The Colorado Supreme Court is considering Trump’s eligibility to become president

The Colorado Supreme Court heard arguments Wednesday on whether former President Donald J. Trump should again be barred from holding office under Section 3 of the 14th Amendment, which disqualifies people who engage in insurrection against the Constitution after taking an oath made to support this.

Several of the seven justices appeared skeptical of a lawyer’s arguments for Mr. Trump, including the core that a district court judge relied on last month in a ruling ordering Mr. Trump’s inclusion in the Colorado primary: that Section 3 did not apply to the presidency. The Colorado Supreme Court is hearing an appeal of that ruling as part of a lawsuit brought by Republican and independent voters in the state who, in their effort to keep Mr. Trump off the ballot, have argued the opposite.

“How is that not absurd?” Judge Richard L. Gabriel asked about the idea that the lawmakers who wrote Section 3 in the aftermath of the Civil War intended to disqualify insurgents from any office except the highest in the land.

Section 3 lists a number of positions that an insurgent may not hold, but not explicitly the presidency. Thus, challenges to Mr. Trump’s eligibility rest on the argument that the presidency is included in the phrases “officer of the United States” and “any office, civil or military, under the United States.” It also does not specify who gets to decide whether someone is an insurrectionist: election officials and courts, as the petitioners argue, or Congress itself, as Mr. Trump’s team claims.

Trump’s attorney, Scott Gessler, suggested Wednesday that lawmakers had trusted the Electoral College to prevent an insurgent from becoming president, and that they knew that post-Civil War Northern states had enough electoral power to prevent a Confederate leader would win. national elections anyway.

Judge Gabriel seemed dissatisfied, as did colleagues who came in with follow-up questions. Judge Monica M. Márquez questioned why lawmakers would have taken the “indirect” route of blocking someone only through the Electoral College. And Justice Melissa Hart asked whether Mr. Gessler’s interpretation of Section 3 would have allowed Jefferson Davis, the leader of the Confederacy, to become president.

Mr. Gessler said yes: If the Americans had elected Davis, and the Electoral College had not blocked him, it would have been “the rule of democracy.”

Mr. Gessler also argued that the attack on the Capitol on January 6, 2021 was not an insurrection because an insurrection must last “longer than three hours” and “broader than one building,” and that only Congress – not the Colorado Secretary of State State Department or the courts – could assess Mr. Trump’s eligibility under Section 3.

A judge in Michigan agreed last month, arguing that only Congress could make such a determination by rejecting a similar effort to keep Trump off the ballot. Still, several Colorado judges expressed doubts.

“I don’t think anyone would say that Congress should take action to enforce the abolition of slavery,” Judge Gabriel said, adding that he was concerned that Mr. Gessler’s logic would mean that the courts would also not can rule on due process or equal protection claims.

Judge Hart noted that Section 3 gives Congress the power to eliminate a specific person’s disqualifying penalty, and asked why it would need that power if it had to act to impose the penalty in the first place.

Some justices were more skeptical of the petitioners’ argument that Section 3 applies to the presidency, even though it is not explicitly listed as one of the applicable offices.

Judge Carlos A. Samour Jr. said it seemed strange that lawmakers would have chosen to lump the president together under the term “officer of the United States” while at the same time aiming to single out senators and representatives. He heard the opposing arguments, he said, but kept coming back to, “Why don’t we spell it out?”

Jason Murray, an attorney for the petitioners, said he believed it was clear from the text of the amendment and from the records of the congressional debate surrounding it that lawmakers intended to take a “kitchen-sink approach” that would “capture all views of the would cover the petitioners’. federal power.” They referred to senators and representatives outside as “officers of the United States,” Mr. Murray said, because they considered them “seats” and not “offices.”

Judge Gabriel, who expressed skepticism toward both sides, also said the court’s definition of insurrection “seems to me potentially overstated.” And the justices pressed hard on which part of Colorado’s election law gave the secretary of state the authority to review candidates’ constitutional qualifications.

The petitioners face an uphill battle as they must convince the court that they are right on the four questions at issue in the case: that it was an insurrection when Trump supporters stormed the Capitol on January 6 in an attempt to stop the certification of the 2020 conference. election; that Mr. Trump was involved in that insurrection; that section 3 applies to the presidency; and that the courts have the power to enforce this against a candidate whom Congress has not specifically designated.

If the answer to any of these questions is no, Mr. Trump will remain on the ballot. The district judge who ruled last month agreed with the petitioners on three of the four questions, but her disagreement on the applicability of Section 3 meant she ruled in Trump’s favor.