Lawsuit filed to keep Trump from 2024 ballot in Colorado under Section 3 of 14th Amendment

Late last month, RealVail.com posted a story asking whether Colorado could keep former President Donald Trump off the 2024 presidential election ballot under Section 3 of the 14th Amendment of the U.S. Constitution. That article is now much more than a mere theoretical exercise after a lawsuit was filed on Wednesday with that express purpose.

Filed against the state on behalf of Republican and unaffiliated Colorado voters represented by Citizens for Responsibility and Ethics and two law firms, the lawsuit seeks to disqualify Trump for engaging in an insurrection on Jan. 6, 2021. It prompted an immediate response from Colorado Secretary of State Jena Griswold. Here is her press release, followed by the initial announcement from CREW:

Today Colorado Secretary of State Jena Griswold, in her role as chief elections official in the State of Colorado, was sued by six Republican and Unaffiliated Colorado voters. The lawsuit claims that the Secretary must immediately disqualify former president Donald J. Trump from the Colorado ballot based on the language of Section 3 of the 14^th Amendment to the U.S. Constitution.

Secretary Griswold has issued the following statement regarding the lawsuit:

“Today a lawsuit was filed to determine whether former President Donald J. Trump is disqualified from the Colorado ballot for inciting the January 6th insurrection and attempting to overturn the 2020 Presidential Election. The United States Constitution bars anyone who has taken an oath to protect the Constitution from holding office if they have ‘engaged in insurrection or rebellion’ or ‘given aid or comfort to the enemies’ of the Constitution. I look forward to the Colorado Court’s substantive resolution of the issues, and am hopeful that this case will provide guidance to election officials on Trump’s eligibility as a candidate for office.”

Colorado Law Pertaining to Eligibility for Office

Colorado law is unclear on how to consider the requirements of the United States Constitution in determining whether a candidate is eligible for office, including the language of Section 3 of the 14th Amendment. Colorado Revised Statutes 1-4-501(1), “Only eligible electors eligible for office,” reads:

(1) No person except an eligible elector who is at least eighteen years of age, unless another age is required by law, is eligible to hold any office in this state. No person is eligible to be a designee or candidate for office unless that person fully meets the qualifications of that office as stated in the constitution and statutes of this state on or before the date the term of that office begins. The designated election official shall not certify the name of any designee or candidate who fails to swear or affirm under oath that he or she will fully meet the qualifications of the office if elected; or who is unable to provide proof that he or she meets any requirements of the office relating to registration, residence, or property ownership; or who the designated election official determines is not qualified to hold the office that he or she seeks based on residency requirements. The information found on the person’s voter registration record is admissible as prima facie evidence of compliance with this section.

The full statute citation can be found at C.R.S. 1-4-501 (HTML).

Presidential Primary Ballot Certification Requirements in Colorado

For declared candidates from a major party to qualify for and be placed on the presidential primary ballot in Colorado, they must be eligible for nomination and complete additional steps.

More information about the path to Presidential Primary Certification can be found at https://www.coloradosos.gov/pubs/elections/Candidates/PrimaryPresidentPetition.html (HTML). The Federal Election Commission may have additional requirements that are not addressed at the state level.

At the time of this publication, no candidates have qualified for the presidential primary ballot in Colorado. Information about candidates’ statuses for the Colorado ballot will be available at GoVoteColorado.gov (HTML) after candidates begin filing presidential primary paperwork with the Colorado Department of State.

Section 3 of the 14^th Amendment to the United States Constitution 

Section 3 of the 14^th Amendment of the U.S. Constitution reads:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such a disability.”

The full text of the 14^th amendment can be found at archives.gov (HTML).

Here’s the press release from Citizens for Responsibility and Ethics:

Having disqualified himself from public office by violating Section 3 of the 14th Amendment, Donald Trump must be removed from the ballot, according to a lawsuit filed today by six Republican and unaffiliated Colorado voters including former state, federal and local officials, represented by Citizens for Responsibility and Ethics in Washington and the firms Tierney Lawrence Stiles LLC, KBN Law, LLC and Olson Grimsley Kawanabe Hinchcliff & Murray LLC.

Section 3 of the 14th Amendment, also known as the Disqualification Clause, bars any person from holding federal or state office who took an “oath…to support the Constitution of the United States” and then has “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” On January 20, 2017, Donald Trump stood before the nation and took an oath to “preserve, protect and defend the Constitution of the United States.” After losing the 2020 presidential election, Donald Trump violated that oath by recruiting, inciting and encouraging a violent mob that attacked the Capitol on January 6, 2021 in a futile attempt to remain in office.

“If the very fabric of our democracy is to hold, we must ensure that the Constitution is enforced and the same people who attacked our democratic system not be put in charge of it,” CREW President Noah Bookbinder said. “We aren’t bringing this case to make a point, we’re bringing it because it is necessary to defend our republic both today and in the future. While it is unprecedented to bring this type of case against a former president, January 6th was an unprecedented attack that is exactly the kind of event the framers of the 14th Amendment wanted to build protections in case of. You don’t break the glass unless there’s an emergency.”

While Section 3 has not been tested often in the last 150 years, due to lack of insurrections, last year CREW represented residents of New Mexico who sued to remove county commissioner Couy Griffin from office, the only successful case to be brought under Section 3 since 1869. The judge in that case determined January 6th was an insurrection under the Constitution and that someone who helped to incite it–even if not personally violent–had engaged in insurrection and was disqualified from office.

“Spending 19 years as a state legislator and serving in leadership gave me the opportunity to work across the aisle and to always work to protect the freedoms our Constitution has given us as citizens,” said former Colorado House and Senate Majority leader Norma Anderson. “I am proud to continue that work by bringing this lawsuit and ensuring the eligibility of candidates on Colorado ballots.”

“In my decade of service in the House of Representatives, I certified multiple presidential elections and saw firsthand the importance of ethics, the rule of law and the peaceful transfer of power in our democracy,” former Republican member of Congress Claudine (Cmarada) Schneider. “This lawsuit is crucial to protecting and fortifying those fundamental democratic values, and I’m honored to be a part of it.”

While the stakes surrounding Donald Trump’s disqualification in Colorado are greater than in the Griffin case, the law and many underlying facts are the same. Based on its laws, the calendar, and our courageous set of plaintiffs and witnesses, Colorado is a good venue to bring this first case, but it will not be the last.

“As a longtime Republican who voted for him, I believe Donald Trump disqualified himself from running in 2024 by spreading lies, vilifying election workers, and fomenting an attack on the Capitol,” said conservative columnist for the Denver Post and Republican activist Krista Kafer. “Those who by force and by falsehood subvert democracy are unfit to participate in it. That’s why I am part of this lawsuit to prevent an insurrectionist from appearing on Colorado’s ballot.”

Click here to read the complaint.