Hearings begin as Trump critics attempt to kick him off ballots
Lawsuits in Colorado and Minnesota center on the 14th Amendment, which bars those who engage in an insurrection from running for office
By Patrick Marley
October 27, 2023 at 6:00 a.m. EDT
In two courtrooms 900 miles apart, judges next week will begin to weigh an unprecedented and historic question: Is former president Donald Trump eligible to run for office again given his alleged role in the Jan. 6, 2021, riot at the U.S. Capitol?
Starting on Monday in Denver, a week-long hearing featuring witnesses and legal scholars will explore whether Jan. 6 qualified as an insurrection, which could bar Trump from the ballot in Colorado. On Thursday, the Minnesota Supreme Court will hear arguments about whether an obscure part of the Constitution might keep Trump off the ballot there. In coming weeks, courts around the country might hold similar proceedings.
The legal strategy, pursued by an unusual mix of conservatives and liberals, is unlike any tried before against a candidate for president. Legal experts are deeply divided on the merit of the theory, but even its backers acknowledge they face stiff challenges.
The effort hinges on an arcane provision of the 14th Amendment of the Constitution, which was adopted after the Civil War and is renowned for protecting Americans’ civil rights. The amendment’s lesser-known Section 3 states that people cannot hold office if they have previously taken an oath to support the Constitution and then engage in an insurrection or provide help to the nation’s enemies. It was adopted to prevent former Confederate soldiers from gaining office and using their authority to undermine Reconstruction. Until now, it has been little considered since that era.
“It comes out of nowhere and moved from being a really off-the-wall possibility to a very serious potential disruption of the presidential contest,” said Kurt Lash, a law professor at the University of Richmond who wrote a recent law review article exploring the ambiguities of Section 3.
Trump has cast these lawsuits as “nonsense” and “election interference.”
“This is like a banana republic,” Trump told conservative radio host Dan Bongino last month.
The debate over interpretations of that section will move into the courtroom on Monday, as the hearing begins in Denver over a lawsuit brought by Republican and independent voters, including a former GOP leader in the Colorado legislature. It’s unclear who will testify, but witnesses could include people who saw the attack on the Capitol unfold before them.
“A five-day hearing — I’m a little blown away by this prospect,” said Derek Muller, a University of Notre Dame law professor who has closely followed the cases. “Can you imagine this process happening simultaneously in 50 states around the country? It’s a wild process to think about.”
The lawsuits put an unusual wrinkle into a presidential contest that is already unpredictable. Trump is trying to fight off criminal charges in four cases, two of them centered on his efforts to reverse the 2020 election.
The attempts to keep Trump off the ballot have buoyed critics of the former president, but the efforts could blow back on them. Some voters may perceive the lawsuits as political attempts to sideline a candidate who remains popular among Republicans, said Julia Azari, a professor of political science at Marquette University.
“It’s sort of maybe likely to replicate the impeachment process in terms of its political dynamics, which is that it looks like you’re using a vague provision in the Constitution to do whatever you want,” she said.
Trump’s opponents are planning to file lawsuits across the country but carefully selected where they started. Colorado and Minnesota have laws making it relatively easy to sue over whether a candidate can be on the ballot, and Trump’s critics believe they have good odds before those states’ supreme courts.
The Colorado lawsuit argues that Trump should be barred from running for president again because of his actions after losing the 2020 election, including by pressuring state officials to reverse the results and telling armed supporters gathered near the Capitol ahead of the riot to “fight like hell.”
“Trump’s efforts to overturn the 2020 election and interfere with the peaceful transfer of power were part of an insurrection against the Constitution of the United States,” attorney Mario Nicolais wrote in the lawsuit. “By instigating this unprecedented assault on the American constitutional order, Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including the Office of the President.”
Trump’s attorney, former Colorado secretary of state Scott Gessler, contends in court filings that Trump never engaged in an insurrection, noting he told his supporters to protest “peacefully and patriotically.” In addition, he argues Section 3 of the 14th Amendment does not apply to the presidency and courts don’t have the ability to keep Trump off the ballot.
“The U.S. Constitution commits to Congress and the electoral college exclusive power to determine presidential qualifications and whether a candidate can serve as President,” he wrote in one filing. “Courts cannot decide the issue at the heart of this case.”
Judge Sarah B. Wallace has not viewed it that way and is planning to hear 36 hours of arguments starting Monday. She is expected to rule by mid-November. The losing side can appeal to the Colorado Supreme Court and the U.S. Supreme Court.
Legal scholars said if any state bars Trump from running, the U.S. Supreme Court will be sure to take up the matter. Its decision would settle the matter nationwide.
“I think it would be very good if the Supreme Court would take this at the earliest opportunity,” said Josh Blackman, a professor at South Texas College of Law Houston and the co-author of a law review article contending Trump cannot be kept off the ballot under the 14th Amendment.
Trump appointed three of the nine justices on the U.S. Supreme Court, but they haven’t always ruled his way, including in challenges he and his allies brought over the 2020 election.
“I don’t think anyone should assume the Supreme Court is going to automatically side with Donald Trump,” said Ben Clements, the chairman of Free Speech for People, an election reform group assisting with the Minnesota case and one in Michigan.
