The widening effort to block Donald Trump from the Presidency took a significant turn this week in a new, carefully crafted lawsuit filed in a state court in Colorado.
The lawsuit was filed by a government reform group based on the same constitutional theory that the organization had already used successfully to oust a county official in New Mexico last year. Both that case and the new Colorado case are keyed to actions taken as part of the violent attack on the U.S. Capitol in Washington on January 6, 2021.
Lawyers for the reform group – Citizens for Responsibility and Ethics in Washington – and for three law firms prepared the 104-page lawsuit to move the challenge to Trump from a mostly academic debate into a formal legal challenge that could move quickly to the U.S. Supreme Court for a final decision.
Stressing the need for the question to be settled soon, the lawsuit declared: “There is an urgent public interest in promptly resolving whether Trump is constitutionally eligible to serve as president in advance of the approaching primary elections.”
The first Republican event on the 2024 presidential election calendar across the nation is the Iowa caucus, to be held on January 15. The presidential primary election in Colorado is set for March 5. Candidates for the Colorado primary must file there by December 11 of this year. The lawsuit thus is on a tight schedule.
Here are the steps the Colorado lawsuits seeks to bring about:
First, an “expedited” hearing in state court on the disqualification issue.
Second, a ruling by the state court to declare formally that Trump is disqualified to run in Colorado, under the U.S. Constitution’s 14th Amendment and its Section 3, either in 2024 or any future election for federal or state office.
(Section 3, adopted after the Civil War as part of the 14th Amendment in 1868, bars any official from federal or state office if that official previously too an oath to defend the Constitution and then took some role in an ‘insurrection’ or ‘rebellion.’ Section 3 does not define either of those two words.)
Third, the lawsuit seeks an order by the state court that Colorado Secretary of State Jena Griswold is barred from putting Trump on any Colorado ballot in 2024 or beyond.
If the lawsuit were to achieve those results in state court, what likely would follow would be three steps (which the lawsuit does not spell out, so these are predictions):
First, Trump or his allies would appeal such rulings to higher state courts in Colorado (unless Trump and his team in the meantime would have filed their own preemptive lawsuit to obtain a declaration that he would be eligible, despite Section 3).
Second, rulings by appeals courts within the Colorado system (or within the federal court system), and those would then set the stage for the question to go to the Supreme Court.
While court processes can move slowly, they also can move speedily if the issue is treated as urgent. For example, in the constitutional dispute over who had won the presidential election in 2000, all of the state, federal and Supreme Court reviews were completed in a total of just 31 days, start to finish.
The two basic questions that the Colorado case will pose are these:
First, did the six Colorado voters who were the ones who actually sued have a legal right to sue over the question? The answer to that depends upon whether they personally would be legally harmed if Trump got on the ballot in Colorado.
Second, did Trump have some role in an “insurrection” or “rebellion”?
On the right-to-sue point, four of the six who sued are registered to vote as Republicans and two are registered as independents – no political party affiliation. In a lengthy paragraph on this point, the lawsuit claims that each of the six would be harmed if Trump is on the ballot, they would not vote for him, so their votes would be of less effect with Trump drawing votes away from their preferred candidate. Whether that would be enough to separate them from everybody else who votes for President in Colorado will be the key issue on this point.
On the second point, about taking part in “insurrection” or “rebellion,” what those words mean under Section 3 has never been decided by the Supreme Court, lingering for a century and a half. The lawsuit’s response is contained in 76 pages of text and 188 footnotes (about three-fourths of the whole document), detailing events that led up to and following January 6, 2021, to show that Trump did have a significant role in an insurrection. The lawsuit seeks to take advantage of the fact that other courts, other federal officials, and Congress have declared formally, in a variety of ways, that January 6 was an insurrection.
Noah Bookbinder, the president of the CREW reform group, said in a news release that the 14th Amendment provision “has not been tested often in the last 150 years,” but he added that this was “due to the lack of insurrections.”
A fascinating fact noted in the lawsuit is its reference to action that Neil M. Gorsuch, now a Supreme Court Justice, took in 2012 when he was a judge on a federal appeals court. The case involved a man, Abdul Karim Hassan, who is a naturalized U.S. citizen who wanted to run for President in Colorado. Because the Constitution says that only a natural-born citizen is eligible for that office, Colorado’s secretary of state refused to put Hassan on the ballot.
In a brief opinion written by then-Judge Gorsuch, the appeals court upheld Hassan’s exclusion, commenting that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”
That’s the result the new Colorado lawsuit is seeking.
