Amicus Curiae Brief — Donald J. Trump, Petitioner v. Norma Anderson, et al.
Supreme Court briefJan 18, 2024
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No. 23-719
In the Supreme Court of the United States
DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF COLORADO
BRIEF FOR KANSAS REPUBLICAN PARTY AND
32 OTHER STATE AND TERRITORIAL
REPUBLICAN PARTIES AS AMICI CURIAE
IN SUPPORT OF PETITIONER
CRAIG L. UHRICH
Counsel of Record
CHRISTOPHER J. MCGOWNE
McGowne & Uhrich P.A.
222 Center Avenue
Oakley, Kansas 67748
(720) 878-7688
uhrich@mcgowne-uhrichlegal.com
mcgowne@mcgowne-uhrichlegal.com
January 18, 2024
Counsel for Amici Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF AMICI CURIAE ................................1
SUMMARY OF ARGUMENT .....................................3
ARGUMENT ................................................................6
I.
The Present Controversy is not Ripe for
Adjudication ......................................................6
A. Political Parties’ Choices of Their
Candidates
for
National
Offices
Implicate the Right to Free Association
Under the First Amendment ......................6
B. At This Stage, This Question is Not
Ripe ............................................................11
II.
The Colorado Supreme Court Erred in its
Interpretation
of
the
Fourteenth
Amendment of the United States
Constitution ....................................................14
A. The Colorado Supreme Court may not
Independently
Determine
Qualifications for the President of the
United States .............................................14
B. Section Three of the Fourteenth
Amendment is Not Self Executing............19
ii
C. Congress has Used its Implementing
Power Under Section Five of the
Fourteenth Amendment, Foreclosing
the Analysis of the Colorado Supreme
Court ..........................................................21
CONCLUSION ..........................................................29
iii
TABLE OF AUTHORITIES
Cases
Abbott v. Biden,
70 F.4th 817 (5th Cir. 2023)................................... 15
Allen v. Cooper,
140 S. Ct. 994, 206 L. Ed. 2d 291 (2020) ............... 25
Barnhart v. Sigmon Coal Co.,
534 U.S. 438, 122 S. Ct. 941, 151 L. Ed. 2d 908
(2002) ...................................................................... 27
Blake v. Town of Delaware City,
441 F. Supp. 1189 (D. Del.1977) ............................ 26
Bd. of Dirs., Metro Wastewater Reclamation Dist. v.
Nat'l Union Fire Ins. Co. of Pittsburgh,
105 P.3d 653 (Colo. 2005) ....................................... 12
Burdick v. Takushi,
504 U.S. 428 (1992) .................................................. 8
Cal. Democratic Party v. Jones,
530 U.S. 567 (2000) .................................................. 8
Caplin & Drysdale, Chartered v. United States,
491 U.S. 617, 109 S. Ct. 2646, 105 L. Ed. 2d 528
(1989) ...................................................................... 24
Civ. Aeronautics Bd. v. Delta Air Lines, Inc.,
367 U.S. 316, 81 S. Ct. 1611,
6 L. Ed. 2d 869 (1961) ............................................ 28
iv
Clinton v. Jones,
520 U.S. 681, 117 S. Ct. 1636, 137 L. Ed. 2d 945
(1997)). .................................................................... 13
Colo. Republican Fed. Campaign Comm. v. FEC,
518 U.S. 604 (1996) .................................................. 8
Crumpacker v. Kansas Dept. of Human Resources,
338 F.3d 1163 (10 th Cir. 2003) ............................. 25
Democratic Party of United States v. Wisconsin,
450 U.S. 107, 101 S. Ct. 1010 (1981) ................... 3, 7
Trump v. Bellows,
Case No. AP-24-01 (Me. Super. Ct. filed Jan. 2,
2024). ........................................................................ 4
Downing v. Board of Trs. of Univ. of Ala.,
321 F.3d 1017 (11th Cir. 2003) .............................. 25
E.E.O.C. v. Elrod,
674 F.2d 601 (7th Cir. 1982) ............................ 26, 27
Ex Parte Virginia,
100 U.S. 339, 25 L. Ed. 676 (1879) ........................ 27
Foster v. Michigan,
573 F. App'x. 377 (6th Cir. 2014) ........................... 20
Great N. R. Co. v. United States,
315 U.S. 262, 62 S. Ct. 529,
86 L. Ed. 836 (1942) ............................................... 28
Greene v. Raffensperger,
599 F. Supp. 3d 1283
(N.D. Ga. 2022) ..................................... 18, 21, 22, 23
v
Griffin v. Padilla,
408 F. Supp. 3d 1169 (E.D. Cal. 2019), appeal
dismissed and remanded, No. 19-17000, 2019 WL
7557783 (9th Cir. Dec. 16, 2019), and vacated, No.
2:19-CV-01477-MCE-DB, 2020 WL 1442091 (E.D.
Cal. Jan. 13, 2020) .................................................. 17
Griffith v. Franklin Cnty.,
975 F.3d 554 (6th Cir. 2020) .................................. 13
Heitmanis v. Austin,
899 F.2d 521 (6th Cir. 1990) ................................ 3, 7
In re Chapman,
166 U.S. 661, 17 S. Ct. 677,
41 L. Ed. 1154 (1897) ............................................... 5
In re Griffin,
11 F. Cas. 7 (C.C.D. Va. 1869) ............................... 20
Katzenbach v. Morgan,
384 U.S. 641, 86 S. Ct. 1717, 16 L. Ed. 2d 828
(1966) .......................................................... 19, 24, 27
Lemon v. Bossier Par. Sch. Bd.,
240 F. Supp. 743 (W.D. La. 1965) .......................... 15
Lindsay v. Bowen,
750 F.3d 1061 (9th Cir. 2014) ................................ 16
McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819) .......... 26
McGirt v. Oklahoma,
140 S. Ct. 2452, 207 L. Ed. 2d 985 (2020) ............. 28
vi
Miller v. Bonta,
No. 19CV01537BENJLB, ––– F. Supp. 3d –––,
2023 WL 6929336 (S.D. Cal. Oct. 19, 2023) .......... 15
Mockeridge v. Alcona Cnty.,
No. 1:21-CV-12896, 2023 WL 3194475
(E.D. Mich. Apr. 21, 2023) ..................................... 13
Nev. Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 123 S. Ct. 1972, 155 L. Ed. 2d 953
(2003) ...................................................................... 25
Norman v. Reed,
502 U.S. 279 (1992) .................................................. 8
Pac. Mut. Life Ins. Co. v. Haslip,
499 U.S. 1 (1991) .................................................... 19
Powell v. McCormack,
395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491
(1969) ................................................................ 17, 18
Rubin v. City of Santa Monica,
308 F.3d 1008 (9th Cir. 2002) .................................. 9
Salisbury v. Grimes,
406 F.2d 50 (11th Cir. 1969) .................................. 26
Santa Fe Cmty. Coll. v. Ztark Broadband, LLC,
643 F. Supp. 3d 1259 (D.N.M. 2022). .................... 16
Simmonds v. I.N.S.,
326 F.3d 351 (2d Cir. 2003).............................. 11, 12
Socialist Workers Party v. Secretary of State,
412 Mich. 571 (1982) ................................................ 9
vii
State v. Griffin,
No. D-101-CV-2022-00473, 2022 WL 4295619
(D.N.M. Sept. 6, 2022) ................................ 18, 27, 28
Tashjian v. Republican Party of Conn.,
479 U.S. 208, 107 S. Ct. 544, 93 L. Ed. 2d 514
(1986) .............................................................. 6, 8, 17
Texas v. Biden,
No. 6:22-CV-00004, ––– F. Supp. 3d –––, 2023 WL
6281319 (S.D. Tex. Sept. 26, 2023). ....................... 28
Texas v. United States,
523 U.S. 296, 118 S. Ct. 1257, 140 L. Ed. 2d 406
(1998) ........................................................................ 6
Thomas v. Union Carbide Agric. Prods. Co.,
473 U.S. 568, 105 S. Ct. 3325, 87 L. Ed. 2d 409
(1985) ........................................................................ 6
