Former President Donald Trump faces a “definite concrete possibility” of being blocked from Colorado’s ballot next year, ex-Department of Justice (DOJ) official and legal analyst Harry Litman said Sunday.
Trump, the frontrunner in the 2024 GOP presidential primary, is currently facing challenges to his candidacy. Critics sued to have him removed from the ballot in several states, saying his alleged role in the January 6, 2021, riot at the United States Capitol building after losing the 2020 election disqualifies him from running for office—citing the U.S. Constitution’s 14th Amendment. That amendment bars anyone who participated in an insurrection from holding elected office. Trump has described the lawsuit as “an outrageous attempt to disenfranchise millions of voters by getting us thrown off the ballot.”
Colorado District Judge Sarah Wallace ruled earlier in November the former president engaged in insurrection, but should remain on the state’s primary ballot. She concluded it is unclear whether a Civil War-era constitutional amendment barring insurrectionists from public office applies to the presidency. Both Trump and the plaintiffs in the case are appealing her decision.
Despite Trump celebrating Wallace’s decision as a “gigantic” legal victory, her ruling may not be a win for the former president, Litman said during an interview on Background Briefing with Ian Masters on Sunday. Litman previously served as a U.S. attorney for the Western District of Pennsylvania and deputy assistant attorney general at the DOJ.
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Instead, her ruling creates a “pretty clear path” where the Colorado Supreme Court could reverse her decision that the 14th Amendment does not apply to the presidency, he said.
“It’s going to go to the Colorado Supreme Court. There are ways they can reverse her, of course, but it’s so much more tangible and concrete. All they need to is to affirm on her factual findings and being engaged in, that’s sort of a First Amendment analysis, an insurrection,” Litman said.
Newsweek reached out to Trump’s campaign for comment via email.
If the case went to the United States Supreme Court, justices would likely dodge the question about whether he should be disqualified, saying only Congress would be able to decide on that question, Litman said.
Wallace’s ruling, however, took the possibility of removing him from the ballot from a “speculative, quixotic” viewpoint to a “definite concrete possibility,” he continued.
The 14th Amendment bars anyone from holding office who “having previously taken an oath, as a member of Congress, or as an officer of the United States” engaged “in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The amendment specifically mentions senators, representatives and “electors of President and Vice President.” Wallace concluded in her ruling that “for whatever reason the drafters of Section Three did not intend to include a person who had only taken the Presidential Oath.”
Meanwhile, Trump is facing ballot challenges in other states as well. Cases have been filed in at least 25 states, according to analysis from Lawfare. A judge in Michigan, a crucial 2024 battleground state, also denied a suit aiming to remove him from the ballot earlier this month, though the organization behind the lawsuit, Free Speech For People, has filed an appeal.
The Minnesota Supreme Court has also allowed Trump to remain on the state’s primary ballot, finding that who appears on the ballot is solely decided by political parties.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.