DENVER — A liberal group on Wednesday filed a lawsuit to bar former President Donald Trump from the primary ballot in Colorado, arguing he is ineligible to run for the White House again under a rarely used clause in the U.S. Constitution aimed at candidates who have supported an “insurrection.”
The lawsuit, citing the 14th Amendment, is likely the initial step in a legal challenge that seems destined for the U.S. Supreme Court. The complaint was filed on behalf of six Republican and unaffiliated Colorado voters by the group Citizens for Responsibility and Ethics in Washington.
It will jolt an already unsettled 2024 primary campaign that features the leading Republican candidate facing four separate criminal cases.
Liberal groups and conservative legal scholars have demanded that states’ top election officials bar Trump under the clause that prohibits those who “engaged in an insurrection or rebellion” against the Constitution from holding higher office. None has taken that step, looking for guidance from the courts on how to interpret a clause that has only been used a handful of times since the 1860s.
A few fringe figures have filed thinly written lawsuits in a few states citing the clause, but the litigation Wednesday was the first by an organization with significant legal resources. It may lead to similar challenges in other states, holding out the potential for conflicting rulings that would require the Supreme Court to settle.
Colorado’s secretary of state, Democrat Jena Griswold, said in a statement that she hoped “this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.”
The lawsuit contends the case is clear, given the attempt by then-President Trump to overturn his 2020 election loss to Democrat Joe Biden and his support for the assault of the U.S. Capitol on Jan. 6, 2021. The Republican has said he did nothing wrong.
The 14th Amendment, ratified in 1868, helped ensure civil rights for freed slaves — and eventually for all people in the United States. But it also was used to prevent former Confederate officials from becoming members of Congress after the Civil War and taking over the government against which they had just rebelled.
The clause cited in the lawsuit allows Congress to lift the ban, which it did in 1872 as the political will to continue to bar former Confederates dwindled. The provision was almost never used after that.
CREW and law professors of both parties contend the amendment is clear and is a qualification for president, just as the Constitution’s mandate that a candidate for the White House must be at least 35 years old and a natural-born citizen.
But others note there is much unsettled about the provision and that a case involving this issue has not reached the justices in Washington.
The clause cites a wide range of offices “under the United States” and states that the provision applies to “presidential electors” — but not the presidency itself. There is a debate among some experts about whether Trump’s acts constitute an “insurrection” under the language of the amendment.
In its complaint, CREW asked the court to expedite the matter so it can be resolved before the state’s primary ballot is set on Jan. 5, 2024. “We understand that there’s great interest in states across this country about this question, and it needs to be resolved expeditiously so there’s clarity,” Donald Sherman, CREW’s chief counsel, told reporters in a teleconference.
A Trump spokesperson did not immediately respond to a request for comment on the suit.
Georgia’s secretary of state, writing in The Wall Street Journal, warned that using the 14th Amendment in this way could take the country down a dark path.
“For a secretary of state to remove a candidate would only reinforce the grievances of those who see the system as rigged and corrupt,” said Republican Brad Raffensperger, who drew Trump’s ire when he refused to declare Trump the winner in Georgia in 2020. “Denying voters the opportunity to choose is fundamentally un-American.”
The 14th Amendment was used last year to bar from office a New Mexico county commissioner who entered the U.S. Capitol on Jan. 6. That was the first time it was used in 100 years. In 1919, Congress refused to seat a socialist, contending he gave aid and comfort to the country’s enemies during World War I.
Another liberal group, Free Speech For People, unsuccessfully tried to use the provision to prevent Republican Reps. Marjorie Taylor Greene of Georgia and Madison Cawthorn of North Carolina from running for reelection last year.
The judge overseeing Greene’s case ruled in her favor. Cawthorn’s case became moot after he was defeated in his primary.
CREW said it expects to file more cases in other states and anticipates that different groups may do so as well. It picked Colorado, its leaders said, because the state allows ballot challenges to go directly to court and it assembled a prominent roster of plaintiffs, including a former Republican leader of both houses of the legislature and a conservative columnist for the Denver Post.
There was another reason, Sherman noted: In 2015, a Guyana-born naturalized citizen lost his lawsuit to be included on the state’s presidential primary ballot, failing to convince a federal magistrate that the Constitution’s requirement that he be a natural-born citizen was unfair.
A federal appeals judge upheld that ruling barring him from the ballot. The judge was Neil Gorsuch, now on the U.S. Supreme Court.
