election next fall.
"What Trump wants is for everyone to take a pass on this issue and set up another Jan. 6 in January of 2025," Olson argued.
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 lawsuits argue Trump is clearly disqualified because of his role in the Jan. 6 attack.
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.
Trump's attorney in Colorado alluded to the unprecedented nature of the case when the justices challenged him to formulate a definition of "insurrection" that would apply to Section 3, one of the key legal issues in the case.
"You're going to tell me, 'Mr. Gessler, you're making it up,'" Gessler told the justices. "I'm going to tell you, well, so did the judge. And at the end of the day, we all are to a certain extent."
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