Legal scholar: “Influential” Colorado Trump ballot challenge could set off chain reaction

The Colorado Supreme Court on Wednesday heard arguments on whether former President Donald Trump’s role in the Jan. 6, 2021, attack on the Capitol would disqualify him from running for president in 2024. 

The seven justices grappled with the technical question of whether a U.S. Constitution amendment from the Civil War era, which prohibits "officers of the United States" from seeking office again after participating in an insurrection, applies to presidents.

The outcome may dictate whether the court bars the former president from appearing on the 2024 Republican presidential primary ballot in Colorado. It could also have nationwide implications.

There have been lawsuits filed in 28 states to have Trump’s name removed from the ballots, Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. While legal decisions in one state do not have to be recognized as “authoritative” by other states, a finding by Colorado’s appellate court that Trump engaged in an insurrection would mark the first appellate court to make that determination. 

It could be “influential and a valid legal basis” for other states to similarly rule that Trump’s actions on January 6th, in the language of Section 3 of the Fourteenth Amendment, amounted to leading an insurrection against the United States or “giving aid” and “comfort to the mob that rampaged and ransacked the U.S. Capitol,” Gershman said.

District Court Judge Sarah B. Wallace in her ruling last month dismissed the argument by Trump’s attorneys that rallying his supporters to the Capitol was merely an expression of free speech. While she found that Trump engaged in an insurrection by inciting a riot at the Capitol, she contended that the ex-president is exempt from Section 3, noting that it explicitly lists all federal elected positions except the presidency.

Once she issued her ruling, the Colorado Supreme Court agreed to hear appeals from both Trump and the group of Colorado voters involved in the case. Trump challenged Wallace's determination that he had "engaged in insurrection," while the voters contested the assertion that Section 3 does not extend to the presidency.

Several of the court’s justices seemed to agree, to some extent, with a trial judge's conclusion that the events of the Jan. 6 attack constituted an insurrection, Politico reported. They challenged Trump's lawyer's argument that the violence didn’t constitute an insurrection because it was only three hours long.

“As to insurrection, why isn’t it enough that a violent mob breached the Capitol when Congress was performing a core constitutional function,” Justice William Hood III said. “In some ways, that seems like a poster child for insurrection.”

The comments from Hood and other justices “suggest that the Colorado Supreme Court could be the first top state court to officially recognize the attack as an insurrection,” Politico reported.

This could prove to be a crucial legal decision, particularly as courts and election officials across multiple states wrestle with issues surrounding Trump's eligibility under the 14th Amendment. 

Lawsuits have been filed by various groups nationwide, but as of now, these cases have fallen flat, allowing Trump to remain on the ballot in Minnesota, Arizona, Michigan, and others.

“If Trump is found to have engaged in an insurrection against the United States, a court could rule that under the text of section 3 of the 14th Amendment, Trump would be disqualified from holding the office of the presidency,” Gershman said. “The provision is self-executing. It does not require supporting legislation.”

It is unclear whether a court could immediately remove Trump from the ballot or wait until the conclusion of the presidential election when it will determine whether Trump was elected, Gershman explained. Section 3 does not disqualify Trump from running for president, only from holding that office if he is elected.

A number of the justices criticized Trump's lawyer Scott Gessler for his argument that January 6 was only a riot and not an insurrection. He mentioned that the term lacks a clear definition and asserted that the entire matter is not something that courts can fairly resolve.

The Constitution does not define the term “insurrection,” or “rebellion,” but courts will look to the plain meaning of the language, Gershman said. Courts will also look at the final report of the January 6th House committee “which declared that Trump instigated a criminal insurrection to overturn the lawful result of the 2020 election.”

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The judges will note that there have already been 600 criminal convictions stemming from the Jan. 6 attack, a large portion of which involve the commission of violent felonies involving assaults on the police, Gershman continued. 

The extensive videotapes of the attack on the Capitol and the “voluminous testimony” before the January 6th committee “prove overwhelmingly” that the mob attack spanned many hours during which rioters “rampaged through the building, caused government officials to frantically escape, wreaked destruction and terror,” he added.

“Courts do not have to shield their eyes from the obvious facts staring them in the face,” Gershman said.