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Does the ‘insurrection clause’ apply to presidents? Secretary of State discusses Trump ballot lawsuit in Durango

Jena Griswold says previous court ruling sets a ‘dangerous precedent’
Colorado Secretary of State Jena Griswold, left, attended a meeting with Durango and La Plata County leaders at the Durango Chamber of Commerce on Nov. 30 to discuss Colorado elections integrity and the lawsuit filed against her and former President Donald Trump to keep him off the Republican primary ballot in 2024. (Christian Burney/Durango Herald)

Election security and processes dominated a November meeting between Colorado Secretary of State Jena Griswold and Durango and La Plata County officials, and one subject raised was that of former President Donald Trump and the 2024 presidential election.

Griswold and Trump were sued by six Colorado Republican and Unaffiliated voters to keep the latter off the Colorado ballot for the Presidential Election next year. Griswold told local officials at the Durango Chamber of Commerce on Nov. 30 she is seeking a ruling from the Colorado Supreme Court that would protect the Secretary of State’s powers to bar ineligible candidates from running for office.

The lawsuit brought against Griswold and Trump argues Trump should remain off the ballot next year because he is ineligible to hold office per Section 3 of the 14th Amendment to the U.S. Constitution, which in short forbids anyone who engaged in an insurrection against the United States from holding or running for office.

Griswold said the 14th Amendment has been used infrequently throughout history because rebellions don’t occur often in the United States. But it was applied to hundreds of Confederate officials and soldiers during Reconstruction after the American Civil War.

On Nov. 17, District Judge Sarah Wallace ruled in the lawsuit that Trump did engage in an insurrection on Jan. 6, 2021 – the first court in the country to draw such a thick line between the former president and the attacks on the U.S. Capitol, Griswold said. But Wallace also ruled against keeping the former president off the ballot, saying the 14th Amendment’s insurrection clause applies to government “officers,” not presidents.

Griswold said the ruling sets a dangerous precedent. The case has been appealed by representatives for Donald Trump, as well as separate petitioners in the original case.

“That’s basically saying the president is above the law,” she told local leaders at the Nov. 30 meeting. “Also, the purpose of that provision, Section 3 of the 14th Amendment, is to safeguard the country from rebellion. The person with the biggest ability to shape the country is the president.”

President Donald Trump speaks during a rally protesting the Electoral College certification of Joe Biden as President in Washington, Jan. 6, 2021. (AP Photo/Evan Vucci, File)

She said Wallace’s ruling, should it stick, means the 14th Amendment applies to elected dogcatchers and county commissioners, but not to current and former presidents. The ruling also hinders the Secretary of State’s ability to keep ineligible candidates off ballots.

“A 17-year-old wants to run for president? Put him on the ballot. A dog wants to run for U.S. Senate? Put him on the ballot,” she said. “We disagree with that. … We actually look at people’s qualifications. And if there (are) questions or if it’s a hard situation, it goes to the court.”

A legal brief produced by the Secretary of State’s Office last week says the Supreme Court should “affirm that the Election Code allows courts to exclude constitutionally ineligible candidates from the ballot” and beyond that, Griswold doesn’t have a position on the outcome of the case. Rather, it should be the court’s decision whether Trump is disqualified from the ballot.

Griswold said Trump’s attorneys in the lawsuit argue Trump did not engage in or incite an insurrection, and it’s Griswold’s job as the Secretary of State to place anyone on the ballot regardless of their eligibility.

The Secretary of State’s legal brief produced last week says election code doesn’t make election officials and courts powerless to protect elections in Colorado.

Citing the 1972 lawsuit Bullock v. Carter, the brief concludes “a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies,” and that includes primary elections.

Parties to the lawsuit presented oral arguments to the Colorado Supreme Court on Dec. 6.


A previous version of this story said Griswold’s appealing the lawsuit. She has not filed an appeal, but Trump’s representatives and separate petitioners have independently appealed to the Colorado Supreme Court.

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