This story by Chase Woodruff appeared on Colorado Newsline on September 11, 2023
An attorney representing former President Donald Trump in a lawsuit seeking to disqualify him from running for president in Colorado has a history with some of the constitutional issues raised by the suit — as the victor in a 2012 case that plaintiffs repeatedly cited as bolstering their argument for blocking Trump from the ballot.
Republican attorney Scott Gessler, who is representing Trump in the suit brought last week by the watchdog group Citizens for Responsibility and Ethics in Washington on behalf of six Colorado voters, served one term as Colorado’s secretary of state from 2011 to 2015.
In that capacity, he was the defendant in a lawsuit brought by Abdul Hassan, a naturalized U.S. citizen born in Guyana who challenged Gessler’s decision to block him from Colorado’s 2012 presidential ballot. Among other arguments concerning the Constitution’s requirement that presidents must be natural-born citizens, Hassan argued that even if he were ineligible to “assume the office” of president, states like Colorado didn’t have the authority to bar him from merely seeking office through the ballot.
That’s one of several major constitutional questions raised by CREW’s lawsuit, which argues that Trump is ineligible to hold office under a provision of the 14th Amendment that bars from office certain people who have engaged in “insurrection or rebellion” against the U.S. government. It’s a point of uncertainty specifically cited by current Colorado Secretary of State Jena Griswold, a Democrat who is also named as a defendant in the lawsuit, and who has declined to take a position on the matter before courts weigh in.
In 2012, Gessler defended his authority as secretary of state to make such a determination and block would-be candidates from the ballot.
“The Secretary further affirmatively states… that, in accordance with Colorado law, any candidate who does not meet the minimum Constitutional requirements for the office of the Presidency may not be placed on the ballot for that office,” the state’s attorneys wrote in an April 24, 2012, federal court filing.
The case ultimately reached the Court of Appeals for the 10th Circuit later that year, where a panel of three appellate judges sided with Gessler. In a ruling authored by future Supreme Court Justice Neil Gorsuch, the court expressly affirmed a state’s right to deny ineligible candidates “a place on the ballot.” Gorsuch’s opinion in Hassan v. Colorado is cited twice in CREW’s lawsuit against Trump and Griswold.
“A state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office,” Gorsuch wrote.
Gessler did not immediately respond to a request for comment.
In an unsuccessful bid for chair of the Colorado Republican Party in 2021, Gessler echoed Trump’s false claims that the 2020 presidential election was stolen — claims that congressional and criminal investigations have described as part of a sweeping plot to overturn the election that culminated in the Jan. 6, 2021, attack on the Capitol by a pro-Trump mob.
During his term in office, Gessler was a vocal promoter of allegations of voter fraud, which elections experts and law enforcement agencies have consistently found is extremely rare, and which advocates criticize as a pretext for efforts to suppress legitimate votes. In the aftermath of the 2012 election, Gessler announced that he had referred 155 suspected cases of voter fraud to local prosecutors across Colorado. Only four people were charged, and prosecutors ultimately only secured a single conviction.
In an MSNBC interview on Saturday, Griswold called Trump a “liar with no respect for the Constitution” who had “incited an insurrection,” but maintained that courts should settle the question of how the 14th Amendment should be applied.
“It’s not a cut-and-dry case, and that’s why it’s important that we’re seeing this litigation,” Griswold said. “Whether the Constitution bars him or not, I can’t say that right now. But I can clearly say that Donald Trump is a threat to American democracy.”
Gessler and other Trump attorneys last week filed for a so-called snap removal of the 14th Amendment case from state court to the U.S. District Court of Colorado, citing the “underlying federal constitutional issue in dispute,” which they say must be settled in federal court. But attorneys for the plaintiffs, calling the snap removal “procedurally defective,” have filed a motion to remand the case back to state court. A federal judge on Monday ordered Trump’s attorneys to respond to the motion by yesterday at noon.