Amicus Curiae Brief — Colorado Republican State Central Committee, Petitioner v. Norma Anderson, et al.

Nos. 23-696 & 23-___

IN THE

Supreme Court

of the United States

__________

COLORADO REPUBLICAN STATE CENTRAL COMMITTEE,

v.

NORMA ANDERSON ET AL.,

__________

DONALD J. TRUMP,

v.

NORMA ANDERSON ET AL.,

__________

On Petition for Writ of Certiorari

to the Colorado Supreme Court

__________

BRIEF FOR SENATOR STEVE DAINES &

NATIONAL REPUBLICAN SENATORIAL

COMMITTEE AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

__________

NOEL J. FRANCISCO

JOHN M. GORE

Counsel of Record

E. STEWART CROSLAND

HASHIM M. MOOPPAN

JONES DAY

51 Louisiana Avenue, NW

Washington, DC 20001

(202) 879-3939

jmgore@jonesday.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

INTEREST OF THE AMICI CURIAE ...................... 1

INTRODUCTION AND SUMMARY

OF ARGUMENT ................................................ 2

ARGUMENT .............................................................. 5

I.

II.

THE COLORADO SUPREME COURT

ERRED BY MODIFYING THE

QUALIFICATIONS FOR THE OFFICE

OF PRESIDENT .............................................. 5

A.

The Constitution Prohibits States

From Altering The Qualifications

For The Office Of President ....................... 5

B.

Section 3 Imposes A Qualification

On Holding Office, Not Running For

Office ........................................................... 7

C.

The Colorado Supreme Court

Improperly Altered Section 3 And

The Qualifications For The Office Of

President..................................................... 9

D.

The Colorado Supreme Court

Misconstrued The Constitution And

This Court’s Precedents ........................... 13

THE COLORADO SUPREME COURT

VIOLATED THE FIRST

AMENDMENT .............................................. 18

CONCLUSION ......................................................... 23

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Celebrezze,

460 U.S. 780 (1983) .............................................. 22

Anderson v. Griswold,

No. 23SA300, 2023 WL 8770111

(Colo. Dec. 19, 2023).............9-11, 13-16, 19, 21, 22

Burdick v. Takushi,

504 U.S. 428 (1992) .............................................. 22

Bush v. Palm Beach Canvassing Cnty.

Bd.,

531 U.S. 70 (2000) (per curiam) ...................... 5, 17

Cal. Democratic Party v. Jones,

530 U.S. 567 (2000) ...................... 18, 19, 20, 22, 23

Democratic Party of U.S. v. Wis. ex rel

La Follette,

450 U.S. 107 (1981) ........................................ 19, 20

Eu v. S.F. Cnty. Democratic Cent.

Comm.,

489 U.S. 214 (1989) ........................................ 18, 19

Growe v. Simon,

No. A23-1354, 2023 WL 7392541

(Minn. Nov. 8, 2023) ............................................ 20

Hassan v. Colorado,

495 F. App’x 947 (10th Cir. 2012).................. 15, 21

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Jennings v. Rodriguez,

583 U.S. 281 (2018) .............................................. 17

Lindsay v. Bowen,

750 F.3d 1061 (9th Cir. 2014) .............................. 15

Schaefer v. Townsend,

215 F.3d 1031 (9th Cir. 2000) ........................ 10, 14

Socialist Workers Party of Ill. v. Ogilvie,

357 F. Supp. 109 (N.D. Ill. 1972) ......................... 16

Tashjian v. Republican Party of Conn.,

479 U.S. 208 (1986) ........................................ 19, 21

Tex. Democratic Party v. Benkiser,

459 F.3d 582 (5th Cir. 2006) .......................... 10, 14

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ............3, 5-7, 10, 12-15, 17, 23

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. amend. I .................................. 4, 18-21, 23

U.S. Const. amend. XII ............................................... 7

U.S. Const. amend. XIV, .......................... 2-5, 7-12, 21

U.S. Const. amend. XX ...................... 3, 8, 9, 12, 14, 15

U.S. Const. art. I, § 2, cl. 2 ........................................ 10

U.S. Const. art. II, § 1, cl. 5................. 8, 10, 15, 16, 21

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

3 U.S.C. § 15 .............................................................. 12

52 U.S.C. § 30101 ........................................................ 1

Act of June 6, 1898, ch. 389, 30 Stat.

432 (1898) ............................................................... 8

Act of May 22, 1872, ch. 193, 17 Stat.

142 (1872) ............................................................... 8

OTHER AUTHORITIES

S. Ct. R. 37.2 ................................................................ 1

INTEREST OF THE AMICI CURIAE 1

Amicus curiae Senator Steve Daines is a member

of the Republican Party and represents the people of

Montana in the United States Senate. Senator Daines

currently serves as the Chairman of the National

Republican Senatorial Committee (NRSC). Amicus

curiae NRSC is a registered “national committee” of

the Republican Party, as defined by 52 U.S.C.

