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Could the courts actually take Trump off the ballot?

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A group of voters in Colorado are trying to use the power of the court to keep Donald Trump’s name off the state’s 2024 ballot. Below, I look at this week’s contentious Fourteenth Amendment trial in Denver—and speak with Trump’s co-defendant in the case.

First, here are four new stories from The Atlantic:

Testing the System

Back when X was called Twitter (back when it was fun), certain tweets had a way of explaining the Trump era better than any news article ever could. This one, from Jesse Farrar, comes to mind:

Well, I’d like to see ol Donny Trump wriggle his way out of THIS jam!

*Trump wriggles his way out of the jam easily*

Ah! Well. Nevertheless,

That tweet was sent six days before Trump’s Access Hollywood tape scandal. (He wriggled his way out.) Trump later went on to survive not one but two impeachments. Though he’s currently a defendant in numerous state and federal cases—my colleague David Graham has written an excellent summary of it all—Trump remains the GOP front-runner by more than 40 points. He sometimes seems like a perpetual motion machine, if that machine were designed explicitly for wriggling.

Many people have argued that the only way to defeat Trump is at the ballot box. This week in Colorado, one group is trying to use the power of the court to keep Trump’s name off the state’s 2024 ballot altogether. This is a bench trial, meaning that no jury is present, and everything will come down to one judge’s interpretation of one section of the Fourteenth Amendment.

In August, a pair of legal scholars published a widely discussed paper arguing that, under the Fourteenth Amendment, the former president’s role in the January 6 insurrection made him ineligible to hold public office again. One month later, six voters in Colorado—in conjunction with CREW (Citizens for Responsibility and Ethics in Washington)—filed a lawsuit against Trump and Jena Griswold, the Colorado secretary of state, seeking to block Trump’s name from the state’s 2024 ballot. This is where it gets complicated: CREW is a left-leaning organization working with a mix of Republican and unaffiliated voters to achieve its goal, Griswold is a Democrat but also a co-defendant with the de facto leader of the Republican Party, and Trump’s lead lawyer in this case, Scott Gessler, used to have Griswold’s job. Confused? It gets trickier.

The plaintiffs hope to prove that Trump engaged in insurrection against the United States and is therefore ineligible to pursue the presidency. Although many people accept that the former president incited the mob that stormed the Capitol, Trump himself was not among those who donned face paint and Viking horns and entered the building. Nevertheless, he clearly did not aid in the peaceful transfer of power. Does incitement count as engagement? For his role in January 6, Trump was impeached in the House but acquitted in the Senate. Can a presidential candidate be disqualified without a conviction? Also, how does disqualification occur at the state level—does the secretary of state have that power? None of these questions have clear answers.

Opening arguments and witness testimony began yesterday morning. Representative Eric Swalwell of California described the horrible scenes he experienced inside the Capitol on January 6. Eric Hodges, a D.C. police officer, also told a grisly story on behalf of the prosecution. Trump’s defense claims that the case is based almost entirely on the House January 6 committee’s report, calling it “poison” and “a one-sided political document of cherry-picked information.” Gessler derided the lawsuit as “anti-democratic” and, in a twist of irony, “election interference.”

Last night, I spoke with Griswold, the Colorado secretary of state, about the case. She searched for the right word to describe her situation of being sued alongside the most famous person alive, and eventually settled on unanticipated. “At the end of the day, we’re listed as defendants, but I am not defending Donald Trump,” she said. “I believe he incited the insurrection. I also believe there are big questions around how Section 3 of the Fourteenth Amendment works, and that a judge should weigh in.”

The most important job of any secretary of state is to oversee elections. Last cycle, Trump unsuccessfully tried to pressure the Georgia secretary of state, Brad Raffensperger, into overturning his state’s results. Raffensperger refused, and he faced death threats. Within three weeks of the Colorado lawsuit’s filing, Griswold told me that she herself had received 64 death threats, in addition to more than 900 nonlethal threats. Trump’s “words are powerful to a big portion of the public. And he uses his words to try to intimidate and to get out of accountability. I won’t be intimidated,” she said.

Griswold had no problem speaking plainly about the actions of her co-defendant: “One of the things that makes Donald Trump a danger to American democracy is that he thinks he’s above the law. He’s tried to stop cases through alleging presidential immunity. He stormed out of a case in New York. And in Colorado, he’s not even showing up to testify or give a deposition. You’d think with such a big case that is so foundational as to whether or not he can be president or appear on the ballot, he would want to show up and testify. But ultimately, with these cases, he grandstands.”

The trial is expected to last one week. Judge Sarah Wallace is determined to have the matter settled by Thanksgiving. Colorado is a “Super Tuesday” state, so its presidential primary will occur on March 5. Military and overseas ballots must be sent out 45 days before then, meaning that the ballots themselves will be printed in December or very early January. Griswold could not offer an exact ballot-printing deadline, noting that the sheets are prepared at various plants throughout Colorado.

Whatever happens, this case may soon wind up before the conservative-majority Supreme Court. Though a third of the bench was appointed by Trump himself, the Court is not guaranteed to take his side if he loses and appeals. And if Colorado blocks Trump from the ballot, other states, such as Michigan and Minnesota, could follow.

But all of this is a legal solution to a much larger political problem, which is that Trumpism seems destined to endure. Any successful effort to keep Trump’s name off the ballot will only enliven his cult of supporters. The wriggling continues. Ah! Well. Nevertheless: What was once a brilliant joke now seems like the beginning of a dark era.


Today’s News

  1. Israel said that it struck a densely populated refugee camp in Gaza in order to kill a senior Hamas commander; hundreds were killed or injured in the attack, according to the medical director of Gaza’s Indonesian Hospital.
  2. The Highland Fire has led to evacuation orders across Southern California for about 4,000 residents.
  3. The Senate Judiciary Committee will subpoena the wealthy donors Harlan Crow and Robin Arkley as it investigates undisclosed gifts to Supreme Court Justices Clarence Thomas and Samuel Alito.

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Katherine Hu contributed to this newsletter.

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