Colorado Lawsuit Becomes Latest To Challenge Trump’s 2024 Candidacy Under 14th Amendment

Topline

Ethics watchdog CREW filed a new lawsuit Wednesday that argues former President Donald Trump should be disqualified from the 2024 election under the 14th Amendment, the latest in a new rash of lawsuits challenging Trump’s candidacy ahead of the primaries—which is broadly expected to lead to the Supreme Court weighing in.

Former President Donald Trump plays it cool while deplaning at Atlanta Hartsfield-Jackson … [+] International Airport on August 24 in Atlanta.

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Key Facts

Citizens for Responsibility and Ethics in Washington (CREW), a left-leaning government ethics watchdog that’s opposed Trump in the past, filed a lawsuit in Colorado state court on behalf of Colorado voters, which argues Trump should be barred from the ballot due to his role in the January 6, 2021, riot at the Capitol building.

The lawsuit is one of several that have taken aim at Trump’s candidacy under Section 3 of the amendment, which states no person shall “hold any [state or federal]

office” if they’ve previously taken an oath of office and then “engaged in insurrection or rebellion against the [U.S.], or given aid or comfort to the enemies thereof.”

A Florida tax attorney and other voters brought one of the first cases challenging Trump’s candidacy in August, which was quickly dismissed, as a federal judge found the plaintiffs did not have standing to bring the lawsuit and that “an individual citizen does not have standing to challenge whether another individual is qualified to hold public office.”

John Castro, who plans to be a write-in candidate for president as a Republican, has filed multiple lawsuits in states including Texas, New Hampshire, Pennsylvania, Georgia and Arizona challenging Trump’s candidacy, saying in a post Monday that he plans to “unleash legal hell” on Trump by filing challenges in majority-Democratic courts within Republican-led states.

CREW suggested Wednesday that it would file additional lawsuits, saying on X, formerly known as Twitter, “Based on its laws, the calendar, and our courageous set of plaintiffs and witnesses, Colorado is a good venue to bring this first case, but it will not be the last,” and former New Hampshire Senate candidate Bryant “Corky” Messner (R) has also suggested he may bring litigation.

Election officials in such states as Michigan and New Hampshire have said they want to see litigation about Trump and the 14th Amendment ultimately resolved by the Supreme Court, as they lack clear guidance on whether or not he should be kept on the ballot, with Michigan Secretary of State Jocelyn Benson (D) saying on CNN she hopes a ruling comes “sooner rather than later to give us all clarity.”

Crucial Quote

“We aren’t bringing this case to make a point, we’re bringing it because it is necessary to defend our republic both today and in the future,” CREW President Noah Bookbinder said in a statement Wednesday. “While it is unprecedented to bring this type of case against a former president, January 6 was an unprecedented attack that is exactly the kind of event the framers of the 14th Amendment wanted to build protections in case of.”

Chief Critic

“The people who are pursuing this absurd conspiracy theory and political attack on President Trump are stretching the law beyond recognition,” Trump campaign spokesperson Steven Cheung said in a statement about CREW’s lawsuit. “There is no legal basis for this effort except in the minds of those who are pushing it.”

What We Don’t Know

How the courts will rule. A number of legal scholars have come out in favor of the 14th Amendment disqualifying Trump—including several prominent conservative legal experts—and left-leaning legal expert Laurence Tribe, who coauthored a piece in the Atlantic about the theory, cheered the Colorado lawsuit as being the “strongest of the suits filed” so far. While the legal argument has been so far untested in court as it applies to Trump—the Florida judge dismissed the case on standing without ruling on the 14th Amendment—a county commissioner was removed from office in New Mexico under the amendment based on his participation in January 6, marking the first time someone had been removed from office based on the 14th Amendment in over a century. While CREW’s lawsuit was filed on behalf of voters, legal experts suggested to the Guardian the strongest legal case would likely be from a lawsuit filed by a rival candidate.

Tangent

Activists have encouraged election officials to unilaterally disqualify Trump from the ballot without waiting for a court ruling, as some legal experts have said the 14th Amendment is self-executing, meaning state officials can just go ahead and disqualify candidates under the amendment without needing the courts or Congress to tell them they can. Election officials have so far been hesitant to do so, however. Benson acknowledged on CNN Tuesday that she “potentially” may have to make a decision before the Supreme Court can clarify the issue, but did not say how she believed she’d rule on the issue. Colorado Secretary of State Jena Griswold (D) said she hoped the CREW lawsuit would “provide guidance to election officials on Trump’s eligibility,” and her office noted Colorado law is “unclear” on how to consider candidates’ eligibility under the Constitution. Georgia Secretary of State Brad Raffensperger (R), who rejected Trump’s efforts to overturn the state’s 2020 election, said in a Wall Street Journal op-ed Wednesday he firmly does not believe election officials can reject Trump or other candidates from the ballot, describing the 14th Amendment strategy as trying to “short-circuit the ballot box.” Raffensperger previously rejected an effort to disqualify Rep. Marjorie Taylor Greene (R-Ga.) in the 2022 midterms.

Key Background

Efforts to disqualify Trump under the 14th Amendment have gained steam in recent weeks following the ex-president’s multiple indictments for trying to overturn the 2020 election. Conservative legal scholars William Baude and Michael Stokes Paulson also came out with a law review article, published as a preprint, that advocated for Trump’s removal on the 14th Amendment, bolstering the theory on the right given the experts’ conservative bona fides. Arkansas Gov. Asa Hutchinson, who’s challenging Trump for the GOP presidential nomination, said at the first debate that “more people are understanding the importance of [the issue], including conservative legal scholars,” while Messner in New Hampshire met with the state’s secretary of state to push the issue, causing a feud within the state’s GOP. Democrats including Sen. Tim Kaine (D-Va.) and Rep. Adam Schiff (D-Calif.) have also thrown their support behind the theory, though they’ve also said they believe it will be up to the courts to determine. Trump spoke out against the theory on Truth Social Tuesday as it gained traction, saying, “It is just another ‘trick’ being used by the Radical Left” and claiming “almost all legal scholars” have opposed the theory, which is false.