The Colorado Supreme Court heard arguments on Wednesday from legal counsel for former President Donald Trump and petitioners who sought to remove him from the state primary ballot.
Both parties are seeking to appeal a decision from the lower court that ruled President Trump eligible to appear on the ballot but also found that Jan. 6, 2021, constituted an insurrection that President Trump engaged in.
Several issues were argued, including whether Colorado voters would be disenfranchised if they were unable to vote for President Trump, whether state courts have the right to disqualify a candidate under Section 3 of the 14th Amendment, whether Section 3 applies to a president, and whether Jan. 6 constituted an “insurrection” under Section 3.
The justices seemed highly concerned with jurisdictional issues, and the powers of the secretary of state, pressing petitioners to show why the state should rule on the eligibility of a primary candidate.
‘Officer’ and ‘Office’
The lower court’s order that President Trump be included on the primary ballot turned on the language of Section 3, which did not include “president.”
Although the presidency has been referred to as an “office,” Justice Melissa Hart pointed out that nowhere in the Constitution is the president referred to as an “officer.” Justice Carlos A. Samour Jr. asked, “why not spell it out” and include “president” in the language if it was meant to cover presidents.
Mr. Murray argued that Section 3 takes a “kitchen sink approach” where “officers of the United States” applied to any elected office, and that members of Congress were listed first in the section because members of Congress do not hold office and need to be singled out.
“Officer” should be taken to mean “anyone who holds an office,” Mr. Murray argued.
Justice Richard L. Gabriel asked Mr. Murray to expound on the history of Section 3, pointing to a draft that did include president and vice president before it was ultimately taken out.
Mr. Murray argued that subsequent versions of the amendment broadened the list, at one time adding “any office of trust or profit of the United States.”
Section 3 Language
Ratified after the Civil War to grant citizenship and equal rights to former slaves and all persons born or naturalized in the United States, Section 3 of the amendment was meant to prevent officers who left their posts to join the Confederacy from taking up office again without a two-thirds vote from Congress clearing that “disability.”After the amendment was ratified, Chief Justice of the United States Salmon Chase detailed the application of Section 3, and all courts that have ruled on 14th Amendment challenges to President Trump’s eligibility have relied on it.
“To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress,” Chief Justice Chase wrote.
More than once, he emphasized that Congress, or a federal law passed by Congress, would need to oversee the application of Section 3.
“The final clause of the third section itself is significant. It gives to Congress absolute control of the whole operation of the amendment,” he wrote, pointing to the two-thirds vote by Congress that could remove the disability of a candidate who participated in the Civil War.
Colorado District Court Judge Sarah Wallace’s ruling that the presidency was not encompassed by Section 3 relied on the language of the section, which listed out specific offices starting with members of Congress, and decreasing in level, ending with a catch-all “officers of the United States.” She explained in her opinion that it seemed intentional that the offices of the president and vice president were omitted.
Unlike members of Congress, who only have to be voted into office by citizens of their own state, which in the post-war context could have been a former Confederate state, a vice president and president would have had to be voted into their offices by citizens of the entire nation, winning both former Confederate and Union states’ votes.
Justice Gabriel also pushed back on the intervenors’ argument that Section 3 is not self-executing; similar language had been used in the 13th Amendment and other sections, and it would mean that due process and equal protection rights were not self-executing either.
Scott Gessler, representing President Trump, argued that “the whole purpose of the 14th Amendment was to limit states’ authority.” He pushed back on the idea that Congress only has the authority to remove a disability, and not define it.
“Do you really think that the framers took a whole lot of comfort in the fact that electors are going to protect us from an insurrectionist for a president, like a Jefferson Davis?” Justice Gabriel asked.
“Yes, and that’s why they included them,” Mr. Gessler said. “They also looked at the free men, the former slaves who could now vote, and they also looked at the electoral strength that the northern states had, to provide comfort. It’s perfectly reasonable in this context.”
“And by the way, they were right; they were right for a hundred years, it wasn’t about a hundred years until a Southerner got elected,” he added. “Their framework and approach was successful.”
Justice Márquez pressed Mr. Gessler to provide some rationale as to why the framers would purposefully exclude “president” in the language, noting that she has read a lot of references on Section 3 in recent weeks.