§ 30101(14), and the Republican Party’s senatorial

campaign committee. Its membership includes all

incumbent Republican Members of the United States

Senate.

Chairman Daines and NRSC support and seek to

uphold the Constitution’s guarantee of free and fair

elections for all Americans. Chairman Daines and

NRSC also support and seek to uphold the rights of all

American citizens to vote for, and of political parties

to nominate, the candidate of their choice in federal

elections.

Amici therefore have a unique and

profound interest in this case, in which the Colorado

Supreme Court misapplied the Constitution to

impermissibly exclude a candidate for federal office

from the ballot in the Republican Party’s upcoming

primary election.

1 Amici curiae filed this brief more than ten days before the

due date. See S. Ct. R. 37.2. No counsel for a party authored any

portion of this brief or made any monetary contribution intended

to fund its preparation or submission.

2

INTRODUCTION AND SUMMARY

OF ARGUMENT

The right of all citizens to participate in free and

fair elections and to vote for the candidate of their

choice is the Constitution’s bedrock guarantee of

American democracy. The Colorado Supreme Court’s

decision barring President Trump from the

Republican Party’s primary election ballot breaches

that guarantee and, if left standing, threatens to

thwart the democratic process and the will of the

American people in 2024 and beyond. For that reason,

amici support President Trump’s petition for a writ of

certiorari and reversal of the Colorado Supreme

Court’s unconstitutional decision.

Although amici agree that the Colorado Supreme

Court made multiple constitutional errors, they write

to emphasize the importance of the Colorado Supreme

Court’s error on a threshold question: namely,

whether or not section 3 of the Fourteenth

Amendment applies, it unquestionably does not allow

Colorado to exclude President Trump from the ballot,

for two separate but reinforcing reasons.

First, the Colorado Supreme Court impermissibly

altered the qualifications for the office of President

and interfered with Congress’s sole prerogative to

remove any section 3 disqualification. By its plain

text, section 3 identifies a disqualification from

serving in certain offices, but does not disqualify a

covered person from running for office. And that

textual distinction is particularly important because,

unlike certain other disqualifications, section 3 makes

that disqualification removable—and it commits the

decision of whether and when to remove it exclusively

3

to Congress. So even if the Colorado Supreme Court

were correct that President Trump cannot take office

on Inauguration Day, that court had no basis to hold

that he cannot run for office on Election Day and also

seek removal of any alleged disqualification from

Congress if necessary.

Indeed, the Twentieth

Amendment expressly preserves the right of

Presidential candidates to run, and the right of

Congress to act, by prescribing an interstitial rule for

situations where the President-elect has failed to

attain the qualifications for office but can still do so

during his Term—the Vice President serves as Acting

President unless and until the disqualification is

lifted.

The Colorado Supreme Court thus altered the

qualifications for the office of President: it created a

new rule that any section 3 disqualification must be

removed by Congress before voters and a political

party can even have the opportunity to vote for the

candidate in their own primary election. But in U.S.

Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), all

nine Justices agreed that States lack the power under

the Constitution to use ballot-access restrictions to

alter the qualifications for the office of President. See

id. at 803-04 (maj. op.); id. at 855 n.6, 861-62 (Thomas,

J., dissenting). And the Colorado Supreme Court’s

error is particularly egregious in the context of section

3, because it effectively usurped Congress’s sole

authority to decide when, if at all, to remove any

section 3 disqualification. This error is a clear,

indisputable, and sufficient basis to reverse the

judgment below.

4

Second, the Colorado Supreme Court ran

roughshod over the First Amendment rights of voters

and political parties without offering a lawful

justification. Indeed, its decision wholly bans voters

and a political party from supporting, voting for, and

potentially nominating their choice of Presidential

candidate in the party’s primary election—

notwithstanding that it is entirely possible that, by

Inauguration Day, President Trump will be qualified

to take office even on the Colorado Supreme Court’s

view of section 3. Of course, voters are free to cast

their ballots for an opposing candidate if they do not

wish to take the chance that President Trump will be

disqualified, but neither the First Amendment nor

basic principles of democracy allow the Colorado

Supreme Court to make that decision for them.

If left uncorrected, the Colorado Supreme Court’s

decision will unleash electoral chaos in the fastapproaching 2024 elections. It is virtually certain to

lead to an untenable patchwork of state-court rulings

on whether President Trump appears on the ballot,

disenfranchising millions of voters in states that

follow its lead. Even worse, it threatens to decide the

outcome of the 2024 election by stripping the

American people of the right to elect the President and

transferring that right to state courts.

