It’s the beginning of a presidential election controversy that, as little as three months ago, very few people envisioned.
Beginning on Monday, a week-long hearing will take place in Denver, with witnesses and legal experts exploring whether Donald Trump should be barred from the ballot in Colorado. On Thursday, the Minnesota Supreme Court will do the same.
Section Three Of The 14th Amendment
The focus of both hearings, and the many across the United States which will follow it, will be the so-called Disqualification Clause, otherwise known as Section Three of the 14th Amendment.
This clause was introduced to prevent Confederates from holding public office in the aftermath of the Civil War; nowadays, it’s being explored as to whether January 6, 2021, qualified as an insurrection.
The clause has never been used for a presidential candidate. In fact, it has only been used once in the past century, namely a Capitol rioter who was taken out of public office in New Mexico, and even that was only at county level.
Keeping Trump off the ballot through this clause has been suggested by an unusual mix of liberals and anti-Trump conservatives. Naturally, the former president has compared it to “a banana republic,” echoing his persistence of no wrongdoing and that he’s the victim of a politically motivated “witch hunt.”
State Decisions On A National Issue
It’s a fascinating prospect nonetheless. Fifty states could all make separate decisions; some could rule that January 6 was an insurrection, spurred on by the then-President. Others may decide it wasn’t, clearing Trump of wrongdoing in that regard. In contrast, some may decide that, while January 6 could be considered a constitutional breach, Trump was not involved as he did not enter the Capitol himself.
The possibility of split decisions across the country has left his opponents being selective as to where to start. In Colorado, the key argument is that Trump should be barred from running in the state because of his actions after the 2020 election.
“Trump’s efforts to overturn the 2020 election and interfere with the peaceful transfer of power were part of an insurrection against the Constitution of the United States,” wrote attorney Mario Nicolais in the lawsuit. “By instigating this unprecedented assault on the American constitutional order, Trump violated his oath and disqualified himself under the Fourteenth Amendment from holding public office, including the Office of the President.”
Defending the Republican frontrunner is former Colorado secretary of state Scott Gessler. He argues his client told supporters to protest “peacefully and patriotically,” while claiming that Section Three does not apply to the presidency, and that courts cannot decide who can and can’t be on the ballot.
“The U.S. Constitution commits to Congress and the electoral college exclusive power to determine presidential qualifications and whether a candidate can serve as President,” he wrote in one filing. “Courts cannot decide the issue at the heart of this case.”
It’s not a unanimous view, and not one shared by presiding Judge Sarah B. Wallace. After next week’s five-day hearing, she will make a ruling by mid-November, with the losing side able to appeal up to the Colorado Supreme Court and the U.S. Supreme Court.
The highest court in the land will settle the matter nationwide, and it’s one which conservatives control 6-3. A third of all Supreme Justices are Trump appointees, but the challenges he brought on against the 2020 election were not ruled in his favor.
As the Colorado hearing draws to a close, a second hearing will begin in the Minnesota Supreme Court. This one has been brought on by a former secretary of state, a former Minnesota Supreme Court justice, a former co-chairman of a county Republican Party and others. Where some legal issues will be dealt with by the state justices, others may be passed onto a lower-court judge to develop a full record.
The Clause In Recent Times
For now, the focus remains on Colorado, where residents brought their lawsuit with the assistance of Citizens for Responsibility and Ethics in Washington. The CRE has already had success in New Mexico, after Couy Griffin was removed from his position last year for his involvement in the Capitol riots.
The Colorado hearing against Trump could mirror the one which removed his supporter from office. In New Mexico, the hearing saw testimony from a police officer who was crushed by the mob at the Capitol, a freelance photographer who took pictures of the commissioner in the crowd, a law professor and an expert on political violence.
Democratic Secretary of State of Colorado, Jena Griswold, expects to testify about how the state determines when to put candidates on the ballots. For her, she wants a court ruling before making a decision on whether to keep Trump’s name off the ballot.
“The position that we have taken is that Trump has engaged in insurrection, and we would like a court to provide guidance for ballot access in Colorado,” she told the Washington Post.
She’s not the only top election official who would prefer the court’s decide on their behalf. In such a polarized America, it’s easier to follow court rulings than make a landmark decision.
Arguably, the odds are in Trump’s favor; judges must decide whether he should be kept off the ballot, not whether he should remain on it. Those who are bringing the lawsuits must satisfy every possible argument to show Trump breached the constitution. If they don’t, he can run.
While New Mexico was an important moment, the Section Three argument has not had a 100% success rate. A Georgia lawsuit to keep Trump loyalist Rep. Marjorie Taylor Greene off the ballot was struck down last year, as she did not participate in the Capitol riots, even if her rhetoric may have encouraged it.
Either way, the Section Three hearings mark a historic moment in the history of the U.S. It could spur on Trump even further, but it could also prevent him from running. At this point, who knows?
Shay Bottomley is a British journalist based in Canada. He has written for the Western Standard, Maidenhead Advertiser, Slough Express, Windsor Express, Berkshire Live and Southend Echo, and has covered notable events including the Queen’s Platinum Jubilee.
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