Colorado ruling 'breathes new life' into efforts to keep Trump off ballot: legal expert

Donald Trump has hailed the ruling in a Colorado case as “a gigantic court victory," but a legal expert said the judge's opinion was a giant step toward disqualifying him from the state's ballot on constitutional grounds.

Colorado District judge Sarah B. Wallace determined that evidence showed Trump had engaged in insurrection, which only a trial court can do, but rejected his First Amendment defense by finding that his intentional incitement of the Jan. 6 rioters overruled any free-speech claim, wrote legal analyst Harry Litman in an op-ed published by the Denver Post.

"The former president was either bluffing or being obtuse," Litman wrote. "In fact, the opinion goes nine-tenths of the way toward recognizing the challengers’ claim and disqualifying Trump before opting for a close and questionable textual reading on the officer question. The ruling is far more important for how it goes against Trump than for the court’s final change of direction."

Wallace concluded in her opinion that the president is “an officer of the United States” for the purposes of the 14th Amendment challenge and therefore not disqualified from the ballot, but the question she raised with that finding will be decided by a higher court.

"They may well disagree with Wallace on that point while adopting her far more important finding that Trump engaged in insurrection," Litman wrote.

"It’s widely assumed that any appellate ruling disqualifying Trump from the ballot would prompt intervention by the U.S. Supreme Court, which would have the final say," he added. "And it’s hard to imagine that the Supreme Court could or would make the determination that Trump engaged in insurrection without a factual record to review. In that way, Wallace’s opinion sets what had been an empty table for the court."

A higher court could agree with Wallace on the officer question and disagree on other legal grounds, and they might also determine that enforcement of the amendment's Section 3 is a political question that only Congress can answer.

"The bottom line, however, is that the Colorado opinion gives the challengers what they needed most — a determination that Trump engaged in insurrection — while raising legal questions that the higher courts would have had to answer in any case," Litman wrote. "It thereby breathes new life into a potential legal solution to the Trump nightmare that might otherwise have remained quixotic."