The Constitution, the American people, and our

American democracy deserve better. The Court

should grant review, reverse the decision below, and

uphold the right of the American people to nominate

and vote for the Presidential candidate of their choice.

Indeed, given the exigency of timing and the clarity of

the error below, the Court should consider summary

5

reversal on the narrow grounds that U.S. Term Limits

forecloses a State from excluding a Presidential

candidate from the ballot based on the mere

possibility that any alleged section 3 disqualification

will not be removed by Congress before Inauguration

Day. Alternatively, the Court may wish to consider

immediately vacating and remanding, because the

Colorado Supreme Court does not appear to have fully

understood the federal constitutional implications of

its holding that state law purports to allow it to apply

section 3 to deny ballot access. Cf. Bush v. Palm

Beach Canvassing Cnty. Bd., 531 U.S. 70, 78 (2000)

(per curiam).

ARGUMENT

I.

THE

COLORADO

SUPREME

COURT

ERRED

BY

MODIFYING

THE

QUALIFICATIONS FOR THE OFFICE OF

PRESIDENT

A. The Constitution Prohibits States From

Altering The Qualifications For The

Office Of President

States—including state courts—lack authority to

“alter or add to” the Constitution’s qualifications for

federal offices, including especially the office of

President. U.S. Term Limits, 514 U.S. at 796. In U.S.

Term Limits, this Court held on a 5-4 vote that States

lack authority to alter the qualifications for those

representing them in Congress. See id. at 783. The

Court, moreover, unanimously agreed that States

may not alter the qualifications for the office of

President.

For its part, the majority in U.S. Term Limits

pointed out that the Framers “‘create[d] an entirely

6

new National Government with a National Executive,

National Judiciary, and a National Legislature,’”

thereby “creating a direct link between the National

Government and the people of the United States.” Id.

at 803 (quoting Wesberry v. Sanders, 376 U.S. 1, 10

(1964)) (emphasis added). Thus, quoting Justice

Story, the majority reasoned that States “‘have just as

much right, and no more, to prescribe new

qualifications for a representative, as they have for a

president’”—which is to say, none. Id. (quoting 1 Story

§ 627) (emphasis added); see also id. at 803-04 (“‘It is

no original prerogative of state power to appoint a

representative, a senator, or president for the union.’”)

(quoting 1 Story § 627).

Notably, the dissent agreed. Although it concluded

that “the people of a single State” have authority to

“prescribe qualifications for their own representatives

in Congress,” it repeatedly acknowledged that “the

people of a single State may not prescribe

qualifications for the President of the United States.”

Id. at 855 n.6 (Thomas, J., dissenting); see also id. at

861-62 (noting that States have no reserved power “to

set qualifications for the office of President”).

This conclusion is manifest in our system of

government. “‘[T]he states can exercise no powers

whatsoever, which exclusively spring out of the

existence of the national government, which the

constitution does not delegate to them.’” Id. at 802

(maj op.) (quoting 1 Story § 627). And at the very

least, “the selection of the President, like the

operation of the Bank of the United States, is not up

to the people of any single State.” Id. at 855 n.6

(Thomas, J., dissenting) (emphasis added). Were the

7

law otherwise, individual States could adopt different

qualifications for the office of a President who

represents the Nation as a whole—including

qualifications that conflict with the qualifications

adopted in other States. Thus, for instance, each

State could adopt a qualification requiring the

President to be a resident of that State. In that

scenario, no President could ever be elected because no

candidate could receive a majority of votes in the

Electoral College. See U.S. Const. amend. XII.

Even short of that, any State-altered qualification

erases nationwide uniformity in the qualifications for

the office of President and opens the door to States

imposing their political preferences on the country as

a whole (such as by enacting a “qualification” that a

President have previously served in the federal

government). Allowing States to alter or add to the

qualifications for the office of President would be

“contrary to the ‘fundamental principle of our

representative democracy,’ embodied in the

Constitution, that ‘the people should choose whom

they please to govern them.’” U.S. Term Limits, 514

U.S. at 783 (quoting Powell v. McCormack, 395 U.S.

486, 547 (1969)).

B. Section 3 Imposes A Qualification On

Holding Office, Not Running For Office

Section 3 states that “No person” under a section 3

disqualification “shall be” a holder of any of the

enumerated federal offices. U.S. Const. amend. XIV,

§ 3 (emphasis added). Section 3 thus identifies a

disqualification on who may serve in certain federal

offices, not on who may be a candidate for, or

otherwise seek, those offices. Id.

