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.

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