Donald Trump lost in Colorado in 2016 and 2020 and, by all measures, he’ll probably lose the state again by a wide margin in 2024 if he’s the Republican presidential nominee.
So why did a liberal political nonprofit based in Washington, D.C., decide to file its lawsuit challenging Trump’s candidacy in Colorado instead of a swing state like Arizona or Wisconsin?
The answer lies in Colorado’s unique election laws. Specifically sections 1-1-113 and 1-4-1204.
Colorado’s statutes allow voters to bring a lawsuit challenging a presidential primary candidate’s qualifications to be on the ballot and they require courts to make a speedy ruling on the claim.
“Not every state has laws that allow citizens to bring a lawsuit challenging candidates,” said Mario Nicolais, one of the lawyers representing a group of Republican and unaffiliated voters who sued to block Trump from appearing on the March 5 Republican presidential primary ballot in Colorado. “And Colorado has a pretty unique system where we do have an expedited process.”
Nicolais, who is a Colorado Sun opinion columnist, pointed to a provision in state law (section 1-4-1204) requiring that a challenge to a presidential primary candidate’s spot on the ballot get a hearing in state district court no more than five days after it is filed and that a ruling be issued within 48 hours of the hearing.
In the case of the Colorado lawsuit challenging Trump’s candidacy, the process was much slower. The case was filed in September, a five-day hearing in Denver District Court began on Oct. 30 with a break before closing arguments on Nov. 15. The Denver judge issued her ruling in the case on Nov. 17, which was appealed to the Colorado Supreme Court. The high court heard arguments on Dec. 6 and issued its 4-3 ruling Tuesday disqualifying Trump as a candidate and blocking him from the ballot because he engaged in an insurrection on Jan. 6, 2021, at the U.S. Capitol.
But that’s still an extremely fast timeline for any lawsuit, let alone one with presidential stakes.
Additionally, Colorado election law allows appeals of district court rulings in ballot-access challenges to be directly filed with the Colorado Supreme Court as long as they are submitted within three days. That allows cases to bypass the Colorado Court of Appeals, the state’s second highest court.
Where section 1-1-113 of Colorado’s election law comes into play is with Colorado Secretary of State Jena Griswold, a Democrat against whom the lawsuit was brought. The provision requires a district court judge to issue an order when an elected official “has committed or is about to commit a breach or neglect of duty or other wrongful act.”
In the Trump case, the plaintiffs argued that if Griswold had placed Trump on the ballot that would have been a wrongful act since, in their view, he is disqualified from running for office again.
“When this lawsuit was initially filed, I was surprised it was filed in the state of Colorado and not other states,” Griswold told The Colorado Sun on Wednesday.
But Griswold said the more she looked into state election law she understood why.
Similar lawsuits challenging Trump’s candidacy under the so-called “insurrection clause” of the U.S. Constitution have been filed in other states, but thus far only the one brought in Colorado has been successful. In fact, the Colorado Supreme Court’s ruling marks the first time the insurrection clause has been successfully used to block a presidential candidate from appearing on the ballot.
Section 3 of the 14th Amendment, which was passed in the wake of the Civil War, bars “officers of the United States” who took an “oath … to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” from holding federal or state office again.
In Minnesota, a lawsuit challenging Trump’s candidacy was rejected because, the state’s highest court found, political parties have the sole power to decide who is on their primary ballots. In Michigan, the claim was rejected after a judge ruled that only Congress has the authority to enforce the insurrection clause.
Noah Bookbinder, the CEO of Citizens for Responsibility and Ethics in Washington, the nonprofit that spearheaded the lawsuit, said on MSNBC in September that Colorado’s laws made it the ideal place to challenge Trump’s candidacy.
“There’s a specific law in Colorado that says you can do this,” he said. “That’s a different thing from somebody just going to federal court and just saying ‘I believe this person to be disqualified under the Constitution so I want them removed.’”
In fact, the Trump campaign tried to move the case to federal court but was unsuccessful.
Colorado’s election laws haven’t always been so ripe for presidential candidacy challenges.
For instance, up until 2017, voters could only challenge a presidential primary candidate’s spot on the ballot to the secretary of state, not the court. But the legislature — at the time under split control, with Republicans holding a majority in the Senate and Democrats holding a majority in the House — passed a bill rerouting the challenges to district court.
The three Colorado Supreme Court justices who dissented in Tuesday’s ruling raised concerns about the speed of the state’s ballot-access challenge laws and whether they apply to questions about qualifications under the insurrection clause or more mundane criteria like party affiliation and age, citizenship and country of birth.
“The framework that (Colorado’s election law) offers for identifying qualified candidates is not commensurate with the extraordinary determination to disqualify a candidate because they engaged in insurrection against the Constitution,” Chief Justice Brian Boatright wrote in his dissent.
He said the plaintiffs relied on the “breakneck pace” required in Colorado’s election laws to pursue Trump’s disqualification and that they “overwhelmed the process.”
“This speed comes with consequences, namely, the absence of procedures that courts, litigants, and the public would expect for complex constitutional litigation,” Boatright added.
Justice Carlos Samour Jr., in his dissent, called the challenge “a square constitutional peg that could not be jammed into our election code’s round hole” and labeled the district court proceedings a “procedural Frankenstein” for not following the strict deadlines in state election law.
Justice Maria Berkenkotter echoed the timing concerns.
“Three days to appeal a district court’s order regarding a challenge to a candidate’s age? Sure,” she wrote in her dissent. “But a challenge to whether a former President engaged in insurrection by inciting a mob to breach the Capitol and prevent the peaceful transfer of power? I am not convinced this is what the General Assembly had in mind.”
The court’s majority brushed off the concerns.
“Although Colorado’s expedited statutory procedure for litigating election disputes may be unfamiliar nationally, our courts, particularly the Denver District Court (the proper venue when the Secretary is the named respondent), are accustomed to section 1-1-113 litigation,” Justices Monica Márquez, William Hood, Richard Gabriel and Melissa Hart wrote in the court’s 132-page majority opinion. “Such cases arise during virtually every election cycle, and this court has exercised jurisdiction many times to review these disputes.”
They added that 1-1-113 and 1-4-1204 are “a robust vehicle through which to protect the purity of Colorado’s elections.”
The plaintiffs in the Colorado 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, former chief of staff for then-Gov. Bill Owens, a Republican.
The Colorado Supreme Court’s ruling is stayed until Jan. 4. The court ordered that the stay remain in place if its decision is appealed to the U.S. Supreme Court. That means if an appeal is filed, Trump will be on the ballot in Colorado until the U.S. Supreme Court rules on the challenge.
Both the Trump campaign and Colorado GOP have vowed to file an appeal with the U.S. Supreme Court. The Colorado GOP is threatening to withdraw from the presidential primary or ignore its results if Trump is not on the ballot.
The state has a Jan. 5 deadline to set the presidential primary ballot. Ballots start being mailed to military and overseas voters on Jan. 20. Election Day is March 5.