Colorado officials cite relentless threats, election lies in wake of SCOTUS ruling on Trump eligibility

Valarie Walker of New York City holds a sign reading “Trump Led a Riot” in front of the U.S. Supreme Court Thursday, Feb. 8, 2024 (Ashley Murray/States Newsroom).

Following the U.S. Supreme Court’s unanimous ruling that Colorado cannot bar former President Donald Trump from its 2024 presidential ballot, the liberal group that brought the case last year sought to return the focus to the unprecedented events that motivated its lawsuit in the first place.

“It is still true now, as it was yesterday, that every court, every decision-making body that has substantively looked at the issue has determined that Jan, 6, 2021, was an insurrection, and Donald Trump engaged in insurrection,” Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, told reporters Monday. “The court removed an enforcement mechanism, but nothing in that opinion changed the fact that Donald Trump is, as the minority in today’s opinion puts it, an oathbreaking insurrectionist.”

With support from CREW, six Republican and unaffiliated Colorado voters filed a lawsuit last September alleging that Trump’s actions in relation to the Jan. 6 attack on the U.S. Capitol disqualify him from office under Section 3 of the 14th Amendment. The clause prohibits a person who “engaged in insurrection” after taking an oath to support the Constitution from holding office again. A 4-3 majority of the Colorado Supreme Court sided with the plaintiffs and ordered Trump to be barred from the ballot.

In an unsigned, “per curiam” opinion issued Monday morning, the U.S. Supreme Court reversed the Colorado Supreme Court’s ruling, citing the “chaos” that would result from allowing states to enforce Section 3 against candidates for federal office. It did not address other arguments made by Trump’s attorneys, sidestepping the issue of whether Jan. 6 was an “insurrection” and whether Trump “engaged” in it.

“We’re disappointed with the loss,” said Eric Olson, one of the attorneys who argued the case for the plaintiffs. “But winning this particular outcome was not the only goal of our suit. The other goal of our suit was to make sure that everyone knows that this portion of the Constitution exists (and) it has power and force, which the Court acknowledged that it did.”

Trump — who was indicted last year by federal prosecutors who allege that his “pervasive and destabilizing lies” about the results of the 2020 election “targeted a bedrock function of the United States federal government” — addressed the ruling in remarks from his Mar-a-Lago resort in Palm Beach, Florida. He denounced the Jan. 6 indictment and other pending criminal and civil cases against him as politically motivated.

“I have great respect for the Supreme Court, and I want to just thank them for working so quickly, and so diligently, and so brilliantly,” Trump said.

Trump is the overwhelming favorite to secure the Republican nomination for president again in 2024, setting up a probable rematch with President Joe Biden. Colorado will join 14 other states in holding its presidential primary election on Super Tuesday, March 5.

Election lies and threats

The Colorado Supreme Court’s ruling never took effect, because the justices stayed their order pending U.S. Supreme Court review, and Trump still appeared on GOP primary ballots, which were mailed to Colorado voters beginning Feb. 12.

Colorado Secretary of State Jena Griswold, a Democrat, told reporters Monday she was glad that the court issued a decision ahead of Tuesday’s primary. About half a million Republican primary ballots have already been processed by local elections officials, and since Trump is an “eligible candidate,” all votes for him will be counted.

But Griswold, an outspoken critic of Trump’s efforts to cast doubts on the legitimacy of the 2020 election, said she was disappointed by the U.S. Supreme Court’s decision.

“I believe that Colorado should be able to bar oath-breaking insurrectionists from our presidential primary,” Griswold said. “I also think it’s troubling that, logistically, federal oath-breaking candidates will have a free pass to run for office again.”

Griswold did not bring the CREW lawsuit — in fact, she was named as a defendant alongside Trump — and declined to take a position on Trump’s eligibility prior to the state Supreme Court’s ruling. But in an open letter to Griswold, top Colorado Republicans on Monday falsely accused her of a “reckless attempt to throw … Trump off the ballot.”

“It is now even more clear Coloradans should have zero faith in you to adequately protect their right to vote and oversee elections in the state of Colorado,” said the letter, which was signed by U.S. Rep. Lauren Boebert and Colorado GOP Chair Dave Williams, and repeats debunked lies about “rigged elections.”

