Colorado 14th Amendment challenge has state Supreme Court wary of disqualifying Trump

The Colorado Supreme Court on Wednesday appeared wary of disqualifying former President Trump from the 2024 ballot under the 14th Amendment, with several justices expressing concerns about their authority to intervene.

The lawsuit is one of many filed across the country seeking to prevent Trump’s return to the presidency. The Colorado case is on the fastest track, with many legal experts believing the dispute is destined for the U.S. Supreme Court.

Trump and the plaintiffs are both appealing portions of Judge Sarah Wallace’s ruling last month that found Trump engaged in insurrection by inciting the Jan. 6, 2021, Capitol riot, but that the 14th Amendment doesn’t apply to the presidency.

The justices on Wednesday wrestled with the many disputed interpretations of the clause’s text, raising alarm during the two-hour deep dive about accepting the plaintiffs’ arguments.

“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 Richard Gabriel.

Left-leaning group Citizens for Responsibility and Ethics in Washington filed the lawsuit on behalf of four Republicans and two independent Colorado voters.

The group is attempting to persuade a seven-member bench all appointed by Democratic governors. Six later faced voters and won retention elections, while the seventh will do so next year.

The plaintiffs clear multiple burdens to show the court has jurisdiction and that the 14th Amendment’s insurrection clause does, in fact, extend to the presidency.

The Amendment prohibits someone from holding “any office … under the United States” if they engaged in insurrection after taking an oath as “an officer of the United States” to “support” the Constitution.

But while the clause specifies a series of federal positions that qualify as an “office … under the United States,” it doesn’t explicitly mention the presidency.

“Why not spell it out, why not include president and vice president, the way they spelled out senator or representative,” Justice Carlos Samour probed an attorney for the plaintiffs.

The trial court also found Trump was not an “an officer of the United States.”

“What about the use of ‘officer of the United States’ in Article Two and Article Six in a way that seems to be distinguished from the president?” asked Justice William Hood.

Justices also posed about how the 14th Amendment only applies to officers who took an oath “to support the Constitution of the United States.”

“The presidency has a very particular oath… protect and defend the Constitution,” noted Justice Monica Márquez.

“I think there was an understanding that ‘support the Constitution’ was a concept. It wasn’t magic words,” responded Jason Murray, an attorney for the plaintiffs.

The argument became especially thorny at times, with the justices posing questions that ranged from linguistics to an exchange between two senators when drafting the amendment in the 1860s as they grappled with how to interpret the text.

“He points to — Oh God, I might actually say this — post-positive modifiers,” Hood said at one point.

The losing side could ultimately ask the U.S. Supreme Court to take up the case, a possibility acknowledged at the argument.

“If we were to say that President Trump can’t be on the ballot here, there’s a very high probability that the United States Supreme Court would step in and decide what the standard should be, one would think,” said Hood.

The case is one of many efforts underway aimed at preventing a second Trump White House term using the 14th Amendment.

One man has filed more than two dozen lawsuits, but legal experts have dismissed those as frivolous. Other lawsuits are on a slower timeline.

The non-profit Free Speech For People has filed lawsuits in three states. In Minnesota, the state’s highest court declined to remove Trump from the primary ballot, but indicated a new challenge can be filed for the general election if Trump wins the nomination.

In Michigan, the group’s case is on appeal. The state’s highest court on Wednesday declined an attempt to skip over an intermediate appeals court, meaning the case will move slower. And in Oregon, Free Speech for People said it filed a lawsuit there on Wednesday.

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