Colorado Supreme Court offers concerns that removing Trump from the ballot would disenfranchise voters

Going back and forth with the justices on what constitutes insurrection, Gessler said, "it’s more than a three-hour riot on one building."

Hannah Nightingale Washington DC

On Wednesday, the Colorado Supreme Court heard appeal arguments in the case to remove 2024 GOP frontrunner Donald Trump from the primary ballot in the state through the 14th Amendment.

A lower court judge on November 17 ruled that Trump could remain on the ballot, sparking appeals to the higher court by the petitioners. Attorneys for Trump also appealed the lower court ruling, saying that while the judge agreed to keep Trump on the ballot, the ruling was accompanied by the claim that Trump was an "insurrectionist" who caused the J6 riot at the Capital building.

During the hearing, Justice Melissa Hart asked Eric Olson, attorney for the petitioners, what Trump being off the ballot in the state would mean for independent and Republican voters come the primary election, which will take place on March 5, 2024.

"So Mr. Olson, should we be concerned about that, as we think about the Republican citizens of Colorado or unaffiliated folks who want to cast a ballot in the Republican primary, if what you’re saying is correct, President Trump will be on the ballot in most states, but not here in Colorado," Hart said.

"So effectively, the Republican or unaffiliated voter who wants to participate in the presidential primary, Republican primary won’t really be able to participate because the person who’s on most ballots and appears to be leading in the primary is not an option."

In response, Olson said that "other states have different mechanisms," noting California is allowing for post election challenges when there’s an unqualified candidate. "So just because there's not a pre election qualification dispute under the law, doesn't mean there won't be a post election one."

Olson said that he and the group that brought forth the suit are "worried about" this, and "our clients, who are Republicans and independents, they filed the suit because they want a fair shot in the Republican primary to vote for a qualified candidate and have their support for a qualified candidate not be diluted through votes for a candidate who will be disqualified."

He said that the suit was a "pro-democracy" and "pro-Colorado voter perspective."

Scott Gessler, representing Trump, noted that a number of cases, both those ongoing or those that could pop up post-primary, represent a "patchwork where voters are going to be treated differently and affected across the country."

Gessler pushed back on the claims that Trump engaged in an insurrection or acted to incite the crowd on January 6 to attack the Capitol in an attempt to stop the certification of the presidential election for Joe Biden. The 14th Amendment prohibits a person from attaining office if they had engaged in insurrection. It was put in place after the Civil War to prevent Confederate leaders from gaining federal elected positions.

Going back and forth with the justices on what constitutes insurrection, Gessler said, "it’s more than a three-hour riot on one building."

"If you look at historically in the context of how insurrection was used, I mean, it has to be for a substantial duration, not three hours. There has to be some geographical scope. There has to be a goal of nullifying all governmental authority in an area," he said.

"There was very little evidence of a robust command and control structure and that level of organization. The use of force did not involve arms, certainly not the level of arms necessary to overcome, and it wasn’t capable of being rebellion."

Gessler urged the court to affirm the lower court ruling, "but also strike the dicta from the decisions beyond that court’s jurisdiction."

District Judge Sarah Wallace for the lower court declared that Trump had engaged in insurrection by inciting the January 6 riots, but said that the 14th Amendment on holding office after engaging in "insurrection or rebellion" did not apply to the the office of the president. 

Both Trump’s team and Citizens for Responsibility and Ethics in Washington, which filed the initial complaint, appealed to the state’s high court.

Trump’s team has appealed to the court over several of Wallace’s findings, including that he "engaged" in the January 6 riot.

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