Timmons v. Twin Cities Area New Party,
520 U.S. 351 (1997) .............................................. 6, 8
U.S. Term Limits, Inc. v. Thornton,
514 U.S. 779 (1995) ............................ 3, 7, 16, 17, 18
United States v. Champlin Ref. Co.,
341 U.S. 290, 71 S. Ct. 715,
95 L. Ed. 949 (1951) ............................................... 28
United States v. Price,
383 U.S. 787, 86 S. Ct. 1152, 16 L. Ed. 2d 267
(1966) ...................................................................... 24
viii
United States v. Rahimi,
61 F.4th 443 (5th Cir. 2023), cert. granted, ––– U.S.
––––, 143 S. Ct. 2688, ––– L. Ed. 2d –––– ............. 15
United States v. Simien,
655 F. Supp. 3d 540 (W.D. Tex. 2023), recons.
denied, No. SA-22-CR-00379-JKP, 2023 WL
3082358 (W.D. Tex. Apr. 25, 2023) ........................ 16
United States v. Sprague,
282 U.S. 716, 51 S.Ct. 220, 75 L.Ed. 640 (1931) ... 15
United States v. Trump,
No. CR 23-257 (TSC), ––– F. Supp. 3d –––, 2023
WL 8359833 (D.D.C. Dec. 1, 2023), cert. denied
before judgment, No. 23-624, ––– S. Ct. –––, 2023
WL 8857247 (U.S. Dec. 22, 2023) .................... 12, 13
United States v. Wainer,
49 F.2d 789 (W.D. Pa. 1931) .................................... 5
Vote.Org v. Callanen,
No. 22-50536, 2023 WL 8664636
(5th Cir. Dec. 15, 2023) ........................................ 3, 4
Constitution and Statutes
U.S. CONST. amend. I ........................ 3, 6, 8, 10, 17, 30
U.S. CONST. amend. XIV ..... 2, 3, 4, 6, 9, 13, 14, 19, 20
21, 22, 23, 24, 25, 26, 27
U.S. CONST. amend. XIV, §3 ....... 13, 14, 17, 18, 19, 20
22, 23, 27, 28, 29
ix
U.S. CONST. amend. XIV, §5 .................... 4, 19, 21, 24,
25, 26, 27, 29
U.S. CONST. art. II, §1 ............................................... 11
U.S. CONST. art. II, §1, cl. 5 ................................... 4, 16
18 U.S.C. § 4 (Mar. 4, 1909, ch. 321, § 4, 35
Stat. 1088) .............................................................. 23
18 U.S.C. § 2383 ...................................... 23, 27, 28, 29
42 U.S.C. § 1983 .................................................. 20, 21
COLO. REV. STAT. § 1-1-113 .................................. 11, 14
COLO. REV. STAT. § 1-1-113(1) ................................ 4, 12
COLO. REV. STAT. § 1-3-105 ........................................ 11
COLO. REV. STAT. § 1-3-106 ........................................ 11
COLO. REV. STAT. § 1-4-101(1) ...................................... 6
COLO. REV. STAT. § 1-4-102 (West)............................. 10
COLO. REV. STAT. § 1-4-302 ........................................ 11
COLO. REV. STAT. § 1-4-1204(1)(b) ............................. 10
COLO. REV. STAT. § 1-4-1204(b) ................................. 10
COLO. REV. STAT. § 1-4-1204(4) ................................... 4
COLO. REV. STAT. § 13-51-105...................................... 4
x
Rules
C.R.C.P. 57(a) .............................................................. 4
Other Authorities
Alexander M. Bickel, The Supreme Court 1960
Term Foreword: The Passive Virtues, 75 HARV.
L. REV. 40 (1961) .................................................... 12
CONG.GLOBE, 42D CONG., 1ST SESS.APP. (1871) ........ 24
https://www.nbcnews.com/politics/2024election/missouri-republican-secretary-of-statebiden-trump-ballot-rcna132600 ............................... 5
https://www.politico.com/2024-election/results
/iowa/. ........................................................................ 8
Gerard N. Magliocca, Amnesty and Section Three of
the Fourteenth Amendment, 36 CONST. COMMENT.
87 (2021) ........................................................... 22, 23
1
INTEREST OF AMICI CURIAE1
Amicus curiae, the Kansas Republican Party
(“KRP”), is an incorporated nonprofit association and
political party committee in Kansas, duly formed and
operating under the laws of the State of Kansas. As
stated in its bylaws, its purpose is to promote the
principles and objectives of the Republican Party and
elect Republican candidates to office to the maximum
extent provided for under Kansas law. Specifically, its
purpose is: “to coordinate and unite the activities of
Republicans in Kansas through recognized . . .
committees under a central, statewide organization
and serve as the official state affiliate of the
Republican National Committee. The [KRP] is
dedicated to the advancement of Republican
candidates, policies and principles and shall aid in
every way possible the Republican nominees selected
in each partisan primary. The [KRP] seeks to advance
Republican principles and beliefs by seeing them
enacted as sound public policy.”
Its interests are to elect Republicans at the
federal, state, and local levels and to protect its
members’ access to those candidates who wish to
represent the party. Nominating and designating
candidates are core functions, without regard to a
particular candidate. The KRP, along with the other
Amici named below, all of whom are state Republican
parties, seeks to be heard in this action to protect its
stated interests and the voter access of its members
1 No counsel for any party authored this brief in whole or in part.
Only amici curiae funded its preparation and submission.
2
and any citizen who might choose to vote for a
Republican candidate. Each of the Amici have faced,
or will face, similar litigation over the scope and
meaning of the Fourteenth Amendment to the United
States Constitution and its application to
contemporary events.
