Colorado Supreme Court Takes on Trump 14th Amendment Ballot Qualification Case

A supporter of Republican front-runner former President Donald Trump hold up signs while he delivers remarks during a campaign event in Claremont, N.H., on Nov. 11, 2023. Scott Eisen/Getty Images

The Colorado Supreme Court accepted an appeal to a lower court’s decision to put former President Donald Trump on the state’s primary ballot, scheduling oral arguments for Dec. 6 at 1 p.m.

“The Court accepts the cross-applications,” the order reads.

On Nov. 17, Colorado 2nd District Court Judge Sarah Wallace ruled in a 100-page opinion that Trump had “engaged” in an “insurrection” in the events of Jan. 6, 2021, but she said this was not grounds for disqualification because Section 3 of the 14th Amendment does not apply to U.S. presidents. The filing ended in a one-line order that Colorado Secretary of State Jena Griswold put President Trump on the Republican primary ballot as a candidate.

Citizens for Responsibility and Ethics in Washington (CREW), which had brought the petition against Ms. Griswold on behalf of six local voters, immediately announced their intention to appeal the decision. On Nov. 20, they filed an appeal, and President Trump’s team filed their own petition for relief the same day. Late Nov. 21, the Colorado Supreme Court accepted the case.

President Trump is an intervenor in the case that names Ms. Griswold as a defendant, and his attorneys had taken the lead in the 17-hour trial heard in the district court, calling forth and cross-examining witnesses, and making the bulk of the arguments against petitioners. The Colorado Supreme Court has ordered the intervenors to file their opening answer brief by Nov. 27. Petitioners will need to file any answer-reply brief by Dec. 1, and President Trump can file a reply to that no later than Dec. 4.

Constitutional Accountability Center and Constitutional Law Professor Mark A. Graber had requested to file an amicus brief, and the court will allow his and any other amici briefs to be filed by Nov. 29.

The oral arguments will be limited to one hour per side, with one attorney allowed to argue per side, unless parties file a specific motion to split their time with an additional attorney in their team. The case is on an expedited timeline, as it affects the primary ballots that need to be certified by Jan. 5, 2024, by the state secretary’s office.

Insurrection?

The petitioners ask the Colorado Supreme Court to determine whether the lower court interpreted the 14th Amendment correctly.

“Did the district court commit reversible error in ruling that Section 3 of the Fourteenth Amendment, which disqualifies people who engaged in insurrection against the Constitution after taking an oath to support the Constitution, does not apply to Presidents who engage in insurrection or to insurrectionists wanting to be President?” the appeal brief reads.

The 14th Amendment was ratified after the Civil War, with the aim of citizenship and equal rights to all persons born or naturalized in the United States. Section 3 was added to address the several officers who had left to join the Confederacy, in order to prevent them from returning to their posts without review. It stated that those who had participated in “insurrections” or “rebellions” could not hold office without being granted an exemption by a two-thirds vote of Congress.

However, the text of the section lists out specific offices, starting with members of Congress and decreasing in level of office. The list does not include the president or vice president of the United States, and Judge Wallace ruled that courts generally read omissions to be intentional, siding with the intervenors in interpreting it to mean that this section would not apply to President Trump.

In a post-ruling statement, CREW had framed the ruling as a partial victory, noting that it was “historic” that the judge ruled Jan. 6 an “insurrection.”

In President Trump’s appeal brief, they argue that the judge had made “legal and factual findings wholly unsupported in the law, and these errors demand review.”

“President Trump seeks review to ensure that if this Court takes up this case on appeal, it will consider the full scope of the constitutional, interpretive, and evidentiary issue,” the brief reads.

Jurisdictional Issues

The intervenors argue that Judge Wallace interpreted Section 3 correctly in ruling that it did not apply to presidents, but “nonetheless committed multiple grave jurisdictional and legal errors” in making her ruling on whether an insurrection took place.

Intervenors had argued during the lower court trial that Congress holds jurisdiction in determining this matter and not a state court, relying on an expert in historical reading of the Constitution. In closing arguments, they pointed to recent rulings in Michigan and Minnesota on similar cases, where judges declined to hear arguments on whether an insurrection occurred, citing jurisdictional questions. Judge Wallace said during the last hearing that she would not revisit decisions already made, but noted it was possible that state courts did not have jurisdiction over the matter after all.

The intervenors ask, “Should the district court’s opinion be vacated for lack of jurisdiction?” noting additionally that the court “self-admittedly lacked jurisdiction to apply Section Three to President Trump” while simultaneously ruling that he “engaged” in an “insurrection.”

In the appeal, President Trump’s team requested the court look at 11 issues and asked for an increased word limit of 19,000 for opening and answer briefs. The court’s Tuesday order allows for 9,500 words for those briefs.

Several of the issues are jurisdictional, including whether a state district court could adjudicate on this issue absent authority from Congress, whether a district court can rule on the issue when the Colorado Election Code does not explicitly provide such authority, and whether the issue at hand is a political question and therefore cannot be decided by the courts.

Some two dozen such cases are still in play in more than half the states across the nation, and the majority had been filed by John Anthony Castro, a Republican candidate who brought his petitions in federal courts. Many have not been taken up and do not have scheduled hearings.