Former U.S. President Donald Trump appears on a video screen above members of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol. (Kevin Dietsch/Getty Images)
Colorado last week became a testing ground for a challenge to the candidacy of former President Donald Trump.
With the nation’s eyes on a lawsuit that seeks to bar Trump from the 2024 presidential ballot as constitutionally disqualified, Secretary of State Jena Griswold has a special responsibility to maintain Colorado’s record for high elections standards and serve as a model for elections officials throughout the country.
Doing so would require her to change her stance on Trump’s eligibility for office. She wants a court to make decisions on which she can lean. But she is empowered to make those decisions on her own, and she doesn’t need a court’s permission to enforce the Constitution.
Furthermore, ballot access questions go beyond Trump. She is obliged to decide the eligibility of problematic candidates, beside the former president, who might seek access to the 2024 Colorado ballot.
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The lawsuit, which names Griswold and Trump as defendants, was filed in state court in Denver by the watchdog group Citizens for Responsibility and Ethics in Washington on behalf of six Colorado voters. The plaintiffs argue Trump, the leading GOP candidate for president in 2024, is disqualified under a provision of the 14th Amendment. Section 3 of the amendment says no person who took an oath to support the Constitution then had “engaged in insurrection … or given aid or comfort to the enemies thereof” can hold any office in the United States.
Lawyers at CREW in recent months had promised 14th Amendment challenges to Trump’s candidacy in various states. Why did they push Colorado to the front of the line?
There were several factors, according to the group’s executive vice president and chief counsel, Donald K. Sherman. One was that the group established “a really compelling slate of courageous clients,” all either Republican or unaffiliated voters, including a former Republican member of Congress, Sherman told Newsline this week. Also, Colorado law allows individual voters to sue in state court to block constitutionally disqualified candidates from the ballot, Sherman said.
There was also Colorado’s admirable record on administering elections.
“Having spent time in Colorado, including over the course of this year, it’s clear that elections run well in Colorado,” Sherman said. “It was something conveyed by numerous people that we spoke to there. And so that was another factor.”
The interests of democracy and constitutional order should override Griswold's legal caution and political calculations.
Such broad confidence in Colorado elections can help engender faith in the results of the 14th Amendment case. That confidence is largely due to Griswold’s performance in office, especially her firm resistance to election deniers and her swift action against “insider threats,” such as her investigations into Republican county clerks who tampered with election systems.
But what could be a greater insider threat than an insurrectionist on the presidential ballot?
Griswold, a Democrat who has asserted that Trump participated in an “insurrection,” has said she is relying on the lawsuit to answer several legal questions, such as whether the 14th Amendment’s disqualification clause prohibits a candidate from running for office or being seated in office, and how state officials should consider constitutional requirements in determining candidate eligibility.
But leading legal scholars think the matter is simple — they say election officials like Griswold can, and must, bar Trump from the ballot. There’s no need for her to wait for a court to make the call.
Since Jan. 6, Section 3 has been an emerging topic of debate, first in obscure discussions among legal experts and more recently in mainstream conversation. Legitimate questions about its contemporary application swirled, since the Civil War-era provision had rarely been invoked since the late 1860s. But recent scholarship has offered increasing clarity, particularly with the August publication of an influential draft paper by conservative law professors William Baude and Michael Stokes Paulsen. Their comprehensive history and legal analysis, now widely viewed as the definitive account of the disqualification clause, comes to the stark conclusion that the clause is “sweeping,” “self-executing” and “should be enforced by every official, state or federal, who judges qualifications.”
The analysis, already endorsed by other legal luminaries, unambiguously answers all of Griswold’s questions. Access to the ballot is subject to application of Section 3, and secretaries of state have authority to enforce the disqualification clause.
“No official should shrink from these duties. It would be wrong — indeed, arguably itself a breach of one’s constitutional oath of office — to abandon one’s responsibilities of faithful interpretation, application, and enforcement of Section Three,” the authors write.
This demonstrates how wrong Republican New Hampshire Secretary of State Dave Scanlan got Section 3 this week when he cleared Trump to run in that state’s presidential primary. In fact, Baude and Paulsen — both constitutional originalists and contributors to the conservative Federalist Society — make the extraordinary argument that Section 3 disqualifications should extend to numerous officials who played a role in Jan. 6.
“Donald Trump is at the top of the list of Section Three disqualifications, but the list does not end with him,” they write. “The public record to date shows many others who are or may be connected to either the insurrection of January 6 or to a possible broader rebellion. These include government lawyers, executive branch officials, state office-holders, and even members of Congress.”
The authors cite such Trump-supporting figures as Rep. Marjorie Taylor Greene of Georgia and state Sen. Doug Mastriano of Pennsylvania as possible candidates for disqualification. If those office-holders are open to Section 3 scrutiny, who from Colorado is similarly exposed? The insurrection-fomenting Rep. Lauren Boebert. I have previously detailed her culpability for Jan. 6 and early last year discussed whether she was vulnerable to Section 3 disqualification.
But the Baude-Paulsen analysis suggests other Colorado oath-takers should face Section 3 inquiries. They include U.S. Rep. Ken Buck of Windsor, who in December 2020 signed onto Texas Attorney General Ken Paxton’s lawsuit that sought to block certification in battleground-state elections that President Joe Biden won. Buck that month also introduced a House resolution “supporting President Trump’s efforts to ensure that every legal vote is counted in the November 2020 Presidential election and to investigate and bring to justice those who perpetrate election fraud.”
They also include U.S. Rep. Doug Lamborn of Colorado Springs, who, along with Boebert, is a member of the “sedition caucus” — the 147 Republicans who voted to overturn the 2020 election results. They could even include Dave Williams, the election-denying former state representative and failed congressional candidate who is now chair of the Colorado Republican Party.
“All persons who betrayed their earlier constitutional oaths by subsequently engaging in conduct (in any of a number of forms) directed at overthrowing the result of a lawful presidential election or supporting an attack on Congress and the Capitol, should face serious inquiry under Section Three,” Baude and Paulsen write. “That inquiry should be conducted by every relevant level of government, from state election officials to the halls of Congress, to the courts throughout the country.”
That means Griswold must bar Trump from the ballot and seriously consider other disqualifications. She doesn’t just have the authority to do so — it’s her duty.
Griswold of course has strategic reasons to await guidance from the court. Court affirmation of her authority to apply Section 3 against disqualified candidates would give her legal cover.
But the interests of democracy and constitutional order should override Griswold’s legal caution and political calculations. Her dedication to sound and secure election administration is part of what drew CREW to a Colorado court. That quality would never serve a more noble purpose than if she declared, in accordance with the Constitution and as a national example of leadership, that the person most responsible for the Jan. 6 insurrection can never appear on a Colorado ballot.
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