8

Moreover, unlike certain disqualifications from

federal office, the Constitution creates a mechanism

for removal of any section 3 disqualification. Section

3 vests plenary authority over that mechanism in

Congress: “But Congress may by a vote of two-thirds

of each House, remove such disability.” Id. Section 3

places no limitation on when Congress may exercise

that authority. See id. Thus, for instance, Congress

enacted separate Amnesty Acts removing section 3

disqualifications 7 years and 33 years after the Civil

War gave rise to those disqualifications. See Act of

May 22, 1872, ch. 193, 17 Stat. 142 (1872); Act of June

6, 1898, ch. 389, 30 Stat. 432 (1898).

The

Twentieth

Amendment

expressly

contemplates and addresses the possibility that a

President-elect could be disqualified from office on

Inauguration Day. It directs: “If a President shall not

have been chosen before the time fixed for the

beginning of his term, or if the President elect shall

have failed to qualify, then the Vice President elect

shall act as President until a President shall have

qualified.” U.S. Const. amend. XX, § 3 (emphases

added). Thus, for example, if a President-elect has not

“been fourteen years a resident within the United

States” on Inauguration Day, id. art. II, § 1, cl. 5, the

Vice President elect “shall act as President,” id.

amend. XX § 3, until the President-elect satisfies the

residency requirement. So, too, if a President-elect

“shall have failed to qualify” to take office on

Inauguration Day due to an alleged section 3

disqualification, he can later so “qualif[y],” id., when

Congress “remove[s] such disability,” id. amend. XIV,

§ 3.

9

Read together, section 3 and the Twentieth

Amendment reinforce that even if section 3 identifies

a disqualification from serving as President, it

identifies no disqualification from seeking or even

being elected to the office of President. They also

reinforce that Congress alone decides when, if at all,

to remove any section 3 disqualification from a

President-elect. Congress may, but need not, remove

any section 3 disqualification from a Presidential

candidate before he is elected. See id. amend. XIV,

§ 3; id. amend. XX, § 3. It may also do so before or

after the President-elect’s term begins. See id. amend.

XIV, § 3; id. amend. XX, § 3. In the latter scenario,

the Vice President-elect serves as President until

Congress

removes

the

President-elect’s

disqualification or the term expires. See id. amend.

XIV, § 3; id. amend. XX, § 3.

C. The

Colorado

Supreme

Court

Improperly Altered Section 3 And The

Qualifications For The Office Of

President

The Colorado Supreme Court erred when it

twisted section 3 to alter the Constitution’s

qualifications for the office of President. In particular,

based on its premise that President Trump “is

disqualified from holding the office of President

under” section 3, it reached the erroneous conclusion

that the Secretary of State “may not list President

Trump’s name on the 2024 presidential primary

ballot, nor may she count any write-in votes cast for

him.” Anderson v. Griswold, No. 23SA300, 2023 WL

8770111, at *51 ¶ 257 (Colo. Dec. 19, 2023).

10

The Colorado Supreme Court seemed to suggest

that it was merely enforcing a section 3

disqualification against President Trump, see id. at

*12 ¶ 55, *51 ¶ 257, but that suggestion is plainly

incorrect. The Constitution prohibits States from

“alter[ing] or add[ing] to” the Constitution’s

qualifications for the office of President. U.S. Term

Limits, 514 U.S. at 796. This prohibition means that

States may not “in any manner change” those

qualifications.

Id. at 799 (citing G. McCrary,

American Law of Elections § 322 (4th ed. 1897)). And

this prohibition on States “alter[ing]” the

qualifications for federal office, id. at 796, extends to

altering the time for satisfying the Constitution’s

qualifications. For example, Article I’s Qualifications

Clause directs that “No Person shall be a

Representative . . . who shall not, when elected, be an

Inhabitant of that State in which he shall be chosen.”

U.S. Const. art. I, § 2, cl. 2 (emphasis added).

Accordingly, States lack authority to require

candidates for Congress to inhabit the State before

being elected. See, e.g., Tex. Democratic Party v.

Benkiser, 459 F.3d 582, 589-90 (5th Cir. 2006);

Schaefer v. Townsend, 215 F.3d 1031, 1037 (9th Cir.

2000). So, too, do States lack authority to alter the

time for satisfying the qualifications for the office of

President. See, e.g., U.S. Const. art. II, § 1, cl. 5.

The Colorado Supreme Court’s decision altered the

qualifications for the office of President in

contravention of these rules. The plain “text” of

Section 3, U.S. Term Limits, 514 U.S. at 787 n.2,

makes clear that its disqualification applies only to

serving in one of the enumerated offices, not to seeking

them, see U.S. Const. amend. XIV, § 3. But by

11

invoking section 3 to exclude President Trump from

the Republican Party’s primary election ballot, the

Colorado Supreme Court extended any section 3

disability beyond “be[ing]” President to also merely

running for President. Compare U.S. Const. amend.

