Colorado Voters Challenge Trump’s Ballot Eligibility Under 14.3 Insurrectionist Disqualification Clause

Section Three of the Fourteenth Amendment, known as the Disqualification Clause, provides: “No Person shall be a Senator or Representative in Congress. . . who, having previously taken an oath, as a member of Congress . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The purpose of the Disqualification Clause, passed in the wake of the Civil War, was to protect the country.

Trump’s involvement in the coordinated and violent attack on the United States Capitol in an effort to prevent Congress from certifying the election results on January 6, 2021, disqualifies him from holding future public office. In 2022, Free Speech For People pioneered the use of state law to enforce the Disqualification Clause. State election officials do not need permission from Congress to enforce this, just as they do not need it to enforce the U.S. Constitution in general.

On September 6, 2023 a group of Colorado voters, represented by Citizens For Responsibility & Ethics in Washington, filed a complaint challenging Donald Trump’s eligibility to appear on the state’s presidential primary ballot.

On November 28, 2023, Free Speech For People filed an amicus brief urging the Colorado Supreme Court to reject Trump’s claim that the “political question doctrine” prevents states or courts from enforcing Section 3 of the Fourteenth Amendment. Our amicus brief explains why Colorado’s courts (or any state’s) can decide disqualification under Section 3.

The Colorado Supreme Court ruled in Anderson v. Griswold that Donald Trump is disqualified from appearing on the Colorado presidential primary and general election ballot. The CO GOP appealed to the United States Supreme Court and Donald Trump appealed as well. On January 5, 2024, the U.S. Supreme Court granted certiorari, and will hold oral argument on February 8.

In 2022, Free Speech For People filed the first Section 3 challenges in 150 years against Georgia Congresswoman Marjorie Taylor Greene and former North Carolina Congressman Madison Cawthorn, for their roles in the January 6th insurrection.

Although those challenges did not result in disqualification (Cawthorn’s because he lost his primary; Greene’s because the judge found insufficient factual evidence that she, personally, had engaged in the insurrection), they set important legal precedent for this challenge, including: that states have legal authority to adjudicate Section 3 challenges; that state processes for adjudicating Section 3 challenges do not violate a candidate’s constitutional rights; that no prior criminal conviction is required under Section 3 challenge; that words can constitute engaging in insurrection; and that an 1872 congressional amnesty for ex-Confederates does not apply to January 6.

On September 6, 2022, Judge Francis J. Matthew of New Mexico’s First District permanently enjoined Otero County Commissioner and “Cowboys for Trump” founder Couy Griffin from holding office under the Insurrectionist Disqualification Clause.

In 2023 and 2024, Free Speech For People filed multiple 14.3 cases on behalf of voters in Illinois, Massachusetts, Michigan, Minnesota, and Oregon.

In parallel with but separately from this litigation, Free Speech For People and Mi Familia Vota Education Fund are co-leading a national campaign to ensure that election officials across the country follow the mandate of Section 3 of the Fourteenth Amendment.

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