Dec 6, 2023 - Politics & Policy

Colorado Supreme Court skeptical of bid to block Trump from 2024 ballot

Former President Donald Trump campaigns Saturday in Ankeny, Iowa. Photo: Jabin Botsford/The Washington Post via Getty Images

Former President Donald Trump campaigns Saturday in Ankeny, Iowa. Photo: Jabin Botsford/The Washington Post via Getty Images

Colorado's Supreme Court justices expressed repeated skepticism Wednesday during oral arguments seeking to prevent former President Trump from appearing on the 2024 ballot.

Driving the news: The high court questioned whether Section 3 of the 14th Amendment, which prohibits those who engage in insurrection from holding office, covers the presidency and whether the Jan. 6 attack on the Capitol rose to that level.

  • Justice Monica Márquez noted that the Constitution refers to "officers" without explicitly including the president.
  • Justice Carlos Samour sided with Trump's attorney and expressed concern "about the definition of insurrection that the district court adopted. It strikes me as somewhat or potentially overbroad."
  • All seven justices on the state's high court were appointed by Democrats.

Why it matters: The pointed inquiries suggest the court agrees with a lower court opinion allowing Trump to remain on the Colorado ballot, but may dispute the ruling that he engaged in an insurrection.

Catch up quick: A district court judge in Denver ruled in November that Trump engaged in insurrection because he incited the attack, but ruled Section 3 doesn't apply to the office of the president.

  • The liberal group behind the lawsuit, filed on behalf of six Republicans and unaffiliated voters, appealed to the state supreme court, as did the Trump campaign, which is seeking to reverse the court's finding that he is responsible for the attack.

What they're saying: The plaintiff's pushing to disqualify Trump argued the constitutional clause is a broader "self-defense mechanism" that covers the commander in chief.

  • "If we say this conduct by this person is not enough under the Constitution, what we do is empower Trump and others to use more political violence to attack our democracy," said Eric Olson, the plaintiff's attorney and a former Colorado solicitor general.

The other side: Scott Gessler, a former Colorado secretary of state who is representing Trump's campaign, argued the drafters of the Constitution made a distinct choice to not include the president in Section 3.

  • He acknowledged the violence at the Capitol amounted to a riot, but not an insurrection or rebellion. To do so, he said, it would need to last longer, take place at more than one building and involve more powerful arms.

The big picture: The Colorado case is considered the most significant challenge to Trump's eligibility to appear on the state's presidential primary ballot, but it is not the only one.

  • At least 32 cases across the country are seeking to block Trump, the GOP front-runner, from the ballot, using the untested insurrection clause.
  • The most recent came Wednesday in Oregon, where the group behind cases in Minnesota and Michigan filed a new challenge.
  • Six have been dismissed so far, per legal analysis by nonprofit publication Lawfare.

What to watch: It's unclear when the Colorado court may rule, but the secretary of state must certify the March 5 primary ballot by Jan. 5. The decision is expected to be appealed to the U.S. Supreme Court.

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