In a few weeks, a judge in Colorado will hold a trial to decide whether to bar Donald Trump from the presidential ballot on the grounds that he “engaged in insurrection or rebellion” against the United States in violation of the Constitution. The proceeding has unsettled many people: Can an unelected judge really stop voters from supporting a candidate of their choosing? The answer is yes. Just ask Abdul Hassan.

Hassan ran for president in the 2012 election as an independent, on a platform of reducing the national debt. He created a website and a YouTube channel, and bought digital ads to spread his message. But he had a problem: To get on the ballot in some states, including Colorado, Hassan had to complete a form swearing that he met the requirements for president spelled out in the Constitution. Been a resident of the United States for at least 14 years? Check. 35 years old? Check. Natural-born citizen? That’s where the trouble began.

Hassan, who was born in Guyana, is a naturalized U.S. citizen, not a “natural-born” one; the latter term has been interpreted to mean either born in the United States (like Donald Trump) or born to an American parent (like Ted Cruz). He is also, by trade, a lawyer who represents employees suing employers over mistreatment. The choice he faced felt like no choice at all: To check the last box on the form was to commit perjury; to walk away was to accept discrimination based on national origin, which is prohibited by the Equal Protection Clause of the Fourteenth Amendment. Working out of his office in Queens, Hassan took himself on as a client.

Hassan sued in several states, but Colorado, with its formal application process, offered the cleanest case, and his claims got their fullest airing there. First, in a 16-page decision, a magistrate judge rejected Hassan’s claim that the natural-born-citizenship clause had been “trumped, abrogated, and implicitly repealed” by the passage of the Fourteenth Amendment, in 1868. Nothing in the historical record, he ruled, suggested that Congress had a “clear and manifest” intent to repeal the citizenship requirement.  

On appeal, Hassan emphasized an alternative theory: Even if the Constitution barred him from assuming the presidency after winning the election, that shouldn’t give states the power to block his candidacy preemptively. This argument fared no better. In a brief order, three judges on the Tenth Circuit ruled that if you’re found to be ineligible, the state can keep you off the ballot as part of its “legitimate interest in protecting the integrity and practical functioning of the political process.”

[J. Michael Luttig and Laurence H. Tribe: The Constitution prohibits Trump from ever running for president again]

This ruling has been heartening to those who wish to see Trump ruled ineligible on constitutional grounds. The two cases feature some eerie parallels, and not just because they both involve political outsiders from Queens. Colorado is once again center stage. Scott Gessler, who as Colorado’s then–secretary of state kept Hassan off the ballot, has reemerged as a lawyer representing Trump, who is trying to stay on it. And the judge who wrote the Tenth Circuit order in 2012 was none other than Neil Gorsuch, now a Trump-appointed member of the Supreme Court, which may render a final verdict on Trump’s eligibility next year.

There are obvious differences too. The two men couldn’t be more dissimilar in character. One is measured in his comments and steadfast about following the rules, and the other is Donald Trump. Speaking with me, Hassan looked back with appreciation on how the legal system treated his claims. “Judicial rulings are never totally bad or good,” he wrote in an email, “and there is almost always something there to work with.”

Hassan sought shelter in the Fourteenth Amendment’s guarantee of equal protection under the law. The case against Trump, by contrast, uses a different clause of the same amendment as a weapon to keep him off the ballot. The Fourteenth Amendment, passed in the aftermath of the Civil War, prevents any former “officer of the United States” from holding office again if they have “engaged in insurrection or rebellion” against the nation or aided those who did. According to an academic article by the conservative law professors William Baude and Michael Stokes Paulsen, this straightforwardly disqualifies Trump. But there have been a host of nits picked with the theory: whether the president is technically an “officer of the United States”; whether Trump “engaged in” insurrection or rebellion, or merely encouraged it; whether the January 6 attack on the Capitol and other efforts to overturn the 2020 election results constitute an “insurrection” at all; and, finally, whether Trump must be convicted at trial before a court can bar him from running.

Offering a path through this thicket of questions is Gorsuch’s conclusion about a state’s “legitimate interest in protecting the integrity and practical functioning of the political process.” In Trump, we have a candidate who, without evidence, has denied that he lost the previous election and won’t promise to abide by the results of the next one, despite taking an oath to “preserve, protect and defend the Constitution of the United States.” Couldn’t Colorado conclude that, to protect the integrity of its election, it will not allow such a candidate to run? The nonprofit organization that brought the lawsuit in Colorado, Citizens for Responsibility and Ethics in Washington, explicitly highlighted Gorsuch’s line in its legal filing.

[David Frum: The Fourteenth Amendment fantasy]

“Hassan is kept off, because he’s not a citizen,” Derek T. Muller, a law professor at Notre Dame who has written about the legal significance of Hassan’s case, told me. “And court after court says, ‘Absolutely, a state can do that.’ So that’s why you’re now seeing these challenges to Trump, and people saying, ‘Aha! You have the power to keep these candidates who are not qualified off the ballot, and Trump is not qualified.’”

Muller added that whether Trump is in fact ineligible involves “intensive, divisive, factual questions.” But he cautioned against concluding that it should be left up to the voters. To do so, he argued, would run counter to the values of the American legal system. “We don’t have many requirements in the Constitution for federal office, but we have a few of them, and they’re designed to limit voters,” he said. “That’s part of the point.” It would be absurd, for example, to say that voters should be allowed to elect a president to a third term in violation of the Twenty-Second Amendment. Constitutional eligibility rules restrain democratic choice by definition.

Even Hassan agrees. He doesn’t have a view on Trump’s eligibility, he said, but he observed that if a court rules against Trump, that should be the end of it. “Because the role of the court is to ultimately interpret and apply the Constitution,” he said, “if you are kept off the ballot in the first place, the voters do not get to decide the issue.”