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Colorado Supreme Court struggles with whether the U.S. Constitution’s ‘insurrection clause’ applies to presidents

If the clause does apply to presidents, Donald Trump could be barred from appearing on Colorado’s Republican presidential primary ballot next year
The Colorado Supreme Court, seen here on Tuesday, Jan. 17, 2023, in Denver. (AP Photo/David Zalubowski)

The seven justices on the Colorado Supreme Court appeared to struggle Wednesday with the technical question of whether a Civil War-era amendment to the U.S. Constitution barring “officers of the United States” from holding office again if they engage in an insurrection applies to presidents.

The answer could determine whether the court blocks Donald Trump from appearing on Colorado’s 2024 Republican presidential primary ballot and it will likely have national implications no matter which way the court rules.

Justice Richard Gabriel said it seemed absurd that drafters of the 14th Amendment wouldn’t have meant it to apply to presidents. Justice Monica Márquez said “I see no rational reasoning for that type of exclusion.”

But Justice Carlos Samour Jr. said it seemed odd that the presidents and vice presidents were specifically called out in Section 3 of the 14th Amendment, the so-called insurrection clause.

“If it was so important that the president be included, why not spell it out?” he asked before packed chambers in downtown Denver, echoing the legal ambiguity on which the lower court’s ruling hinged.

Justice Melissa Hart pointed out that “nowhere in any of the references to ‘officer’ does the Constitution list the president.”

The arguments before the Colorado Supreme Court were made in a lawsuit filed in September by Citizens for Responsibility and Ethics in Washington, a liberal political nonprofit based in Washington, D.C., on behalf of a group of Colorado Republican and unaffiliated voters. The nonprofit, which doesn’t reveal its donors, argues that Trump incited a riot at the U.S. Capitol on Jan. 6, 2021, and therefore is ineligible to appear on the GOP presidential primary ballot next year.

But Denver District Court Judge Sarah Wallace ruled on Nov. 17 that while Trump did incite an insurrection on Jan. 6, he can still appear on Colorado’s 2024 Republican presidential primary ballot because he is not an “officer of the United States.”

“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 Section 3,” she wrote.

Citizens for Responsibility and Ethics in Washington appealed the ruling to the Colorado Supreme Court. Trump’s 2024 campaign also appealed, seeking to invalidate Wallace’s finding that Trump incited an insurrection.

The state’s high court is expected to make a decision by next week given the tight timeline to set the state’s March 5 presidential primary ballot. The seven justices were all appointed by Democratic governors.

The Colorado Secretary of State’s Office must certify which candidates will appear on the ballot by Jan. 5. Ballots start being mailed to military and overseas voters on Jan. 20.

The Colorado Supreme Court’s decision is likely to be appealed to the U.S. Supreme Court. Similar lawsuits seeking to block Trump from appearing on presidential primary ballots have been filed in other parts of the country, but none have been successful.

The Colorado lawsuit was filed against Colorado Secretary of State Jena Griswold, a Democrat, whose office took a neutral legal stance on the case. But after Wallace’s ruling last month, Griswold, in TV appearances, expressed shock at the outcome.

“The idea that any official who would engage in insurrection would be barred from taking office except the presidency is incredibly surprising,” she said on MSNBC last month. “That basically means that the presidency is a get-out-of-jail free card for insurrection.”

In briefs filed with the Colorado Supreme Court ahead of Wednesday’s oral arguments, Citizens for Responsibility and Ethics in Washington said Section 3 of the 14th Amendment clearly applies to presidents.

“The constitution itself, historical context and common sense all make clear that the 14 Amendment’s disqualification clause extends to the president and the presidency,” the nonprofit argues in its appeal. “There would be no reason to allow presidents who lead an insurrection to serve again while preventing low-level government workers who act as foot soldiers from doing so.”

Trump’s 2024 campaign argued that since Wallace found that Section 3 of the 14th Amendment doesn’t apply to Trump, the insurrection finding should never have been made.

The Trump campaign also argues that state courts generally don’t have the power to enforce Section 3 of the 14th Amendment.

“The district court grounded its ruling on a correct textual analysis of (the 14th Amendment),” Trump’s campaign said in court documents, “but it nonetheless committed multiple grave jurisdictional and legal errors.”

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