XIV, § 3, with Anderson, 2023 WL 8770111, at *51

¶ 257. And it also altered the time for satisfying

section 3, demanding that even a candidate in a

party’s primary election be free from any section 3

disqualification as of the date of a pre-election statecourt judgment. See Anderson, 2023 WL 8770111, at

*51 ¶ 257.

Moreover, the Colorado Supreme Court’s

modification of section 3 improperly interferes with

Congress’s authority to decide when, if at all, to

remove any section 3 disqualification from a

President-elect.

The Colorado Supreme Court

effectively read state law to require Congress to

exercise that authority before the Colorado court

issued judgment in this case, see id., or at least by

Colorado’s January 5, 2024 statutory deadline for the

Secretary to certify the names of candidates to be

placed on the presidential primary ballot, see id. at *8

¶ 39. It therefore left no room for placing President

Trump on the primary election ballot if Congress were

to remove any section 3 disqualification today or at

some other point between now and the primary

election. See id. at *51, ¶ 257. And it likewise

thwarted Congress’s prerogative to wait until after

Election Day to remove any section 3 disqualification

from a President-elect. See id.

This result is error, pure and simple. Congress can

choose to remove any section 3 disability before

12

Election Day, before Inauguration Day, or even

during a President-elect’s term. See U.S. Const.

amend. XIV, § 3; see also id. amend. XX, § 3. Either

the current Congress or the Congress set to take office

on January 3, 2025, see id. amend. 20, § 1, has sole

authority to decide when, if at all, to address a 2024

President-elect’s section 3 disqualification.

And

either this Congress or the next may have a variety of

political and institutional reasons for choosing to

address the question at one time or another. As just

one example, Congress may choose to await the

outcome of the 2024 election before deciding whether

to take action. As another, the current Congress may

prefer to leave the question to the next Congress,

which will count the results of the 2024 Electoral

College. See 3 U.S.C. § 15.

To date, Congress has not taken up the question

whether President Trump is under a section 3

disqualification—and it may never do so. Whether

and when to do so belongs to Congress alone, not the

Colorado Supreme Court. Yet the Colorado Supreme

Court transformed Congress’s decision not to act by

the date of the state-court judgment into a new, unmet

qualification for President Trump even to be a

candidate and to receive votes in the Republican

Party’s upcoming primary election. The Colorado

Supreme

Court’s

decision

contravenes

the

Constitution, and the Court should grant certiorari

and summarily reverse pursuant to the unanimous

reasoning of U.S. Term Limits.

13

D. The

Colorado

Supreme

Court

Misconstrued The Constitution And This

Court’s Precedents

1.

The Colorado Supreme Court offered no

persuasive basis for its erroneous treatment of the

Constitution and Congress’s section 3 authority. It

first noted that this Court has reserved the question

whether section 3 prescribes a “qualification” for

federal office. See Anderson, 2023 WL 8770111, *14

¶ 65 (citing U.S. Term Limits, 514 U.S. at 787 n.2 and

Powell, 395 U.S. at 520 n.41); but see id.

(acknowledging that regardless of the answer to that

question, the Constitution precludes States from

imposing “additional qualifications for [federal]

office”) (citing U.S. Term Limits, 514 U.S. at 787 n.2)

(emphasis original). That is a red herring, because

the Colorado Supreme Court’s judgment is premised

on section 3 prescribing a qualification: the linchpin of

its holding was its premise that “President Trump is

disqualified from holding the office of President under

Section Three.” Id. at *51 ¶ 257 (emphasis added).

And if the Colorado Supreme Court is correct on that

point, then it erred when it “alter[ed]” that

qualification by accelerating the timeline for

satisfying it. U.S. Term Limits, 514 U.S. at 787 n.2.

Conversely, of course, if the Colorado Supreme Court

is not correct that section 3 imposes a qualification on

the office of President, then its premise that

“President Trump is disqualified,” Anderson, 2023 WL

8770111 ¶ 257, fails and its entire holding collapses.

Thus, on the Colorado Supreme Court’s own

reasoning, this Court’s reservation of that question

has no bearing on the outcome here: either way,

reversal is warranted.

14

The Colorado Supreme Court next reasoned that

“nothing in the U.S. Constitution expressly precludes

states from limiting access to the presidential ballot

to” candidates “who are constitutionally qualified to

hold the office of President.” Id. at *12 ¶ 53 (emphasis

original). But that is plainly wrong. The Constitution

does preclude States from “alter[ing] or add[ing] to”

the qualifications for the office of President, including

by extending those qualifications to candidates in a

manner that accelerates the timeline for satisfying

them. U.S. Term Limits, 514 U.S. at 796; see id. at

799 (may not “in any manner change” the

qualifications).

