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Case about Disqualifying Trump Can Go Forward in Colorado

As we have pointed out several times already, the Fourteenth Amendment states that folks who have engaged in an insurrection against the United States have thereby forfeited their right to hold federal or state office. Various groups in various states have filed lawsuits to keep Donald Trump off the 2024 ballot based on this Amendment. One of the court cases that is the farthest along is in Colorado. Trump has made a series of motions to throw the case out. The judge tossed them all in the paper shredder.

On Friday, Colorado District Judge Sarah Wallace threw out more of Trump's motions to drop the case. He has one more still pending, but in light of Wallace's previous rulings, that one is virtually certain to fail as well. If the judge tosses that one as well, a trial will begin on Oct. 30 to decide a number of novel legal questions.

The main question to be decided in the trial is whether Colorado Secretary of State Jena Griswold has the power to remove Trump from the ballot if he is the Republican nominee. Note that even if the judge rules that Griswold has that power, the verdict will not require her to remove him. That will be her decision.

In the trial, the Colorado Republican Party will argue that state law gives the parties, not some election official, the power to determine who their nominees are. Wallace has already swatted that idea down, saying if the parties could overrule state law (and the Constitution), then they could nominate people who didn't qualify due to age, citizenship, or residency. She wrote: "Such an interpretation is absurd; the Constitution and its requirements for eligibility are not suggestions, left to the political parties to determine at their sole discretion."

In her ruling Friday, Wallace cited a 2012 opinion from Justice Neil Gorsuch when he was a Denver-based appeals judge. He wrote that the states have the power to "exclude from the ballot candidates who are constitutionally prohibited from assuming office." Of course, this ruling doesn't determine whether Trump engaged in an insurrection but would seem to give Griswold the power to ban Trump from the ballot. If she decided to exercise that power (assuming Judge Wallace approves), then Trump could sue and the case would certainly end back in Gorsuch's (and John Roberts') laps.

Colorado isn't a swing state, so it probably doesn't matter what Griswold does. Trump isn't going to get Colorado's 10 electoral votes no matter what. However, a Supreme Court decision empowering secretaries of state nationwide to boot Trump from the ballot could have profound implications as the secretaries of state in Arizona, Michigan, Nevada, North Carolina, and Wisconsin are all Democrats. (V)

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