Opinion: Márquez’s support of the Trump insurrection ruling should disqualify her from office

In July 2024, Monica Márquez became Chief Justice of the Colorado Supreme Court. Over the next three weeks, Colorado voters will have a crucial decision to make: whether to retain her.

Because of her vote earlier this year in the 4-3 Anderson v. Griswold, where the court ordered President Donald Trump to be removed from the Colorado primary ballot, Chief Justice Márquez does not deserve to remain on the bench. She egregiously attempted to disenfranchise over 550,000 Colorado Trump primary voters,

On January 6, 2021, President Donald Trump gave a speech at his “Save America March” concerning the pending certification of the presidential election results naming Joe Biden as president. Every word of Trump’s speech enjoyed First Amendment protection. Indeed, he urged them to march “peacefully” to the Capitol to protest the certification by Congress. He used the phrase “fight like hell,” but many politicians have used the term “fight” in speeches. Even the late Supreme Court Justice Ruth Bader Ginsburg urged supporters to fight for what they believe in — in a way that makes people want to politically fight on their side. Ginsburg, like Trump, was not advocating in favor of violence.

After Trump’s speech, at the rally authorized by the National Park Service, some protesters rioted at the Capitol. Not one rioter has been charged with a violation of the insurrection statute, 18 U.S.C. § 2383. Even Jack Smith, the highly partisan and controversial attorney assigned by Attorney General Merrick Garland to prosecute Trump, has not levied that charge.

Still, a group of anti-Trump voters filed a lawsuit in Colorado to remove Trump from the ballot after he had announced his candidacy for the 2024 Republican nomination for the presidency. According to this group, Trump was an insurrectionist who was barred from running pursuant to Section 3 of the 14th Amendment, the so-called Insurrection Clause.

Denver District Judge Sarah Wallace held a trial on the voters’ insurrection claim. Wallace determined President Trump had engaged in an insurrection but he had not been an officer of the United States, meaning that he had not been subject to the Insurrection Clause. The voters appealed to the Colorado Supreme Court, and the justices reversed Judge Wallace by a 4-3 vote, and ruled that Trump must be disqualified from the primary election ballot in Colorado. The four justices were: Justices Richard Gabriel; Melissa Hart; William Hood; and Monica Márquez.

The day before the primary election, the U.S. Supreme Court unanimously reversed the Colorado Supreme Court. The 9-0 ruling held that states do not have the authority to remove federal candidates from the ballot based on the Insurrection Clause.

The Colorado Supreme Court majority purported to defend democracy by throwing Trump off of the ballot. Those four justices did not defend democracy; they defiled it. They used a Civil War era provision intended to bar members of the Confederacy from serving in government to remove a candidate from the ballot who had engaged in protected speech. They used the kangaroo court report of the January 6 Select Committee as a substantial basis for their decision. These justices arrogantly took it upon themselves to decide that they and not Colorado voters would choose the winner of Colorado’s electoral votes.

Justices Maria Berkenkotter and Brian Boatright are also up for retention next month, and they should keep their seats. They are also appointees of Democrat governors, but these two justices, unlike Márquez, respected the right of Colorado voters to vote for the candidate of their choice.  Berkenkotter and Boatright each wrote powerful dissents against the majority’s opinion.

If Marquez loses her retention effort, Democrat Governor Jared Polis certainly will appoint another judge to replace her. Regardless of their views of Trump, Colorado voters need to send a message to Márquez that her attempt to disenfranchise over 550,000 of them was repugnant to the fundamental values of the Republic.

Mike Davis, a Colorado resident, is the Founder and President of the Article III Project, a group that fights against judicial overreach and ensures political viewpoints don’t infringe upon legal accountability, and helped oversee the confirmation of Justice Brett Kavanaugh to the Supreme Court as Chief Counsel for Nominations on the Senate Judiciary Committee.

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