The Colorado Supreme Court heard arguments Wednesday on the question of whether former President Donald J. Trump is barred from holding office again under Section 3 of the 14th Amendment, which disqualifies people who engaged in insurrection against the Constitution after taking an oath to support it.
Several of the seven justices appeared skeptical of arguments made by a lawyer for Mr. Trump, including the core one that a district court judge relied on in a ruling last month ordering Mr. Trump to be included on the Colorado primary ballot: that Section 3 did not apply to the presidency. The Colorado Supreme Court is hearing an appeal of that ruling as part of a lawsuit brought by Republican and independent voters in the state who, in seeking to keep Mr. Trump off the ballot, have contended the opposite.
“How is that not absurd?” Justice Richard L. Gabriel asked of the notion that the lawmakers who wrote Section 3 in the wake of the Civil War had intended to disqualify insurrectionists from every office except the nation’s highest.
Section 3 lists a number of positions an insurrectionist is disqualified from holding but not explicitly the presidency, so challenges to Mr. Trump’s eligibility rely on the argument that the presidency is included in the phrases “officer of the United States” and “any office, civil or military, under the United States.” It also does not specify who gets to decide whether someone is an insurrectionist: election officials and courts, as the petitioners argue, or Congress itself, as Mr. Trump’s team argues.
Mr. Trump’s lawyer, Scott Gessler, suggested on Wednesday that the lawmakers had trusted the Electoral College to prevent an insurrectionist from becoming president, and that they had known the Northern states held enough electoral power after the Civil War to prevent a Confederate leader from winning a national election anyway.
Justice Gabriel did not seem satisfied, and neither did colleagues who jumped in with follow-up questions. Justice Monica M. Márquez asked why lawmakers would have chosen the “indirect” route of blocking someone only through the Electoral College. And Justice Melissa Hart asked whether Mr. Gessler’s interpretation of Section 3 would have allowed Jefferson Davis, the leader of the Confederacy, to become president.
Mr. Gessler said yes: If Americans had elected Davis, and the Electoral College had not blocked him, that would have been “the rule of democracy.”
Mr. Gessler also argued that the attack on the Capitol on Jan. 6, 2021, was not an insurrection because an insurrection “has to be longer than three hours” and “broader than one building,” and that only Congress — not the Colorado secretary of state or the courts — could assess Mr. Trump’s eligibility under Section 3.
A judge in Michigan agreed last month with the argument that only Congress could make such a determination in dismissing a similar effort to keep Mr. Trump off the ballot. Still, several of the Colorado justices expressed doubt.
“I don’t think anyone would say Congress needs to act to enforce the abolition of slavery,” Justice Gabriel said, adding that he was concerned that Mr. Gessler’s logic would mean the courts could not adjudicate due process or equal protection claims either.
Justice Hart noted that Section 3 gives Congress the power to remove the disqualification penalty from a particular person, and asked why it would need that power if it had to act to apply the penalty to begin with.
Some of the justices were more skeptical of the petitioners’ argument that Section 3 applies to the presidency even though it is not explicitly listed as among the applicable offices.
Justice Carlos A. Samour Jr. said it seemed odd that lawmakers would have chosen to lump the president under the phrase “officer of the United States” while making a point to single out senators and representatives. He heard the opposing arguments, he said, but kept coming back to, “Why not spell it out?”
Jason Murray, a lawyer for the petitioners, said he believed it was clear from the text of the amendment and from records of the congressional debate around it that lawmakers had intended to take a “kitchen-sink approach” that would “cover all positions of federal power.” They specified senators and representatives outside of the “officer of the United States” phrase, Mr. Murray said, because they considered those “seats” and not “offices.”
Justice Gabriel, who expressed skepticism of both sides, also said the district court’s definition of insurrection “strikes me as potentially overbroad.” And the justices pressed hard on what part of Colorado election law gave the secretary of state the authority to assess candidates’ constitutional qualifications.
The petitioners face an uphill battle because they must convince the court that they are correct on the four questions at issue in the case: that it was an insurrection when Trump supporters stormed the Capitol on Jan. 6, trying to stop the certification of the 2020 election; that Mr. Trump engaged in that insurrection; that Section 3 applies to the presidency; and that the courts have the authority to enforce it against a candidate whom Congress has not specifically designated.
If the answer to any of those questions is no, Mr. Trump stays on the ballot. The district judge who ruled last month agreed with the petitioners on three of the four questions, but her disagreement on Section 3’s applicability meant she ruled in Mr. Trump’s favor.
