Norma Anderson traces her long involvement in Colorado politics from her roots as a “Love girl” in the 1960s, working on the campaign of Republican Gov. John Arthur Love, to winning the post of Republican majority leader of the state Senate in the 2000s.
Now 91, she says with a laugh that her political journey may finally be nearing an end. But the resident of Denver suburb Lakewood is engaged in one last act — as the lead plaintiff in a case that has shaken American politics with its potential to bar former President Donald Trump, a fellow Republican, from the ballot this year as he seeks a return to the White House.
“My issue,” she said in a recent interview, “is saving our democracy.”
Her lawsuit, joined by several other current and former Republicans and steered by the liberal watchdog group Citizens for Responsibility and Ethics and in Washington, could be destined for the history books. It’s already resulted in Colorado’s highest court finding, in a 4-3 ruling, that Trump as the sitting president in early 2021 engaged in insurrection and was thus disqualified from holding the highest office in the land — and ineligible to appear on Colorado’s March 5 primary ballot.
On Thursday morning, lawyers will present oral arguments to the U.S. Supreme Court in a case that has spurred a flurry of national arguments and scholarship over a seldom-invoked clause in a Civil War-era amendment to the U.S. Constitution.
It will be the Supreme Court’s first-ever reckoning over the meaning of the 14th Amendment’s insurrection clause. Though the court has no timeline for issuing a decision, most observers think the nine justices will act with relative haste given that the presidential campaign is in full swing, with primaries underway. For now, Colorado’s Dec. 19 ruling is on hold and Trump remains on the ballot here.
The hearing comes as Trump faces a slew of other court proceedings, civil and criminal. On Tuesday, a federal appeals court ruled against Trump in a separate appeal in which he argued for broad presidential immunity from prosecution.
In the 14th Amendment case, the court has set aside 80 minutes for legal arguments — with Trump’s legal team getting half of that time while a lawyer representing the case’s plaintiffs is allotted 30 minutes. The remaining 10 minutes was granted to Colorado’s solicitor general, who will provide information and argument on behalf of Secretary of State Jena Griswold, who has asked the justices to uphold the state ruling.
But it’s likely the proceeding will last much longer as the justices pepper the lawyers with questions.
Heading into Thursday, here is a look at how the case is playing out in the myriad of briefs submitted to the justices by the parties and outsiders.
A historic challenge
The case is wrapped in legalities and technicalities over the specific verbiage of the amendment, 150-year-old definitions, Colorado’s election code, and the powers of its secretary of state — as well as philosophical arguments over voter disenfranchisement and choice.
Anderson didn’t need to weigh all of that before signing onto the case, though. She said she only needed to look through her copy of the Constitution and assess the events surrounding the U.S. Capitol riot on Jan. 6, 2021.
“They tried to overthrow an election. You don’t do that in the United States,” Anderson said. “That’s a threat to democracy. I am concerned about our country if everyone thinks that’s fine. And Donald Trump was the instigator of that — no one else.”
Other plaintiffs in the ballot-challenge lawsuit include former Rhode Island congresswoman Claudine Cmarada, who now lives in Colorado; Denver Post columnist Krista Kafer; Michelle Priola; Chris Castilian, the former deputy chief of staff to Colorado Gov. Bill Owens; and former Loveland City Council member Kathi Wright.
The crux of their argument is that Trump — through words, deeds and inaction — instigated and supported the mob of supporters who stormed the Capitol to disrupt the certification of the 2020 election, which he lost to Democrat Joe Biden.
Trump had spent months ahead of that whipping claims of voter fraud and stirring conspiracy theories about the legitimacy of the election. As someone who had taken an oath of office, that put Trump in violation of the 14th Amendment, they argue. The amendment’s Section 3 prohibits people from holding office if they previously swore an oath to the Constitution and then engaged in insurrection.
“The thrust of Trump’s position is less legal than it is political,” the challengers’ brief to the U.S. Supreme Court states. “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. Section 3 is designed precisely to avoid giving oath-breaking insurrectionists like Trump the power to unleash such mayhem again.”
The Trump team’s pushback
Trump’s legal team has challenged the foundation of the Colorado Supreme Court’s majority opinion. His lawyers argue that the presidency is not subject to the insurrection clause, since it is not specified among a listing of other elected offices.
Even if it were, they argue, Trump never engaged in an insurrection. Indeed, they note, the then-president posted a series of tweets during the riot instructing supporters to remain peaceful.
“The Court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots,” Trump’s attorneys wrote in their brief to the U.S. Supreme Court.