Amici the KRP, the Alabama Republican Party,
Republican Party of American Samoa, California
Republican Party, Colorado Republican Party,
Connecticut Republican Party, Delaware Republican
Party, District of Columbia Republican Party, Georgia
Republican Party, Republican Party of Guam, Idaho
Republican Party, Illinois Republican Party, Maine
Republican Party, Maryland Republican Party,
Mississippi Republican Party, Missouri Republican
Party, Nebraska GOP, New Jersey Republican Party,
North Carolina Republican Party, North Dakota
Republican Party, Ohio Republican Party, Oklahoma
Republican Party, Oregon Republican Party, Rhode
Island Republican Party, South Dakota Republican
Party, South Carolina GOP, Tennessee Republican
Party, Republican Party of Texas, Utah Republican
Party, Republican Party of Virgina, West Virgina
Republican Party, Wisconsin Republican Party, and
Wyoming Republican Party join this Brief and seek to
be heard here, as a ruling in favor of Respondents
would injure these other state parties because, if a
candidate is barred from the ballot in Colorado, then
that candidate’s viability is unquestionably lessened
and the votes of these state parties’ members
diminished. This injury highlights the importance of
jurisprudence requiring that states may not make
their own independent qualifications or otherwise
3
interfere with qualifications for national office. See
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 810
(1995) (“In light of the Framers’ evident concern that
States would try to undermine the National
Government, they could not have intended States to
have the power to set qualifications.”); Heitmanis v.
Austin, 899 F.2d 521, 529 (6th Cir. 1990) (“a State, or
a court, may not constitutionally substitute its own
judgment for that of the Party. A political party’s
choice among the various ways of determining the
makeup of a state’s delegation to the party’s national
convention is protected by the Constitution.”) (quoting
Democratic Party of United States v. Wisconsin, 450
U.S. 107, 123-24, 101 S. Ct. 1010, 1020 (1981)). All
these state parties share a commitment to their First
Amendment rights and the establishment of clear
jurisprudence protecting those rights.
SUMMARY OF ARGUMENT
This case arises from the Supreme Court of
Colorado’s novel and untested interpretation of the
Fourteenth Amendment to the United States
Constitution in order to remove a presidential
candidate from a political party’s primary ballot.
While this was not the first action to attempt such an
action, it was the first such action to be successful.
Rather than utilize principles of judicial restraint and
caution, the Colorado Supreme engaged in “judicial
lawmaking” which has, and will continue to, invite a
slew of politically motived actions designed to pander
to public perception to the determent of wellestablished principles of law. See, e.g., Vote.Org v.
Callanen, No. 22-50536, 2023 WL 8664636, at *5 (5th
4
Cir. Dec. 15, 2023) (finding judicial self-restraint
warranted
to
avoid
making
“unnecessary
pronouncement[s] on constitutional issues” and
“premature interpretations of statutes”); see also
Trump v. Bellows, Case No. AP-24-01 (Me. Super. Ct.
filed Jan. 2, 2024).
The Colorado Supreme Court’s decision is
rooted in impossible assumptions and ignores well
established principles of constitutional and statutory
law. The Colorado Supreme Court is attempting to
impose an impermissible new federal constitutional
requirement on the qualifications for President,
eviscerating both Section Five of the Fourteenth
Amendment and Article II, Section 1, Clause 5 of the
United States Constitution, while making factual and
legal assumptions that run contrary to bedrock state
and federal constitutional law. This imprudent
decision making resulted in a rash, purely political
decision, rather than the well-reasoned legal analysis
we normally require of our courts. The political nature
of this “per curium” decision is belied by its three
dissenting opinions. See App. 224a-360a.
The Colorado case was a cause of action brought
“under sections 1-4-1204(4), 1-1-113(1), 13-51-105,
C.R.S. (2023), and C.R.C.P. 57(a). In their Verified
Petition, the Electors challenged the [Colorado
Secretary of State]’s authority to list President Trump
‘as a candidate on the 2024 Republican presidential
primary election ballot and any future election ballot,
based on his disqualification from public office under
Section [Three].’” App. 10a-11a at ¶ 14. The Colorado
court’s factual background focused solely on the
5
actions of the candidate when he was President on
January 6, 2021. The Colorado Supreme Court found
that the Colorado General Assembly gave Colorado
courts the authority to assess, and add, presidential
qualifications—a finding of questionable historic and
legal validity, which created the absurd result of
allowing partisan state actors to simply disqualify
candidates they deem unfit to serve. This result runs
contrary to the fundamental Constitutional principles
of the nation. “Constitutional provisions should be
construed so as to avoid absurd, unjust, or
unreasonable consequence.” In re Chapman, 166 U.S.
661, 667, 17 S. Ct. 677, 680, 41 L. Ed. 1154 (1897). “But
nothing is better settled than that statutes should
receive a sensible construction, such as will effectuate
the legislative intention, and, if possible, so as to avoid
an unjust or an absurd conclusion.” United States v.
Wainer, 49 F.2d 789, 791 (W.D. Pa. 1931).
Although this case is already being attacked in
the press for predicted political results, this case is the
type that demonstrates the need for this Court. This
matter is not about President Trump, but about the
proper interpretation of the Constitution and the
unprecedented interpretation the Colorado Supreme
Court invoked to achieve it desired political ends.
Failing to close this Pandora’s box will result in tit-fortat litigation to determine federal elections.2
2 For example, Missouri Secretary of State, Jay Ashcroft, recently
raised the idea of disqualifying President Biden because his
border policies and for Vice President Harris’s support to the
protests in the wake of George Floyd’s murder. See
https://www.nbcnews.com/politics/2024-election/missourirepublican-secretary-of-state-biden-trump-ballot-rcna132600.
6
ARGUMENT
I.
The Present Controversy is not Ripe for
Adjudication.
As this Court has made clear: “A claim is not
ripe for adjudication if it rests upon ‘contingent future
events that may not occur as anticipated, or indeed
may not occur at all.’” Texas v. United States, 523 U.S.
296, 300, 118 S. Ct. 1257, 1259, 140 L. Ed. 2d 406
(1998) (quoting Thomas v. Union Carbide Agric.
Prods. Co., 473 U.S. 568, 580-81, 105 S. Ct. 3325, 3333,
87 L. Ed. 2d 409 (1985)). This matter had not reached
the stage where judicial intervention is necessary
when the Colorado Supreme Court took it upon itself
to put its thumb on the scale of the upcoming elections.
A. Political Parties’ Choices of Their
Candidates
for
National
Offices
Implicate the Right to Free Association
Under the First Amendment.
Political parties, which are wholly private, stem
from “freedom of association protected by the First and
Fourteenth Amendments, and ‘[a]s a result, political
parties’ government, structure, and activities enjoy
constitutional protection.’” App. 65a-66a at ¶ 75
(quoting Tashjian v. Republican Party of Conn., 479
U.S. 208, 214 (1985); Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 358 (1997)); see also U.S.
