The Colorado Supreme Court's decision to quote a current U.S. Supreme Court judge while removing Donald Trump from the state ballot is a very good sign that the ruling will be upheld, an attorney involved in the case has said.
Mario Nicolais, an attorney and one of the six Colorado voters to bring the lawsuit to remove Trump, spoke after the Colorado Supreme Court ruled that the former president should be removed from the state ballot because of his role in the January 6 uprising in the Capitol building.
The historic case could destroy Trump's chances of becoming president and opens up the prospect of more ballot challenges to his candidacy in other states.
In its decision, the Colorado Supreme Court quoted Neil Gorsuch, who was a Colorado judge when he blocked a presidential candidate from the state ballot in 2012. In the 2012 ruling, Gorsuch noted that the independent candidate, Abdul Hassan, was born in Guyana, which excluded him from running for president and that Colorado has the right to set its own ballot rules.
"One of the things that you'll find in this ruling is some reliance is based on writings of Neil Gorsuch -- Justice Gorsuch -- and what he had to say about protecting ballots from people who did not belong on them," Nicolais told CBS News after Tuesday's Colorado Supreme Court decision. "So I think there's actually a very good chance we can win at the U.S. Supreme Court level."
Elie Mystal, justice correspondent for The Nation and an Alfred Knobler Fellow at The Type Media Center in New York, wrote on X, formerly Twitter: "I love how the Colorado decision directly quotes Neil Gorsuch's states' rights opinions. I mean, Gorsuch will probably turn into a sniveling hypocrite and reject his own argument, but it's a nice touch from his former stomping grounds."
Several people posted Gorsuch memes on social media after the Colorado ruling. One depicts him supposedly banging his desk while reading the decision, another shows a person doing back flips, which is jokingly referred to as Gorsuch trying to come up with logic to get past his own previous ruling.
Newsweek sought email comment from Gorsuch's office on Wednesday.
Colleen Kerwick, a federal attorney, told Newsweek that, in quoting Gorsuch, the Colorado Supreme Court "recognizes that the U.S. Supreme Court is likely to grant certiorari" and therefore quoted Gorsuch in the Hassan case as saying that it is "a state's legitimate interest in protecting the integrity and practical functioning of the political process" that "permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office."
"This is related to the State's authority to assess a presidential candidate's qualifications," Kerwick said.
However, Hassan differs significantly from Trump's case in that Hassan was not born in the U.S. and was therefore automatically excluded from running for president, whereas the issue of whether Trump was involved in insurrection is a matter of interpretation.
The part of the Constitution that blocks those who have engaged in insurrection from office, section 3 of the 14th Amendment, has not been invoked since the post-Civil War era and was designed to keep former Confederates from the presidency.
Kerwick said that the Supreme Court "may decide that the antiquated law should not be enforced" as it could have disqualified Black Americans who rightfully rose up against injustice from taking political office.
"Not all antiquated laws are enforced. For example, NY Penal Law Section 255-17 says that adultery is currently a crime punishable by jail time in New York, but we rarely see philandering celebrities in handcuffs on the cover of the tabloids," she said.
Supreme Court Justice Clarence Thomas is separately under intense pressure to recuse himself from Trump cases because of his wife's alleged support for efforts to overturn the 2020 presidential election result.
On December 15, House Democrats called on Justice Thomas to recuse himself from Trump cases. In a letter to Thomas, the Democrats cited involvement by Thomas' wife, Virginia "Ginni" Thomas, in alleged efforts to overturn the 2020 presidential election and the Supreme Court's recently drafted ethics code.
"We strongly implore you to exercise your discretion and recuse yourself from this and any other decisions in the case of United States v. Trump," Representative Hank Johnson, the ranking Democrat on the House Judiciary Committee's court subcommittee, and seven other Democrats wrote.
Newsweek sought email comment from Thomas on Tuesday.
Ginni Thomas attended a Trump rally held shortly before thousands of his supporters stormed the Capitol on January 6, 2021.
She was questioned by the Congressional January 6 committee, but faced no charges. Her lawyer has previously said she had no role in the January 6 riot.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more
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