Former President Donald Trump is two for two in Republican presidential primaries, picking up an easy win in New Hampshire on Tuesday.
While Trump seems set to cruise to the nomination later this summer, Republicans in Congress want to make sure he stays on the ballot everywhere.
Florida Sens. Marco Rubio and Rick Scott joined Sen. Ted Cruz of Texas in calling for the U.S. Supreme Court to reject Colorado’s decision to boot Trump from its ballot.
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In all, 176 GOP lawmakers joined the trio of senators in offering a “friend of the court” brief opposing Trump’s removal by the Democratic majority on the Colorado Supreme Court.
The nation’s highest court will hear arguments in Trump’s appeal on Feb. 8. Trump is declaring that the Colorado court erred by invoking the Section 3 of the 14th Amendment, thus declaring him ineligible for participating in an “insurrection.”
The ruling was rooted in Trump’s alleged action on Jan. 6, 2021, during the riot at the U.S. Capitol.
In their 37-page brief, the GOP lawmakers assert that Congress must pass a law implementing Section 3, and that has not happened. They also note Congress decides who is eligible for federal elections and offices. Finally, they claim Congress can rectify a Section 3 ineligibility claim by a two-thirds vote.
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One argument they make is that Section 3 does not apply to Trump because he was president at the time of the riot. Section 3 declares that an “officer” of the U.S. government is disqualified for participating in an insurrection.
The Constitution’s “textual indicators confirm that Section 3 simply does not apply to someone whose only former governmental position was President of the United States,” they wrote. “This makes sense in historical context.”
“When the Fourteenth Amendment was enacted, the only former President who had joined the confederacy, John Tyler, was dead. The framers of the Fourteenth Amendment had little reason to worry about a former President being elected, so they did not include it in Section 3.”
The lawmakers also argued that the Colorado court’s description of Trump being “engaged in” an insurrection on J6 was “vague” as well as “malleable and conveniently applied.”
“In polarized times, it is easy to cast an opponent’s rhetoric about the outcome of elections as encouraging others to obstruct the peaceful transfer of power. According to President Biden, a sizable portion of the Republican electorate, if not all of it, is determined to destroy democracy,” they noted.
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“The Colorado Supreme Court’s opinion so broadly interpreted ‘engage in’ that it sailed right past President Trump’s repeated statements to his supporters — both before the breach of the Capitol and after it was breached — telling them to act peacefully and that he later told them via video to “‘go home now,’” they added.
“It is hard to imagine an actual insurrectionist quickly asking for peace and encouraging disbandment. But once ‘engage in’ is defined so broadly, even significant countervailing evidence can simply be labeled as a ruse, as insufficient, or even as an implied recognition and praise of ongoing violence.”
Scott has denounced the Colorado ruling, saying the “liberal activist judges in Colorado are following the same playbook as [Venezuelan President Nicolas] Maduro and [Cuban dictator Fidel] Castro. Democrats’ gross attempts to silence or disenfranchise American voters will never stand.”
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