CONST. Amends. 1, 14. In Colorado, nominees for
President must go through a primary process. See
COLO. REV. STAT. § 1-4-101(1). At this point, there is
no conflict with the Fourteenth Amendment because,
7
even if a candidate wins the Colorado Republican
primary, he will not yet be President-elect. Winning
that vote only provides him delegates at the
convention, where winning would put him on the
ballot for the nation vote. The Colorado Supreme
Court’s decision, however, has ramifications far
beyond its borders because removing a national
candidate from a single state’s primary ballot
unquestionably weakens that candidate’s viability
and impedes a political party’s ability to field a strong
national candidate.
It is well established that “a State, or a court,
may not constitutionally substitute its own judgment
for that of the Party. A political party’s choice among
the various ways of determining the makeup of a
state’s delegation to the party’s national convention is
protected by the Constitution.” Heitmanis, 899 F.2d at
529 (quoting Democratic Party, 450 U.S. at 123-24);
see also Thornton, 514 U.S. at 810 (“In light of the
Framers’ evident concern that States would try to
undermine the National Government, they could not
have intended States to have the power to set
qualifications.”). This Court regularly recognizes the
right of a political party to make associational
decisions:
In no area is the political association’s
right to exclude more important than in
the process of selecting its nominee. That
process often determines the party’s
positions on the most significant public
policy issues of the day, and even when
those positions are predetermined it is
8
the nominee who becomes the party’s
ambassador to the general electorate in
winning it over to the party’s views.
Cal. Democratic Party v. Jones, 530 U.S. 567, 575
(2000); see also Colo. Republican Fed. Campaign
Comm. v. FEC, 518 U.S. 604, 629 (1996) (“Political
parties have a unique role in serving this principle;
they exist to advance their members’ shared political
beliefs.”); Tashjian v. Republican Party of Conn., 479
U.S. 208 (1986) (holding unconstitutional statute’s
requirement that voters in a primary be members of
that party). At the primary stage, if Republican voters
want to vote to nominate a candidate who they know
will not hold the office, including because they are not
qualified, it is their right to do so. In every election,
people vote for candidates who do not go on to hold the
office in question, for whatever reason.3
As this Court has indicated, States may not
enact “unreasonably exclusionary restrictions.”
Timmons, 520 U.S. at 369. Laws regarding even
general ballot access must still be “reasonable,
politically neutral regulations.” Burdick v. Takushi,
504 U.S. 428, 438 (1992). “[T]he State’s asserted
regulatory interests need be ‘sufficiently weighty to
justify the limitation’ imposed on the Party’s rights.”
Timmons, 520 U.S. at 364 (citing Norman v. Reed, 502
U.S. 279, 288-89 (1992). Moreover, the basis for the
purported disqualification is crucial to determining
For example, in the most recent Iowa Republican caucuses, 35
votes were cast for Chris Christie, even though he had suspended
his
campaign
the
previous
week.
See
https://www.politico.com/2024-election/results/iowa/.
3
9
whether First Amendment rights are violated. See
Rubin v. City of Santa Monica, 308 F.3d 1008, 1014
(9th Cir. 2002) (restrictions are not severe when they
are “generally applicable, even-handed, [and]
politically neutral”). The heavily political, extrastatutory, non-neutral, and not-generally-applicable
requirement Respondents seek to impose here is not
available to them in this matter under the Fourteenth
Amendment, partly because it would infringe on the
Party’s right to associate. As the Supreme Court of
Michigan has emphasized:
[b]oth the rights of individuals to
associate for the advancement of political
beliefs and of qualified voters to cast
their votes effectively are basic to
effective political expression and merit
strong
constitutional
protection.
Restrictions on access to the ballot
burden those fundamental rights
directly, and the effect is heightened
where the restrictions work to eliminate
political and ideological alternatives at
the
primary
election
when
the
candidates for the major parties are
selected and before campaigning has
identified and sharpened the issues
facing the voters.
Socialist Workers Party v. Secretary of State, 412 Mich.
571, 579 (1982). The Colorado Republican Party, not
the Secretary of State, sets the rules and requirements
for Republican nominees. Election law reflects the
Party’s constitutional right to freely associate and
10
exercise its political decisions. One way the law does
so is by withholding from individuals the right to
interfere with a party’s political decisions.
“All candidates for nominations to be made at
any primary election shall be placed on the primary
election ballot either by certificate of designation by
assembly or by petition.” COLO. REV. STAT. § 1-4-102
(West). For Presidential access to the primary ballot:
Not later than sixty days before the
presidential primary election, the
secretary of state shall certify the names
and party affiliations of the candidates to
be placed on any presidential primary
election ballots. The only candidates
whose names shall be placed on ballots
for the election shall be those candidates
who: Are seeking the nomination for
president of a political party as a bona
fide candidate for president of the United
States pursuant to political party rules
and are affiliated with a major political
party that received at least twenty
percent of the votes cast by eligible
electors in Colorado at the last
presidential election.
COLO. REV. STAT. § 1-4-1204(1)(b).
Private political parties nominate candidates
for primary elections. See, e.g., COLO. REV. STAT. § 1-41204(b). Political parties have complete control over
all aspects of their operations, as provided for in the
11
First Amendment. See, e.g., COLO. REV. STAT. § 1-3105; § 1-3-106; § 1-4-302. If Donald Trump were to be
disqualified under party rules, then the Secretary of
State could refuse to certify. If Mr. Trump is successful
in securing his party’s nomination, at that point, at
the earliest, could the Colorado Secretary of State and
the Colorado Courts entertain a challenge under state
statute. See COLO. REV. STAT. § 1-1-113. Thus, even if
the Colorado Supreme Court were allowed to craft an
additional qualification for President other than those
specified in Article II, Section 1 of the Constitution,
the question of a particular candidate’s qualification
for national office would not be relevant until—at the
earliest—a candidate wins the primary.
B. At This Stage, This Question is Not Ripe.
The question of whether Donal Trump is
“qualified to hold office” will not arise until, at the
earliest, Donald Trump becomes his party’s nominee.
One could even argue the issue will not be ripe unless
and until Mr. Trump wins a general election and
becomes the presumptive President-elect. In other
words, if Mr. Trump were to lose either the Republican
primary election or the general election, then there
would be nothing for the courts to decide.
“Prudential ripeness is, then, a tool that courts
may use to enhance the accuracy of their decisions and
to avoid becoming embroiled in adjudications that may
later turn out to be unnecessary or may require
premature examination of, especially, constitutional
issues that time may make easier or less
controversial.” Simmonds v. I.N.S., 326 F.3d 351, 357
12
(2d Cir. 2003) (citing Alexander M. Bickel, The
Supreme Court 1960 Term Foreword: The Passive
Virtues, 75 HARV. L. REV. 40, 58–64 (1961)). Indeed,
even Colorado has recognized that courts should
“refuse to consider uncertain or contingent future
matters that suppose a speculative injury that may
never occur.” Bd. of Dirs., Metro Wastewater
Reclamation Dist. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, 105 P.3d 653, 656 (Colo. 2005).
