(A coalition of 19 attorneys general filed a brief with the Colorado Supreme Court arguing an appeal to keep former President Donald Trump off the primary ballot can’t be decided by the courts.
The 41-page brief—led by Republican attorneys general Patrick Morrisey of West Virginia and Theodore Rokita of Indiana—argues Congress should decide any alleged violation of the 14th Amendment of the U.S. Constitution.
The brief states the “courts have no business second guessing Congress’s decisions to enforce—or not enforce—the Clause,” referring to the insurrection clause in the amendment.
“The Fourteenth Amendment entrusts Insurrection Clause questions to Congress—not state officials or state courts,” the brief states. “The Amendment vests Congress with ‘power to enforce’ the Insurrection Clause ‘by appropriate legislation’ and power to ‘remove [the] disability’ it imposes.”
The brief was filed on the same day as a brief by three Republican secretaries of state arguing the case should be dismissed because District Court Judge Sarah Wallace described Trump as an “insurrectionist.”
Judge Wallace ruled in favor of Trump earlier this month. Although she wrote Trump’s speech on Jan. 6, 2021, “incited imminent lawless violence,” his words didn’t meet the amendment’s requirement of “engagement.”
The attorneys general argued the definition of “insurrection” shouldn’t be decided by the courts.
“For example, the term ‘insurrection’ is hardly as well defined as the district court let on,” the brief stated.
“And allowing each state and its courts to determine eligibility using malleable standards would create an unworkable patchwork of eligibility requirements for President,” it added. “… In truth, an ‘insurrection’ is more serious than the district court’s definition supposes. Where the Constitution uses the term ‘insurrection,’ that term appears alongside terms like ‘invasion’ and ‘rebellion.’”
The brief aligns with arguments submitted by the secretaries of state regarding a prediction of “electoral chaos” if a party’s presidential candidate appears on some state primary ballots but not on others.
The brief states the Trump’s impeachment by the House of Representatives after Jan. 6, 2021, and subsequent acquittal by the Senate shows Congress hasn’t found him guilty of an infraction under the Constitution.
“Congress, then, has rendered its judgment—and it disagrees with petitioners’ view that former President Trump engaged in insurrection,” the brief states. “Petitioners want this Court to try again, but ‘[f]ailure of political will does not justify unconstitutional remedies.'”
Attorneys general from Alabama, Alaska, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming joined Morrisey and Rokita in filing the brief.
The Minnesota Supreme Court ruled in favor of Trump in a similar case and an appeal in Michigan is ongoing.
