Hilary Rudy, deputy director, elections division, Colorado Department of State, testifies during a hearing for a lawsuit to keep former President Donald Trump off the state ballot on Wednesday, Nov. 1, 2023, in Denver. (AP, pool/Jack Dempsey)
A top Colorado elections administrator was called to the witness stand Wednesday in a trial that could determine whether former President Donald Trump will be disqualified from the state’s 2024 presidential ballot under a Civil War-era insurrection clause.
A group of six Republican and unaffiliated Colorado voters have sued Secretary of State Jena Griswold in state court, arguing that Trump, through his actions in relation to the Jan. 6, 2021, attack on the U.S. Capitol, “engaged in insurrection,” and therefore is ineligible to hold office under Section 3 of the 14th Amendment.
Griswold, a Democrat, is an outspoken Trump critic who has said the former president did “incite an insurrection and attack our democracy.” But she has declined to take a position on Trump’s eligibility under Section 3, inviting a court to weigh in first. Trump submitted initial paperwork for his 2024 candidacy on Oct. 11, but Griswold’s office has said it plans to “hold Mr. Trump’s application pending further direction from the Court,” according to a filing.
Attorneys for Griswold, following precedent set by previous legal challenges to candidate eligibility, don’t plan to present evidence on behalf of either party to the trial. But Hilary Rudy, deputy director of the secretary of state’s Elections Division, appeared in court to explain the division’s decision-making process.
“It’s the secretary’s position that if we have affirmative information that a candidate is not eligible for office, then we will not certify them,” Rudy said. “In cases where it’s very clear, we’ll go ahead and exclude a candidate from the ballot.”
Such cases could include instances in which an individual is under the age of 35, or an individual who does not attest to be a natural-born citizen. Rudy discussed one such case from 2012, in which Abdul Hassan, a naturalized U.S. citizen born in Guyana, sought to qualify for the presidential ballot and was rejected.
It’s the secretary’s position that if we have affirmative information that a candidate is not eligible for office, then we will not certify them ... In cases where it’s very clear, we’ll go ahead and exclude a candidate from the ballot.
– Hilary Rudy, deputy director, Colorado Elections Division
Hassan sued over the rejection, and the case ultimately produced a ruling by the Denver-based Court of Appeals for the 10th Circuit, in which future Supreme Court Justice Neil Gorsuch affirmed a state’s right to “exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Rudy said she couldn’t recall if any other presidential candidate had been summarily barred from the ballot in a similar manner during her time at the Elections Division.
In other, less clear-cut cases in which a candidate’s eligibility is in dispute, Rudy said that the division’s ballot access team will “escalate” the matter to the deputy secretary of state, and potentially await guidance from the courts.
Colorado’s Republican presidential primary is scheduled to be held on March 5, 2024. The deadline to certify the candidates who will appear on the primary ballot is Jan. 5.
“We’re not at the certification deadline, and it is our practice that when there is an ongoing legal challenge to our office’s determination about a candidate’s qualification, we wait for that outcome,” Rudy said.
Martha Tierney, an attorney for the plaintiffs, attempted to ask Rudy about “threats to election officials in the state,” but Judge Sarah B. Wallace blocked the line of questioning.
Griswold, a prominent critic of pro-Trump conspiracy theories alleging widespread fraud in U.S. elections, has sought additional security for herself and her office in recent years. A Denver man was convicted in April on one felony count of retaliation against an elected official for a threatening phone call made to Griswold last year. Speaking at a 2022 event, Shawn Smith, a prominent Colorado election denier with ties to Trump ally Mike Lindell, said, in reference to Griswold, that those “involved in election fraud … deserve to hang.”
Trump attorney Scott Gessler objected to Tierney’s question about threats, saying the subject was “irrelevant to this case.” Tierney argued that “threats can be tied to some of the Jan. 6 activity,” but Wallace sustained Gessler’s objection.
Earlier on Wednesday, Gerard Magliocca, an Indiana University law professor, gave testimony about the historical context in which Section 3 of the 14th Amendment was passed, and how it was interpreted and enforced.
Magliocca cited an 1867 opinion by Attorney General Henry Stanbery, which held that those who “by speech or by writing, incited others to engage in rebellion” would be disqualified under the amendment, which was then awaiting ratification by the states.
Following the conclusion of testimony from plaintiffs’ witnesses before noon on Wednesday, Trump’s attorneys entered a motion to expedite a verdict in the trial. They argued the plaintiffs had failed to satisfy a so-called Brandenburg test, named for the 1969 Supreme Court case Brandenburg v. Ohio, distinguishing incitement to violence from speech protected by the First Amendment.
‘This case is entirely about President Trump’s speech,” Gessler said. “They don’t argue that he engaged in any sort of physical, overt actions. It is all speech. That’s the entirety of their case.”
“What President Trump did that day was not incitement, under very well established First Amendment principles,” Gessler added.
In response, Jason Murray, an attorney for the plaintiffs, cited Magliocca’s testimony and argued that Trump’s words and actions in relation to Jan. 6 were “classic incitement.”
“He incited the mob with his speech at the Ellipse,” Murray said. “Trump used violent language referring to fight or some version of that 20 times … He told them, ‘You do not take back our country with weakness,’ and he repeatedly painted a target on the backs of Vice President (Mike) Pence and members of Congress.”
Wallace denied the motion for an expedited verdict, noting the “conflict” between the Civil War-era history of disqualifications under Section 3 and the relevant First Amendment cases.
“The court is not prepared today to reconcile those two bodies of law,” Wallace said.
The trial continued on Wednesday afternoon with testimony from witnesses called by Trump’s team, beginning with Kash Patel, former chief of staff to acting Secretary of Defense Christopher Miller under Trump, and former Trump communications advisor Katrina Pierson.
Colorado Newsline is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: [email protected]. Follow Colorado Newsline on Facebook and Twitter.
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