In the case below, the Colorado Supreme Court
first erred in finding the matter ripe, i.e. that it had
jurisdiction to determine whether the candidate was
fit to serve as President. That determination was
based on C.R.S. 1-1-113(1), which provides for
jurisdiction when: (1) an eligible elector; (2) files a
verified petition in a district court of competent
jurisdiction; (3) alleging that a person charged with a
duty under the Election Code; (4) has committed, or is
about to commit, a breach of duty or other wrongful
act. See App. 40a at ¶ 47. “[T]he petitions alleged that
the Secretary was about to commit a breach of duty or
other wrongful act under the Election Code by placing
President Trump on the presidential primary ballot
because he is not constitutionally qualified to hold
office.” App. 42a at ¶ 48.
The Colorado Supreme Court put the cart
before the horse. As other courts have found when
ruling on this exact issue: Courts have a “duty not to
‘decide questions of a constitutional nature unless
absolutely necessary to a decision.’” United States v.
Trump, No. CR 23-257 (TSC), ––– F. Supp. 3d –––,
2023 WL 8359833, at *15 (D.D.C. Dec. 1, 2023), cert.
13
denied before judgment, No. 23-624, ––– S. Ct. –––,
2023 WL 8857247 (U.S. Dec. 22, 2023) (quoting
Clinton v. Jones, 520 U.S. 681, 690 & n.11, 117 S. Ct.
1636, 137 L. Ed. 2d 945 (1997)).
A deeply rooted doctrine in constitutional law is
that constitutional questions may not be decided
unless they are unavoidable. Griffith v. Franklin
Cnty., 975 F.3d 554, 571 n.5 (6th Cir. 2020);
Mockeridge v. Alcona Cnty., No. 1:21-CV-12896, 2023
WL 3194475, at *1 (E.D. Mich. Apr. 21, 2023). Courts
must refrain from premature adjudication of
constitutional questions at all costs. Clinton, 520 U.S.
at 690 (stressing “the importance of avoiding the
premature adjudication of constitutional questions”).
Under both the United States and Colorado
constitutions, political parties are private associations
that may set their own qualifications on how to
nominate candidates for primary elections. Courts
may not usurp state or federal constitutional law in
order limit a voter’s access to a candidate of their
choice. Voters have the right to vote for, or against,
any candidate a private political party deems fit for
the ballot. And, at least until such a candidate is
deemed to be the winner of that private political
party’s primary election, it is not the province of any
court to make a premature determination about that
candidate’s qualification to serve in office under
Section Three of the Fourteenth Amendment.
As this matter was not ripe for decision, the
ruling of the Colorado Supreme Court should be
reversed.
14
II.
The Colorado Supreme Court Erred in its
Interpretation
of
the
Fourteenth
Amendment
of
the
United
States
Constitution.
Even if this matter were ripe for adjudication,
the Colorado Supreme Court erred both by finding
that it was an appropriate venue to determine this
matter and by failing to recognize that the Fourteenth
Amendment requires implementing legislation, which
has already been adopted and which does not
disqualify Mr. Trump from the Presidency.
A. The Colorado Supreme Court may not
Independently
Determine
Qualifications for the President of the
United States.
The Colorado Supreme Court erred in removing
Donald Trump from Colorado’s primary for failure to
satisfy the “qualifications for President” under Section
Three of the Fourteen Amendment. In Anderson, the
Colorado Supreme Court allowed Respondents to
challenge Donald Trump’s appearance on Colorado’s
primary ballot under C.R.S. 1-1-113(1), which
allegedly creates a cause of action allowing for judicial
review of the “qualifications” of candidates, including
candidates for the Presidency. App. 51a-52a at ¶ 60.
The Colorado Supreme Court further held that Section
Three of the Fourteenth Amendment is a
“qualification” in the same manner as age or
citizenship. App. 56a-58a at ¶¶ 65-66.
15
In interpreting the Constitution, courts begin
with the original public meaning of the Constitution’s
text. Abbott v. Biden, 70 F.4th 817, 829 (5th Cir. 2023).
A court’s duty is to interpret the Constitution in light
of its text, structure, and original understanding, as
informed by history and tradition. Id. at 827. “The
Constitution was written to be understood by the
voters; its words and phrases were used in their
normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U.S. 716, 731,
51 S.Ct. 220, 75 L.Ed. 640 (1931). It is the duty of
judges “to interpret the Constitution based on the text
and original understanding of the relevant provision—
not based on public policy considerations, or worse,
fear of public opprobrium or criticism from the
political
branches.”
Miller
v.
Bonta,
No.
19CV01537BENJLB, ––– F. Supp. 3d –––, 2023 WL
6929336 (S.D. Cal. Oct. 19, 2023) (quoting United
States v. Rahimi, 61 F.4th 443, 462 (5th Cir. 2023),
cert. granted, ––– U.S. ––––, 143 S. Ct. 2688, ––– L.
Ed. 2d –––– (Ho, J., concurring)).
“In the first place, it is so fundamental as to
require no citation of authority that Constitutional
provisions and statutes in pari materia should be read
together, and all sections accorded equal dignity in
interpreting their meaning. Wherever possible, all
provisions should be given effect, and each interpreted
in light of the others, as so to reconcile them, if
possible, and to render none nugatory. Particular
provisions shall prevail over those of a general
nature.” Lemon v. Bossier Par. Sch. Bd., 240 F. Supp.
743, 744 (W.D. La. 1965). In determining the meaning
of its text, the Constitution can and must apply to
16
circumstances beyond those the Founders specifically
anticipated. United States v. Simien, 655 F. Supp. 3d
540 (W.D. Tex. 2023), recons. denied, No. SA-22-CR00379-JKP, 2023 WL 3082358 (W.D. Tex. Apr. 25,
2023). Where a constitutional clause is clear and
unambiguous on its face, courts will not construe the
clause. Santa Fe Cmty. Coll. v. Ztark Broadband, LLC,
643 F. Supp. 3d 1259 (D.N.M. 2022).
Colorado is permitted to review the established
qualifications of candidates for the office of President.
See, e.g., Lindsay v. Bowen, 750 F.3d 1061 (9th Cir.
2014) (disqualification for failure to meet age
threshold). But states may not impose impermissible
qualifications for office. See, e.g., Thornton, 514 U.S.
779, 115 S. Ct. 1842, 131 L. Ed. 2d 881. This includes
the office of the President. Id. “A State has no reserved
power to establish qualifications for the office of
President.” Id. at 861. The Qualifications Clause lays
down the sole qualifying criteria for the President of
the United States:
No Person except a natural born Citizen,
or a Citizen of the United States, at the
time of the Adoption of this Constitution,
shall be eligible to the Office of President;
neither shall any Person be eligible to
that Office who shall not have attained to
the Age of thirty-five Years, and been
fourteen Years a Resident within the
United States.
U.S. CONST., art. II, § 1, cl. 5. As this Court has
explained, “the Qualifications Clauses were intended
17
to . . . fix as exclusive the qualifications in the
Constitution.” Thornton, 514 U.S. 779, 806, 115 S. Ct.
