The seven justices on the Colorado Supreme Court appeared to struggle Wednesday with the technical question of whether a Civil War-era amendment to the U.S. Constitution barring “officers of the United States” from holding office again if they engage in an insurrection applies to presidents.
The answer could determine whether the court blocks Donald Trump from appearing on Colorado’s 2024 Republican presidential primary ballot and it will likely have national implications no matter which way the court rules.
Justice Richard Gabriel said it seemed absurd that drafters of the 14th Amendment wouldn’t have meant it to apply to presidents. Justice Monica Márquez said in her readings on the case law, “I saw no rational reason for that type of an exclusion.”
But Justice Carlos Samour Jr. said it seemed odd that the presidents and vice presidents were specifically called out in Section 3 of the 14th Amendment, the so-called insurrection clause.
☀️ READ MORE
“If it was so important that the president be included, why not spell it out?” he asked before packed chambers in downtown Denver, echoing the legal ambiguity on which the lower court’s ruling hinged.
Justice Melissa Hart pointed out that “nowehere in any of the references to ‘officer’ does the Constitution list the president.”
The arguments before the Colorado Supreme Court were made in a lawsuit filed in September by Citizens for Responsibility and Ethics in Washington, a liberal political nonprofit based in Washington, D.C, on behalf of a group of Colorado Republican and unaffiliated voters. The nonprofit, which doesn’t reveal its donors, argues that Trump incited a riot at the U.S. Capitol on Jan. 6, 2021, and therefore is ineligible to appear on the GOP presidential primary ballot next year.
But Denver District Court Judge Sarah Wallace ruled on Nov. 17 that while Trump did incite an insurrection on Jan. 6, he can still appear on Colorado’s 2024 Republican presidential primary ballot because he is not an “officer of the United States.”
“Part of the court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section 3,” she wrote.
Citizens for Responsibility and Ethics in Washington appealed the ruling to the Colorado Supreme Court. Trump’s 2024 campaign also appealed, seeking to invalidate Wallace’s finding that Trump incited an insurrection.
The state’s high court is expected to make a decision by next week given the tight timeline to set the state’s March 5 presidential primary ballot. The seven justices were all appointed by Democratic governors.
The Colorado Secretary of State’s Office must certify which candidates will appear on the ballot by Jan. 5. Ballots start being mailed to military and overseas voters on Jan. 20.
The Colorado Supreme Court’s decision is likely to be appealed to the U.S. Supreme Court. Similar lawsuits seeking to block Trump from appearing on presidential primary ballots have been filed in other parts of the country, but none have been successful.
The Colorado lawsuit was filed against Colorado Secretary of State Jena Griswold, a Democrat, whose office took a neutral legal stance on the case. But after Wallace’s ruling last month, Griswold, in TV appearances, expressed shock at the outcome.
“The idea that any official who would engage in insurrection would be barred from taking office except the presidency is incredibly surprising,” she said on MSNBC last month. “That basically means that the presidency is a get-out-of-jail free card for insurrection.”
On Wednesday, Griswold issued a statement saying that she “will continue to follow the guidance of the courts on this important issue” and that she looks forward to a “timely decision.”
Jason Murray, a lawyer for Citizens for Responsibility and Ethics in Washington, argued Wednesday that Section 3 of the 14th Amendment clearly applies to presidents, both by dictionary definition and by common sense. He called it the Constitution’s “self-defense mechanism.”
“Who could more easily subvert our democracy from within, than a commander-in-chief who has already tried to do so before?” he asked.
Murray said when the 14th Amendment was adopted, everyone understood at the time that it prevented Jefferson Davis, who was president of the Confederate states, from serving as U.S. president.
But Scott Gessler, a former Colorado secretary of state who is serving as the Trump campaign’s lead lawyer in the case, said that the 14th Amendment was carefully written and not open to interpretation. He argued Davis could have been elected president under the amendment.
“That would be the rule of democracy in work,” Gessler said.
The Trump campaign also argued that Wallace’s ruling was invalid because state courts generally don’t have the power to enforce Section 3 of the 14th Amendment because it’s a constitutional matter.
“This whole thing is about constitutional litigation,” Gessler said.
The Supreme Court justices seemed to reject that argument since it’s state elections officials who are responsible for determining whether a candidate — or federal office of otherwise — is eligible to appear on Colorado’s ballot.
“There has to be some mechanism for review,” said Justice William Hood.
The plaintiffs in the case include Krista Kafer, a Republican activist and political commentator in Colorado; Norma Anderson, a Republican who was formerly the majority leader in the Colorado Senate; Michelle Priola, the wife of state Sen. Kevin Priola, who switched his party affiliation to Democratic from Republican in 2022; and Chris Castilian, chief of staff for then-Gov. Bill Owens, a Republican.
Mario Nicolais, a Colorado Sun opinion columnist, is another one of the lawyers representing the plaintiffs.