DENVER, Colorado. Hearings are underway in two states this week, marking a significant phase in the campaign to employ the U.S. Constitution’s “insurrection” clause to potentially prevent former President Donald Trump from seeking the White House again. These lawsuits have the potential to reach the U.S. Supreme Court.
In Colorado, a weeklong hearing for one lawsuit aimed at barring Trump from the ballot begins on Monday. Meanwhile, oral arguments are scheduled for Thursday before the Minnesota Supreme Court in a case seeking to disqualify the Republican former president from the ballot in that state.
The rulings in these cases, regardless of whether they maintain Trump’s ballot eligibility or remove him, are expected to be swiftly appealed, potentially culminating in a U.S. Supreme Court decision. Notably, the highest court in the land has never addressed the Civil War-era provision within the 14th Amendment, which prohibits individuals who had sworn an oath to uphold the constitution and subsequently “engaged in insurrection” from holding higher office.
Derek T. Muller, a law professor at Notre Dame, emphasized the uniqueness of these cases, stating, “We’ve had hearings with presidential candidates debating their eligibility before — Barack Obama, Ted Cruz, John McCain.” He pointed out that these cases are different, as they revolve around an obscure constitutional clause with the “incendiary” element of insurrection.
Despite the odds being long, Muller suggested that these cases present a plausible legal path to success and raise significant legal questions. “Those legal questions are very heavy ones,” he added.
In recent months, numerous cases citing Section Three of the 14th Amendment have been filed, with the cases in Colorado and Minnesota holding particular importance, according to legal experts. These cases were initiated by two well-resourced liberal groups and targeted states with a clear and swift process for challenging candidates’ ballot qualifications.
This legal approach in Colorado and Minnesota involves a more legally sound route to compel election officials to disqualify Trump, rather than seeking a broad ruling from federal judges asserting that Trump is no longer eligible for the presidency.
The plaintiffs in these cases argue that Trump’s efforts to overturn the results of the 2020 election, which ultimately led to the January 6, 2021, attack on the U.S. Capitol, disqualify him from the presidency, much like if he were not a natural-born citizen, another constitutional prerequisite for the office.
The Colorado lawsuit, filed on behalf of Republican and unaffiliated voters by the liberal group Citizens for Responsibility and Ethics in Washington, alleges that “Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including the Office of the President.”
Trump has criticized these lawsuits as “election interference,” and his legal team argues that the constitutional provision, which hasn’t been used for 150 years, was never intended to apply to the presidency. They also contend that the provision requires an enabling act of Congress to have any effect.
Additionally, Trump’s attorneys argue that he did not “engage in insurrection” and that his actions amounted to exercising his free speech rights to raise concerns about the legitimacy of the election results. They point to historical examples where Section Three of the 14th Amendment was not applied to individuals who had only expressed rhetorical support for the Confederacy.
The hearings in Colorado could feature testimony from witnesses who observed the events of January 6, 2021, or other critical occurrences during Trump’s efforts to contest the election results. The identities of these witnesses have been kept confidential, a measure taken to reduce the heated rhetoric and threats that have been associated with Trump’s legal proceedings.
During these legal proceedings, lawyers are expected to delve deeply into the history of the 14th Amendment’s provision and its use between its adoption in 1868 and the amnesty law enacted in 1872. With scant legal precedent on this issue, the attorneys have had to interpret the meaning of a case from 1869 written by Salmon Chase, who was the Chief Justice of the U.S. Supreme Court at the time, but authored the case only as an appeals judge.
Following the amnesty act in 1872, the provision has been cited only once, when Congress refused to seat a socialist member of the House of Representatives due to his opposition to entering World War I. In 2022, this provision was utilized by Citizens for Responsibility and Ethics in Washington to disqualify the head of “Cowboys for Trump” from a county commission seat in rural New Mexico. Another liberal group, Free Speech For People, initiated lawsuits to prevent Republican Reps. Marjorie Taylor-Greene and Madison Cawthorn from running for re-election.
While the judge overseeing Greene’s case ruled in her favor, Cawthorn’s case became moot after he was defeated in his primary. Free Speech For People subsequently filed the case in Minnesota, where challenges to ballot appearances are directly addressed by the state supreme court.
AP contributed to this report.
