Amicus Curiae Brief — Donald J. Trump, Petitioner v. Norma Anderson, et al.

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 Colorado Supreme Court

__________

BRIEF FOR SENATOR STEVE DAINES &

NATIONAL REPUBLICAN SENATORIAL

COMMITTEE AS AMICI CURIAE

IN SUPPORT OF PETITIONER

__________

NOEL J. FRANCISCO

JOHN M. GORE

Counsel of Record

E. STEWART CROSLAND

HASHIM M. MOOPPAN

JONES DAY

51 Louisiana Avenue, NW

Washington, DC 20001

(202) 879-3939

jmgore@jonesday.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

INTRODUCTION AND SUMMARY OF

ARGUMENT .................................................... 2

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

I.

II.

THE COLORADO SUPREME COURT

ERRED BY MODIFYING THE

QUALIFICATIONS FOR THE OFFICE

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

A.

The Constitution Prohibits States

From Altering The Qualifications

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

B.

Section 3 Imposes A Qualification

On Holding Office, Not Running For

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

C.

The Colorado Supreme Court

Improperly Altered Section 3 And

The Qualifications For The Office Of

President................................................... 12

D.

The Colorado Supreme Court

Misconstrued The Constitution And

This Court’s Precedents ........................... 16

THE COLORADO SUPREME COURT

VIOLATED THE FIRST AMENDMENT........ 20

CONCLUSION ......................................................... 26

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Celebrezze,

460 U.S. 780 (1983) .............................................. 24

Anderson v. Griswold,

No. 23SA300, 2023 WL 8770111

(Colo. Dec. 19, 2023)............... 12, 14–18, 22, 23, 25

Burdick v. Takushi,

504 U.S. 428 (1992) .............................................. 24

Cal. Democratic Party v. Jones,

530 U.S. 567 (2000) ............................ 21, 22, 23, 25

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

La Follette,

450 U.S. 107 (1981) ........................................ 22, 23

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

Comm.,

489 U.S. 214 (1989) ........................................ 20, 22

Growe v. Simon,

No. A23-1354, 2023 WL 7392541

(Minn. Nov. 8, 2023) ............................................ 23

Hassan v. Colorado,

495 F. App’x 947 (10th Cir. 2012).................. 19, 24

Lindsay v. Bowen,

750 F.3d 1061 (9th Cir. 2014) .............................. 19

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) ................................ 9

Powell v. McCormack,

395 U.S. 486 (1969) .......................................... 7, 16

iii

TABLE OF AUTHORITIES

(continued)

Page(s)

Schaefer v. Townsend,

215 F.3d 1031 (9th Cir. 2000) ...................... 3, 9, 13

Socialist Workers Party of Ill. v. Ogilvie,

357 F. Supp. 109 (N.D. Ill. 1972) ......................... 19

Tashjian v. Republican Party of Conn.,

479 U.S. 208 (1986) ........................................ 22, 24

Tex. Democratic Party v. Benkiser,

459 F.3d 582 (5th Cir. 2006) ........................ 3, 9, 13

Timmons v. Twin Cities Area New

Party,

520 U.S. 351 (1997) .............................................. 25

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

514 U.S. 779 (1995) .......... 3, 5–7, 13, 14, 16–18, 20

Wesberry v. Sanders,

376 U.S. 1 (1964) .................................................... 5

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. amend. I ....................................... 4, 20–24

U.S. Const. amend. XII ............................................... 6

U.S. Const. amend. XIV, § 3 ......... 2, 3, 4, 7–20, 24, 25

U.S. Const. amend. XX .................... 3, 9, 11, 12, 15, 18

U.S. Const. art. I, § 2, cl. 2 .................................... 8, 13

U.S. Const. art. I, § 3, cl.3 ..................................... 8, 13

U.S. Const. art. I, § 6, cl.2 ........................................... 8

U.S. Const. art. II, § 1, cl.1.......................................... 8

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Const. art. II, § 1, cl. 5................. 9, 11, 13, 19, 24

