The NPR Politics Podcast - How A Colorado Trial Could Force Trump Off The Ballot

Episode Date: October 31, 2023

A suit filed in the state alleges the former president is ineligible to seek public office based on a provision in the 14th amendment to the U.S. Constitution. What does the suit claim, and what could happen next? This episode: voting correspondent Ashley Lopez, Colorado Public Radio public affairs reporter Bente Birkeland, and national political correspondent Mara Liasson.The podcast is edited & produced by Casey Morell and Elena Moore. Our executive producer is Muthoni Muturi.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Ben from Hendersonville, Tennessee. I am not here to outdo anyone. I am doing absolutely nothing of note right this moment. That's great. This podcast was recorded at 12.08 Central Time on Tuesday, October 31st, 2023. Things will probably have changed by the time you hear it. Okay, here's the show. I love, love, love that. Let's do less, guys. Hey there, it's the NPR Politics Podcast. I'm Ashley Lopez. I cover voting. And I'm Mara Liason, national political correspondent.

And joining us today is Benta Berkland from Colorado Public Radio. Hey, Benta. Hey, thanks for having me. And we're in Colorado today. Benta, you're actually at a courthouse right now because there is a hearing involving the 2024 presidential election and whether or not former President Donald Trump is eligible to be on the state's primary ballot. Benta, this argument hinges on the 14th Amendment to the U.S. Constitution. And at risk of getting

a little schoolhouse rock here, remind us why that's a factor in this hearing. Yeah, so the 14th Amendment says that anyone who's been in the military or held elected office and taken an oath to uphold the Constitution and then engages in an insurrection or a rebellion against the nation cannot hold office again. And so this was adopted after the Civil War, but it's almost never been used since then. And this case in Colorado is one of a number of efforts across the country to try to get this so-called disqualification clause applied to former President Trump. Well, let's get a little backstory here. I mean, who's bringing this case and like, why are they doing it? Yeah. So this is from the liberal group Citizens for Responsibility and Ethics in Washington.

They're spearheading the effort, along with four Republican voters in Colorado and two unaffiliated voters. And they argue that Trump's words and actions when he tried to, quote, dishonestly and unlawfully overturn the 2020 election results, they say through multiple avenues. And then some in tens of thousands of people who were enraged to the U.S. Capitol on January 6th. They say that's disqualifying and that he should not be on the ballot. And I talked to Trump's attorney. He's a former Colorado secretary of State, Scott Gessler. And he, along with the Trump campaign, said, look, this case amounts to election interference. They say there was no insurrection. And it's just an effort to keep Trump off the ballot.

Their case is incredibly weak and they don't prove much of anything except they dislike him. That's really what they've proved. The best they have is trying to be a mini-me January 6th report. That's the best they've got. Look, in a democracy, no one should be above the law. But the idea that a Colorado court could take someone off the ballot, deny voters a chance to vote for or against that person, also seems undemocratic. I think because Trump has pushed the boundaries so much and destroyed so many guardrails, we're finding ourselves in situations that are really unprecedented where either alternative, not prosecuting him,

not convicting him for things, or convicting him for things, both of them seem to have very dire consequences for our democracy. Yeah. And I wonder what Colorado voters make of this, because in essence, this would be taking at least part of the choice away from them. Benta, what have you heard from folks in Colorado about this case? Well, I actually was out in some rural areas recently and some Republican strongholds, and I talked to Republican voters about this case and they all had fairly similar views on the case itself. They may had different ideas about whether there was actually an insurrection, whether some of the people who participate in

January 6th should be prosecuted. But in terms of this case regarding Trump, they said it's ridiculous, it's wrong, it's undemocratic. One woman said she can't believe what's happened to her state. And then a man I interviewed told me that, look, if this lawsuit succeeds, he said he will still write Trump's name on the ballot, even if it doesn't count. And he said a lot of people in his community will do that because, quote, what they are doing is wrong. And interestingly, even some Democrats I talked to aren't entirely sold on this lawsuit and the strategy here. One Democrat is a state representative, Chris Degree Kennedy. And he said, look,

he does believe Trump engaged in an insurrection. That is a disqualifying offense. But also, you know, in the grand scheme of how divided our country is, I don't know whether that's the right way to go forward. I think that there's a subset of the electorate that's going to feel really aggrieved. The best way to win in a political environment is by persuading the voters that you're right. And Ben, you mentioned that there are Republican voters who said if Trump is not on the ballot during the primary, that they will be writing in his name. Can you talk to me about how that would work?

