Last week, a public interest organization (CREW) filed a lawsuit in Colorado state court seeking to have former President Donald Trump removed from the ballot on the ground that he is disqualified by Section Three of the Fourteenth Amendment. On Friday, Trump filed a notice of removal to put the case in federal court, under the theory that the case turns on a federal constitutional issue—the interpretation and application of the Fourteenth Amendment.
As with the fights to remove the criminal prosecutions in Fulton County, Georgia, what is at stake in a fight over removal is the forum that will hear the case—in principle, the substance will not change. But of course, litigants frequently care about the forum for both substantive and practical reasons. So here are a few thoughts on whether the motion will succeed:
First, this has happened before. In October 2021, a state court in New Mexico removed a state official, Couy Griffin, from office for his participation in the January 6 insurrection. Griffin, too, had tried to remove that case to federal court, and the federal court concluded that he could not do so and remanded the case. Whether Trump's attempt to remove will face the same fate will turn on two legal issues—Article III, and 28 U.S.C. 1331.