This preclusion parallels the

preclusion on State alterations of the time for

satisfying the residency requirement in Article I’s

Qualifications Clause. See, e.g., Tex. Democratic

Party, 459 F.3d at 589-90; Schaefer, 215 F.3d at 1037.

And the Colorado Supreme Court also missed the

plain import of the fact that section 3 vests plenary

authority in Congress to decide whether and when to

remove any disqualification it imposes on a

Presidential candidate or President-elect. In fact, the

Colorado Supreme Court noted that authority only in

two quotations but never discussed it, much less

reconciled it with the decision to preemptively exclude

President Trump from the Republican Party’s

primary election ballot. See Anderson, 2023 WL

8770111 at *6 ¶ 26, *31 ¶ 151.

The Colorado Supreme Court likewise devoted just

a few sentences to the Twentieth Amendment and

deemed it inapplicable because “[b]y its express

language,” it “applies post-election.” Id. at *25 ¶ 119.

But that is entirely the point: the Twentieth

Amendment addresses what happens in any period

15

between Inauguration Day and an unqualified

President-elect becoming qualified to take office. See

U.S. Const. amend. XX, § 3. It therefore underscores

that state courts do not police Presidential

qualifications by denying ballot access to candidates

who might be disqualified come Inauguration Day

depending on intervening events. See id. Just as the

Twentieth Amendment confirms that a State cannot

block from the ballot a Presidential candidate who

may not have satisfied the 14-year residency

requirement until the day after Inauguration Day, it

confirms that a state cannot block from the ballot a

Presidential candidate who may well have any alleged

section

3

disqualification

removed

before

Inauguration Day (or even Election Day). And the

Twentieth Amendment’s silence “about who

determines in the first instance whether the President

and Vice President are qualified to hold office,”

Anderson, 2023 WL 8770111 at *25 ¶ 119, does not

authorize state courts to alter those qualifications,

see, e.g., U.S. Term Limits, 514 U.S. at 783, 796.

The Colorado Supreme Court cited prior judicial

decisions excluding Presidential candidates from the

ballot due to failure to satisfy the Constitution’s

qualifications for office, Anderson, 2023 WL 8770111

at *12 ¶ 54, but each one is plainly distinguishable.

None approved of altering a qualification rather than

merely enforcing it. In two of the cases, the candidate

was categorically disqualified from holding the office

of President on a ground that could not be removed by

the end of the Presidential term. See Hassan v.

Colorado, 495 F. App’x 947, 948-49 (10th Cir. 2012)

(Gorsuch, J.) (candidate was not “a natural born

Citizen,” U.S. Const. art. II, § 1, cl. 5); Lindsay v.

16

Bowen, 750 F.3d 1061, 1065 (9th Cir. 2014) (candidate

was only 27 years old and thus would not attain 35

years of age at any point during the Presidential term

at issue, U.S. Const. art. II, § 1, cl. 5). And the third

offered no attempt at developed reasoning and did not

address section 3 in any event. See Socialist Workers

Party of Ill. v. Ogilvie, 357 F. Supp. 109, 113 (N.D. Ill.

1972). Thus, none of these cases supports the

Colorado Supreme Court’s modification of the

qualifications for the office of President or vitiation of

Congress’s plenary authority to remove any Section 3

disqualification.

2. Finally, the Colorado Supreme Court did not

address whether state law even purports to authorize

it to deny ballot access to President Trump in light of

the fact that doing so constitutes an alteration of the

qualifications for the office of President. The majority

instead thought that it would be a “wrongful act”

under the Colorado Election Code for the Secretary to

place President Trump on the Republican Party’s

primary election ballot. Anderson, 2023 WL 8770111

at *3 ¶ 5, *11-12 ¶¶ 50-56, *51 ¶ 257. Even that statelaw question divided the court 4-3. Compare id., with

id. at *51 ¶ 258 (Boatright, C.J., dissenting); id. at *66

¶ 330 (Samour, J., dissenting); id. at *71 ¶ 353

(Berkenkotter, J, dissenting). And the majority

analyzed it without considering whether it was

impermissibly altering the qualifications for the office

of President and without addressing section 3’s

commitment of disqualification-removal authority to

Congress. Id. at *3, ¶ 5, *11-12 ¶¶ 50-56, *51 ¶ 257.

The majority therefore never addressed whether

Colorado law is even “susceptible” to the

17

interpretation that it authorizes state courts to invoke

section 3 to exclude candidates for federal office from

a party’s primary election ballot based on alleged

disqualifications that Congress may remove in the

future. Jennings v. Rodriguez, 583 U.S. 281, 286

(2018) (discussing constitutional avoidance canon).

