Coloradans who sought to bar Donald Trump from the ballot now reckon with his return to office

Norma Anderson, the lead plaintiff in the case that sought to bar Donald Trump from Colorado’s ballot over the Jan. 6, 2021, attack on the U.S. Capitol, recalls a shimmer of optimism after the U.S. Supreme Court heard arguments. At a Washington, D.C., airport, a person asked for her photo.

So did another during a layover in Chicago, and so did a hostess at a restaurant near her Lakewood home. All of them were people who wanted proof they had met the now-92-year-old lifelong Republican who launched a legal fight that could have, for the first time in the nation’s history, disqualified a major party candidate — and one-term former president, at that — from the Oval Office.

The key word there: Could.

Anderson, a former Senate majority leader in the state legislature, and several other plaintiffs led a case that forced the U.S. Supreme Court to reckon with a Civil War-era amendment designed to keep former Confederates from the levers of power. She and the other plaintiffs saw victories at the state level, including the Colorado Supreme Court’s narrow ruling barring Trump from the ballot here. But the case ultimately fell when the federal justices unanimously ruled in early March that states don’t have the power to enforce the insurrection clause of the 14th Amendment.

Reflecting on the case following Trump’s decisive win in the Nov. 5 election, Anderson doesn’t see a moral victory in the courts holding that Trump engaged in insurrection for his actions following his 2020 election loss, while allowing him to stay on the ballot. But — despite the loss at the courts and Trump’s electoral win — she sees it as a fight worth having.

“We did not succeed,” Anderson said in an interview before Thanksgiving. “But we gave notice to everybody.”

For the Trump campaign, still celebrating its general election victory, the historic case was a footnote — one overridden by the tens of millions of voters who put Trump back in the White House. As of Wednesday, Trump received 49.9% of the popular vote to Vice President Kamala Harris’ 48.3%, with a 312-226 win in the Electoral College.

“The Colorado Supreme Court’s decision was as wrong as wrong could be,” Dave Warrington, the general counsel for the campaign, said in a statement. “Out of 96 court cases, only the Colorado court (plus a copycat lower court in Chicago) bought off on this eccentric legal theory. And a unanimous U.S. Supreme Court overturned Colorado’s decision. Likewise, President Trump’s historic victory … showed that American voters overwhelmingly reject anti-democratic lawfare.”

“The rule of democracy at work”

The case, brought by Anderson and a handful of other Republican and unaffiliated Colorado voters, started in September 2023 with a lawsuit to bar Trump from Colorado’s primary ballot.

They invoked a rarely tested clause of the 14th Amendment to the U.S. Constitution that barred people who previously swore an oath to the Constitution, and then engaged in insurrection, from holding office. After a weeklong trial in Denver District Court, they won some traction when Judge Sarah B. Wallace ruled Trump did engage in insurrection. But it was a partial victory for Anderson and her team: Wallace also ruled that Trump could remain on the ballot because it wasn’t clear if the amendment applied to the highest office in the land.

The judgment put the case on a fast track for the Colorado Supreme Court, which narrowly ruled Trump was disqualified from office, and then the U.S. Supreme Court, which ruled individual states could not disqualify federal candidates.

Trump, who at the time faced numerous state and federal indictments, leveraged the ruling as a vindication — and an example of political warfare levied at him through the judicial system.

During his Aurora rally at the tail end of the campaign this fall, Trump called the Colorado lawsuit a “threat to democracy” and called the U.S. Supreme Court “very brave and very brilliant” for its unanimous ruling that he could remain on the ballot.

“This was actually part of the weaponization (of the judicial system),” Trump said at the Oct. 11 rally. “Their first move was to try to get me off the ballot. They didn’t want to run against me.”

A month later, the case would prove to be an afterthought — if it was a thought at all, among the dozens of issues facing the nation — for millions of Trump voters who delivered the Republican candidate the party’s first popular vote victory in a generation. (Trump won the electoral vote in 2016, while losing the popular vote.)

