The Colorado Supreme Court is set to hear oral arguments Wednesday afternoon in a closely watched case about whether the US Constitution’s ban on insurrectionists from holding office applies to former President Donald Trump.
This is one of several 14th Amendment challenges against Trump’s candidacy, which so far have failed to remove him from a single ballot. Legal experts from both sides expect that one of these cases will ultimately reach the US Supreme Court, which could settle the issue before the Republican primaries begin with the Iowa caucuses in January.
After a weeklong bench trial last month, Colorado District Judge Sarah Wallace ruled that Trump “engaged in an insurrection” on January 6, 2021, and “acted with the specific intent to incite political violence.”
But she concluded that the insurrectionist ban doesn’t apply to the presidency, based on the text of the post-Civil War constitutional amendment.
The provision says officials who take an oath to support the Constitution are disqualified from office if they “engaged in insurrection.” It explicitly prohibits them from serving as senators, representatives and other offices – but it doesn’t mention the presidency.
The anti-Trump challengers appealed Wallace’s conclusion that the ban doesn’t apply to the presidency. Trump appealed many of the other findings in Wallace’s stunning 102-page ruling. Both sides will present arguments at Wednesday’s two-hour hearing.
All seven justices on Colorado’s high court were appointed by Democratic governors.
The hearing in Denver is scheduled to begin at 3 p.m. ET.
Both sides make their case
Lawyers for the challengers, who are Republican and independent Colorado voters, told the court in a filing that there is “overwhelming historical consensus” that the provision known as Section 3 of the 14th Amendment “disqualified rebels from the Presidency.”
“Both supporters and opponents of the Fourteenth Amendment understood that,” they said in a filing, referring to the 1860s congressional debate over the amendment. “Trump does not cite a single person at the time who argued against this common-sense conclusion, and no amount of creative nay-saying by lawyers and academics 150 years later can refute it.”
Trump’s attorneys asked the Colorado Supreme Court to uphold Wallace’s final decision to keep Trump on the state’s ballots, but pressed the court to overturn her other findings, which they argued contained “multiple grave jurisdictional and legal errors.”
They argued that “this proceeding should never have gone forward” because Colorado courts aren’t authorized to adjudicate federal constitutional disputes. Further, they claimed Trump can’t be disqualified because “there was no insurrection on January 6.”
GOP attorneys general groups weigh in
Before the hearing, a flurry of outside groups and lawyers tried to weigh in on the case.
A coalition of 19 state attorneys general, all Republicans, urged the court to keep Trump on the ballot by determining that the challengers couldn’t file the suit in the first place. Wallace had ruled that the challengers, a group of Colorado voters, had standing to sue.
Many of these GOP attorneys general also supported the unsuccessful Supreme Court lawsuit that Texas filed in 2020 to overturn the results in four states that Trump lost.
A group of First Amendment experts argued that Trump’s remarks at his January 6 rally were “so threatening” that they weren’t protected by his constitutional free-speech rights, and told the Colorado Supreme Court to uphold Wallace’s decision to that effect.
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