Over the next five days, a Denver judge is set to hear arguments for why former President Donald Trump should not be allowed on the state’s 2024 ballot — along with his lawyers’ case for why she should reject the unusual challenge.
The ballot disqualification trial, set to begin Monday, will be the first time testimony and evidence are presented in a case that invokes the 14th Amendment to bar the Republican front-runner from a state’s ballot. It puts Colorado at the forefront of a novel legal fight that has united liberal critics and current and former Republicans who contend that Trump’s alleged role in the Jan. 6, 2021, siege of the nation’s Capitol disqualified him from being eligible to run for national office again.
A provision in the Civil War-era federal constitutional amendment bars people who engaged in insurrection or rebellion from holding office.
But there are key unresolved questions: Which actions meet that threshold? Who can enforce it? And what is the burden of proof necessary to bar someone from the ballot under that provision?
Those considerations will be heard by Denver District Court Judge Sarah B. Wallace.
“This isn’t a frivolous lawsuit,” said Doug Spencer, a University of Colorado law professor. He sees a “credible argument” that the events of Jan. 6, 2021, in fact amounted to an insurrection, but he added that nothing is certain.
“The challenges, of course, are (that) when you’re litigating, every little word and technicality really matters,” Spencer said. “I think there are some real challenges with the plaintiffs prevailing in court.”
The civil suit was brought by several former and current Colorado Republicans, including some who are now unaffiliated voters. It’s spearheaded by Citizens for Responsibility and Ethics in Washington, or CREW, a liberal watchdog group.
Among the 14th Amendment ballot challenges being pursued against Trump in other states are cases in Minnesota and Michigan assisted by another group, called Free Speech for People. The Minnesota Supreme Court is set to hear arguments in that state’s case Thursday.
The Colorado suit, at its core, targets Trump on the basis that he allegedly urged on the Capitol siege and tried to overturn the election he lost in 2020. But it does so by also suing Colorado Secretary of State Jena Griswold — a Democrat who’s forthright in her assessment that Trump did incite an insurrection — because her office supervises elections and certifies the statewide ballot, making her the official who’d carry out any disqualification order.
Griswold first ran for her office in 2017 and has voiced concerns about threats to democracy during Trump’s presidency as a chief worry. But this case has put her in a position of taking a step back, at least as far as the nominal defendant can.
Her office isn’t putting on the case or providing evidence, beyond what’s asked of her and other officials. She sees the case as a way to ask the court for guidance when it’s not clear if a candidate is qualified for the ballot, a legal action available to voters.
“This case is a foundational case to one of the central tenets about the attack on democracy,” Griswold said in an interview. “Did Donald Trump disqualify himself by engaging in insurrection? That is what this case is about.”
Trump’s legal team, which includes former Colorado Secretary of State Scott Gessler, a Republican, has been fighting the case on the grounds that it’s an attempt to strip Trump of his First Amendment rights. The attorneys also dispute the allegations that he incited the attack on the Capitol. The state Republican Party has joined the case on the opposing side, arguing its members would be disenfranchised if they couldn’t vote for their preferred candidate.
“All of President Trump’s speech about which Petitioners complain is constitutionally protected,” Gessler and fellow attorney Geoffrey N. Blue wrote in their most recent motion to dismiss the case. “… Likewise, no evidence exists showing that speech prior to January 6, 2021, even contemplated any action on January 6, 2021, let alone encouraged people to engage in violence on that day.”
That question of free speech may well prove pivotal to the case — as well as to the question of what constitutes involvement in the Jan. 6 attack, said Jessica Smith, an attorney who leads the Religious Institutions and First Amendment practice group at Denver-based law firm Holland and Hart. She’s not involved in the Trump case.
Smith said participation on Jan. 6 occurred along a spectrum.
A county commissioner in New Mexico, who was convicted for actually breaching the Capitol, was removed from office last year by a court under the 14th Amendment. But under a similar challenge, U.S. Rep. Marjorie Taylor Greene, a Georgia Republican, was allowed to run for reelection in 2022 — even as one of her home-state judges found that “Her public statements and heated rhetoric may well have contributed to the environment that ultimately led to the Invasion,” according to the New York Times.
She was never charged with any crimes and was inside the Capitol with the rest of Congress when the mob swept through.
“Where does Donald Trump fall on that spectrum? He wasn’t there, he didn’t physically enter the Capitol, but he was more involved than Marjorie Taylor Greene,” Smith said in an interview.
While the evidence and witnesses haven’t been disclosed ahead of Monday’s trial, during a recent status hearing the plaintiffs indicated that they intended to introduce part of the U.S. House Jan. 6 select committee’s final report — a move that came much to the consternation of Trump’s legal team, which views the report as biased.
The judge said the report may be conditionally considered. The legal teams also suggested some members of Congress may be called to testify, though it’s not clear who or when.
Trump is not expected to appear in court or testify this week. The judge earlier rejected plaintiffs’ request to depose Trump.
There are plenty of unknowns in a case without modern precedent — especially one that, like the cases unfolding in other states, could well land before the U.S. Supreme Court. But for now, Wallace will preside over the trial without a jury, and a final hearing is scheduled for Nov. 15.
She has said she hopes to rule by the end of November, leaving more than a month before Griswold must certify the primary election ballot Trump that hopes to appear on. That timeline also will allow for expected appeals.
This case, meanwhile, isn’t the only one Trump faces. Among other matters, he is scheduled to testify in early November in a New York civil fraud trial. He also faces criminal trials in Georgia and in federal court related to allegations he sought to overturn the 2020 election.
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