Rule of Law

A guide to the Donald Trump ballot challenge as the case lands in the Colorado Supreme Court

Lower court judge ruled Trump engaged in insurrection but found 14th Amendment didn’t apply

The case seeking to keep former President Donald Trump off Colorado’s 2024 ballot — unsuccessful so far — will go before the state Supreme Court on Wednesday.

It’s the latest milestone in a lawsuit that alleges Trump engaged in insurrection surrounding the Jan. 6, 2021, siege of the U.S. Capitol — and in doing so, disqualified himself from regaining the nation’s highest office under a Civil War-era amendment to the U.S. Constitution. The provision of the 14th Amendment bars anyone who swore an oath to the Constitution and then “engaged in insurrection” from holding office again.

In November, a district court judge in Denver found Trump did engage in insurrection while also finding that the 14th Amendment restriction did not apply to the presidency the way it would to other federal offices.

Since then, lawyers for both sides as well as outside organizations and state officials across the country have weighed in on how Colorado’s justices should decide the matter. The Supreme Court is set to hear arguments in the early afternoon.

Here’s a guide to the case and what’s at stake.

Why is the Colorado Supreme Court involved?

Denver District Court Judge Sarah B. Wallace ruled, after a weeklong trial this fall, that Trump can appear on Colorado’s 2024 Republican presidential primary ballot, despite her finding that he participated in an insurrection. This prompted both the petitioners and Trump’s legal team to appeal, though from opposite directions.

The state Supreme Court agreed to hear the case last month.

Who is challenging Trump’s eligibility?

The lawsuit was brought by a group of unaffiliated and Republican Colorado voters who are working with the liberal watchdog group Citizens for Responsibility and Ethics in Washington. The Republican petitioners include Claudine Cmarda, a former Rhode Island congresswoman who now lives in Colorado; Norma Anderson, a former majority leader in both Colorado’s state House and state Senate; and Denver Post columnist Krista Kafer.

What are the plaintiffs seeking from the higher court?

Wallace’s underlying ruling that Trump engaged in insurrection through his words and actions was seen by critics of the former president as a victory in its own right. But the plaintiffs are now asking the state’s justices to go where Wallace didn’t.

Her overall ruling that the president does not qualify as an officer of the United States — a key phrase in Section 3 of the 14th Amendment — would “yield absurd results,” the petitioners argued.

“It would defy logic to prohibit insurrectionists from holding every federal or state office except for the highest and most powerful in the land,” their attorneys wrote in the appeal. The legal team includes former Colorado Solicitor General Eric Olson.

Why did Trump appeal a ruling he won?

Trump’s legal team, which includes former Colorado Secretary of State Scott Gessler, agrees with Wallace’s ruling that the 14th Amendment shouldn’t apply to Trump. But his appeal argues she committed “multiple grave jurisdictional and legal errors” — including by finding he engaged in insurrection.

Trump’s speech near the White House on Jan. 6 didn’t call for violence, his attorneys argued, and still “the district court found that President Trump’s supposed intent, and the effect of his words upon certain listeners, sufficed to render his speech unprotected under the First Amendment.”

The appeal also questions whether the five-day trial that began in late October was a proper venue for constitutional litigation and the establishment of “new, unprecedented, and unsupported legal standards.”

How have challenges of Trump’s eligibility fared elsewhere?

Similar lawsuits challenging Trump’s eligibility have been filed in several states, with none succeeding so far. Among other cases with significant backing, the Minnesota Supreme Court ruled in November that Trump could remain on the ballot there because political parties have discretion over their primary ballots. And a Michigan judge has ruled that Congress should decide if Section 3 applies to Trump.

How will Colorado’s high court consider the case?

The Colorado Supreme Court doesn’t generally overturn a lower court’s findings of facts unless the judge made a clear error, meaning the justices likely will give some deference to Wallace’s finding that Trump did engage in insurrection. Instead, their eyes will focus more closely on how she applied the law and whether the 14th Amendment applies to Trump.

The court has no specific timeline for a ruling, but Secretary of State Jena Griswold must certify the primary ballot in January. That election is set for March 5.

What’s at stake?

In her ruling, Wallace wrote that she took the gravity of the case seriously: “To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent” of 14th Amendment’s Section 3.

Michael J. Gerhardt, a constitutional law professor at the University of North Carolina, called it “significant” that Wallace declared that Trump engaged in insurrection. He is the author of the upcoming book “The Law of Presidential Impeachment” and was the only expert called by both Republicans and Democrats in President Bill Clinton’s impeachment.

He said recent scholarship is supportive of the petitioners’ arguments that the 14th Amendment should apply to former presidents. But he didn’t have any predictions for the case — except that a ruling in the lawsuit plaintiffs’ favor would make it more likely that the U.S. Supreme Court would get involved, having the final say.

“It’s just speculation when and whether the U.S. Supreme Court will ever hear this case,” Gerhardt said. “But if somebody is being declared ineligible to run for the presidency, that could possibly make this a more pressing matter.”

What outside voices have weighed in?

The case has drawn interest from more than a dozen parties that have filed formal advisory briefs with the Colorado Supreme Court, expressing a range of opinions. Some briefs are outwardly partisan, including joint briefs submitted by more than a dozen state Republican parties; by 19 states with Republican leaders, spearheaded by the attorneys general of Indiana and West Virginia; by the Republican secretaries of state in Wyoming, Missouri and Ohio; and by the Republican National Committee.

“The Reconstruction Congress (after the Civil War) did not grant state officials sweeping authority to undermine the federal government,” attorneys for the national GOP wrote in a brief that argued the 14th Amendment provision shouldn’t be applied until after an election.

Trump’s team also has received backing from Treniss Jewell Evans III — a Texan who pleaded guilty last year to misdemeanor charges related to storming the Capitol on Jan. 6; he admitted to drinking a shot of Fireball whiskey in a conference room that other rioters told him belonged to then-Speaker Nancy Pelosi. In his brief, Evans, who said he’d been defamed by the petitioners, disputed characterizations of that day, arguing that “there was no competent evidence … to support that Donald Trump engaged in an insurrection or that there was any insurrection.”

What about on the other side?

Several law professors as well as Colorado Common Cause and the Constitutional Accountability Center, which advocates for a progressive reading of the founding document, urged the state’s justices to bar Trump from the state’s ballot.

Nine law professors countered Trump’s First Amendment defense in a joint brief, arguing it doesn’t protect speech that incites lawless action or constitutes a threat — and that disqualification wouldn’t infringe on protected speech, anyway. The filing from Common Cause, a left-leaning government watchdog group, called it “a great credit to prior generations of American political leaders” that the disqualification clause of the Constitution had so rarely been invoked — but argued this case rose to that standard.

“The fact that the Disqualification Clause is so clearly implicated at this hour, then, is a proportionally great discredit to Mr. Trump himself, who allowed a lust for power to supersede his own Oath of Office and over two centuries of American political precedent,” the filing reads.