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

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

Act of June 6, 1898, ch. 389,

30 Stat. 432 (1898) ............................................... 12

Act of May 22, 1872, ch. 193,

17 Stat. 142 (1872) ............................................... 12

OTHER AUTHORITIES

Cong. Globe, 40 Cong., 3 Sess., 13-14

(Dec. 7, 1868) ........................................................ 10

Cong. Globe, 40 Cong., 3 Sess., 120-121

(Dec. 17, 1868) ...................................................... 10

Cong. Globe, 40 Cong., 2 Sess., 4499

(July 25, 1868) ...................................................... 10

G. McCrary, American Law of Elections

(4th ed. 1897)........................................................ 13

1 Story § 627 ............................................................ 5, 6

The White House, President Joe Biden ...................... 9

INTEREST OF THE AMICI CURIAE 1

Amicus curiae Senator Steve Daines is a member

of the Republican Party and represents the people of

Montana in the United States Senate. Senator Daines

currently serves as the Chairman of the National

Republican Senatorial Committee (NRSC). Amicus

curiae NRSC is a registered “national committee” of

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

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

campaign committee. Its membership includes all

incumbent Republican Members of the United States

Senate.

Chairman Daines and NRSC support and seek to

uphold the Constitution’s guarantee of free and fair

elections for all Americans. Chairman Daines and

NRSC also support and seek to uphold the rights of all

American citizens to vote for, and of political parties

to nominate, the candidate of their choice in federal

elections.

Amici therefore have a unique and

profound interest in this case, in which the Colorado

Supreme Court misapplied the Constitution to

impermissibly exclude a candidate for federal office

from the ballot in the Republican Party’s upcoming

primary election.

1 No counsel for a party authored any portion of this brief,

and no person other than amici curiae and their counsel made

any monetary contribution intended to fund its preparation or

submission.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

The right of all citizens to participate in free and

fair elections and to vote for the candidate of their

choice is the Constitution’s bedrock guarantee of

American democracy. The Colorado Supreme Court’s

decision barring President Trump from the

Republican Party’s primary election ballot breaches

that guarantee and threatens to thwart the

democratic process and the will of the American

people in 2024 and beyond. For that reason, amici

support President Trump’s request for this Court to

reverse the unconstitutional decision below.

Although amici agree that the Colorado Supreme

Court made multiple constitutional errors concerning

section 3 of the Fourteenth Amendment, they write to

emphasize the importance of the error on the scope of

any section 3 disqualification: namely, whether or not

section 3 applies, it unquestionably does not allow

Colorado to exclude President Trump from the ballot,

for two separate but reinforcing reasons.

First, the Colorado Supreme Court impermissibly

altered the qualifications for the office of President

and interfered with Congress’s sole prerogative to

remove any section 3 disqualification. By its plain

text, section 3 identifies a disqualification from

serving in certain offices, but does not disqualify a

covered person from running for office. And that

textual distinction is particularly important because,

unlike certain other disqualifications, section 3 makes

that disqualification removable—and it commits the

decision of whether and when to remove it exclusively

to Congress. So whether or not the Colorado Supreme

3

Court were correct that President Trump cannot take

office on Inauguration Day, that court had no basis to

hold that he cannot run for office on Election Day and

also seek removal of any alleged disqualification from

Congress if necessary.

Indeed, the Twentieth

Amendment preserves the right of Presidential

candidates to run, and the right of Congress to act, by

prescribing an interstitial rule for situations where

the President-elect has failed to attain the

qualifications for office but can still do so during his

Term—the Vice President serves as Acting President

unless and until the disqualification is lifted.

The Colorado Supreme Court thus altered the

qualifications for the office of President. It created a

new rule that any section 3 disqualification must be

removed by Congress before voters even have the

opportunity to select their chosen candidate—thereby

accelerating when Congress must act and excluding

candidates whose disqualification could have been

removed later. But in U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779 (1995), all nine Justices

agreed that States lack the power under the

Constitution to use ballot-access restrictions to alter

the qualifications for the office of President. See id. at

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

dissenting). Notably, courts of appeals have likewise

held that a State cannot deny ballot access to

candidates for Congress who do not reside within the

State, because the Constitution requires such

residency only on Election Day, not before. See Tex.

Democratic Party v. Benkiser, 459 F.3d 582, 589-90

(5th Cir. 2006); Schaefer v. Townsend, 215 F.3d 1031,

1037 (9th Cir. 2000). And the error in this context is

particularly egregious because it effectively usurped

4

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

remove any section 3 disqualification.

