The Denver judge responsible for deciding whether Donald Trump is constitutionally ineligible to appear on Colorado’s 2024 primary ballot denied the former president’s mid-hearing motion on Wednesday to end the case in his favor.

Since Monday, lawyers for the four Republican and two unaffiliated voters who filed the case against Trump have presented evidence and testimony of Trump’s alleged role in bringing his supporters to Washington, D.C. on Jan. 6, 2021, and urging them to “fight” against the 2020 election results. The protests culminated in a deadly assault on the U.S. Capitol that same day.

Scott Gessler, a Republican former secretary of state who now represents Trump, argued the case should be resolved in his client’s favor at the close of the petitioners’ testimony because the evidence did not show Trump engaged in an “insurrection.”

“None of President Trump’s words were a call to violence,” said Gessler. “‘Fight’ is a common, common, political metaphor meaning a political fight.”

Gessler claimed the entire case was about Trump’s speech and not, as the petitioners contend, about Trump’s participation in an insurrection that would render him ineligible to hold future office under Section 3 of the 14th Amendment.

After a lunch break, District Court Judge Sarah B. Wallace denied Gessler’s motion. She agreed with the lawyers for Secretary of State Jena Griswold, who is a party to the case, that Gessler’s request was likely not allowed under the special procedures applicable to ballot eligibility challenges, which are laid out separately in state law.

“However, even if it was appropriate, I would deny it,” she said, citing the “significant legal issues, many of which haven’t been decided by any court.”

Wallace elaborated that to resolve the case in Trump’s favor at this stage would require the evidence to lead to the clear conclusion that he should prevail. It was still disputed, she explained, whether a president’s First Amendment-protected speech could insulate him from the 14th Amendment’s prohibition against federal officials engaging in insurrection.

“On the one hand, you have people in the 1800s being disqualified for writing letters to the editor – clearly speech,” Wallace said, summarizing previous testimony. “On the other hand, you have a body of law holding the standards for finding ‘incitement’ are very high.”

The petitioners have brought the case under state election law, seeking to force Griswold to bar Trump from next year’s ballot if he is ineligible to hold office. Their theory of ineligibility is rooted in the 14th Amendment, a post-Civil War addition to the Constitution.

For the petitioners to prevail, Wallace would need to find that Trump took an oath covered by the 14th Amendment, that Jan. 6 was an insurrection, that Trump engaged in the insurrection, and that a state court can order Griswold to exclude constitutionally ineligible candidates.

Gessler, in his motion for a “directed verdict,” characterized Trump’s calls to action as protected political speech, rather than an incitement to violence as understood by his supporters who attacked the Capitol.

He cited two cases in support of dismissing the case. First, a 1969 decision of the U.S. Supreme Court, Brandenburg v. Ohio, overturned a Ku Klux Klan leader’s criminal conviction related to his incendiary, racist speech. The court agreed that neither the law nor the jury instructions distinguished between “mere advocacy” and “incitement to imminent lawless action.”

The second decision, Nwanguma v. Trump, arose from the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit, involving protesters at a 2016 campaign rally who were assaulted by Trump supporters after Trump said to “Get ’em out of here.” The appeals court decided the plaintiffs could not sue Trump himself, and that his speech was protected by the First Amendment.

Similarly, Trump’s conduct in advance of the Jan. 6 attack was “all speech,” said Gessler. The threat of insurrection also “has to be imminent,” he added.

Jason Murray, representing the petitioners, argued Trump’s words alone were not the issue, but rather his months-long undermining of the integrity of the 2020 election.

“His lies gave the mob their common purpose. Beginning well before the election and leading up to it, he repeated claims that the only way he could lose the election was if it was stolen,” Murray said. “Other leaders don’t talk this way, and they don’t keep talking this way after they see how their supporters respond to the violent words they utter.”

He added that the 14th Amendment merely provides an additional qualification for federal office – not having engaged in an insurrection.

“There is nothing unconstitutional about enforcing the qualification,” he said.

Senior Assistant Attorney General Michael T. Kotlarczyk, representing Griswold, raised the concern that, if Wallace dismissed the case midway through and the Colorado Supreme Court were to reverse her decision, it would require restarting the proceedings to hear from Trump’s witnesses before the fast-approaching ballot certification deadline.

Wallace agreed, but also noted she was “not prepared today to reconcile those two bodies of law” – meaning the 14th Amendment’s disqualification regime and the First Amendment’s protection of speech.

The case is Anderson et al. v. Griswold.