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Case To Bar Trump From Ballot Stays Alive [1]

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Date: 2023-10-12  

Does an interesting decision yesterday by a Colorado judge suggest there is more life to the case than commonly believed that Donald Trump is disqualified from office under Section 3 of the 14th Amendment? Maybe. To be sure the ruling was not directly on the merits of the case but in rejecting a Trump motion to dismiss the judge made comments potentially supporting of those seeking to disqualify Trump from the ballot. A few such cases have been filed in various states, and most use terms like "long shot" to describe them.

Section 3 of the 14th Amendment prohibits anyone, who having taken an oath to support the Constitution, and who then engages in or aids or gives comfort to an insurrection from holding any office under the United States. Some citizens of Colorado have sued to compel the Colorado Secretary of State to exclude Trump from any ballot there, to include the primary ballot by a "writ of mandamus." A writ of mandamus, regarded as an extraordinary remedy, is a court order directing a public official to do something that the court has determined, that by law, the official has no discretion to not do.

Yesterday Trump filed a brief seeking to dismiss the lawsuit on grounds he never took an oath to "support" the Constitution, only to protect, preserve, and defend it. A decision on that remains pending. Yesterday's decision involved a different motion to dismiss. Trump sought dismissal under Colorado's anti-SLAPP law. "SLAPP" stands for "Strategic Lawsuits Against Public Participation. Anti-SLAPP laws aim to discourage frivolous lawsuits that attempt to limit public participation and discussion. They are more typically used in defamation cases, but Trump argued it here claiming plaintiffs sought to limit his speech on the public question of election fraud.

So the question in this ruling was NOT whether plaintiffs would ultimately win in their quest to keep Trump off the ballot. It was whether Trump was entitled early dismissal because the plaintiffs were attempting to wrongfully limit his public participation on a political question. The court denied Trump's motion. You can read the decision HERE.

The court denied Trump's motion because the Colorado anti-SLAPP statute has an important exception allowing for lawsuits that are in the "public interest." One element of that exception is that "the action, if successful, would enforce an important right affecting the public interest and would confer a significant benefit on the general public."

The court found that the public interest exception applied because:

"the Court has no difficulty concluding that it is to the benefit of the general public that, regardless of political affiliation, only constitutionally qualified candidates are placed on the ballot . . . particularly whenthe disqualification sought is based on allegations of insurrection against the very government over which the candidate seeks to preside . . . In short, it is in the public’s interest that only qualified and faithful candidates be allowed to seek public office."

As stated, this is not a decision on the merits but it is arguably favorable language for the plaintiffs. We will not have long to wait for a decision on the merits. The hearing on the merits is set for October 30th.

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