Second, the Colorado Supreme Court ran

roughshod over the First Amendment rights of voters

and political parties without offering a lawful

justification. Indeed, its decision wholly bans voters

and a political party from supporting, voting for, and

potentially nominating their choice of Presidential

candidate in the party’s primary election—

notwithstanding that it is entirely possible that, by

Inauguration Day, President Trump will be qualified

to take office even on the Colorado Supreme Court’s

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

their ballots for an opposing candidate if they do not

wish to take the chance that President Trump will be

disqualified, but neither the First Amendment nor

basic principles of democracy allow the Colorado

Supreme Court to make that decision for them.

The Colorado Supreme Court’s decision will

unleash electoral chaos in the fast-approaching 2024

elections. It is virtually certain to lead to an

untenable patchwork of state-court rulings on

whether President Trump appears on the ballot,

disenfranchising millions of voters in states that

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

outcome of the 2024 election by stripping the

American people of the right to elect the President and

transferring that right to state courts.

The Constitution, the American people, and our

American democracy deserve better. The Court

should reverse the decision below and uphold the

right of the American people to nominate and vote for

the Presidential candidate of their choice.

5

ARGUMENT

I.

THE

COLORADO

SUPREME

COURT

ERRED

BY

MODIFYING

THE

QUALIFICATIONS FOR THE OFFICE OF

PRESIDENT

A. The Constitution Prohibits States From

Altering The Qualifications For The

Office Of President

States—including state courts—lack authority to

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

federal offices, including especially the office of

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

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

lack authority to alter the qualifications for those

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

Court, moreover, unanimously agreed that States

may not alter the qualifications for the office of

President.

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

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

new National Government with a National Executive,

National Judiciary, and a National Legislature,’”

thereby “creating a direct link between the National

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

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

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

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

much right, and no more, to prescribe new

qualifications for a representative, as they have for a

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

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

no original prerogative of state power to appoint a

6

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

(quoting 1 Story § 627).

Notably, the dissent agreed. Although it concluded

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

“prescribe qualifications for their own representatives

in Congress,” it repeatedly acknowledged that “the

people of a single State may not prescribe

qualifications for the President of the United States.”

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

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

set qualifications for the office of President”).

This conclusion is manifest in our system of

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

whatsoever, which exclusively spring out of the

existence of the national government, which the

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

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

least, “the selection of the President, like the

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

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

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

law otherwise, individual States could adopt different

qualifications for the office of a President who

represents the Nation as a whole—including

qualifications that conflict with the qualifications

adopted in other States. Thus, for instance, each

State could adopt a qualification requiring the

President to be a resident of that State. In that

scenario, no President could ever be elected because no

candidate could receive a majority of votes in the

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

Even short of that, any State-altered qualification

erases nationwide uniformity in the qualifications for

7

the office of President and opens the door to States

imposing their political preferences on the country as

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

President have previously served in the federal

government). Allowing States to alter or add to the

qualifications for the office of President would be

“contrary to the ‘fundamental principle of our

representative democracy,’ embodied in the

Constitution, that ‘the people should choose whom

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

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

486, 547 (1969)).

B. Section 3 Imposes A Qualification On

Holding Office, Not Running For Office

Section 3 of the Fourteenth Amendment states:

No person shall be a Senator or Representative

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.

U.S. Const. amend. XIV, § 3 (emphasis added).

Section 3’s disqualification thus attaches in two

circumstances: “be[ing]” a member of Congress or

8

Presidential elector or “hold[ing]” an enumerated

office under the United States or any State. Id. Both

verbs to “be” and to “hold” refer to the state of affairs

when serving in office, not when seeking office. See id.

This construction is borne out by other Constitutional

provisions, which use “hold” to refer exclusively to

serving in office. See, e.g., id. art. II, § 1, cl.1 (“He shall

hold his Office during the Term of four Years. . . . “);

id. art. I, § 6, cl.2 (“[N]o person holding any Office

under the United States, shall be a member of either

House. . . .”). Accordingly, by its plain terms, section

3 identifies a disqualification on who may take one of

the enumerated offices, not on who may run for them.

