DENVER (CN) — Six Colorado voters asked the state Supreme Court to bar Donald Trump from appearing on the 2024 GOP primary ballot after a lower court found the former president incited an insurrection on Jan. 6, 2021, but declined to block him from running for office.
Four Republican and two independent voters sued Colorado’s secretary of state in the District Court of Denver County in September, angling keep Trump’s name off the primary ballot. The voters claim Trump's efforts to overturn the results of the 2020 election — culminating in his Jan. 6 speech — disqualify him from holding office.
Passed in the aftermath of the Civil War, section three of the 14th Amendment 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.
Following an expedited trial, Second Judicial District Judge Sarah Wallace found Trump incited an insurrection against the Constitution, but she was not convinced that the 14th Amendment’s description of “an officer of the United States” explicitly included the president. Democratic Governor Jared Polis appointed Wallace earlier this year.
“The only thing the drafters of the 14th Amendment agreed on was preventing rebels like Jefferson Davis from taking office," the voters' attorney Jason Murray said, referring to the former Confederate president. Murray practices with the firm Olson Grimsley.
Murray argued the president was clearly understood to be the “chief officer of the United States” when the 14th Amendment was drafted and ratified.
Justice Richard Gabriel asked Trump's attorney Scott Gessler whether it made sense to intentionally exclude the president from the law.
“Anyone is banned from running for office except the president,” Gabriel, an appointee of Democratic Governor John Hickenlooper, said. “How is that not absurd?”
Gessler, of Gessler Blue, said the law instead weeded out electors who had committed insurrection.
Justice Monica Marquez, appointed by Democratic Governor Bill Ritter, asked Gessler to explain why the amendment drafters would want to exclude the president.
“What was their rationale?” she asked.
Gessler shrugged his shoulders.
“The historical record is devoid of that,” Gessler said. “It’s what we have to accept."
In a cross-appeal, Trump additionally argued the Denver court should have never taken up the case because although it used a state election law, it centered around complex constitutional issues and addressed a nonjusticiable political question.
Several judges questioned whether Colorado’s secretary of state would be required to print Barack Obama’s name on the ballot if submitted, even though the U.S. Constitution bars him from running for a third term.
Gessler argued that if a party wants to put forward a risky candidate they should be allowed to do so. Hickenlooper appointee Justice Melissa Hart pushed back on that notion.
“I keep wondering what are we supposed to do," Hart said. "There must be some mechanism for review."
The nonprofit Center for Responsibility and Ethics in Washington sponsored the lawsuit. The voter petitioners include former Colorado House and Senate Majority leader Norma Anderson, former Republican congresswoman Claudine Schneider and the Denver Post conservative columnist Krista Kafer.
All seven of the Colorado Supreme Court justices were appointed by Democratic governors. Hickenlooper-appointed justices William Hood, Carlos Samour and Chief Justice Brian Boatright rounded out the panel along side Jared Polis appointee Justice Maria Berkenkotter.
The panel did not say when or how it would decide the case although the secretary of state is required to certify ballots in January.
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