Judge to decide whether Trump can be barred from ballot in Colorado for 'insurrection'

A Colorado judge on Wednesday heard closing arguments on whether former President Donald Trump is barred from the ballot by a provision of the U.S. Constitution that forbids those who "engaged in insurrection" from holding office.

The hearing came on the heels of two losses elsewhere for advocates who are trying to remove Trump from the ballot under Section Three of the 14th Amendment, which bars from office those who swore an oath to uphold the U.S. Constitution and then "engaged in insurrection" against it. The measure has only been used a handful of times since the period after the Civil War, when it was intended to stop former Confederates from swamping government positions.

Last week, the Minnesota Supreme Court dodged the question of whether the provision applies to Trump, who is so far dominating the Republican presidential primary. It dismissed a lawsuit to toss him off that state's primary ballot by saying that political parties can allow whomever they want to qualify for primaries.

The court left the door open for a general election challenge if Trump becomes the GOP nominee.

On Tuesday, a Michigan judge dismissed another lawsuit seeking to bounce Trump from that state's primary ballot with a more sweeping ruling. He said whether the provision applies to the former president is a "political question" to be settled by Congress, not judges. The liberal group that filed the Michigan case, Free Speech For People, said it plans to appeal the decision.

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Trump attorney Scott Gessler told Colorado District Judge Sarah B. Wallace during closing arguments that the rulings in Minnesota and Michigan demonstrate "an emerging consensus here across the judiciary across the United States." Throughout the weeklong hearing that concluded earlier this month, he said the plaintiffs had failed to show that the 14th Amendment's insurrection provision applies to Trump.

"The petitioners are asking this court to do something that’s never been done in the history of the United States," Gessler said. "The evidence doesn’t come close to allowing the court to do it."

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Another left-leaning group, Citizens for Responsibility and Ethics in Washington, filed the Colorado lawsuit. While there have been dozens of cases nationally, many of them have been filed by individual citizens acting alone, sometimes not even residing in the state where the complaint is lodged. The Colorado, Michigan and Minnesota cases have been seen by legal experts as the most advanced, partly due to the legal resources the liberal groups bring to bear.

The Colorado plaintiffs’ attorney, Sean Grimsley, told the judge during Wednesday’s hearing that the evidence was clear.

"We are here because, for the first time in our nation’s history, the president of the United States engaged in an insurrection," he said, summing up their case. "Now he wants to be president again. The Constitution does not allow that."

The Trump campaign has called the lawsuits "election interference" and an "anti-democratic" attempt to stop voters from having the choice they want next November. The former president's attorneys asked Wallace, who was appointed by Democratic Gov. Jared Polis, to recuse herself because she donated $100 to a liberal group that called Jan. 6 a "violent insurrection."

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Wallace said she had no predetermined opinion about whether the Capitol attack met the legal definition of an insurrection under Section 3 and stayed with the case.

There are a number of ways the case can fail: Wallace could, like the Minnesota high court, say she is powerless in a primary or, like the Michigan judge, defer to Congress' judgment. Trump's attorneys and some legal scholars argue that Section 3 is not intended to apply to the president and that Trump did not "engage" in insurrection on Jan. 6 in the way intended by the authors of the 14th Amendment.

An attorney representing Colorado Secretary of State Jena Griswold urged the judge not to dodge the constitutional issues by ruling, as the Minnesota Supreme Court did, that she did not have the power to remove someone from a primary ballot. 

"Ballots are what voters use to select their candidate," said Mike Kotlarczyk of the state attorney general’s office. "Having candidates that are ineligible to serve in the offices they seek frustrates that purpose."

He said Griswold, a Democrat, did not have a stance on whether the provision disqualifies Trump but said she would follow the court’s direction.

The petitioners in the case called a legal scholar who testified that the authors of Section 3 meant it to apply even to those who offered aid to the Confederate cause, which could be as minimal as buying bonds. They argued Trump "incited" the Jan. 6 attacks and presented dramatic testimony from police officers who defended the Capitol from the rioters.

Gessler argued that the prior weeklong hearing in Denver could barely scratch the surface of the facts of Jan. 6, and warned there could be information mitigating to Trump the judge may not have had time to hear.

"This is a big issue and that was a small hearing," Gessler said.

Wallace will have 48 hours to rule after the end of arguments, although that deadline can be extended. Whatever she decides is likely to be appealed to the Colorado Supreme Court. From there it could go to the U.S. Supreme Court, which has never ruled on Section 3.

During his hourlong closing argument, Grimsley tried to address the Trump argument that disqualifying him would deprive voters of their choice for president.

"The argument that Section 3 should not apply because Trump is popular could not be more dangerous," Grimsley said, adding: "The rule of law must apply whether a candidate has no choice of winning an election or is a potential frontrunner."