Colorado’s Supreme Court justices turned their skeptical eyes toward the case to keep former President Donald Trump off the state’s 2024 ballot Wednesday as they heard arguments over the Republican frontrunner’s actions on Jan. 6, 2021 — and whether they disqualified him from running again.
The seven justices peppered both the plaintiffs in the high-profile lawsuit and Trump’s legal team with questions, including if the siege of the U.S. Capitol by Trump’s supporters constituted an insurrection. They also probed the legal ability of the Colorado secretary of state to keep candidates off the ballot, the language of the 14th Amendment itself — which says insurrectionists can’t run for office — as well as whether Colorado can invoke that rule on its own.
The provision at issue in the Civil War-era 14th Amendment was aimed at keeping Confederates away from federal power after the nation reunited. But its language doesn’t explicitly bar insurrectionists from the highest office in the land, prompting the Colorado justices to prod both sides about what that means.
“If it was so important that the president be included, I come back to the question: Why not spell it out?” Justice Carlos A. Samour Jr. asked the petitioners’ lawyers. “Why not include president and vice president in the way they spell out senator or representative?”
The attorneys hoping to keep Trump off Colorado’s ballot had argued that it would be “bizarre” and “counterintuitive” to read the amendment as barring rebels from most federal offices while leaving the presidency open to them.
Trump’s legal team argued the presidency was excluded on purpose, as a unique office. But would that mean, Justice Melissa Hart asked, that Jefferson Davis, the former president of the breakaway Confederacy, could have been elected U.S. president after the Civil War?
“That would be the rule of democracy at work,” replied Scott Gessler, a lead attorney for Trump and a former Colorado secretary of state.
The justices will sift through those answers and others in the weeks to come. They have no timeline to issue their ruling, though Colorado Secretary of State Jena Griswold in January must certify the ballots for the state’s March 5 presidential primaries.
After the hearing, Gessler said he viewed the justices’ close attention to the legal structure of Amendment 14’s Section 3 as “a positive.” That argument is what won for Trump in the lower court. He also didn’t want to read too much into their questioning and posture.
“I think the justices, in one form or another, expressed skepticism of everyone’s answers throughout the whole two hours,” Gessler said. “I don’t think you can really predict a whole lot from it.”
In a statement from the plaintiffs afterward, Lakewood attorney Mario Nicolais said: “Our oral argument today speaks for itself: Donald Trump took an oath to support our Constitution as an officer of the United States, violated that oath when he engaged in insurrection and consequently disqualified himself under Section 3 of the 14th Amendment.”
The court’s coming ruling could open the case up to a final appeal to the U.S. Supreme Court, especially if the justices disqualify Trump. The Colorado ballot case is among several similar ballot-qualification lawsuits targeting Trump across the country, but so far all have failed.
As it stands, Trump will be on Colorado’s Republican ballot. A Denver District Court judge ruled last month that Trump must be included because the 14th Amendment doesn’t apply to presidents — though Judge Sarah B. Wallace also declared in the findings of fact that Trump engaged in insurrection back in January 2021.
That ruling prompted an appeal from both Trump’s legal team and the group of Republican and unaffiliated voters suing to keep him off the ballot.
Trump’s team agreed with Wallace’s reading of the 14th Amendment but asked the state Supreme Court to strike the declaration that he engaged in insurrection.
The petitioners, who are working with the liberal watchdog group Citizens for Responsibility and Ethics in Washington, sought a broader ruling, arguing that an insurrectionist can’t be allowed to seek the Oval Office.
There are similar heavy-hitting cases underway in Minnesota and Michigan, though courts in those states have halted the complaints. Minnesota’s Supreme Court did not rule on the merits but said political parties could nominate whomever they liked — leaving open the possibility of a 14th Amendment challenge before the general election there.
A Michigan court ruled it would be up to Congress to decide if the amendment bars Trump from the ballot there, and that state’s high court declined to expedite its review of the case.
The Associated Press contributed to this story.
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