DENVER (CN) — No judge in American history has ever blocked a presidential candidate from the ballot under the 14th Amendment, but several Colorado voters on Wednesday urged a Denver judge to be the first.
Four Republican and two independent voters sued Colorado’s secretary of state in the District Court of Denver County in September, angling to stop former President Donald Trump’s name from being printed on the primary ballot. The voters claim Trump's efforts to overturn the results of the 2020 election — culminating in the inciteful Jan. 6 speech — disqualify him from holding office.
Passed in the aftermath of the Civil War, the law bars individuals from holding office if they “engaged in insurrection or rebellion” while under the oath of office. The ban can be overturned by a two-thirds vote in the U.S. House and Senate.
“Trump argues petitioner’s claims must be wrong because they are unprecedented,” said attorney Sean Grimsley, who represents the voters who sued. “There is a reason for that — no sitting president has ever set an angry mob on the U.S. Capitol during the counting of the electoral votes. No sitting president has ever tested the law before — that tells you everything you need to know.”
Trump intervened in the case when it became apparent Secretary of State Jena Griswold, a Democrat, did not intend to launch a strong defense.
Grimsley said Trump understood the power of his words, and added inflammatory statements that hadn’t been in his prepared speech given in the Ellipse park in Washington. Trump’s defense team consistently countered his political speech is protected under the First Amendment.
“Trump seems to think that’s a get out of jail free card,” Grimsley said. “We’ll just assume Brandenburg applies."
In analyzing incitement claims, both the voters and Trump asked the court to apply the 1969 Supreme Court decision in Brandenburg v. Ohio which found the state violated the rights of a KKK leader who wanted to broadcast a rally.
On behalf of Trump, attorney Scott Gessler also argued whether Trump takes a second term in office is a decision voters should make and not a court.
“We vote on these issues,” Gessler said. “When the court has a hammer, not every problem is a nail.”
Gessler criticized the petitioners’ argument for relying on the congressional report compiled in the wake of the Jan. 6 insurrection which he characterized as politically motivated.
“The Jan. 6 report is a rotten foundation, compiled with political intentions,” Gessler argued.
Colorado law requires the secretary of state to certify ballots by Jan. 5.
Griswold did not present evidence or argue as to whether Trump committed insurrection, but asked the judge to issue an order barring him from the ballot if she finds Trump unqualified to hold office.
“The purpose of a ballot is to elect candidates to office,” explained Senior Assistant Attorney General Michael Kotlawrczyk on behalf of Griswold. “Having candidates unable to hold the office they seek frustrates that purpose.”
Second Judicial District Judge Sarah Wallace presided over a five-day court trial on the matter in October. Governor Jared Polis, a Democrat, appointed Wallace this past January, but when the question of her recusing herself due to a political donation arose, she assured parties she was entering the case with no preconceived opinion on whether Trump incited an insurrection.
Wallace is expected to issue a speedy ruling so the state can meet its statutory deadlines.
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