She ruled that Section 3 of the 14th Amendment was not meant to cover U.S. presidents
By Catherine Yang
On Friday, Colorado 2nd District Court Judge Sarah Wallace issued a 100-plus page ruling ordering the state secretary to put former President Donald Trump on the primary ballot.
Unlike recent court decisions in Michigan and Minnesota, the ruling had been preceded by about a weeklong trial in which witnesses gave testimony as to whether Jan. 6, 2021, constituted an “insurrection” and whether President Trump “engaged” in it, and how Section 3 of the 14th Amendment should be applied.
The judge ruled that it was, and that President Trump did. However, toward the end of the ruling, Judge Wallace wrote that she was unpersuaded that Section 3 was meant to apply to the president of the United States.
‘Officer’?
“The Court holds that Section Three of the Fourteenth Amendment does not apply to Trump,” the judge wrote.
Ratified after the Civil War, the 14th Amendment extended citizenship and equal rights to former slaves, and all persons born and naturalized in the United States. The third section of the amendment prohibited any who had participated in “rebellions” or “insurrections” from holding office unless they had a two-thirds vote of exemption from Congress, and was indeed referenced in cases in the wake of the war.
Section 3 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 disability.”
It was written to prevent officials who left to join the Confederacy from returning to office, the judge noted, and meant to apply beyond just the Civil War.
Petitioners argued that “officer of the United States” would certainly cover the highest office in the federal government, but the judge said there was “scant evidence” that was the case.
She notes that the authors of the 14th Amendment specifically listed offices, starting with the highest levels and descending thereafter.
“To lump the Presidency in with any other civil or military office is odd indeed,” she wrote, “and very troubling to the Court because as Intervenors point out, Section Three explicitly lists all federal elected positions except the President and Vice President.”
It would be general practice of the courts to assume this omission is intentional, she wrote.
President Trump’s attorneys had also pointed out five places in the Constitution where the president of the United States was listed separately from “officers”: the appointments clause, the impeachment clause, the commissions clause, the oath and affirmation clause, and Article VI.
“The Court agrees with Intervenors that all five of those Constitutional provisions lead towards the same conclusion—that the drafters of the Section Three of the Fourteenth Amendment did not intend to include the President as ‘an officer of the United States.’”
‘Insurrection’
The petitioners were six local voters represented by activist group Citizens for Responsibility and Ethics in Washington, who sued Colorado Secretary of State Jena Griswold, demanding the election official take President Trump off the state’s primary ballot. President Trump and the local Republican Party are intervenors in the case, and the judge had rejected multiple motions to dismiss the case.
The judge ruled that the secretary of state has the authority to remove candidates from the ballot if there is an objective, knowable fact pointing to their disqualification.
However, the 14th Amendment issue differed, being a “potential constitutional infirmity that has yet to be determined by either a Court or Congress.”
Judge Wallace wrote that while the secretary did not have the authority to investigate and adjudicate this issue, the court did.
“The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of ‘insurrection,'” the order reads. She described the mob as coordinated, armed, and prepared for violence.
“The mob’s purpose was to prevent execution of the Constitution so that Trump remained the President. Specifically, the mob sought to obstruct the counting of the electoral votes as set out in the Twelfth Amendment and thereby prevent the peaceful transfer of power,” she wrote.
She further ruled that “incitement” and President Trump’s “inaction” on that day constituted as engaging in the “insurrection,” and that he knew the people there were primed for violence.
‘Onward’
The Trump campaign was quick to deem the ruling a victory.
“We applaud today’s ruling in Colorado, which is another nail in the coffin of the un-American ballot challenges. With this decision, Democrats’ 14th Amendment challenges have now been defeated in Colorado, Michigan, Minnesota and New Hampshire,” the campaign stated.
“The American voter has a Constitutional right to vote for the candidate of their choosing, with President Donald J. Trump leading by massive numbers. This right was correctly preserved in Colorado today and we urge the swift disposal of any and all remaining Democrat ballot challenges. Onward to total victory in 2024, we will Make America Great Again!”
CREW President Noah Bookbinder said they would be appealing the ruling to the Colorado Supreme Court “shortly.”
“Today was not the end of this effort, but another step along the way,” he stated.