IE 11 is not supported. For an optimal experience visit our site on another browser.

These concerned Colorado citizens want to stop Trump using the 14th Amendment

This new lawsuit is not an academic exercise. It can succeed.

Donald Trump currently faces four criminal prosecutions, a momentous and historic fact that can hardly be overstated. But a civil suit brought this week by six courageous residents of Colorado is another important step in the quest to preserve the viability of our democracy. 

The suit, filed on Sept. 6 in Colorado District Court by Republican and unaffiliated voters, seeks to compel Colorado’s secretary of state to bar Trump from the state’s ballot, under Section 3 of the 14th Amendment, which disqualifies from office anyone who took an oath to the Constitution and then engaged in insurrection. Our organization, Citizens for Responsibility and Ethics in Washington, or CREW, along with top election lawyers and litigators from Colorado, is representing those plaintiffs. While much of the focus has been on the criminal fallout from Jan. 6, this case centers on a more foundational question that is currently being debated in political and legal spheres of influence: Can our Constitution protect against those who tried to overthrow our government? 

While much of the focus has been on the criminal fallout from Jan. 6, this case revolves around a more foundational question.

The plaintiffs include Norma Anderson, who served as majority leader of both the Colorado Senate and the Colorado House of Representatives, and Claudine Schneider, a former U.S. representative from Rhode Island who has lived in Colorado for decades. Both are Republicans. Prominent conservative columnist Krista Kafer is also a plaintiff, along with a Colorado teacher, a leader of a nonprofit and a leader in promoting outdoor recreation. These are Americans who feel a deep sense of duty to ensure the preservation of a working democracy in which the people still get to choose their leaders, and they are willing to step forward despite the way that Trump and his supporters have attacked anyone attempting to hold them accountable. 

This is not an academic exercise. It can succeed. In fact, it already has. CREW represented residents of New Mexico who successfully sued to remove from office Couy Griffin — a county commissioner who had helped to incite, recruit for and normalize violence during the Jan. 6 attack. Griffin was the first official disqualified under the 14th Amendment in more than 150 years. The judge in that case determined that Jan. 6 was an insurrection for purposes of the Constitution, and that someone who helped to incite it — even if they had not personally engaged in violence — had engaged in insurrection and was disqualified. The stakes and the scale are larger in the Colorado case to remove Trump from the ballot, but the principle, the law and many of the facts are the same. 

Importantly, academics and experts across the political spectrum have now concluded that Trump is disqualified under the 14th Amendment. They include prominent conservative legal thinkers like Professors William Baude and Michael Stokes Paulsen, and esteemed retired federal judge J. Michael Luttig, who wrote about the issue with Professor Laurence Tribe. This lawsuit in Colorado simply seeks to bring into practice what many of our top legal minds agree is already constitutional truth.

The fact that the lawsuit is being brought in Colorado is not an accident. The state’s laws maximize the chance our plaintiffs will quickly get a fair hearing on this crucial constitutional provision. The state has a statutory provision requiring the secretary of state to exclude constitutionally ineligible candidates from the ballot and law providing for eligible voters to challenge in court improper presidential candidates. Those laws, along with the primary calendar and the presence of unflinching plaintiffs willing to bring the case, make Colorado the right place to start. Not every state has the necessary statutory regime to bring viable challenges to enforce Section 3, but Colorado will certainly not be the last state where such litigation is brought.  

Trump sought to keep himself in power after losing an election, ultimately inciting and encouraging a violent mob that attacked the Capitol. These are actions that more than meet the definition of engaging in insurrection. It is hard to imagine any conduct more dangerous to the survival of a democratic system of government than a leader refusing to leave, despite the people’s votes against him, or resorting to force to hold on to power. Not holding such conduct accountable risks normalizing it — at which point we will have no democracy at all.

The framers of the 14th Amendment’s disqualification clause understood we needed to make sure those who attacked our democracy would not then be put in charge of it.

Criminal prosecutions play a vital accountability role here, and it is good for the country that both special counsel Jack Smith and Fulton County District Attorney Fani Willis have brought charges stemming from Trump’s attempts to overturn the 2020 election. But neither criminal charges nor even a criminal conviction automatically prevents Trump from running for, or serving as, president. The United States Constitution does.

In the wake of the Civil War — the closest we have ever come to losing our republic — the framers of the 14th Amendment’s disqualification clause understood we needed to make sure those who attacked our democracy would not then be put in charge of it. It is a self-executing provision that requires neither action from Congress nor a criminal prosecution to apply.

Those framers also understood that the United States could face future insurrections. Trump’s attempt to reverse an election was precisely the moment for which that provision was designed. Beyond protecting our democracy from the particular risks Donald Trump poses, enforcing this provision ensures our democracy’s vitality going forward. 

This constitutional provision is not a punishment, it is a qualification. Just as a 30-year-old cannot serve as president, neither can someone who engaged in insurrection.