Article I’s Qualifications Clauses for Members of

Congress confirm this construction of section 3. For

example, the provision for Senators states:

No person shall be a Senator who shall not have

attained to the Age of thirty Years, and been

nine Years a Citizen of the United States, and

who shall not, when elected, be an Inhabitant of

that State for which he shall be chosen.

Id. art. I, § 3, cl.3 (emphasis added); accord id. art. I,

§ 2, cl.2 (same for Representatives, except age

requirement is “twenty five Years” and citizenship

requirement is “seven Years”). These Qualifications

Clauses thus prescribe requirements that must be

satisfied at two specific times: age and citizenship

requirements that must be satisfied only to “be” a

Member of Congress, and a residency requirement

that must be satisfied only “when elected” to

Congress. Accordingly, Joe Biden was elected to the

Senate when he was only 29 years old and turned 30

before he was sworn in to serve as a Senator. See

9

https://www.whitehouse.gov/administration/presiden

t-biden (last visited Jan. 16, 2024).

Likewise,

candidates must establish residency in the State by

Election Day, but need not be residents before then.

See, e.g., Tex. Democratic Party, 459 F.3d at 589-90;

Schaefer, 215 F.3d at 1037. Notably, Article I’s

Qualification Clauses impose no requirements that

must be satisfied before Election Day.

Article I’s Qualifications Clauses underscore that

section 3 of the Fourteenth Amendment imposes no

limitations on covered persons’ ability to run for office.

Section 3 does not even impose any limitations that

must be satisfied at the time “when elected,” let alone

months before Election Day when ballots are

prepared. Instead, it bars covered persons only from

“hold[ing]” the covered offices, U.S. Const. amend.

XIV, § 3, and this textual difference must be given

effect, see, e.g., M’Culloch v. Maryland, 17 U.S. (4

Wheat.) 316, 343-44 (1819) (holding that, because the

Import-Export Clause uses the phrase “absolutely

necessary,” the Necessary & Proper Clause does not

require absolute necessity). 2

Moreover, the fact that section 3 does not restrict

running for office is of particular importance because

2 The Article II clause stating the primary qualifications for

the Presidency—i.e., natural-born citizen; 35 years-old; U.S.

resident for 14 years—phrases those as qualifications to “be

eligible to” “the Office of President,” U.S. Const. art. II, § 1, cl. 5

(emphasis added), which is ambiguous about when they must be

satisfied. As explained below, the Twentieth Amendment

eliminates the ambiguity by clarifying that individuals who do

not satisfy the qualifications for the office of President may still

run for office and be elected, at least if they could satisfy those

qualifications at some time during the Presidential term at issue.

10

section 3 also creates a mechanism for removing any

disqualification

it

imposes

(unlike

other

constitutional provisions imposing categorical, nonwaivable disqualifications from covered offices). In

particular, section 3 vests plenary authority to do so

in Congress: “But Congress may by a vote of twothirds of each House, remove such disability.” U.S.

Const. amend. XIV, § 3. Critically, it places no

limitation on when Congress may exercise that

authority. It is thus impossible to say that a

candidate for office is disqualified under section 3,

because it is unknowable whether Congress will

remove any disqualification before the candidate-elect

takes office and section 3 kicks in.

In fact, shortly after section 3 was ratified,

Congress removed section 3 disqualifications from

candidates after they had prevailed in their elections.

See, e.g., Cong. Globe, 40 Cong., 2 Sess., 4499 (July 25,

1868) (reported) (lifting section 3 disqualifications for

several individuals elected to the House of

Representatives); Cong. Globe, 40 Cong., 3 Sess., 1314 (Dec. 7, 1868) (lifting section 3 disqualification of

an individual who had been elected chief justice of

South Carolina); Cong. Globe, 40 Cong., 3 Sess., 120121 (Dec. 17, 1868) (lifting section 3 disqualifications

for twelve individuals who had won elections in their

states). As one Senator explained, “[i]t is necessary

that the disabilities should be removed from these

persons before the recess, in order to enable them to

qualify for offices to which they have been elected

before the 1st of January. . . . [T]hey are men who were

selected by the votes of their several localities to fill

important local offices.” Id. (statement of Senator

Sawyer). Obviously, Congress could not have waited

11

until after elections to remove the section 3

disqualification if that disqualification prohibited

running for, and being elected to, office.