Griswold said she had received over 700 violent threats since the Colorado lawsuit was filed, and continued to receive violent threats even as of Monday morning.

“The failure to hold these actors accountable does embolden people, and then the failure to prosecute in a meaningful way those who have threatened the lives of secretaries of state and election workers further emboldens, because there’s a perception that there is no accountability, no consequences for threatening people’s lives,” Griswold said.

Federal law enforcement agencies have issued dire warnings about potential threats to the 2024 election, with one FBI official telling the winter conference of the National Association of Secretaries of State in Washington earlier this month that the outlook is “extremely alarming,” according to Stateline.

In a statement, Aly Belknap, executive director of the nonprofit Colorado Common Cause, which filed several amicus, or friend-of-the-court, briefs in support of the Colorado plaintiffs, called the ruling “a dark day for our democracy.”

“Donald Trump lied, cheated, and unleashed violence when the election did not go his way, and his ongoing incitement has led to an unprecedented rise in attacks and death threats against election workers, judges, and other public servants,” Belknap said. “By refusing to hold Trump accountable and allowing him to skirt around the pillars of our Constitution, SCOTUS has greenlit this behavior for future public officials.”

Enforcement and immunity case

Though the U.S. Supreme Court’s reversal of the Colorado ruling was unanimous, the full set of opinions released by the court Monday revealed a 5-4 split over the question of how exactly Section 3’s insurrectionist ban must be enforced.

A five-justice majority appeared to back strict limitations on how the insurrection clause can be enforced, ruling that Congress must pass enforcing legislation that determines the circumstances under which a person is disqualified. The majority cited the Enforcement Act of 1870, which was later repealed, and Section 2383 of the U.S. Code, a current criminal statute prescribing a disqualification from office for “rebellion or insurrection,” as examples of such enforcing legislation.

In a concurrent opinion, the court’s three liberal members — Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — wrote that this finding went too far, accusing the majority of deciding “novel constitutional questions to insulate this Court and (Trump) from future controversy.”

The choice by the three liberal justices not to file a formal dissent in the case drew criticism from some left-leaning commentators. Metadata in the document released by the court indicated that the opinion had been previously styled as “concurring in part and dissenting in part,” an artifact that legal commentator Mark Joseph Stern wrote “pierc(ed) the facade of unanimity that the conservative justices sought to present.”

Monday’s precedent-setting 14th Amendment ruling comes amid a cloud of doubt and distrust felt by many Americans towards the Supreme Court, especially in the wake of its 2022 decision to overturn Roe v. Wade and roll back 49 years of federal protections for abortion rights. Republican-appointed justices hold a 6-3 majority on the court, and three of its conservative justices were appointed by Trump himself.

In recent months, prominent legal pundits have speculated about the potential for a “grand bargain” relating to the Section 3 litigation and another case involving Trump before the Supreme Court — Trump’s effort to dismiss the Jan. 6 criminal case on the grounds that he is immune from prosecution for actions he took in his official capacity as president.

Jonathan Mitchell, who represented Trump in oral arguments in the Colorado case on Feb. 8, sent murmurs through the Supreme Court chambers when he responded to Justice Brett Kavanaugh’s suggestion that an individual would be disqualified from office if they were convicted under Section 2383.

“The only caveat that I would add is that our client is arguing that he has presidential immunity,” Mitchell said. “So we would not concede that he can be prosecuted for what he did on Jan. 6 under 2383.”

The Supreme Court agreed last week to hear Trump’s appeal in the immunity case, and scheduled oral arguments for late April. Critics say that timeline raises the distinct possibility that a trial in the case could be pushed back beyond the 2024 election, and used Monday’s ruling to highlight the court’s need to act more quickly.

“The Supreme Court was very quick to decide Trump’s eligibility to remain on the CO ballot. It should be equally fast in resolving Trump’s immunity case,” the nonprofit Brennan Center for Justice wrote on X. “The country can’t wait until June for its ruling.”

Editor’s note: This story first appeared on Colorado Newsline, which is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Newsline Editor Quentin Young, who contributed to this report, for questions: info@coloradonewsline.com. Follow Colorado Newsline on Facebook and Twitter.