Colorado’s state Supreme Court has agreed to hear an appeal of a recently decided case involving former President Donald Trump’s eligibility to run for president again under a constitutional provision that forbids former lawmakers and government officials who engaged in insurrection from seeking public office of any kind.
The state’s highest court issued its order approving the writ of certiorari on Tuesday. Both sides in the matter are now required to appear before the court on December 6 to present arguments defending their positions.
If the court rules in favor of plaintiffs, Trump’s name would not appear on either the primary election ballot, nor the general election ballot, in next year’s presidential race. Colorado is not necessarily a swing state — Trump lost to President Joe Biden in the 2020 presidential election by more than 13 points — but the outcome of the case, if Trump is indeed removed, could inspire other states to take similar actions against the former president.
Late last week, state Judge Sarah B. Wallace issued her ruling in a case brought forward by six residents of Colorado seeking to bar Trump from being able to appear on state ballots for next year’s presidential race.
The residents — individuals with Republican or independent affiliation status — are being represented by the nonprofit government watchdog organization Citizens for Responsibility and Ethics in Washington (CREW). They allege that Trump’s actions on January 6, 2021, (in which he motivated a mob of his loyalists to attack the U.S. Capitol and stood by for hours doing nothing to stop them from engaging in violent actions to disrupt the certification of his election loss to Biden), warrant proclaiming him an insurrectionist who is ineligible to run for office again, in line with provisions that exist in Section 3 of the 14th Amendment to the U.S. Constitution.
Wallace agreed with the petitioners that Trump had engaged in acts of insurrection. However, she stopped short of issuing an order that he be disqualified from running for president and barred from the Colorado election ballot next year, taking a narrow view of the amendment that has been proffered by Trump supporters but is widely rejected by many legal scholars, including conservative legal experts.
Wallace’s ruling, though monumental for being the first time a judge has unequivocally stated that Trump is an insurrectionist, was appealed by CREW and the six Colorado residents, who claim Judge Wallace erred in finding that Trump was not meant to be held accountable for his actions the same way that other lawmakers would be under the amendment’s provisions.
As CREW noted in an explanation of its decision to appeal, Wallace “rule[d] in favor of the petitioners on every factual issue necessary to disqualify Trump from the ballot – including the historic ruling that he engaged in insurrection against the Constitution as president.”
“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,” CREW president Noah Bookbinder said.
Attorneys for Trump also appealed the ruling. While they were happy that their client would still appear on the ballot, they took issue with Wallace ruling that he was an insurrectionist because of his actions on January 6.
It’s hard to conclude, however, through a basic reading of Section 3 of the 14th Amendment, that it doesn’t apply to Trump and his actions on January 6; nor to see how he could be an exception to the rule barring former officeholders from public office.
The amendment reads in part that no person who, “having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States,” shall be able to run for or hold office again if they have “engaged in insurrection or rebellion.” Wallace’s ruling suggested that Trump, as a former president of the United States, didn’t fit the qualifications listed, including being “an officer” of the federal government.
In its brief filed with the state Supreme Court, CREW stated that Wallace’s finding — that Trump, as president, wasn’t an officer of the United States — was “counterintuitive” to a basic understanding of the federal government and reading of the Constitution.
“The Constitution itself, historical context, and common sense, all make clear that the Fourteenth Amendment’s disqualification clause extends to the President and the Presidency,” CREW wrote in its appeal brief.
The Constitution explicitly tells us, over and over, that the Presidency is an “office.” The natural meaning of “officer of the United States” is anyone who holds a federal “office.” And the natural reading of “oath to support the Constitution” includes the stronger Presidential oath to “preserve, protect, and defend the Constitution.”
“Instead of addressing the textual proof that the Presidency is an ‘office,'” CREW went on, “the district court relied on the fact that Section 3 does not specifically mention the Presidency. But there would have been no reason to specifically enumerate the Presidency, because it so clearly falls within the general language of ‘any office.'”
Legal experts lauded CREW for its thorough and detailed appeal brief, with former federal Judge J. Michael Luttig, a conservative jurist, describing it as “the most powerful, most compelling brief on a question of constitutional law” that he had ever read.
“There is simply no answer to the constitutional case made by [CREW] for the former president’s disqualification,” Luttig added.
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