And

importantly, it would have disenfranchised the voters

who elected these officials if they had been blocked

from the ballot merely because Congress waited until

after the elections to lift the disqualifications.

Finally, the Twentieth Amendment further

buttresses this construction of section 3.

The

Twentieth Amendment addresses the possibility that

a candidate could prevail in the Presidential election,

become the President-elect, and yet not be qualified

for the office of President come Inauguration Day. It

directs: “If a President shall not have been chosen

before the time fixed for the beginning of his term, or

if the President elect shall have failed to qualify, then

the Vice President elect shall act as President until a

President shall have qualified.” U.S. Const. amend.

XX, § 3 (emphases added). Thus, for example, if a

President-elect has not “been fourteen Years a

Resident within the United States” on Inauguration

Day, id. art. II, § 1, cl. 5, the Vice President-elect

“shall act as President,” id. amend. XX § 3, until the

President-elect satisfies the residency requirement.

So, too, if a President-elect “shall have failed to

qualify” to take office on Inauguration Day due to an

alleged section 3 disqualification, he can later so

“qualif[y],” id., when Congress “remove[s] such

disability,” id. amend. XIV, § 3.

Read together, the Twentieth Amendment

reinforces that even if section 3 imposes a

disqualification from serving as President, it imposes

no disqualification on seeking or even being elected to

12

the office of President. The Twentieth Amendment

also reinforces that Congress alone decides when, if at

all, to remove any section 3 disqualification from a

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

any section 3 disqualification from a Presidential

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

§ 3; id. amend. XX, § 3; see also Act of May 22, 1872,

ch. 193, 17 Stat. 142 (1872) (Amnesty Act applicable

to future service in office); Act of June 6, 1898, ch. 389,

30 Stat. 432 (1898) (Amnesty Act applicable to future

service in office). Congress may also do so before or

after the President-elect’s term begins, and in the

latter scenario, the Vice President-elect serves as

President until Congress removes the Presidentelect’s disqualification or the term expires.

C. The

Colorado

Supreme

Court

Improperly Altered Section 3 And The

Qualifications For The Office Of

President

The Colorado Supreme Court erred when it

twisted section 3 to alter the Constitution’s

qualifications for the office of President. In particular,

based on its premise that President Trump “is

disqualified from holding the office of President

under” section 3, it reached the erroneous conclusion

that the Secretary of State “may not list President

Trump’s name on the 2024 presidential primary

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

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

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

The Colorado Supreme Court seemed to suggest

that it was merely enforcing a section 3

disqualification against President Trump, see id. at

13

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

incorrect. Because the Constitution prohibits States

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

qualifications for the office of President, States may

not “in any manner change” those qualifications. U.S.

Term Limits, 514 U.S. at 796, 799 (citing G. McCrary,

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

this prohibition on States “alter[ing]” the

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

altering the time for satisfying the Constitution’s

qualifications. For example, as noted, Article I’s

Qualifications

Clauses

impose

a

residency

requirement on prospective Members of Congress only

at the time “when elected.” U.S. Const. art. I, § 2, cl.

2; id. art. I, § 3, cl. 3. Accordingly, the courts of

appeals have held that States lack authority to

require candidates for Congress to inhabit the State

before being elected, because that effectively

accelerates the date by which they must establish

residency, notwithstanding the relative ease of doing

so. See, e.g., Tex. Democratic Party, 459 F.3d at 58990; Schaefer, 215 F.3d at 1037. So, too, do States lack

authority to alter the time for satisfying the

qualifications for the office of President, including any

need to obtain removal of a section 3 disqualification

by Congress. See, e.g., U.S. Const. art. II, § 1, cl. 5; id.

amend. XIV, § 3.

The Colorado Supreme Court’s decision altered the

qualifications for the office of President in

contravention of these rules. The plain “text” of

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

makes clear that its disqualification applies only to

serving in one of the enumerated offices, not to seeking

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

14

invoking section 3 to exclude President Trump from

the Republican Party’s primary election ballot, the

Colorado Supreme Court extended any section 3

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

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

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

¶ 257.

