Only a few dozen people, lawyers and court staff included, were on hand in the Denver City and County Building’s Courtroom 209 when a five-day trial in a case known as Anderson v. Griswold began on a cold morning in late October.
Just outside the courtroom, footsteps echoed in the otherwise quiet halls of Denver’s city hall as Jason Miller, a veteran spokesperson for former President Donald Trump, denounced the case as an attempt at “election interference” by a “far-left wacko group.”
A month earlier, six Colorado voters, backed by the nonprofit Citizens for Responsibility and Ethics in Washington, had
sued Trump and Colorado Secretary of State Jena Griswold in state court, alleging that the Republican presidential frontrunner’s actions in relation to the Jan. 6 attack on the U.S. Capitol disqualify him from office under the 14th Amendment to the U.S. Constitution. Section 3 of the Amendment, ratified in 1868 and enforced in only a handful of cases in the last 150 years, prohibits a person who took an oath to support the Constitution and then “engaged in insurrection” from holding office again.
The plaintiffs sought a court order on Trump’s ballot eligibility under a procedure in Colorado election law typically used to adjudicate disputes over candidate residency requirements or irregularities in party nominating assemblies. Griswold, a Democrat and outspoken Trump critic, took no formal position on the matter, inviting the courts to weigh in first. Local news stations called the lawsuit a “
long shot.”
Fielding questions from reporters ahead of the trial, Miller dismissed the plaintiffs, four of whom are registered Republicans, as “Republicans in name only.” He suggested — highly implausibly, based on recent election results in
increasingly blue Colorado — that Democrats had brought the 14th Amendment challenge in the Centennial State out of fear that Trump could put the state in play in the 2024 election.
“Joe Biden and his billionaire Democratic donors … they go to a Democratic jurisdiction, they try to find themselves a Democrat judge, they try to cause chaos,” Miller said. “Democrats don’t actually have an intention of winning this case.”
Within two months, however, Trump’s legal team would suffer a historic defeat in the Colorado case — not at the hands of a district court judge in liberal Denver, but before the justices of the Colorado Supreme Court. A 4-3 majority of the court sent shockwaves through American politics when it
issued a Dec. 19 decision holding that Trump was ineligible for office under Section 3, and ordering Griswold not to certify his candidacy for the state’s March 5 primary ballot.
The lawsuit’s fast-tracked ascent through the American legal system
will reach its apex Thursday, when the U.S. Supreme Court, which promptly granted Trump’s appeal of the Colorado decision last month, hears oral arguments from Trump’s team, the plaintiffs’ attorneys and Colorado’s solicitor general. Within weeks or even days, the nation’s highest court could issue a precedent-setting ruling on the case, now titled Trump v. Anderson.
Despite remaining neutral on Trump’s eligibility during trial proceedings, Griswold has since said that the Colorado Supreme Court “got it right,” and
says the state’s election laws worked exactly as intended.
“The facts of this case are unprecedented, but the legal mechanism is routine,” lawyers for Griswold wrote in a Jan. 31 U.S. Supreme Court brief. “The dispute was capably and constitutionally handled by the procedures directed by Colorado’s legislature to resolve these precise issues. This Court should affirm and uphold Colorado’s right to exclude from its presidential ballots ineligible insurrectionists.”
Legacy of Jan. 6
Over more than
30 hours of evidentiary hearings held beginning Oct. 30, the trial in Denver’s Courtroom 209 at times closely resembled the proceedings of the House of Representatives’ select Jan. 6 committee, complete with dramatic video exhibits of Trump’s election-denying rhetoric and the mob’s Jan. 6 assault on the Capitol. Members of Congress and law enforcement officers assigned to protect the Capitol testified in graphic detail about the day’s events.
Trump was represented in the Colorado case by Scott Gessler, a former Colorado secretary of state who had himself endorsed debunked conspiracy theories alleging widespread fraud in the 2020 election, during an unsuccessful bid for Colorado Republican Party chair the following year. Trump’s defense in the case
relied extensively on close Trump loyalists and election deniers who had organized or attended pro-Trump “Stop the Steal” events on or prior to Jan. 6, and who used their time on the witness stand to reiterate their beliefs that the election had been stolen or that Antifa had been responsible for the violence on Jan. 6.
In her
Nov. 17 ruling, Judge Sarah B. Wallace wrote that many of the witnesses called by the defense lacked credibility and even showed an “inability to discern conspiracy theory from reality.” Although Wallace ruled that Trump had, in fact, “engaged in insurrection,” she rejected the plaintiffs’ case on the grounds of a legal theory, advanced by a handful of conservative law professors, holding that the president is not one of the “officer(s) of the United States” to which Section 3 applies.
But after granting the plaintiffs’ expedited appeal, the Colorado Supreme Court issued a ruling one month later soundly rejecting the theory, while affirming many of Wallace’s other findings. Its seismic majority opinion was the first of its kind in the nation’s history. It was followed just 10 days later by Maine Secretary of State
Shenna Bellows’ order declaring Trump ineligible on the same grounds. Like the Colorado ruling, Bellows’ order is on hold pending the outcome of U.S. Supreme Court proceedings, meaning that Trump will still appear on both states’ primary ballots.
