DENVER (AP) — A Colorado judge on Wednesday will hear closing arguments on whether former President Donald Trump is barred from the ballot by a provision of the U.S. Constitutional that forbids those who “engaged in insurrection” from holding office.
District Judge Sarah B. Wallace will have 48 hours to rule after the end of arguments Wednesday afternoon, though that deadline can be extended. She held a weeklong hearing that concluded earlier this month on whether the Civil War-era provision disqualifies Trump given his role in the Jan. 6, 2021, attack on the U.S. Capitol.
Wednesday’s hearing comes on the heels of two losses for advocates who are trying to remove Trump from the ballot under Section Three of the 14th Amendment, which bars from office those who swore an oath to uphold the U.S. Constitution and then “engaged in insurrection” against it. The measure has only been used a handful of times since the period after the Civil War, when it was intended to stop former Confederates from swamping government positions.
Last week, the Minnesota Supreme Court dodged the question of whether the provision applies to Trump, who is so far dominating the Republican presidential primary. It dismissed a lawsuit to toss him off that state’s primary ballot by saying that political parties can allow whomever they want to qualify for primaries.
The court left the door open for a general election challenge if Trump becomes the Republican presidential nominee.
On Tuesday, a Michigan judge dismissed another lawsuit seeking to bounce Trump from that state’s primary ballot with a more sweeping ruling. He said whether the provision applies to the former president is a “political question” to be settled by Congress, not judges. The liberal group that filed the Michigan case, Free Speech For People, said it plans to appeal the decision.
Another left-leaning group, Citizens for Responsibility and Ethics in Washington, filed the Colorado lawsuit. While there have been dozens of cases nationally, many of them have been filed by individual citizens acting alone, sometimes not even residing in the state where the complaint is lodged. The Colorado, Michigan and Minnesota cases have been seen by legal experts as the most advanced, partly due to the legal resources the liberal groups bring to bear.
The Trump campaign has called the lawsuits “election interference” and an “anti-democratic” attempt to stop voters from having the choice they want next November. His attorneys asked Wallace, who was appointed by Democratic Gov. Jared Polis, to recuse herself because she donated $100 to a liberal group that called Jan. 6 a “violent insurrection.”
Wallace said she had no predetermined opinion about whether the Capitol attack met the legal definition of an insurrection under Section 3 and stayed with the case.
There are a number of ways the case can fail: Wallace could, like the Minnesota high court, say she is powerless in a primary or, like the Michigan judge, defer to Congress’ judgment. Trump’s attorneys and some legal scholars argue that Section 3 is not intended to apply to the president and that Trump did not “engage” in insurrection on Jan. 6 in the way intended by the authors of the 14th Amendment.
The petitioners in the case called a legal scholar who testified that the authors of Section 3 meant it to apply even to those who offered aid to the Confederate cause, which could be as minimal as buying bonds. They argued Trump “incited” the Jan. 6 attacks and presented dramatic testimony from police officers who defended the Capitol from the rioters.
Whatever Wallace rules is likely to be appealed to the Colorado Supreme Court. From there it could go to the U.S. Supreme Court, which has never ruled on Section 3.
Nicholas Riccardi, The Associated Press