Its opinion thus leaves “considerable uncertainty” as

to whether the Colorado Supreme Court properly

considered state law in light of the federalconstitutional implications. Palm Beach Canvassing

Bd., 531 U.S. at 78. Accordingly, although the Court

should summarily reverse based on U.S. Term Limits,

it at minimum should grant certiorari, vacate, and

remand the case for a proper consideration of the

state-law question. See id.

3. Either of these proposed dispositions would

remedy the Colorado Supreme Court’s constitutional

errors in holding that President Trump cannot appear

on the ballot or receive write-in votes in the

Republican Party’s primary election.

Either

disposition would eliminate the risk of the Colorado

Supreme Court’s decision touching off a patchwork of

conflicting state-court ballot-access rulings across the

country. Either disposition would also disentangle

the courts from the political thicket of adjudicating

any section 3 disputes unless and until they become

ripe and justiciable, if at all, after Election Day. And

either disposition would rightfully return section 3

disqualification questions to Congress, preserving

Congress’s plenary authority over the substance and

timing of section 3 disqualification-removal decisions.

18

II. THE

COLORADO

SUPREME

COURT

VIOLATED THE FIRST AMENDMENT

“It is well settled that partisan political

organizations enjoy freedom of association protected

by the First and Fourteenth Amendments.” Eu v. S.F.

Cnty. Democratic Cent. Comm., 489 U.S. 214, 224

(1989).

The First Amendment extends robust

protection to “the freedom to join together in” political

parties in “furtherance of common political beliefs.”

Cal. Democratic Party v. Jones, 530 U.S. 567, 574

(2000).

Accordingly, “[t]he ability of the members of the

Republican Party to select their own candidate

unquestionably implicates an associational freedom”

protected by the First Amendment. Id. at 575

(cleaned up). Indeed, “[r]epresentative democracy in

any populous unit of government is unimaginable

without the ability of citizens to band together in

promoting among the electorate candidates who

espouse their political views.” Id. at 574. In fact, “[i]n

no area” is this fundamental First Amendment right

“more important than in the [party’s] process of

selecting its nominee” for office. Id. at 575.

After all, that process “often determines the

party’s positions on the most significant public policy

issues of the day” and in all events anoints the

nominee as “the party’s ambassador to the general

electorate in winning it over to the party’s views.” Id.

In other words, “[t]he moment of choosing the party’s

nominee . . . is the crucial juncture at which the appeal

to common principles may be translated into

concerted action, and hence to political power in the

community.” Id. (cleaned up).

19

This Court’s cases thus “vigorously affirm the

special place the First Amendment reserves for, and

the special protection it accords, the process by which

a political party selects a standard bearer who best

represents the party’s ideologies and preferences.” Id.

(cleaned up). This Court therefore has not hesitated

to declare unconstitutional laws that interfere with

the right of voters and their political party to select

their own nominees for office. This includes laws

requiring parties to conduct “an open presidential

preference primary,” “blanket primary,” id. at 576-77,

or closed primary, Tashjian v. Republican Party of

Conn., 479 U.S. 208 (1986), a law requiring party

delegates to vote at the national convention in

accordance with the results of the primary election,

see Democratic Party of U.S. v. Wis. ex rel La Follette,

450 U.S. 107, 125-26 (1981), and a law banning

political parties from endorsing candidates in primary

elections, see Eu, 489 U.S. at 216, 224-25.

As in such prior cases, the Colorado Supreme

Court’s decision unconstitutionally “suffocates” the

First Amendment rights of the Republican Party and

its voters. Id. at 224. It holds that state law totally

“ban[s]” Republican voters participating in the

Republican Party’s Colorado primary election from

voting to nominate President Trump either on the

ballot or through a write-in vote, even though he may

well be qualified to take office on Inauguration Day.

Id.; see also Anderson, 2023 WL 8770111 at *51 ¶ 257.

It thus construes state law to interfere with the

Republican Party’s “candidate-selection process” in

Colorado, by preventing voters from “select[ing]”

President Trump as the “standard bearer who best

represents the party’s ideologies and preferences” in

20

the State. Cal. Democratic Party, 530 U.S. at 568,

575. In these ways, the decision achieves the Colorado

Supreme Court’s unconstitutional “intended outcome

of changing the part[y’s] message” and candidate. Id.

at 568.

Such burdens on the Republican Party also extend

beyond Colorado. The Colorado Supreme Court’s

decision constitutes a “substantial intrusion into the

associational freedom of members of the National”

Republican Party outside Colorado. Democratic Party

of U.S., 450 U.S. at 126. Indeed, it construes state law

to infringe the right of the national Republican Party

and Republican voters across the country to select a

single nationwide “standard bearer” and “ambassador

to the general electorate in winning it over to the

party’s views” in the 2024 Presidential election. Cal.

