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The ACLJ Represents Colorado’s Republican Party, Moves To Intervene Against Lawsuit Seeking To Bar President Trump From the Ballot Under Dangerous Reading of the 14th Amendment

By 

Jay Sekulow and Jordan Sekulow

|
September 13, 2023

6 min read

Election Law

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The brazen attempt to keep America’s voters from having the opportunity to vote for former President Donald Trump if they so choose has reached new levels. This time, the tactic is to misappropriate the 14th Amendment. As we have talked about already, the Left is desperate to keep Donald Trump off the ballot in various key states by arguing that an obscure provision of the 14th Amendment disqualifies Donald Trump from even running for office. It has now progressed past mere scholarly debate, interviews, and articles and has reached the courts. The ACLJ has now entered the fray to defend the Constitution, the fundamental right to vote, and the integrity of our elections.

Six Colorado voters filed a lawsuit, represented by the organization Citizens for Responsibility and Ethics in Washington (CREW), against Donald Trump and against the Colorado Secretary of State, Jena Griswold, claiming that President Trump is disqualified from office. The Colorado Secretary of State called President Trump “a liar with no respect for the Constitution” and has indicated her agreement with the plaintiffs’ reading of the 14th Amendment’s disqualification clause in this case.

CREW and these six voters named two parties to their lawsuit: Donald Trump himself and the Colorado Secretary of State. But they missed an organization just as critical to this lawsuit: the Colorado Republican Committee. This is where the ACLJ comes in. It is the state party, not the Colorado Secretary of State, that decides who the Republican nominees are going to be in the presidential election. CREW is trying to circumvent the Republican Party and deny it the chance to defend its own ability to choose its candidates for President. The Secretary of State’s only job is to provide the voters with the names of the people selected by the political process. It is the Republican Party that is actually supposed to select their nominee to present to the voters. This lawsuit would take away its ability to make that selection.

We are pleased to announce the ACLJ now represents the Colorado Republican Committee, which seeks to preserve its right to present to the voters the people it chooses as candidates. This case represents an unprecedented assault on Americans’ constitutional right to vote, and we are taking urgent legal action to fight back. We just filed a motion to intervene in the lawsuit on the Republican Committee’s behalf. By filing that motion, the Colorado Republican Committee is seeking to join in this lawsuit and help defend the Constitution and the rule of law from these creative and novel attacks that would deny voters the opportunity to choose the candidates of their choice. This is a constitutional crisis. This lawsuit would usurp from the people their opportunity to vote for the candidates of their choosing.

There are a number of reasons that make this attempt to remove Donald Trump from the ballot baseless. Here are just a handful:

  • This provision of the 14th Amendment does not apply to former Presidents. The 14th Amendment has a Civil War provision that disqualifies anyone who commits insurrection or gives aid and support to our country’s enemies from holding political office. But, contrary to the way this provision has been described in the media, it only applies to people who held certain positions, such as Members of Congress, state legislators, “or as an officer of the United States.” As the Supreme Court of the United States has explained, the President is not an officer of the United States but the head of the Executive branch, with authority to appoint those officers.

  • The cited provision of the 14th Amendment does not give a Secretary of State, or anyone else, the authority to unilaterally decide to remove someone from the ballot. If it did, it would allow for the arbitrary removal of any candidate without due process, without trial, and perhaps with a simple declaration by the Colorado Secretary of State or some other Secretary of State that the candidate is ineligible. Instead, the 14th Amendment operates “by the legislation of congress in its ordinary course,” as Chief Justice Chase explained when the provision was first ratified. Without a federal law giving them the right to seek a candidate’s removal, there is no basis to try to remove President Trump from the ballot in Colorado or anywhere else.

  • Congress has, in fact, spoken on this issue. It provided the mechanism for people to be removed from election ballots under the 14th Amendment by enacting a statute, 18 U.S.C § 2383, which prohibits participation in rebellion or insurrection and provides that those found guilty of violating this statute “shall be incapable of holding any office under the United States.” This criminal law proceeds through the ordinary course of prosecution, trial by a court, decision by a jury, and appeal, with due process all the way. If a person were properly found guilty under this statute, they would be disqualified from office. Notably, no one connected to the January 6 issues has been charged with insurrection. In other words, the method Congress has provided for disqualifying someone from office has not even been pursued here.

In short, this disqualification provision doesn’t apply to a President. Even if it did, people do not get to arbitrarily enforce it and ignore the requirements of due process; it is not self-executing and, instead, must be enforced through the mechanisms Congress has established. And the mechanism that Congress has established is a criminal insurrection statute that no prosecutor, not even Jack Smith, has charged President Trump with violating. Even people critical of Donald Trump have gone on the record, pointing out how dangerous this lawsuit is. Brad Raffensperger, the Georgia Secretary of State, explained, “For a secretary of state to remove a candidate would only reinforce the grievances of those who see the system as rigged and corrupt. . . . Denying voters the opportunity to choose is fundamentally un-American.”

This case presents one of the biggest constitutional crises of modern history. We are prepared to fight on behalf of the Colorado Republican Party all the way to the United States Supreme Court if necessary. The Constitution, our system of democratic elections in our constitutional republic, the right of a party to designate its candidates of choice for its members – and ultimately the voters’ right to choose who they vote for, and due process, are all under assault. The ACLJ is engaged. Stand with us.

UPDATE 09.15.2023: The case, Anderson v. Griswold, has been remanded back to state court in Colorado, and the ACLJ has filed a motion to intervene and petition in that court on behalf of our client.

UPDATE 09.18.2023: At a hearing at the Colorado District Court, the judge in the case granted the ACLJ’s motion to intervene in court on behalf of our client, the Colorado Republican Committee, to fight the attempt to block Trump from the ballot and interfere in the election process. Hopefully this will be the first of many wins. We will continue to update you as the case progresses.

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