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Colorado Supreme Court. Image courtesy of KOAA

Being the first at anything can, by turns, be a triumph or a tragedy. But now, the Colorado Supreme Court is weighing whether it will be the first court in the nation to declare the name of former President Donald Trump ineligible to appear on the 2024 ballot because he incited an insurrection.

That “insurrection” part — was determined by a lower, Denver court.

The case known as Anderson et al. v. Griswold,  decided that while they couldn’t keep his name off the Colorado ballots, they framed their decision by pointing out that Trump did, in their opinion, incite an insurrection to attempt to stay in power. Both sides then appealed the decision to the Colorado Supreme Court.

Their decision and the arguments for a ruling keeping Trump off the ballot, fall under the 14th Amendment, a constitutional provision that generally bars insurrectionists from holding office. It was approved after the Civil War to keep folks like Jefferson Davis, Robert E. Lee, and any number of Confederates who had attempted to destroy the Union, from holding public office.

While some might say the January 6 attack on the Capitol was a little tourist visit, others and the Department of Justice have characterized it as both an insurrection and domestic terrorism. Trump’s attorney, Republican former Colorado Secretary of State Scott Gessler, argued that it wasn’t an insurrection.

Colorado Supreme Court. Image courtesy of courts.state.co.us

“Why isn’t it enough that a violent mob breached the Capitol when Congress was performing a core constitutional function?” said Justice William W. Hood III. “In some ways, that seems like a poster child for insurrection.”

Gessler responded, saying an insurrection required more than a “three-hour riot in one building.”

The fact is, Trump is under four criminal indictments with 91 counts, which include not just the January 6 attack on the U.S. Capitol. He declared the election fraudulent days before the election, created a fake elector scheme, and attempted to pressure Vice President Mike Pence to discard legitimate electoral votes and throw the election to the House of Representatives.

On January 6 Trump incited a mob of thousands to go to the Capitol and told them to “fight like hell”. He attempted to go there himself, apparently to lead the charge. When the Secret Service refused, he is reported to have tried to attack a member of his Secret Service detail, then spent hours inside the White House watching the attack being covered by news media and refusing to call off the mob that he had sent there, even though the entire Legislative Branch of the United States Government was threatened.

At least one of the Colorado Supreme Court Judges, Justice Melissa Hart, appeared skeptical that the purpose of the January 6 mob was to prevent the peaceful transfer of power to the Biden administration.

Courts in Michigan, Minnesota and New Hampshire have declined to answer the question of Trump’s ballot eligibility, which has focused more attention on what is being considered in Colorado.

Colorado Secretary of State Jenna Griswold, has not taken a position in court on Trump’s eligibility, except to argue that political parties are not the sole arbiters of who is qualified to appear on the ballot.

The deadline to certify Colorado’s presidential primary ballot is Jan. 5, 2024.