Former President Donald Trump is facing two lawsuits to prevent him from being on the ballot in Colorado and Minnesota under a rarely-used provision of the 14th Amendment.
In Minnesota, the state’s Supreme Court is hearing oral arguments Thursday in a lawsuit that was filed by the nonprofit group Free Speech for People, along with former Secretary of State Joan Growe and former Supreme Court Justice Paul H. Anderson.
The lawsuit asks the court to order Democratic Secretary of State Steve Simon to remove Trump from the primary and general-election ballot. It mirrors the case in Colorado, arguing that Trump violated his oath of office by stoking an insurrection to overthrow the results of the 2020 election on Jan. 6, 2021, and should therefore be disqualified from holding office again.
Five of the seven state Supreme Court justices are expected to hear the case.
Meanwhile in Denver, a judge is hearing arguments from a group of Colorado voters who are suing to keep Trump off the ballot in the state’s primary and general elections, arguing he is disqualified from holding public office following the assault on the Capitol on Jan. 6.
Abbie Parr / AP
The lawsuit was filed by Citizens for Responsibility and Ethics in Washington, also known as “CREW,” on behalf of six Republicans and unaffiliated voters against Trump and Colorado’s Democratic Secretary of State Jena Griswold. The group argues that Trump violated Section 3 of the 14th Amendment in his efforts to overturn the 2020 election in the weeks leading up to the joint session of Congress to certify the Electoral College votes on Jan. 6. The group is seeking Trump’s removal from the 2024 Republican presidential primary ballot or any future ballot as a result.
“Trump tried to overthrow the results of the 2020 election, leading to a violent insurrection at the United States Capitol to stop the lawful transfer of power to his successor,” the lawsuit states. “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.”
Scott Gessler, a lawyer representing Trump, called the lawsuit “antidemocratic” and said it’s an effort to get the court to endorse the House Jan. 6 committee report, which he called a “one-sided poisonous report.” Gessler argued that Trump’s comments in the days leading up to Jan. 6th did not directly correlate with the violent action that was seen on that day.
“Absolutely nothing Trump said was a call to violence,” Gessler told the court.
In a statement, Trump campaign spokesperson Steven Cheung accused President Biden and the Democratic party of “relentless weaponization of the great American justice system.”
Section 3 of the 14th Amendment states that anyone who swore an oath to uphold the Constitution and then “engaged in insurrection” is prohibited from holding higher office. The Civil-war era law was used to bar individuals who had held roles in the Confederacy or otherwise supported it from going to Congress after the Civil War.
The argument to bar individuals who participated in the Capitol riot on Jan. 6 from the ballot was tried recently in North Carolina. Former Rep. Madison Cawthorn of North Carolina, who participated in Trump’s rally at the Ellipse that preceded the assault on the Capitol, faced a lawsuit that would have disqualified him from the primary ballot in his race last year. The lawsuit was ultimately dismissed after Cawthorn lost his primary race.
“Our nation has never disqualified a former president from the ballot for engaging in insurrection,” said CBS News election law expert and political contributor David Becker. “That said, we’ve never seen a former president openly encourage an attack on the Capitol to subvert an election. The 14th Amendment exists for a reason, and though it was passed immediately after the Civil War, it’s still operative and must have meaning.”
The trial in Colorado is expected to last for several days. Second Judicial District Judge Sarah Wallace is overseeing the trial and asked questions of witnesses during various points of the trial. Wallace became a district judge in Jan. and was appointed by Democratic Governor Jared Polis.
Separately, Trump was indicted this summer by a federal grand jury on four counts related to his alleged attempt to overturn the 2020 election result. Trump has denied any wrongdoing.
“The attack on our nation’s Capitol on Jan. 6, 2021, was an unprecedented assault on the seat of American democracy,” special counsel Jack Smith said after the release of the indictment. “As described in the indictment, it was fueled by lies. Lies by the defendant targeted at obstructing a bedrock function of the U.S. government: the nation’s process of collecting, counting and certifying the results of the presidential election.”
Section 3 of the Fourteenth Amendment does not expressly require a criminal conviction, according to the Congressional Research Service.
If either of the lawsuits are successful, it would be the first time a former president has been removed from the ballot by the Constitution. The last time Congress used this provision was in 1919 with Congressman Victor Berger, who was accused of giving aid to Germany during World War I. The Supreme Court eventually threw out the espionage conviction against Berger for judicial bias and he was allowed to be sworn in.
There are several other lawsuits in early stages across the U.S. that would seek to bar Trump from the ballot, including in Michigan. Free Speech For People also filed that lawsuit which asks Democratic Secretary of State Jocelyn Benson to prevent Trump from the ticket in the battleground state.
“This argument has been supported by esteemed legal scholars across the political spectrum, but it’s still a long shot,” Becker said. “While the legal arguments have substantial merit to them, it’s also true that courts, including the Supreme Court prefer not to directly affect the choice voters might have. This will, and should, ultimately be decided by the U.S. Supreme Court and its unclear whether there are 5 or more justices willingly to disqualify Mr. Trump.”