Yeah, so you can write in a candidate, but in Colorado, writing candidates do have to be approved by the Colorado Secretary of State for those votes to be counted. So if this lawsuit were to succeed and Trump's name is not put on the primary ballot, those write-in votes would not count. But I think just psychologically,

because a lot of Republicans here feel like their state is already being taken away from them in a sense because Democrats control every level of government here. And that didn't used to be the case a few cycles ago. Colorado was a politically purple swing state. And so the pockets of the state that I've been visiting recently that are deeply conservative, this is just another example in their minds of things being taken away, them not being full participants if they don't get to choose their

candidate in the primary election. So they feel very grieved in that this will be extremely wrong and undemocratic. So I don't know how things would escalate or how people would feel, but I think if this were to succeed, it would increase the partisan divisions in the state even more than they already are. And, Mara, there's already a case involving the former president and his alleged role in the January 6th insurrection, which I guess is worth noting. And it's in a U.S. district court right now in Washington. I wonder what you make of this effort in Colorado, considering that he's already facing sort of a barrage of,

like, related legal troubles. I'm not a constitutional lawyer. What I understand from legal experts is that this case in Colorado has a pretty slim chance of prevailing. But the January 6th insurrection, whether he tried to overturn a free and fair election by encouraging his supporters to go up to the Capitol and pressure Congress to throw out electoral votes, that is something that I think maybe has a better chance of succeeding. But again, it raises the same questions. And what if it does? Do you send the leading Republican presidential candidate to jail? Is that a good thing for our democracy or not? Yeah. I mean, this is complicated because, you know, I actually did a story about the first person to be basically convicted under this part of the 14th Amendment. It was a county official in New Mexico. And, you know, I talked to ethics officials who said there is actually a real cost to not prosecuting people for stuff like this. It leads to what they call like democratic

backsliding. It's like a real problem to not penalize people for sort of going counter to the U.S. Constitution. It's why this amendment is there in the first place. So, or at least this section of the amendment is there. So it's going to be interesting to see how this plays out because there's been at least one instance of someone not being able to run for office again because of this. But I'll leave it there for now.

Okay, let's take a quick break and more in a moment. And we're back. Mara, there are similar cases to this one in Colorado pending in Minnesota and in Michigan. I mean, when you look at the electoral map, Michigan's a swing state. Obviously, Colorado has trended Democratic in the last few cycles. And Minnesota is reliably Democratic. Do you think, like, the geography of where these cases are filed right now makes a difference? No, I don't think it matters.

I just think the very fact that Trump is being sued or there are cases trying to get him off the ballot anywhere is potentially incendiary. And on the other hand, as somebody that you talked to said, if these cases are not brought, it's going to encourage other people to foment insurrection. So I think we're stuck between a rock and a hard place. Yeah. But at the same time, Mara, there's a difference between the courts and the court of public opinion, as you mentioned. I mean, do you see conflict here? Absolutely. I've always thought that for people who don't want Donald Trump to be the president, the answer is voters, not prosecutors. I just think that we live in a democracy and voters should have the last word. And if they like what Donald Trump is selling, well, he's going to be the president again.

And if they don't, like they changed their minds in 2020 after he was elected in 2016, he won't. Now, the other thing you have to consider, and I don't think that prosecutors consider this because no one's above the law, but what if he was convicted on any of these counts? He has 91 counts against him, plus there's this suit in Colorado. What does that do? Does that inflame his supporters? Does that destabilize our democracy even more? I don't know. What's also interesting is, you know, as we mentioned, Colorado's trended blue. Democrats control state government here. So this case to keep Trump off the ballot in Colorado, the primary ballot, and prevent him from being the GOP nominee, even if he is the GOP

nominee for president, Colorado is not a state that's going to back President Trump. They haven't the last few cycles. So the reason Colorado was picked for this case, supporters of the lawsuit say it's because Colorado's state law requires ballot access challenges to move through the courts very quickly. So the goal here is to try to see if other states would follow suit if this lawsuit is successful. Yeah, and to Morrow's point, I mean, I always wonder if, like, both sides, I think a big point of contention is that each side sort of thinks, like, the other side is playing dirty.

And I can't imagine how, like, the outcome of, like, even putting, like, even somehow getting Trump off the ballot could inflame that intention that already exists. Well, sure, his supporters will see it as yet another witch hunt, like they see all the other cases against him. Benta, we said at the top that this is day two of the hearing. How long are things expected to go on with this case? And what will you be specifically watching for in the courtroom as this progresses? So the case is expected to take about a week. And, you know, the first day was very much focused on showing that there was an insurrection on January 6th and showing a lot of the violence and hearing firsthand accounts of what happened that day. law experts to talk about the 14th Amendment, what it means, and experts trying to link Trump's words or not to the January 6th riot. So I think, you know, the next few days will be a lot more expert testimony. And the judge here said she hopes to have a decision around Thanksgiving.

Okay, we'll leave it there for today. Benta Berkland from Colorado Public Radio. Thanks so much. Thanks. Happy to be here. I'm Ashley Lopez. I cover voting. And I'm Mara Liason, national political correspondent. And thank you for listening to the NPR Politics Podcast.