Colorado decision barring Trump from ballot could help Michigan case, lawyer says

The lawyer representing a group of Michigan voters trying to knock former President Donald Trump off the Feb. 27 Republican primary ballot said Wednesday a Colorado Supreme Court decision this week doing so in that state is "a very positive development" and provides a road map for the Michigan Supreme Court to follow suit.

"Across the board, the court found that Section 3 of the 14th Amendment (which bars anyone who has engaged in insurrection from running for federal office) applies to Trump," said Mark Brewer, an attorney and former Michigan Democratic Party chairman. "It's very supportive of what we're trying to do here."

Having lost the argument to bar Trump, who is running for reelection next year, from the ballot before a Court of Claims judge and the state's Court of Appeals, Brewer has already asked the Michigan Supreme Court to take up the case on an expedited basis. In both Brewer's case and one brought by Wayne County activist Robert Davis, the plaintiffs have argued that Trump's actions trying to overturn the 2020 presidential election and egging on a mob that attacked the U.S. Capitol as Congress met to certify Joe Biden as president, meets the standard of insurrection and disqualifies Trump.

As in several other states where the question has been raised, Michigan's lower courts have found that the question of whether Trump is disqualified under Section 3 is one for Congress — at least in terms of a primary election — and not the state's courts or election officials to decide.

But the Colorado Supreme Court's split decision, already on hold pending the question of whether the U.S. Supreme Court will settle the matter, turns that rationale on its head, stating definitively that there is nothing in the 14th Amendment, which was written in response to the Civil War, that requires Congress to make that determination, only that the House and Senate can lift that disqualification if they so choose.

And it noted that Colorado state law outlines a duty to "exclude constitutionally disqualified candidates," in a process run through its courts, ahead of any election, including a primary — noting a decision written by now-Justice Neil Gorsuch affirming that more than a decade ago in a Colorado case.

As to whether the Constitution authorizes states to determine if a presidential candidate is qualified, the majority of the Colorado court said, "We conclude that it does," noting that the Constitution gives the states authority in determining the manner in which presidential electors are chosen. Since slates of electors are chosen based on the names of the presidential candidates appearing on the ballot, it stands to reason the state can decide who has access to the ballot in the first place, the court said.

Immediately after the decision was issued Tuesday, Trump campaign spokesman Steven Cheung denounced the ruling, calling it "completely flawed" and a "deeply undemocratic decision." "We have full confidence that the U.S. Supreme Court will quickly rule in our favor and finally put an end to these un-American lawsuits," he said.

But there are myriad questions as to what the Supreme Court could rule — or even whether it would want to take up the case at this point, since Colorado Republicans, as with any political party, could always forgo a primary election and hold a nominating convention or caucus awarding its delegates to any candidate it wished. In that way, the question about Trump's qualification or not under Section 3 would be put off at least until he secured the GOP nomination, if he were to do so, this summer.

And the court has at times decided to stay out of some political questions, such as in 2019 when it took the federal courts out of the business of settling most partisan gerrymandering claims. On the other hand, it could enter the political fray to determine what it could consider a constitutional question, much as it did in essentially deciding the 2000 election for George W. Bush by ruling that Florida's recount procedures violated the Equal Protection Clause.

Steve Liedel, an elections law expert at the Dykema law firm in Lansing, said that case, however, was an anomaly and the Supreme Court typically answers questions of federal law, not state law as is being scrutinized by the Trump ballot question. "The question of whether the secretary of state has a right to remove Trump from the ballot, that's been decided in Colorado," he said.

"The question — if it reaches the U.S. Supreme Court and they decide it's timely and decide to address the question — is does Section 3 preclude Donald J. Trump from holding federal office." Liedel, while loathe to guess what the court might do, suspects the conservative majority on the court will find a reason to determine Trump should have access to the ballot, though it might do so in a limited way.

Brewer, meanwhile, is hopeful that the Michigan Supreme Court will act quickly and not wait for the U.S. Supreme Court to make a determination in the Colorado case before ruling on his. He noted that in Colorado, that state's high court decision came after a lower court held a five-day evidentiary hearing on the question of whether Trump engaged in insurrection on Jan. 6, 2021.

That court said he did, though it found that Section 3 didn't apply to the president; the Colorado Supreme Court reversed that latter finding.

Brewer said a quick decision by the Michigan Supreme Court in his plaintiffs' favor would allow for a similar trial ahead of the mid-January deadline for the primary ballots to begin being printed. "We're prepared to put witnesses on the stand as they did in Colorado to demonstrate Trump violated Section 3," he said. "We're asking the court to let that happen."

Brewer also said that even though Colorado law states specifically that disqualified candidates can be excluded from the ballot — while Michigan has no such specific provision — Michigan courts have much broader authority to declare plaintiffs have certain unspecified rights, including, he argued, to keep disqualified candidates off the ballot.

Even some fierce opponents of Trump's have argued that the Colorado court went too far, and courts in Minnesota and New Hampshire have dismissed similar cases. Former U.S. Rep. Justin Amash, a Libertarian from Cascade Charter Township who frequently sparred with Trump and voted to impeach him, posted on X, the social media platform formerly known as Twitter, that the Colorado decision "is shameful and runs completely counter to our constitutional system."

"Whatever you believe about whether Donald Trump engaged in insurrection has no bearing on whether he’s eligible to run for president," he wrote. "No legislative, executive, or judicial body of a state should engage in extraconstitutional decision-making to disqualify a federal candidate from the ballot."

Contact Todd Spangler: tspangler@freepress.com. Follow him on Twitter @tsspangler

This article originally appeared on Detroit Free Press: Colorado decision barring Trump from ballot could help Michigan case