'House of cards': Expert argues effort to block Trump from ballot has national implications

31 October 2023

Colorado could become the first state to remove former President Donald Trump from the 2024 ballot due to Trump's role in allegedly fomenting the deadly January 6, 2021 insurrection.

Plaintiffs in a lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW) argue that the ex-president is ineligible to be a presidential candidate due to Trump's alleged violations of Section 3 of the 14th Amendment to the US Constitution — also known as the "insurrection clause." In regard to candidates for federal office or members of the executive and judicial branches, the clause's language states that "no person... shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." In addition to Colorado, courts in several other states, including Michigan, Minnesota, and New Mexico, are hearing similar cases.

In an essay for The Bulwark, University of Baltimore School of Law professor Kim Wehle wrote that while denying Trump the ability to win Colorado's electoral college votes in 2024 wouldn't make winning back the presidency impossible, Trump's next several months in various court hearings could determine whether or not other states follow suit.

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"[I]f [states] can get courts to rule that his actions around January 6th are disqualifying, and Special Counsel Jack Smith secures a conviction in the January 6th criminal case set for trial on March 4, 2024, there’s no telling how far and how fast the house of cards could fall," Wehle wrote.

The deciding factor could be whether or not a jury would agree that the January 6 attack on the US Capitol counts as an "insurrection" or a "rebellion" under the clause. The 14th amendment was ratified in 1868, three years after the end of the Civil War, and the clause was intended to prevent those who waged war against the union to serve in the federal government. To bolster their argument, plaintiffs invited testimony from direct witnesses to the January 6 riot, including Rep. Eric Swalwell (D-California), and officers from both the Washington, DC Metro Police Department and the US Capitol Police Department.

The Colorado case could have implications not just for Trump, but possibly for other members of Congress in the future. As the Conversation reported last year, several members of Congress who voted to overturn the results of the 2020 election on the day of the insurrection have already been forced to defend their actions in court. Plaintiffs in cases across three states argued that their members of Congress — Reps. Madison Cawthorn (R-North Carolina), Paul Gosar (R-Arizona), and Marjorie Taylor Greene (R-Georgia) — were ineligible to serve due to allegedly violating the insurrection clause. The cases against Gosar and Greene were ultimately dismissed, and Cawthorn was voted out in the 2022 Republican primary.

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