Both rulings have been the subject of intense criticism — not only from Trump allies, but also from centrist and liberal commentators who worry about the consequences of barring a presidential frontrunner from the ballot. The “political and civic logic” of the Section 3 challenges,
wrote New York Magazine’s Jonathan Chait, “strikes me as dangerous and likely to backfire.” Lawrence Lessig, an influential left-leaning legal scholar, has argued the Supreme Court must unanimously reject the Colorado ruling “to preserve its integrity.”
Trump, who faces multiple criminal indictments over his efforts to overturn the results of the 2020 election, has nonetheless remained the overwhelming favorite to win the 2024 Republican nomination since announcing that he would seek the presidency again.
Ilya Somin, a George Mason University law professor who filed an amicus, or friend-of-the-court, brief in support of Trump’s disqualification, spoke during a panel discussion hosted by the conservative Federalist Society on Wednesday and conceded that Section 3 disqualification is a “constraint on democracy, but one that preserves democracy itself.”
“Another way that you can put it is that, if you like to say, as many conservatives do, that we are a republic, not a democracy, Section 3 is one of several aspects of the Constitution that reflects that principle,” Somin said. “(It) reflects some degree of suspicion of unconstrained democracy, which if not limited in certain ways can destroy itself.”
‘The law must stand’
The plaintiffs who brought the case, with help of the liberal nonprofit Citizens for Responsibility and Ethics in Washington, say the concerns about the “undemocratic” nature of Trump’s potential disqualification have it backwards.
“What could possibly be more undemocratic than failing to enforce the Constitution?” Claudine Schneider, one of the six plaintiffs, said in an interview. “It is undemocratic to lie about the outcome of an election, not to mention to mobilize masses to attack the peaceful transfer of power.”
Before moving to Colorado in the 1990s, Schneider served five terms in Congress as a Republican, representing Rhode Island’s 2nd District during the Reagan and George H.W. Bush administrations. A longtime environmentalist who has regularly endorsed Democratic candidates for president beginning with Barack Obama in 2008, Schneider’s disaffection with the GOP began long before Trump’s election.
But that’s hardly the case for other plaintiffs, including Krista Kafer, a Denver Post columnist who remains a registered Republican and voted for Trump in 2020 — in large part, she said in a recent interview, because of her pro-life views. It’s unlikely, she added, that she will vote for Biden this year.
“I don’t vote for politicians that are not pro-life — or at least act pro-life, in the case of Trump,” Kafer said. “But for me, insurrection and refusing to concede an election and trying to (overturn) an election, to me is a line that cannot be passed.”
“I think this is beautiful,” Schneider said. “It’s a melting pot of different perspectives that have … coalesced into a point of view that the law must stand.”
The legal team representing the plaintiffs, too, hardly resembles the pack of “far-left extremists” described by Jason Miller and other Trump allies. Its lead attorneys are largely well-heeled veterans of white-shoe corporate law firms and clerkships with high-ranking conservative judges. And over the last several months and years, the flurry of scholarly research, law-review articles and amicus briefs pertaining to Section 3 has seen plenty of solidly conservative figures in the legal establishment lend their support to the case for Trump’s disqualification, including Somin and
William Baude, a former clerk to Supreme Court Chief Justice John Roberts.
Following the submission of more than 3,000 pages of amicus briefs and trial transcripts to the court over the last month, Roberts and the other justices will be asked to wade into legal territory with little settled precedent or relevant case law from the last century and a half. Key issues
expected to be weighed by the court include whether Section 3’s reference to “officer(s) of the United States” includes the president and whether the clause is “self-executing” or requires congressional action to be enforced.
“From my side of the debate, we do have to prevail on several different issues. That obviously is a disadvantage,” said Somin. “The other side need only prevail on one out of about five or six issues.”
Playing politics
Minutes before the trial in Denver District Court began, Miller made a confident prediction.
“This case is going to fail,” he said. “Whether it fails here, whether Judge Wallace does the right thing, or whether this fails when it goes further up, this is going to fail.”
Thursday’s oral arguments come amid a
cloud of doubt and distrust felt by many Americans towards the Supreme Court, especially in the wake of its decision last year to overturn Roe v. Wade and roll back 49 years of federal protections for abortion rights. Republican-appointed justices hold a 6-3 majority on the court, and three of its conservative justices were appointed by Trump himself.
Critics of the court’s politicization seized on a Fox News appearance last month by Alina Habba, an attorney representing Trump, in which Habba predicted the court would rule in Trump’s favor.
“I think it should be a slam dunk in the Supreme Court,”
Habba said. “You know, people like (Justice Brett) Kavanaugh, who the president fought for, who the president went through hell to get into place, he’ll step up.”
Proponents of Trump’s disqualification have called on Justice Clarence Thomas, the court’s longest-serving justice, to recuse himself from the Colorado case. His wife, Ginni Thomas, is a far-right activist who was
closely linked with organizers of pro-Trump “Stop the Steal” efforts in the weeks leading up to the Jan. 6 attack. No recusal by Thomas or any other justice has been noted in any of the court’s orders in the case to date.
Schneider said the case is an opportunity for the court’s Republican-appointed majority to “adhere to what they claim or their guiding conservative principles of originalism, textualism and federalism.”
“Those justices, at this moment in time, are in the spotlight. And they also know that their credibility, according to many polls, is minuscule,” Schneider said. “So I think they are under an enormous amount of pressure to not play politics, or kowtow to the ex-president, but rather do what is right for the good of the country.”
Newsline’s Quentin Young contributed to this report.
Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.