The 2024 win underscored one of the key arguments from Trump’s legal team as the case winded through the courts: The 14th Amendment does not specify the presidency as on office insurrectionists cannot hold, even as it names senators, U.S. representatives and individual presidential electors; when it comes to the highest office in the land, voters should be the ultimate gatekeeper. 

“That would be the rule of democracy at work,” Scott Gessler, a lead attorney for Trump and a former Colorado secretary of state, told the Colorado Supreme Court last December.

Trump’s team also vigorously fought the label of insurrection for the Jan. 6 attack and rejected that the president played any role in the event.

Anderson, like most Colorado voters, cast her ballot for Harris — though, she laughs, “it was pretty hard for me to vote for a Democrat.” 

“(The national vote) surprised me, with people knowing what he did on Jan. 6, at the Capitol,” Anderson said. “That is insurrection. He may not have gone there, but neither did (Confederate President) Jefferson Davis do anything but talk until the war started.”

“This too shall pass”

Even with the election results, Anderson notes that Trump still bears the judicial designation of insurrectionist. It’s a point Donald Sherman, the executive director of the liberal watchdog group Citizens for Responsibility and Ethics in Washington, likewise hews to. CREW helped lead the lawsuit with Anderson and other Coloradans. 

Both disagree with the U.S. Supreme Court’s final ruling.

Sherman described the decision as “punting” the enforcement of the Constitution to Congress, knowing the highly partisan body likely wouldn’t act. It, in effect, put a constitutional provision up to a popular vote — undercutting the very purpose of a constitution, he argued. 

“What the court effectively did in (the case) is say this one provision, we’re going to put that up to a vote,” Sherman said in an interview. “… And (the voters are) going to make whatever choice they make with the information they have. And unlike the former president, I respect that result.

“But there are some questions — like whether an oath-breaking insurrectionist should become president of the United States — that the Constitution answered already.”

This case was not about one candidate, or one election, Sherman said, but about the rule of law in a constitutional democracy. Among other criticisms of the justices’ ruling, he called it disrespectful to those involved, including his clients and judges who suffered harassment; to police officers attacked by the mob on Jan. 6; and down to the Civil War soldiers who died in the conflict that led to the amendment.

“What this case (did), and what the Colorado Supreme Court did, at least, will be studied,” Sherman said. “And the U.S Supreme Court’s abdication of responsibility will be studied. I’m grateful that our clients were willing to take that risk, for our country.”

And, he added: “History will not record the justices of the U.S. Supreme Court in a high regard.”

Mario Nicolais, a Lakewood attorney who worked on the case — and a former Republican — noted that the decision preceded another ruling that found presidents enjoy broad immunity for official acts that may otherwise skirt the law.

The two cases, taken together, represent “the single greatest leap forward in presidential power since the Great Depression,” Nicolais said in an interview. And together, they shook his faith in the nation’s institutions.

“Now we know there’s no check for a person who engaged in insurrection, and also there’s now this broad, broad immunity that arguably Trump could use — and has already used in court cases — to say ‘I can do whatever I want,’ ” Nicolais said.

Trump has promised through the campaign and during the transition to seek retribution against political enemies if he returns to office. He’s accused some of treason. He doesn’t direct his ire toward Colorado’s plaintiffs so much as he does at other enemies, leaving Anderson, Nicolais and Sherman less concerned about being targeted.

But still, some worry remains.

Nicolais noted that Trump never showed up in person for the Colorado court hearings a year ago. He expected that people who sought, and won, criminal convictions would likely face harsher retribution from the Trump White House.

And Anderson joked: “What can you do to an old lady?”

“We are going to stay vigilant,” Sherman said. “That’s all you can do: Stay vigilant and take the necessary precautions you have to take. But people have sacrificed a lot more for our democracy, to make our country live up to its stated goals. I remain ever hopeful for the best and continue to prepare for the worst.”

As for Anderson, she holds on to a gleam of optimism, though she doesn’t discount the gravity of the case she spurred or her continuing criticism of the incoming president. 

“This too shall pass,” Anderson said of a person found in court to be an insurrectionist heading to the White House. “We just have to hope we still have a Constitution when he’s gone.”

Stay up-to-date with Colorado Politics by signing up for our weekly newsletter, The Spot.