The Colorado case has already reverberated across the country, with Maine’s secretary of state citing the case in her decision to bar Trump from the ballot there in late December. That decision is also suspended, pending the U.S. Supreme Court’s decision.
Trump’s campaign did not respond to The Post’s request for comment ahead of the oral arguments, but it regularly has cheered when similar 14th Amendment challenges have fallen short in other states’ courts.
During the Denver District Court’s hearing in late October, campaign advisor Jason Miller castigated Citizens for Responsibility and Ethics in Washington as “a far-left organization” and the GOP plaintiffs as “Republicans in name only, to put it kindly.” Trump’s lawyers also have argued that numerous process fouls in the legal proceedings should render the findings moot.
Former GOP officials support barring Trump from office
More than a dozen Republican former governors and members of Congress signed onto briefs supporting the challenge of Trump’s eligibility. All but one, however, had left office before Trump ascended to the White House.
Both of those briefs argue the issue transcends partisan politics.
“For a democratic republic to survive, such treason or treachery once employed cannot be ignored or forgotten, lest the perpetrator seize the moment once again to betray the People and our Constitution,” says the former governors’ brief, submitted on behalf of Marc Racicot of Montana, Bill Weld of Massachusetts and Christine Todd Whitman of New Jersey. “Allowing this to happen would recklessly and irresponsibly risk the end of our republic.”
The brief from a dozen former members of Congress, including outspoken Trump critic Joe Walsh, argued that Jan. 6 represented “an attack on the Constitution itself.” The brief accused some of trying “to rewrite the history and significance of the insurrection.”
Current Republican leaders line up for Trump
The Colorado Republican Party quickly signed on to oppose the challenge of Trump’s eligibility. In addition to legal arguments made by Trump’s team, the party’s lawyers argued that barring Trump would disenfranchise Republican voters by keeping them from choosing their preferred candidate.
The party argued in its filings that its opposition was candidate-neutral, but a few weeks later, it did formally endorse Trump’s bid for the nomination, ahead of Colorado’s Republican primary.
Sitting Republican members of Congress, the Republican National Committee, the National Republican Senatorial Committee, and officials in more than 25 Republican-led states have filed separate briefs arguing in support of Trump’s appeal. Their arguments include that the ruling is a violation of people’s First Amendment right to support a candidate, that the ruling sidesteps Congress’ authority to execute or remove 14th Amendment requirements, and that letting the Colorado ruling stand would ignite chaos in an election year.
“The Colorado court’s decision will create widespread chaos,” argues a brief submitted on behalf of 28 state attorneys general. “Most obviously, it casts confusion into an election cycle that is just weeks away. Beyond that, it upsets the respective roles of the Congress, the States, and the courts.”
On Tuesday, more than 60 Congressional Republicans, including U.S. Rep. Lauren Boebert of Colorado, signed onto a resolution stating that Trump “did not engage in insurrection.”
Dueling historical contexts for the 14th Amendment
The insurrection clause has never been tested at the nation’s highest court, leaving unclear just how far it goes.
A group of scholars from Harvard and Yale universities who specialize in the history of constitutional amendments argue that the clause should be read to go all the way. The framers of the amendment, still reeling from the Civil War, intended it to automatically disqualify insurrectionists then and in the future from holding office — up to and including the presidency, argue Harvard’s Jill Lepore and Drew Gilpin Faust and Yale’s David Blight and John Fabian Witt.
“Future insurrections could be defeated by force of arms but ‘the battle may be still fought out in the legislative halls of the country,’ ” the scholars’ brief states, quoting from an 1866 Congressional committee report on Reconstruction. “Insurrectionists could take over state legislatures, state houses, Congress, the cabinet, and even the White House. Section Three was meant to prevent that possibility.”
But that interpretation is not universal.
University of Richmond law professor Kurt T. Lash argued in a dueling brief that the framers of the amendment worried about confederates working their way into the broader machinery of government and tearing it apart from there — not that a rebel would be elected president.
“No Republican seriously feared that the national electorate would place a former rebel like Jefferson Davis in the White House,” Lash’s brief states, referring to the former Confederate president. “Instead, Republicans feared that the leaders of the recent rebellion would use their remaining state level popularity to secure a seat in Congress or receive appointment to federal or state office — including that of presidential elector,” a position that allows participation in the Electoral College.
Section 3, the brief continues, “expressly and successfully addresses these specific concerns” — without infringing on the electorate’s right to choose its preferred candidate for president.