By Jordan Rubin
msnbc.co
November 22, 2023-- Donald Trump won't be on the ballot in Colorado if the state’s Supreme Court —
and then the U.S. Supreme Court — heeds the simple yet powerful observation that insurrectionists
can’t be president.
Among the arguments in their brief Monday to the state’s high court, lawyers for challengers to Trump’s
eligibility made what they called the “common sense” point that “there would be no reason to allow
Presidents who lead an insurrection to serve again while preventing low-level government workers who
act as foot soldiers from doing so.”
You might wonder how anyone could disagree. But state judge Sarah Wallace's opinion last week found
Trump engaged in insurrection but can still be president again. She reasoned that the constitutional
provision at issue — Section 3 of the 14th Amendment — doesn’t cover presidents.
The appeal from the challengers — six voters — received a big endorsement from retired federal
judge J. Michael Luttig , who called it “the most powerful, most compelling brief on a question of
(profoundly important) constitutional law that I have ever read.”
The Colorado Supreme Court on Tuesday agreed to take up the appeal for argument on Dec. 6, so we
should get a better sense of where the case is going then. Importantly, while Wallace's factual findings
are entitled to deference on appeal, her legal conclusion about the amendment’s application will get a
fresh look from the state justices. In doing so, if they accept the voters’ argument — and otherwise
leave Judge Wallace’s opinion undisturbed, as Trump simultaneously challenges the parts of her ruling
that went against him — then Trump is off the ballot.
Of course, that wouldn’t be the last word, but such a ruling would provide an opportunity for the U.S.
Supreme Court to step in and decide an issue that, with cases pending around the country , needs
nationwide resolution.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District
Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic
drugs. Before he joined MSNBC, he was a legal reporter for Bloomberg Law.
This post first appeared on msnbc.com on November 22, 2023.
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