1842, 131 L. Ed. 2d 881.4
In a thinly veiled attempt to lure this Court into
a political matter, the Colorado Supreme Court
blatantly violated a core constitutional principle. See,
e.g., Griffin v. Padilla, 408 F. Supp. 3d 1169, 1179
(E.D. Cal. 2019), appeal dismissed and remanded, No.
19-17000, 2019 WL 7557783 (9th Cir. Dec. 16, 2019),
and vacated, No. 2:19-CV-01477-MCE-DB, 2020 WL
1442091 (E.D. Cal. Jan. 13, 2020) (petitioners were
likely to succeed on merits of claim that California
state law requiring presidential candidates to disclose
their federal tax returns as precondition to appearing
on state’s partisan presidential primary ballot
violated First Amendment rights to freedom of
association and ballot access). These principles apply
with equal force to state primaries as to the general
election. Id. at 1179 n.12 (citing Tashjian v.
Republican Party, 479 U.S. 208, 227, 107 S. Ct. 544,
93 L. Ed. 2d 514 (1986)).
Before making its errant ruling, the Colorado
Supreme Court recognized that “the Supreme Court
has twice declined to address whether Section Three—
which disqualifies an oath-breaking insurrectionist
from holding office—amounts to a qualification for
office.” App. 56a at ¶ 65 (citing Powell v. McCormack,
395 U.S. 486, 520 n.41, 89 S. Ct. 1944, 23 L. Ed. 2d 491
4 Thornton dealt with congressional term limits, but the
qualifications clauses for both houses of Congress and for the
Presidency are close parallels, and the Thornton rationale should
apply with equal force to the presidential Qualifications Clause.
18
(1969) (describing Section Three and similar
disqualification provisions in the federal constitution
but declining to address whether such provisions
constitute “qualification[s]” for office because “both
sides agree[d] that [the candidate] was not ineligible
under” Section Three or any other, similar provision);
Thornton, 514 U.S. 779, 787 n.2, 115 S. Ct. 1842, 131
L. Ed. 2d 881 (seeing “no need to resolve” the same
question regarding Section Three in a case concerning
the propriety of additional qualifications for office)).
Rather than following this Court’s wisdom and
declining to rule on the issue, the Colorado Supreme
Court followed two trial courts that concluded Section
Three is the functional equivalent of a qualification for
office. See App. 57a at ¶ 65 (citing Greene v.
Raffensperger, 599 F. Supp. 3d 1283, 1316 (N.D. Ga.
2022) (“Section [Three] is an existing constitutional
disqualification adopted in 1868—similar to but
distinct from the Article I, Section 2 requirements that
congressional candidates be at least 25 years of age,
have been citizens of the United States for 7 years, and
reside in the states in which they seek to be elected.”);
State v. Griffin, No. D-101-CV-2022-00473, 2022 WL
4295619, at *24 (D.N.M. Sept. 6, 2022) (“Section Three
imposes a qualification for public office, much like an
age or residency requirement.”)).
Following these lower courts, rather than
exercising judicial discretion, led the Colorado
Supreme Court to err.
19
B. Section Three of the Fourteenth
Amendment is Not Self Executing
Section Three is not self-executing. It does not
independently provide a cause of action for anyone to
sue anyone, anytime, in order to disqualify them from
office. Nor does it provide every state’s Secretary of
State with the authority to determine such
constitutional questions independently.
The Fourteenth Amendment expressly reserved
enforcement authority to Congress: “[t]he Congress
shall have power to enforce, by appropriate legislation,
the provisions of this article.” U.S. CONST. amend.
XIV, § 5. Thus, Congress has exclusive authority to
enforce, via legislation, all the provisions of the
Fourteenth Amendment, including disqualification
under Section Three. This Court has held that the
enforcement power of the Fourteenth Amendment lies
only with Congress, and Section Five of the
Fourteenth Amendment confers enforcement power
with Congress to determine “whether and what
legislation is needed to” enforce the Fourteenth
Amendment. Katzenbach v. Morgan, 384 U.S. 641, 651
(1966); see also Pac. Mut. Life Ins. Co. v. Haslip, 499
U.S. 1, 33 (1991) (Scalia, J., concurring) (“It cannot
rightly be said that the Fourteenth Amendment
furnishes a universal and self-executing remedy. Its
function is negative, not affirmative, and it carries no
mandate for particular measures of reform.”). If this
doctrine applies to the vital individual rights
protections of Section One, there is no reason it should
not also apply to the political questions of Section
Three.
20
More specifically, the seminal decision of
Griffin’s Case is in line with this Court’s later
decisions cited above. See In re Griffin, 11 F. Cas. 7, 22
(C.C.D. Va. 1869). There, Chief Justice Salmon Chase,
sitting as Circuit Judge for Virginia held that only
Congress could provide the means of enforcing Section
Three as a cause of action. Id. at 9. Chief Justice Chase
made clear “There are, indeed, other sections than the
third, to the enforcement of which legislation is
necessary; but there is no one which more clearly
requires legislation in order to give effect to it.
The fifth section qualifies the third to the same extent
as it would if the whole amendment consisted of these
two sections.” Id. (emphasis added). That case has
never been overruled and has been affirmed
repeatedly by other courts and authorities. At least 17
cases in five states have positively cited the Griffin’s
Case conclusions—in fact, the case below appears to
be the only negative treatment of Griffin’s Case.
Because the Fourteenth Amendment is not selfexecuting, the exclusive method for enforcing its
provisions is through the provisions Congress may
choose to establish for doing so. A private plaintiff
seeking to enforce individual rights under Section One
of the Fourteenth Amendment needs to utilize the
mechanism Congress has established: 42 U.S.C.
Section 1983. See Foster v. Michigan, 573 F. App’x.
377, 391 (6th Cir. 2014) (“[W]e have long held that §
1983 provides the exclusive remedy for constitutional
violations.”). The enforcement of Section Three is
likewise entrusted to congressional authority.
21
C. Congress has Used its Implementing
Power Under Section Five of the
Fourteenth Amendment, Foreclosing the
Analysis of the Colorado Supreme Court.
In Greene v. Raffensperger, United States
Representative Marjorie Taylor Greene filed a Section
1983 action challenging the constitutionality of a
Georgia statute permitting voters to institute an
administrative proceeding to challenge whether
individual candidates in their districts met requisite
legal qualifications to run for their prospective
positions. See 599 F. Supp. 3d 1283 (N.D. Ga. 2022).
Voters intervened. Id. Representative Greene moved
for a temporary restraining order and preliminary
injunction. Id.
