Denver judge SLAPPs down Trump motion to dismiss ballot challenge
DENVER (CN) — A Denver judge on Wednesday slapped down former President Donald Trump’s anti-SLAPP motion to dismiss a lawsuit filed by voters seeking to bar his name from appearing on the Republican primary ballot in March.
Putting politics aside, Second Judicial District Judge Sarah Wallace wrote in her 22-page opinion that it is in the public’s best interest to “ensure that only constitutionally qualified candidates can seek to hold the highest office in the country."
Wallace was appointed to the bench by Democratic Governor Jared Polis this past January.
Citing the 14th Amendment along with the Colorado election code, four Republican and two independent voters sued Trump and Colorado’s secretary of state in the District Court of Denver County on Sept. 6, angling to stop the former president’s name from being printed on the primary ballot.
The 14th Amendment bars individuals from holding office if they “engaged in insurrection or rebellion” or have “given aid or comfort to the enemies” of the Constitution while under the oath of office. The measure was adopted following the Civil War and can only be overturned by a two-thirds vote in the U.S. House and Senate.
Between encouraging the spread of misinformation about the results of the 2020 election and instigating the Jan. 6 insurrection, the voters argue Trump has become ineligible to hold office.
On Sept. 22, Trump filed to dismiss the lawsuit under Colorado’s anti-SLAPP statute — passed to protect individuals from Strategic Lawsuits Against Public Participation. Enacted in 2019, the law seeks to block frivolous lawsuits to “safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law.”
Trump contends his statements on the 2020 election results are protected political speech and do not meet the bar of insurrection.
The former president also argued that only Congress can decide whether the 14th Amendment applies to him — not a state court.
"That argument is putting the cart before the horse as it relates to the public interest exemption,” Wallace wrote. In order to decide the anti-SLAPP motion, Wallace had to assume she has jurisdiction to decide the case and that Trump could be blocked from holding office.
"Indeed, the statute explicitly requires the court to assume that the action, as contemplated, would be successful when assessing this factor,” Wallace explained. “The court therefore assumes, for the purposes of assessing the public interest exemption only, that intervenor Trump is indeed barred from holding office pursuant to Section Three of the 14th Amendment, and that this is a determination within the capacity of either the court or the secretary of state to make."
Under that hypothetical scenario, Wallace found the public interest best served in seeing the lawsuit move forward to the five-day court trial scheduled to begin Oct. 30.
Additionally, Wallace followed Griswold’s argument that the anti-SLAPP law is outright incompatible with the plaintiffs’ election code challenge, since each law requires different deadlines with appeals heard by different courts.
"We are pleased with the court's well-reasoned and very detailed order, leading to a thorough decision, and look forward to presenting our case at trial,” the voters’ attorney, Mario Nicolais of the Lakewood firm KBN Law, said via email. The petitioners are also represented by political advocacy group Citizens for Responsibility & Ethics in Washington.
Trump is represented by Scott Gessler of the Denver firm Gessler Blue. Neither the firm nor Trump’s campaign immediately responded to inquiries for comment.
The secretary of state’s officer did not immediately respond to a request for comment.
The case was originally assigned to Polis-appointed Second Judicial District Judge Mark Bailey, who recused himself.