Ledes from the Land of Enchantment

Case seeking to bar Trump from 2024 ballot appealed to Colorado Supreme Court

The widely anticipated next phase of a challenge to former President Donald Trump’s constitutional eligibility to seek office again began on Monday with separate appeals filed by Trump and the plaintiffs who brought the case to the Colorado Supreme Court.

A Denver District Court judge ruled last week that Trump should be placed on Colorado’s March presidential primary ballot, rejecting a lawsuit filed by six Colorado voters who argue that the Republican frontrunner is disqualified from office under a Civil War-era insurrection clause.

Although Judge Sarah B. Wallace ruled that Trump “engaged in insurrection” within the meaning of Section 3 of the 14th Amendment — which prohibits anyone who did so after taking an oath to support the Constitution from holding office again — she held that the clause does not apply to the presidency. Wallace’s order instructed Secretary of State Jena Griswold, a Democrat, to place Trump on the ballot when certifying the list of primary candidates on Jan. 5.

The ruling drew an appeal first from Trump’s attorneys, who wrote that while they were satisfied with the outcome, Wallace’s opinion also contained “multiple grave jurisdictional and legal errors,” including her finding that Trump “incited an insurrection on Jan. 6, 2021.”

“President Trump seeks review to ensure that if this Court takes up this case on appeal, it will consider the full scope of the constitutional, interpretive, and evidentiary issues,” Trump’s attorneys wrote to the Colorado Supreme Court, listing eleven different legal issues they want the state’s highest court to consider.

The list of issues revives many of the arguments Trump’s team made during a five-day trial in district court earlier this month, including questioning the definitions of “insurrection” and “engaging” under Section 3, disputing the secretary of state’s authority to disqualify candidates under the clause and attempts to discredit the investigation into the Jan. 6 attack on the Capitol conducted by a select U.S. House of Representatives committee.

Plaintiffs in the case, backed by the nonprofit Citizens for Responsibility and Ethics in Washington, filed their own appeal late on Monday, calling the finding that Section 3 does not apply to the presidency “nonsensical.”

That theory was first put forward in 2021 by two conservative law professors, Josh Blackman and Seth Tillman, who argue that the section’s reference to “an officer of the United States” does not include the president.

Gerard Magliocca, a scholar of 19th-century constitutional law, was called as an expert witness by the plaintiffs during this month’s trial and testified that the position taken by Blackman and Tillman “so far is in the minority” among academics who have studied the question. Echoing Magliocca, the plaintiffs’ appeal cited several pieces of historical evidence showing that Section 3, which was ratified in 1868 and aggressively enforced against ex-Confederates for a period of several years, was understood to apply to the president at the time.

“Excluding the President and the Presidency from Section 3 would make no sense,” the plaintiffs wrote. “There would be no reason to prohibit insurrectionists from serving as mere presidential electors, and from holding every other office in the land, while allowing them to hold most the powerful and hence most dangerous office. Nor would there be any reason to allow insurrectionist former Presidents to hold office again, while excluding former low-level state officers.”

Attempts to bar Trump from the ballot under the 14th Amendment have been rejected by courts in several other states, including Michigan and Minnesota. But CREW and its supporters have sought to portray Wallace’s ruling in Colorado as a victory as they continue to build their case against Trump’s eligibility across the country.

“We always knew this case would end up before the Colorado Supreme Court, and have been preparing for that from the beginning,” Noah Bookbinder, CREW’s president, said in a press release Tuesday. “We are planning to build on the trial judge’s incredibly important ruling that Donald Trump engaged in insurrection, and we are ready to take this case as far as necessary to ensure that Donald Trump is removed from the ballot.”

Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: [email protected]. Follow Colorado Newsline on Facebook and Twitter.

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