In denying injunctive relief, the Northern District of
Georgia provided a historical synopsis of the
Amendment:
As previously noted, Section 3 of the
Fourteenth
Amendment
prohibits
certain individuals and office holders,
who have previously taken an oath of
office to support the Constitution of the
United States, from holding federal or
state office if they ‘engaged in
insurrection or rebellion’ against the
United States. This provision specifically
states:
No person shall be a
Senator or Representative
22
in Congress, or elector of
President
and
VicePresident, or hold any
office, civil or military,
under the United States, or
under any State, who,
having previously taken an
oath, as a member of
Congress, or as an officer of
the United States, or as a
member of any State
legislature,
or
as
an
executive or judicial officer
of any State, to support the
Constitution of the United
States, shall have engaged
in insurrection or rebellion
against the same, or given
aid or comfort to the
enemies
thereof.
But
Congress may by a vote of
two-thirds of each House,
remove such disability.
Greene v. Raffensperger, 599 F. Supp. 3d 1283, 1312
(N.D. Ga. 2022). Importantly, the Fourteenth
Amendment was passed and ratified in the years
following the Civil War, and when the 39th Congress
convened in December of 1865, “Senators and elected
Representatives from the ex-Confederate States
showed up ready to take their seats,” thereby
“infuriat[ing] most Republicans in Congress.” See
Gerard N. Magliocca, Amnesty and Section Three of
the Fourteenth Amendment, 36 CONST. COMMENT. 87,
23
91 (2021). This inspired the inclusion of Section Three
of the Fourteenth Amendment. Id. In the years after
the passage of the Fourteenth Amendment, Section
Three was relied on to exclude both state and federal
officials from office. Id. at 88 (explaining that federal
prosecutors brought action to oust half of the
Tennessee Supreme Court); id. at 110–11 (noting that
the Senate refused to seat a member-elect, Zebulon
Vance, the wartime governor of North Carolina, on the
grounds that he was ineligible under Section Three).
Greene, 599 F. Supp. 3d at 1313.
But what the Greene holding fail to
acknowledge was that the 60th Congress passed
legislation on March 4, 1909. See 18 U.S.C. § 4 (Mar.
4, 1909, ch. 321, § 4, 35 Stat. 1088). This law, passed
well after ratification of the Fourteenth Amendment,
imposed a criminal standard for insurrection. This
statute is enabling legislation. Section Four was
amended to state as follows:
Whoever incites, sets on foot, assists, or
engages in any rebellion or insurrection
against the authority of the United
States or the laws thereof, or gives aide
or comfort thereto, shall be imprisoned
not more than ten years, or fined not
more than ten thousand it dollars, or
both; and shall, moreover, be incapable of
holding any office under the United
States.
This language is nearly identical to current statutes.
See 18 U.S.C.A. § 2383 (“Whoever incites, sets on foot,
24
assists, or engages in any rebellion or insurrection
against the authority of the United States or the laws
thereof, or gives aid or comfort thereto, shall be fined
under this title or imprisoned not more than ten years,
or both; and shall be incapable of holding any office
under the United States.”).
Section Five of the Fourteenth Amendment
provides that Congress shall have power to enforce, by
appropriate legislation, the Amendment’s provisions.
U.S. CONST. amend. XIV, § 5. Enforcement power
granted Congress under Section Five is a positive
grant of legislative power. Katzenbach v. Morgan,
384 U.S. 641, 651, 86 S. Ct. 1717, 1723-24, 16 L. Ed.
2d 828 (1966). Section Five does not place conditions
on Congress’ authority to enforce the Amendment.
Congress has the power to enforce “the provisions of
this article,” not just the Equal Protection Clause.
United States v. Price, 383 U.S. 787, 789 & n.2, 86 S.
Ct. 1152, 1154 & n.2, 16 L. Ed. 2d 267 (1966) (noting
Section Five empowers Congress to enforce “every
right guaranteed by the Due Process Clause of the
Fourteenth Amendment”); see also CONG.GLOBE, 42D
CONG., 1ST SESS.APP. at 83 (1871) (“The fourteenth
amendment closes with the words, ‘the Congress shall
have power to enforce, by appropriate legislation, the
provisions of this article’—the whole of it, sir; all the
provisions of the article; every section of it.”)
(statement of Rep. Bingham). There is no hierarchy
amongst constitutional rights, including those within
the Fourteenth Amendment. See Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 628, 109
S. Ct. 2646, 2654, 105 L. Ed. 2d 528 (1989).
25
In exercising its authority under Section Five of
the Fourteenth Amendment to enforce the substantive
guarantees of the Amendment, Congress may do more
than simply proscribe conduct that has been held
unconstitutional: “Congress’s authority extends to
providing remedies and to deterring violations of
rights guaranteed by the Fourteenth Amendment ‘by
prohibiting a somewhat broader swath of conduct.’”
Crumpacker v. Kansas Dept. of Human Resources, 338
F.3d 1163, 1169 (10th Cir. 2003) (quoting Nev. Dep’t of
Human Res. v. Hibbs, 538 U.S. 721, 727, 123 S. Ct.
1972, 1977, 155 L. Ed. 2d 953 (2003)). Where Congress
has not exceeded its authority under Section Five by
creating a new substantive constitutional right, it has
the authority to determine whether and what
legislation is needed to secure the guarantees of the
Fourteenth Amendment, and its conclusions are
entitled to much deference. Downing v. Board of Trs.
of Univ. of Ala., 321 F.3d 1017 (11th Cir. 2003).
Section Five allows Congress to “enact[ ] reasonably
prophylactic legislation” to deter constitutional harm.
Allen v. Cooper, 140 S. Ct. 994, 1004, 206 L. Ed. 2d 291
(2020).
“For legislation to be enacted under the
Enforcement Clause of the Fourteenth Amendment,
there must be a congruence and proportionality
between the injury to be prevented or remedied and
the means adopted to that end (per Justice Kennedy,
with three Justices concurring and one Justice
concurring in result).” Coleman v. Court Appeals Md.,
566 U.S. 30, 132 S. Ct. 1327, 182 L. Ed. 2d 296 (2012).
“Although this clause does not preclude courts from
developing remedies to enforce this amendment, it
26
counsels strongly against judicial alteration of the
scheme of enforcement developed by Congress.” Blake
v. Town of Delaware City, 441 F. Supp. 1189
(D. Del.1977). Congress “must tailor” legislation
enacted under Section Five to “‘remedy or prevent’”
“conduct transgressing the Fourteenth Amendment’s
substantive provisions.” Coleman, 566 U.S. 30 at 36.
The “clause grants Congress broad power to effectuate
goals of this amendment.” E.E.O.C. v. Elrod, 674 F.2d
601 (7th Cir. 1982). See, also, Salisbury v. Grimes,
406 F.2d 50 (11th Cir. 1969). Under well-established
rules of Constitutional interpretation, Section Five
grants Congress broad power to effectuate the goals of
the amendment:
Whatever legislation is appropriate, that
is, adapted to carry out the objects the
amendments have in view, whatever
tends to enforce submission to the
prohibitions they contain, and to secure
to all persons the enjoyment of perfect
equality of civil rights and the equal
protection of the laws against State
denial or invasion, if not prohibited, is
brought
within
the
domain
of
congressional power. The scope of
Congress’ power under Section Five is
equivalent to that under the necessary
and proper clause. The test of the
propriety of legislation under the
necessary and proper clause was
established in McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316, 421, 4 L.Ed. 579
(1819): Let the end be legitimate, let it be
27
within the scope of the constitution, and
all means which are appropriate, which
are plainly adapted to that end, which
are not prohibited, but consist(ent) with
the letter and spirit of the constitution,
are constitutional.
