Former President Donald Trump arrives at his civil fraud trial and talks very briefly to the media as he walks to the courtroom during the 3rd week of his NYS civil fraud case in the NYS Supreme Courthouse. Photo by Andrea Renault/STAR MAX/IPX 2023 10/18/23
Donald Trump has yet again failed to convince a judge in Colorado to toss a lawsuit against him brought by voters who want his name removed from the ballot in the 2024 election due to his alleged “insurrectionist” activities leading up to and on Jan. 6, 2021.
The decision from 2nd Judicial District Judge Sarah Wallace issued on Oct. 20 is the latest turn in a brewing legal saga that is poised to come to a head on Oct. 30 when voters, represented by the federal watchdog group Citizens for Responsibility and Ethics in Washington, or CREW, are expected go to trial to resolve the question of Trump’s eligibility for office in light of Section III of the Fourteenth Amendment. In addition to Trump, also named in the lawsuit is Colorado Secretary of State Jena Griswold.
Section III, in short, is a provision in the U.S. Constitution stating that anyone who swore an oath to the document that engages in rebellion or provides aid or comfort to insurrectionists or enemies of the U.S. government is disqualified from holding office.
The six Republican voters and one independent voter represented by CREW say Trump precisely fits this bill and they point to a long list of examples to support their petition, including Trump’s disinformation campaigns about a “stolen” election; the pressure they say he placed on state and federal officials to alter the electoral outcome in 2020 battleground states; his conduct while the Capitol was under siege; his praising and ingratiating of rioters and extremists alike and much more.
Other near-identical legal challenges have cropped up elsewhere across the U.S. in recent months though most have not been successful. This lawsuit in Colorado has soldiered through several weeks of tests from Trump’s attorneys and by Judge Wallace, however. Notably, when the trial is expected to begin in Colorado on Oct. 30, that same week on Nov. 2, an organization known as Free Speech for the People will have its Section III disqualification hearing for Trump in the Minnesota State Supreme Court.
Judge Wallace has previously rejected an attempt by Trump to knock the Colorado case out of court on grounds that removing him from the ballot would be a violation of his First Amendment rights. In the Oct. 20 ruling, Wallace found Trump’s extensive claims of improper procedure by the petitioners and the court unconvincing, although she acknowledged that some answers would only be given once the trial got underway. Like, for example, Trump’s position that Secretary of State Jena Griswold lacks the authority to remove his name from the ballot.
Trump has argued, in short, that Griswold’s primary role is merely to “make sure the boxes are checked,” Wallace noted.
“In the court’s view, this is a pivotal issue and one best reserved for trial,” the judge wrote in the 24-page ruling.
A spokesperson for CREW told Law&Crime in an email Monday that they were pleased with the ruling and look forward to presenting their client’s case at trial next week.
Alternatively, filing in support of Trump, members of the Colorado GOP asked Judge Wallace to affirm that only they, as the state’s official party apparatus, have a final say on who gets to appear on the ballot. Wallace rebuffed them. If a political party, without any oversight, could theoretically nominate anyone to office regardless of any restriction, as the Colorado GOP recently argued, matters would devolve into sheer chaos, she explained.
“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,” Wallace wrote.
The judge also rejected Trump’s argument that state officials in Colorado are flatly prohibited from disqualifying someone based on an alleged violation of a federal law.
Other substantive questions about Trump’s eligibility under Section III, as well as definitions around the meaning of an “insurrection,” will be debated next week at trial. Before then, CREW has also asked Judge Wallace to formally order a deposition from the former president.
In a 7-page filing, CREW attorneys argued that Trump has “relevant testimony” but he has refused to cooperate despite broadcasting early into these proceedings that he would “make time for depositions as needed.”
“Petitioners should be allowed to depose Trump. Petitioners have identified Trump on their “will call” witness list. Trump has relevant testimony. Trump is a party in the case, having sought and been granted intervention. Trump is represented by able counsel. Petitioners do not want to take a discovery deposition, but merely a deposition to preserve trial testimony instead of Trump showing up live. There is far more justification for a deposition of Trump than of witnesses disclosed by a party,” the Oct. 18 filing states.
Wallace has yet to issue a decision on this request.
Unlike in Colorado, in Minnesota, voters represented by Free Speech for the People did not name Trump in their bid to have the former president disqualified under Section III. Instead, they have only focused on the state’s secretary, Steve Simon, and asked that he remove Trump from the ballot. Simon contends it is not up to him and existing state law does not imbue him with the power to remove a candidate’s name from the ballot. Court records, however, show Simon has already asked the Minnesota Supreme Court to make its decision in the case no later than Jan. 5 so election officials would have ample time to prepare ballots.
Trump, who also faces four criminal indictments at present, including one alleging a conspiracy to subvert the 2020 election, has denied any wrongdoing and spokespeople for his 2024 campaign have vowed to secure a victory on appeal at the U.S. Supreme Court if the Colorado Supreme Court sides with voters.
Attorneys for the former president did not immediately respond to Law&Crime’s request for comment on Monday.
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