Voters in ballot battle respond to Trump in SCOTUS brief

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Former President Donald Trump speaks during a rally Sunday, Dec. 17, 2023, in Reno, Nev. (AP Photo/Godofredo A. Vásquez)

Colorado residents who sued to kick former President Donald Trump off the GOP primary ballot in the Mile High State filed their merits brief in the upcoming case before the U.S. Supreme Court on Friday.

In the filing, Citizens for Responsibility and Ethics in Washington (CREW) attorneys, who represent several voters and self-styled anti-Trump conservatives, argue the 45th president is ineligible to hold federal office and that states are within their power to “refuse ballot access to candidates who flunk” the requirements for holding office.

“The people ratified Section 3 after the Civil War because they believed oath-breaking insurrectionists could, if given power again, dismantle our constitutional system from within,” the filing reads. “Section 3 disqualifies Donald Trump from public office.”

The Colorado residents argue Trump’s appeal to the nine justices “identifies no plausible basis to evade disqualification” and “gives only perfunctory treatment” to whether or not he engaged in insurrection.

“The thrust of Trump’s position is less legal than it is political,” the brief reads. “He not-so-subtly threatens ‘bedlam’ if he is not on the ballot. But we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost.”

The brief also argues that Trump fails to show why the trial court’s filings, making up some 150 paragraphs, were clear error. And, the respondents argue, Trump “pretends damning facts don’t exist.”

In his early January petition for a writ of certiorari, Trump argues that he simply did not engage in insurrection on Jan. 6, 2021.

“In the context of the history of violent American political protests, January 6 was not insurrection and thus no justification for invoking section 3,” the petition reads. “[N]othing that President Trump did ‘engaged’ in ‘insurrection.’ President Trump never told his supporters to enter the Capitol, either in his speech at the Ellipse or in any of his statements or communications before or during the events at the Capitol.”

Trump also argued he told his supporters to remain and stay peaceful — and to protest “peacefully and patriotically.”

CREW, in response, slammed the ex-president’s secondary argument as “a single flat-affect use of the word ‘peacefully’ in his hourlong Ellipse speech” that amounted to “but a fig leaf.”

“Trump ‘incited’ his supporters on January 6 with words that ‘explicitly’ and ‘implicitly’ commanded violence, and Trump intended and supported the resulting violence,” the respondents brief reads. “Trump offers no reason to second-guess the 150 paragraphs of detailed factual findings supporting these conclusions.”

The Colorado residents also make pains to elucidate how the harrowing events unfolded and that they were, in fact, an insurrection.

From the brief at length:

The mob was coordinated and had a clear purpose: “to obstruct the counting of electoral votes as set out in the Twelfth Amendment” and “to prevent the execution of the Constitution so that Trump remained the President.” Attackers roamed the building “chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Mike Pence.” And the mob forced the members of the Senate and the House to flee, stopping the certification of the electoral votes. At least 140 law enforcement officers were injured in the attack and at least one died as a result.

The most violent attack on our nation’s Capitol since the War of 1812 — an attack which obstructed the peaceful transfer of presidential power for the first time in American history — meets any plausible definition of “insurrection against the Constitution.”

“The facts and the law are clear: Donald Trump disqualified himself under the Constitution by inciting insurrection in an attempt to keep himself in power on January 6th, 2021, and the Colorado courts had the authority to determine his eligibility,” CREW President Noah Bookbinder said in a statement. “The decision made by the Colorado Supreme Court was based on volumes of briefing as well as facts developed in a five-day hearing featuring testimony from numerous fact witnesses and experts. In his brief to the Supreme Court, Trump did not identify any errors in that decision that would warrant overturning it.”

The heart of the Colorado case is similar to many such efforts across the country: Trump’s actions leading up to and during the Jan. 6, 2021, attack on the U.S. Capitol Complex disqualified him from ever again holding federal elected office under Section III of the Fourteenth Amendment — which bars candidates who have engaged in insurrection or rebellion from holding federal office.

In November 2023, a lower court in Colorado found that Trump “engaged” in insurrection on that cold and fateful day in the federal district. Still, the judge in the case stopped short of tossing the former president from the ballot due to a dispute as to whether or not the U.S. president qualifies as an “officer” of the United States — since the presidency was not explicitly listed on the operative clause.

In December 2023, the Colorado Supreme Court answered that question: ruling the president is such an officer and that Trump’s actions precluded him from running for president under Section III.

The Supreme Court quickly took up Trump’s appeal.

The nation’s high court set schedules in the case on an expedited timeline: oral arguments will be held on Feb. 8.

A similarly aggressive briefing schedule was attached to the typically terse order granting consideration of Trump’s petition.

“Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Thursday, January 18, 2024,” the docket reads. “Respondents’ briefs on the merits, and any amicus curiae briefs in support, are to be filed on or before Wednesday, January 31, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, February 5, 2024.”