E.E.O.C., 674 F.2d at 603-04 (cleaned up) (quoting Ex
Parte Virginia, 100 U.S. 339, 345-56, 25 L. Ed. 676
(1879); Katzenbach v. Morgan, 384 U.S. 641, 650, 86
S. Ct. 1717, 1723, 16 L. Ed. 2d 828 (1966)). “In
determining what is ‘appropriate legislation’ under
[section] 5, the inquiry, then, is whether this
enactment is ‘plainly adapted’ to the end of enforcing
the appropriate clause and “not prohibited by but is
consistent with ‘the letter and spirit of the
constitution.’” E.E.O.C., 674 F.2d at 603-04 (quoting
Katzenbach, 384 U.S. at 650, 86 S. Ct. at 1723, 16
L. Ed.2d 828).
It is clear from the text of 18 U.S.C.A. § 2383
that Congress exercised its authority under Section
Five to codify the language contained within Section
Three of the Fourteenth Amendment. The clear text of
18 U.S.C.A. § 2383 reflects that text also contained
within Section Three. Barnhart v. Sigmon Coal Co.,
534 U.S. 438, 450, 122 S. Ct. 941, 950, 151 L. Ed. 2d
908 (2002) (“As in all statutory construction cases, we
begin with the language of the statute.”).
The Colorado Supreme Court relied on State v.
Griffin, where the United States District Court for the
District of New Mexico argued “Section Three imposes
a qualification for public office, much like an age or
28
residency requirement; it is not a criminal penalty.”
App. 57a at ¶ 65 (citing No. D-101-CV-2022-00473,
2022 WL 4295619, at *24 (D.N.M. Sept. 6, 2022)
(citations omitted)). The New Mexico Court further
opined: “Nor is a criminal conviction (for any offense)
a prerequisite for disqualification. Indeed, neither the
courts nor Congress have ever required a criminal
conviction for a person to be disqualified under Section
Three.” See State, 2022 WL 4295619, at *24. In doing
so, the Colorado Supreme Court erred.
Congress implemented Section Three via 18
U.S.C.A. § 2383. It did so after the actions referenced
by the court. “A statute’s historical context is an
important tool of interpretation, as courts ‘often look
to history and purpose to divine the meaning of
language.’” Texas v. Biden, No. 6:22-CV-00004, ––– F.
Supp. 3d –––, 2023 WL 6281319, at *7 (S.D. Tex. Sept.
26, 2023). “Statutory language necessarily derives
much
of
its
meaning
from
surrounding
circumstances.” Civ. Aeronautics Bd. v. Delta Air
Lines, Inc., 367 U.S. 316, 323, 81 S. Ct. 1611, 1617, 6
L. Ed. 2d 869 (1961). “The statute cannot be divorced
from the circumstances existing at the time it was
passed, and from the evil which Congress sought to
correct and prevent.” United States v. Champlin Ref.
Co., 341 U.S. 290, 297, 71 S. Ct. 715, 719–20, 95 L. Ed.
949 (1951). “Extratextual sources may not overcome
the terms of a statute.” McGirt v. Oklahoma, 140 S.
Ct. 2452, 207 L. Ed. 2d 985 (2020). “Courts, in
construing a statute, may with propriety recur to the
history of the times when it was passed’.” Great N. R.
Co. v. United States, 315 U.S. 262, 273, 62 S. Ct. 529,
533, 86 L. Ed. 836 (1942). Thus, as provided for in law,
29
reliance on a case and actions prior to the enactment
of the enabling statute would be in err. This court
should instead look to historical context including the
subsequent passage and codification of Section Three
in the United State Code.
The statute also codified disqualification, the
penalty for conviction under the statute. As the text
and history would reflect Congress’ intent to enforce
the terms of Section Three using its Section Five
authority, this Court should find that 18 U.S.C.A. §
2383 is the implementing statute for Section Three. As
such, pursuant to 18 U.S.C.A. § 2383, a conviction
under the statute is required before Colorado may
exercise its prerogative under Section Three through
its alleged statutory scheme.
Thus, the ruling of the Colorado Supreme Court
should be reversed.
CONCLUSION
The Supreme Court of Colorado’s decision to
remove a candidate for public office from the primary
ballot of a private organization protected under
fundamental constitutional principles reeks of
political bias. Doing so under the guise of imposing a
new constitutional requirement for President of the
United States runs further afoul of well-established
principles of state and federal constitutional law. The
Colorado Supreme Court chose to force this Court into
making a politically charged decision that will further
degrade the discourse in America.
30
The Colorado Supreme Court has also chosen to
exercise its judicial authority to issue a decision that
is rushed and premature. Colorado’s primary is
months away, yet the Colorado Supreme Court has
chosen to use a state statutory scheme to create legal
theories for disqualification of political candidates out
of whole cloth, in direct contradiction to the text of the
United States Constitution. The Colorado Supreme
Court has further chosen to ignore clear statutory text
and historical context of the Amendment at issue, all
in its pursuit to impose the Court’s political will on not
just a single Presidential candidate, but an entire
group of disaffected and disenfranchised citizens who
privately associate pursuant to First Amendment
principles.
Finally, allowing for this decision to stand will
lead to the very absurd results that this Court abhors.
The cannons require that courts exercise their
authority in a judicious, cautions, practical, and
prudent manner. Courts are not to rush to judgment,
or bend to political winds. Rather, courts are to look at
the questions presented before them, and craft
decisions that are narrow in scope and avoid sweeping
change. The decision by the Colorado Supreme Court
has already led other courts or administrative
agencies to attempt to strike candidates for political
reasons, which will almost certainly lead to the
eventual breakdown of our constitutional order.
Simply put, the ramifications of allowing the decision
of the Colorado Supreme Court to stand are vast. And
we pray this Court’s wisdom prevails.
31
The Amici, therefore, respectfully suggest that
this Court recognize the Colorado Supreme Court’s
decision for what it is: a naked attempt to injure the
reputation of this Court while further attacking long
held legal principles in pursuit of a preferred outcome.
For these reasons, this Court should reverse the
decision of the Colorado Supreme Court’s and instruct
the Colorado Secretary of State to return presidential
candidate Donald John Trump to Colorado’s
Republican primary ballot.
Respectfully submitted,
CRAIG L. UHRICH
Counsel of Record
CHRISTOPHER J. MCGOWNE
McGowne & Uhrich P.A.
222 Center Avenue
Oakley, Kansas 67748
(720) 878-7688
uhrich@mcgowne-uhrichlegal.com
mcgowne@mcgowne-uhrichlegal.com
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.