“The historical record is devoid of that discussion,” Mr. Gessler argued.
Justice Márquez said there was historical evidence that this was meant to include Jefferson Davis, the former president of the Confederacy, who would likely have seen popular support if he was eligible to run for the presidency.
Mr. Gessler said those arguments were based on newspaper clippings that were not relevant to the framers’ rationale. He argued that the framers had taken out “president” and added “electors” to address that particular issue.
“It’s not absurd because it worked,” he said.
Justice Márquez asked if he was saying they swapped “president” for “electors” to accomplish the same purpose.
“In other words, the electors, if this worked as designed, would prevent anyone in that situation from assuming office. So why go about it indirectly when you could just go about it directly?” she asked.
Mr. Gessler said the situation became more abstract in this case, but his answer remained.
State Law
President Trump’s legal counsel also argued that Colorado’s election codes give the state full power in running elections for state offices, but presidential primaries are not covered under those laws.Ms. Griswold was the original defendant in the case, and President Trump had stepped in as an intervenor.
“The Intervenors offer two myopic interpretations of the Election Code that, if accepted, would hamper the ability of election officials and courts to exclude from the ballot candidates who are disqualified from holding office,” the secretary of state’s office wrote.
Other state courts have ruled that presidential primaries are a political party function, and not run by states, with the Minnesota Supreme Court drawing a line between primaries and general elections and clarifying that a 14th Amendment challenge could be brought regarding the general election in 2024.
In Colorado, Ms. Griswold argued that “Colorado has not ceded its responsibility to ensure a fair and accurate ballot to political parties” and that her office should not put an ineligible candidate on the ballot, reiterating the request that the court rule on President Trump’s eligibility.
Colorado will hold its Republican primary on March 5, 2024.
The petitioners are arguing that the state secretary may not have the power to investigate, but courts can adjudicate eligibility and order the secretary to remove candidates from the ballot.
Justice Márquez asked attorney Eric Olsen, representing petitioners, to point to state laws that show the state secretary must act on the complaint, and seemed unconvinced by the answers. She noted that the statutes cited point to state offices, not presidential primaries. Justice William W. Hood III similarly said the authorities he cited seemed to “undercut” his argument that it was not Congress’s jurisdiction to apply Section 3.
Justice Richard Gabriel asked Mr. Olsen to respond to the arguments that secretaries of state have made across the nation that they have no power to adjudicate the eligibility of candidates under Section 3, and the concern many have cited that this will create “chaos” and potentially 50 different ballots.
Mr. Olsen explained that some state laws deem the secretaries’ role as “purely ministerial,” putting names on ballots after they have been approved by the respective political parties.
“Here we have a different rule,” he argued. “This is the only court in the country that has looked at this question.”
He also argued that the concern about “chaos” was “overblown” because there couldn’t be several different ballots, and the only issue was whether President Trump would appear on the ballot. Furthermore, other courts have not chosen to hear arguments on this issue as Colorado has, he added. “This is the only one that has proceeded on merit,” he said.
“If what you’re saying is correct, President Trump will be on the ballot in most states but not here in Colorado. Effectively the Republican or unaffiliated voter who wants to participate in the Republican primary won’t really be able to participate, because the person who is on most ballots and appears to be leading in the primary is not an option,” Justice Hart said.
Mr. Murray insisted that President Trump is disqualified and ultimately would not be able to take office, and Colorado voters should not be “deluded” into being allowed to vote for a disqualified candidate.
Justice Márquez said Mr. Murray was putting an “enormous amount of weight on that single reference to ‘qualified candidate’ in a provision that is not tethered to the specific duties of the secretary.” She noted that state election law regarding primaries refers to the political parties’ right to participate, unlike the “very rich language” giving authority to the secretary of state to oversee state elections.
Justice Maria E. Berkenkotter asked Mr. Olsen to address the political question doctrine. Several courts have dismissed similar cases, ruling that this is a political question and not justiciable.
“Just because this is a politically salient question and has political consequences, is the reason for the court to enforce our constitutional qualifications,” he said. He argued that this was a straightforward question, and does not encroach on other branches of government.
In a campaign message, President Trump told his supporters that the case against him was brought by “left-wing radicals” and that the panel before him was made of seven judges, all “appointed by Democrats.”