Democratic Party, 530 U.S. at 575; see also Growe v.

Simon, No. A23-1354, 2023 WL 7392541, *1 (Minn.

Nov. 8, 2023) (declining to exclude President Trump

from the ballot in the Republican Party primary

election, which “is an internal party election to serve

internal party purposes”).

These burdens on bedrock First Amendment rights

are “severe.” Cal. Democratic Party, 530 U.S. at 582.

Indeed, these are “heavier burden[s] on” voters’ and “a

political party’s associational freedom” than the

burdens this Court has determined are severe in prior

cases. Id.

The Colorado Supreme Court, however, made no

effort to justify these burdens on First Amendment

rights as “narrowly tailored to serve a compelling

state interest.” Id. Instead, it reasoned that States

may limit “presidential primary ballot access to only

21

qualified candidates.” Anderson, 2023 WL 8770111 at

*16 ¶ 78. The Colorado Supreme Court may well have

been correct if the disqualification at issue were one

that could not be resolved during the next

Presidential term of office, such as a candidate who is

not “a natural born Citizen” of the United States. U.S.

Const. art. II, § 1, cl. 5; see Hassan, 495 F. App’x at

948-49. But it is not correct for any section 3

disqualification, which Congress has the plenary

authority to remove at the time of its choosing. See

U.S. Const. amend. XIV, § 3. The Colorado Supreme

Court provided no explanation of what interest the

State has in preventing citizens from voting for a

candidate whose alleged disqualification is subject to

Congressional removal, let alone one sufficient to

overcome the voters’ compelling First Amendment

right to cast their ballots for the Presidential

candidate of their choice. That failure is especially

glaring here: the Colorado Supreme Court cannot

justify its disenfranchisement of voters when it is

impossible to know whether the alleged section 3

disqualification will be in place on Inauguration Day,

much less throughout the next Presidential term.

Moreover, none of the four cases the Colorado

Supreme Court cited supports its view that the

Constitution permits limiting “primary ballot access”

to candidates it concludes are free of a section 3

disqualification as of the date of its judgment. One of

those cases disapproved on First Amendment grounds

a Connecticut law prohibiting independent voters

from voting in Republican primaries. See Tashjian,

479 U.S. at 210-11 (cited at Anderson, 2023 WL

8770111 at *16 ¶ 75). Another enjoined enforcement

of a ballot-access deadline on First Amendment

22

grounds. See Anderson v. Celebrezze, 460 U.S. 780

(1983) (cited at Anderson, 2023 WL 8770111 at *16

¶ 76). The third addressed a prohibition on write-in

voting, not ballot access. See Burdick v. Takushi, 504

U.S. 428 (1992) (cited at Anderson, 2023 WL 8770111

at *16 ¶ 76).

The final case, Timmons v. Twin Cities Area New

Party (cited at Anderson, 2023 WL 8770111 at *16

¶¶ 73, 75, 77), concerned an access rule for the general

election ballot, see 520 U.S. 351 (1997), which involves

a different “juncture” in the election process than

“[t]he moment of choosing the party’s nominee”

through a primary election, Cal. Democratic Party,

530 U.S. at 575. Even then, Timmons did not ban a

candidate from appearing on the general election

ballot; instead, it upheld a ban on a political party

redundantly placing on the ballot a candidate who

already appeared as another party’s nominee. See 520

U.S. at 363. The party and its members therefore

retained the right and opportunity to “campaign for,

endorse, and vote for their preferred candidate,” id.—

rights the Colorado Supreme Court has denied the

Republican Party and its members in the upcoming

Republican Party primary election, see Anderson,

2023 WL 8770111 at *51 ¶ 257. Finally, to the extent

Timmons made passing reference to denial of ballot

access to candidates “ineligible for office,” it

mentioned only eligibility for state elected office, not

section 3 or any qualifications for federal office that

may be removed by Congress during the Presidentelect’s term of office, 520 U.S. at 359 & n.8 (cited at

Anderson, 2023 WL 8770111 at *16 ¶ 75). Timmons

therefore provides no basis for the Colorado Supreme

Court’s exclusion of President Trump from the

23

Republican Party’s primary election ballot in violation

of the right of “the members of the Republican Party

to select their own candidate” for President. Cal.

Democratic Party, 530 U.S. at 575.

CONCLUSION

The Court should grant certiorari and either

summarily reverse or GVR in light of U.S. Term

Limits and the First Amendment.

JANUARY 2024

NOEL J. FRANCISCO

JOHN M. GORE

Counsel of Record

E. STEWART CROSLAND

HASHIM M. MOOPPAN

JONES DAY

51 Louisiana Avenue, NW

Washington, DC 20001

(202) 879-3939

jmgore@jonesday.com

Counsel for Amici Curiae