A lawsuit filed Sept. 5 in a state court in Colorado is asking a judge to rule that Donald Trump is ineligible to appear on the ballot in any future elections in that state, including the upcoming Republican primary.
Legal experts say a New Mexico case from last year, barring then-Otero County Commissioner Couy Griffin from holding elected office, sets a precedent for the Colorado case, and Trump’s prospects to appear on the ballot around the country.
The suit seeks to have Trump barred from the ballot under the rules of Section 3 of the 14th Amendment, which states that no one is eligible to hold office if they have previously taken an oath to support the constitution and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The plaintiffs in the case are four Republican and two independent Colorado voters, including former Colorado House and Senate Majority Leader Norma Anderson.
A suit filed in Michigan last month and a separate case filed Sept. 12 in Minnesota also seek to bar Trump from the ballot on 14th Amendment grounds.
A similar suit brought in Florida was dismissed on standing grounds, though the court did not rule on the merits of the case. And two members of the Federalist Society, a right-wing legal organization, penned a recent law review article arguing that Trump cannot hold office under the provisions of the 14th Amendment.
The suit argues that it is “a matter of public record that Jan. 6 was an ‘insurrection’” and points out that more than a dozen federal courts, as well as Trump’s own lawyers during his second impeachment hearing, have used the word “insurrection” to describe the riot. Trump’s actions leading up to Jan. 6, and his attempt to exploit the violence at the Capitol to undermine the election process, put him at the head of that insurrection, the suit argues.
The New Mexico precedent
The team representing the plaintiffs includes attorneys from Citizens for Responsibility and Ethics in Washington (CREW), a D.C.-based watchdog organization that previously represented New Mexico voters in the successful effort to ban Griffin from office.
Donald Sherman, CREW’s Executive Vice President and Chief Counsel, said that the order barring Griffin from office isn’t binding for cases in other states, since that case was brought under New Mexico state law. But it does provide a roadmap for other state courts to look to, Sherman said.
“This is authority that we believe is persuasive. It’s the only case since the 1800’s that has reached the merits of this question,” he said.
The 14th Amendment passed in 1868, and Section 3 prevented former Confederates from holding office in post-Civil War America. Prior to the Griffin case, the last Section 3 court case was in 1869, though Congress used Section 3 to bar an elected Socialist from taking his seat in 1919.
Chris Dodd, head of Dodd Law in Albuquerque, was one of the plaintiff’s attorneys working alongside CREW in the Griffin case. Judges ruling on Trump’s eligibility to hold office are likely to look to that case for guidance, he said.
“I think that they’re very similar. The important thing about Griffin’s case is that a judge has decided that what unfolded at the Capitol on Jan. 6 was an insurrection,” he said.
Two major differences between the cases are that unlike Griffin, Trump wasn’t physically present at the Capitol during the riot on Jan. 6. And unlike Griffin, Trump has not been convicted of any crimes related to the riot, though he has been criminally charged in federal and state courts. Neither of those things are likely to matter much, in Dodd’s view.
“Griffin did not coordinate Jan. 6, he wasn’t involved in planning it. He simply went, he encouraged others to go, while he was there he encouraged what was unfolding. And that was sufficient to result in a finding that he is barred from holding office,” he said. “I think the evidence is likely to show (Trump’s actions) are more severe. And I think the case against Donald Trump is ultimately stronger than it was against Couy Griffin.”
Dodd pointed out that former Proud Boys leader Enrique Tarrio was recently sentenced to 22 years in prison for his role in the Jan. 6 insurrection, despite not being physically present at the Capitol. As for the lack of a criminal conviction in Trump’s case, “I don’t think that it plays really any role,” Dodd said.
“Griffin’s conviction in his criminal case was ultimately not determinative of what happened in our civil case against him. It’s two completely separate questions,” he said.
Source NM was unable to reach Griffin for comment on this story.
Can a similar suit come to New Mexico’s courts?
Sherman declined to say whether CREW is planning to bring a similar lawsuit in New Mexico. But he’s optimistic that a suit in the state would be successful.
“I would note that New Mexico is the one place in the country where there’s a clear precedent in state court of whether Jan. 6 was an insurrection,” he said.
But the question might be settled long before New Mexico’s primaries.
“The New Mexico primary’s pretty late. I imagine this case might be litigated and brought to the Supreme Court and resolved relatively soon,” Sherman said.
Dodd said there’s been talk amongst New Mexico lawyers about bringing a similar suit, but “I’m not aware of anybody that’s actively preparing to bring a case.”
Source NM reached out to the Republican Party of New Mexico for comment, but did not receive a response.