Trump Disqualification Lawsuit

Last December, the Colorado Supreme Court issued three key findings after a week-long trial:

• Donald Trump engaged in insurrection against the United States when he incited the January 6th attack to overturn the election he lost.
• The 14th Amendment, which bars officials who break their oath by fomenting insurrection​ from holding office, applies to former Presidents as it would to any other public officials.
• Therefore, he must be removed from the Colorado ballot – in the primary and the general.

That landmark ruling immediately provoked a response from Trump, who appealed it to the U.S. Supreme Court. Oral arguments begin on Thursday, February 8.

Trump will appear on the Colorado primary ballot due to the appeal in progress. If he is ultimately disqualified by SCOTUS, his name will not appear on the general election primary ballot, as Colorado Secretary of State Jena Griswold has vowed to enforce the decision made by the courts. As other states weigh the question of Trump’s eligibility, SCOTUS’s decision will set legal precedent and serve as nationwide guidance as to whether states can remove Trump from their own ballots.

This suit, Anderson v. Griswold, was filed in September on behalf of six Colorado voters by Citizens for Responsibility and Ethics in Washington (CREW), a nonpartisan government watchdog organization with whom Common Cause partners closely, and Martha Tierney, Common Cause’s National Governing Board Chair & member of the Colorado Common Cause State Advisory Board. Former President Trump filed several motions to dismiss the suit, all of which were denied. 

On November 17, Denver District Court found unequivocally that “[Donald] Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.” This is a historic ruling; a presidential candidate has never been found to have engaged in insurrection in the nation’s history. The judge stopped short of removing Trump from the Colorado ballot, finding that the authors of the 14th Amendment did not intend for the “disqualification clause” to apply to presidents. 

The Colorado Supreme Court ruled on December 20 that Trump is disqualified from the Colorado ballot. Trump has appealed this decision, and the case is now set to be heard by the U.S. Supreme Court. Oral arguments begin on February 8.

Trump will appear on the Colorado primary ballot due to the appeal in progress. If he is ultimately disqualified by SCOTUS, his name will not appear on the general election primary ballot, as Colorado Secretary of State Jena Griswold has vowed to enforce the decision made by the courts. As other states weigh the question of Trump’s eligibility, SCOTUS’s decision will set legal precedent and serve as nationwide guidance as to whether states can remove Trump from their own ballots.

Colorado Common Cause weighs in

Colorado Common Cause is committed to holding the former President accountable to the people and to the Constitution. Trump allowed his desire for power to supersede his own Oath of Office and over two centuries of American political precedent. There must be consequences for insurrection and stoking political violence.

Trump disqualified himself from holding public office by inciting mob violence at the U.S. Capitol to prevent the peaceful transition of power on January 6, 2021. To uphold Trump’s candidacy would affirm the ability of future outgoing Presidents to mobilize their supporters against the peaceful transition of power without any constitutional repercussions. 

We submitted a brief to the Supreme Court of Colorado, urging the Court to affirm the District Court’s conclusion that Trump engaged in insurrection and that the First Amendment does not protect his speech, and that the Court should reverse the lower court’s conclusion that the President is not “an officer of the United States” for the purposes of the Disqualification Clause.

In a strong democracy, elections are decided by the voters at the ballot box, not with violence or intimidation. But leading up to and on January 6, Donald Trump refused to respect the will of the voters and instead encouraged his supporters to engage in deadly acts, including physically assaulting law enforcement.

The insurrection on January 6 was not an accident. For weeks, Trump and his accomplices planned and plotted to throw out the election results and overrule the will of the people using violence. We cannot let political violence go excused, especially for the highest office in the nation. 

We must continue to reject anti-democratic efforts to steal our elections. No one is above the law, not even former presidents.

Section 3 of the 14th Amendment: The “Disqualification Clause”

Section 3 of the 14th Amendment, passed in 1866 and ratified by the states in 1868, provides that:  

“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 disability.” 

During the post-Civil War Reconstruction period, Congress drafted Section 3 to disqualify from public office anyone who has taken an oath to uphold the Constitution and subsequently engaged in “insurrection or rebellion” against the US. Former Confederate states were electing former Confederate officials to federal office, and Congress needed a way to bar unrepentant insurrectionists from public office. Several officials were removed from office due to their roles in the Confederacy until Congress passed an Amnesty Act in 1872. 

While this case is historic in its aim to remove a presidential candidate from the ballot, this suit was filed on the one-year anniversary of CREW winning the first case in 150 years enforcing Section 3. Couy Griffin, a New Mexico county commissioner, was part of the mob on the Capitol grounds the day of the insurrection. A New Mexico court ruled the January 6th attack was an insurrection and that Griffin engaged in it despite the fact that he was not violent himself that day and did not enter the Capitol building. Upon the judge’s ruling that Griffin was disqualified under Section 3 of the 14th Amendment, he was immediately removed from office. That case was the first enforcement of Section 3 in court in more than 150 years, and it set a strong precedent for CREW’s lawsuit in Colorado against Donald Trump.    

Resources

• Read Common Cause’s full amicus brief filed in the U.S. Supreme Court here.
• Read the Colorado Supreme Court’s final ruling here.
• Read Colorado Common Cause’s full amicus brief filed in the Colorado Supreme Court here.
• If you’d like to stay up to speed on the case, CREW is publishing all updates and materials to this webpage.  
• Finally, add your name to join us in calling for accountability for Trump.

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Colorado Common Cause is a nonpartisan, grassroots organization dedicated to upholding the core values of American democracy. We work to create open, honest, and accountable government that serves the public interest; promote equal rights, opportunity, and representation for all; and empowers all people to make their voices heard in the political process.