Seemingly expecting a reversal of the lower court’s decision, and the inevitable appeal of the new ruling, the message also noted that “this showdown may very well end up at the United States Supreme Court.”
Justice Hood asked if either party appeals to the U.S. Supreme Court, wouldn’t the issue of chaos in 50 states’ ballots be moot?
Mr. Gessler said yes, and noted that if Colorado ruled for President Trump, it would also have the favorable outcome of preventing this potential chaos.
Justice Hood also asked whether the state shouldn’t rule on the merits—the insurrection issue—sooner rather than later, in the interest of not creating chaos during the general elections. Mr. Gessler argued there was no authority to do so.
The justices seemed unconvinced by Mr. Gessler’s argument, which would hypothetically prevent the state secretary from removing former President Barack Obama’s name from a primary ballot if he wanted to run for a third term.
They pressed him to provide an avenue to litigate an issue like this in the state, if not under the statutes petitioners used.
“This whole thing is a constitutional litigation,” Mr. Gessler said. “The court recognizes there is not a duty for the secretary a state to consider disqualification under the 14th Amendment.”
‘Insurrection’
Justices heard arguments on the issue of “insurrection” last, also expressing skepticism about the lower court’s ruling.“I guess I’m expressing a concern about the definition of ‘insurrection’ that the district court adopted, it strikes me as somewhat or potentially overbroad,” said Justice Gabriel.
He explained that the lower court seemed to have taken it to mean a group of people acting against the U.S. Constitution, which could apply to a hypothetical of two people threatening a federal judge.
Mr. Olsen argued the difference was that the motivation was a public one in the case of Jan. 6, 2021.
“Let’s say the person is expressing concern that the judge is too liberal or too conservative, the judge’s public expression,” the judge added to his hypothetical.
Mr. Olsen said there would need to be a “real public use of force to prevent the execution of the Constitution of the United States,” and that trying to stop the count of the electoral votes constituted an insurrection.
Justice Hood probed the definition that an insurrection was an attack on the “government’s authority” rather than “an effort, necessarily, to overthrow the government.”
Mr. Olsen confirmed that was the petitioners’ interpretation, that merely attempting to delay the counting of the votes constituted an insurrection.
The justices asked Mr. Gessler about the insurrection issue as well, in relation to the First Amendment, and incitement to violence.
“Are we not dealing with clear error review of the trial court’s factual findings about those circumstances?” Justice Hood asked. “Findings that were made by clear and convincing standards ... I don’t know that we are in a position to say there was a clear error in her findings.”
Mr. Gessler argued that the findings relied on an expert witness who testified he could not speak to President Trump’s intent when he gave his speeches, and the district court made a clear error in inferring intent without evidence.
He added that about seven different standards of “insurrection” were brought up in trial court, one being the district court judge’s own interpretation.
“Way too broad,” he said of the one ultimately used in the lower court ruling.
Justice Gabriel asked whether “prevent the peaceful transfer of power of the United States government” would be a correct definition.
Mr. Gessler said not if it referred to this three-hour event, because historical rebellions referred to by the framers were months-long and violent efforts.
Justice Hart said for the purposes of determining this case, the court would need to rule on whether Jan. 6 constituted an insurrection, and pressed Mr. Gessler for standards.
“An insurrection is likely less than a war,” she said, and Mr. Gessler agreed.
“Part of my thesis is that we can’t define it, and that this is a non-justiciable question,” he answered. He qualified that he thought it needed to be more than three hours, more than a riot, and has to take place at more than one building, and the goal may need to be to nullify governmental authority and replace it.
The judges interrupted at several points, calling into question some of the points. One was the issue of arms, noting evidence that there were many makeshift arms used in altercations. “That’s a lot of violence,” Justice Hood said of the 170 injured that day. “What am I missing?”
“A riot is consistent with using flagpoles and broken-up bike racks as weaponry,” Mr. Gessler said. “An insurrection or rebellion is organized deadly force that is going to nullify governmental authority. I think there’s a big difference there.”
Mr. Olsen argued that President Trump wanted courts not to rule on the insurrection issue and “create the ingredients for a second Jan. 6 issue coming up on January 2025.”
Chief Justice Boatright thanked the attorneys who had submitted amicus briefs and adjourned the session.
