Buoyed by a lower court ruling branding former President Donald Trump an insurrectionist for his role in the Capitol incursion, his opponents are pushing for an appeals court to throw him off of the Colorado ballot.
A brief filed by one party in the case argues that Trump is on shaky legal grounds by saying states do not have the power to ban individuals from the ballot.
“[Trump] has argued that states have no power to judge the qualifications of candidates or that it is a political question. The historical record however suggests that in at least some cases, states have excluded candidates,” Derek Muller, a law professor at the University of Notre Dame in Indiana, said, according to Newsweek.
A lower court ruling said Trump was an insurrectionist, a point he disputes. The ruling also said that Section 3 of the 14th Amendment, which bans from several offices office those who have committed insurrection against the federal government, does not appear to apply to the presidency.
As such, District Judge Sarah Wallace said Trump should stay on the ballot. Last week, the Colorado Supreme Court heard arguments appealing that ruling.
Donald Trump’s bid for another term as the President of the United States could potentially hit a snag as Colorado and several other states mull if a ban on insurrectionists taking office also applies to the presidency. https://t.co/c9K0nEIccU
— Black Enterprise (@blackenterprise) December 10, 2023
Muller said that there is a precedent for states banning someone, saying that California acted in 1968 to ban former Black Panther leader Eldridge Cleaver because he had not reached the required age of 35.
Muller said it was uncertain which way Colorado’s highest court would rule.
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“There are a number of things that the Colorado Supreme Court must find to exclude him from the ballot, but any one thing in Trump’s favor can keep him on,” Muller said.
Trump’s lawyers have made the argument that the clause in question did not apply to the presidency, while it did to specific positions such as senator or representative listed in the Amendment.
“How is that not absurd?” Justice Richard Gabriel asked, according to The New York Times.
Attorney Scott Gessler said the Capitol incursion was not an insurrection, saying an insurrection “has to be longer than three hours” and “broader than one building.”
He argued that only Congress could determine if Trump was eligible under Section 3 of the 14th Amendment.
Some on the court agreed with his position.
“If it was so important that the president be included, I come back to the question, Why not spell it out?” Justice Carlos Samour Jr. said, according to the Associated Press. “Why not include president and vice president in the way they spell out senator or representative?”
The Colorado case is among several filed by groups trying to keep Trump off the ballot. Rulings in Minnesota and Michigan have so far gone in Trump’s favor. A lawsuit in Oregon has only just been filed.
AP noted that a ruling from the seven Democrat-appointed judges on the Supreme Court will very likely be appealed to the U.S. Supreme Court.