Far from enforcing the Constitution’s

qualifications for the Presidency—as occurs where

States deny ballot access to candidates who are

categorically barred from serving at all, see infra at

17—the Colorado Supreme Court altered the time for

satisfying section 3. It effectively accelerated the date

by which any section 3 disqualification may be

removed by Congress, requiring that to occur before

state primary elections that will take place many

months prior to Inauguration Day. See Anderson,

2023 WL 8770111, at *51 ¶ 257. Indeed, compared to

state-imposed pre-election residency requirements for

congressional candidates, the judgment of the

Colorado Supreme Court is an even clearer violation

of U.S. Term Limits: it involves the national office of

the President, and it imposes a far more significant

burden to deprive a candidate of valuable time to

persuade Congress to remove any section 3

disqualification.

Relatedly, the Colorado Supreme Court’s

modification of section 3 improperly interferes with

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

remove any section 3 disqualification from a

President-elect.

The Colorado Supreme Court

effectively read state law to require Congress to

exercise that authority before the Colorado court

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

Colorado’s January 5, 2024 statutory deadline for the

15

Secretary to certify the names of candidates to be

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

¶ 39. It therefore left no room for placing President

Trump on the primary election ballot if Congress were

to remove any section 3 disqualification today or at

some other point between now and the primary

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

thwarted Congress’s prerogative to wait until after

Election Day to remove any section 3 disqualification

from a President-elect. See id.

This result is error, pure and simple. Congress can

choose to remove any section 3 disability before

Election Day, before Inauguration Day, or even

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

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

the current Congress or the Congress set to take office

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

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

President-elect’s section 3 disqualification.

And

either this Congress or the next may have a variety of

political and institutional reasons for choosing to

address the question at one time or another. As just

one example, Congress may choose to await the

outcome of the election before deciding whether to

take action, as it has previously done. See supra at 910. As another, the current Congress may prefer to

leave the question to the next Congress, which will

count the results of the 2024 Electoral College. See 3

U.S.C. § 15.

To date, Congress has not taken up the question

whether President Trump is under a section 3

disqualification. Whether and when to do so belongs

to Congress alone, not the Colorado Supreme Court.

16

Yet the Colorado Supreme Court transformed

Congress’s decision not to act by the date of the statecourt judgment into a new, unmet qualification for

President Trump even to be a candidate and to receive

votes in the Republican Party’s upcoming primary

election. The Colorado Supreme Court’s decision

contravenes the Constitution and the unanimous

reasoning of this Court’s decision in U.S. Term Limits.

D. The

Colorado

Supreme

Court

Misconstrued The Constitution And This

Court’s Precedents

The Colorado Supreme Court offered no persuasive

basis for its erroneous treatment of the Constitution

and Congress’s section 3 authority. It first noted that

this Court has reserved the question whether section

3 prescribes a “qualification” for federal office. See

Anderson, 2023 WL 8770111, *14 ¶ 65 (citing U.S.

Term Limits, 514 U.S. at 787 n.2 and Powell, 395 U.S.

at 520 n.41); but see id. (acknowledging that,

regardless, the Constitution precludes States from

imposing “additional qualifications for [federal]

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

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

the Colorado Supreme Court’s judgment is premised

on section 3 prescribing a qualification: the linchpin of

its holding was its premise that “President Trump is

disqualified from holding the office of President under

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

Even if the court were correct on that point, it erred

when it “alter[ed]” that qualification by accelerating

the timeline for satisfying it. U.S. Term Limits, 514

U.S. at 787 n.2. Conversely, of course, if the court was

not correct that section 3 imposes a qualification on

the office of President, then its premise that

17

“President Trump is disqualified,” Anderson, 2023 WL

8770111, at *51 ¶ 257, fails and its entire holding

collapses. Thus, on the Colorado Supreme Court’s

own reasoning, this Court’s reservation of that

question has no bearing on the outcome here: either

way, reversal is warranted.

The Colorado Supreme Court next reasoned that

“nothing in the U.S. Constitution expressly precludes

states from limiting access to the presidential ballot

to” candidates “who are constitutionally qualified to

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

in original).

But that is plainly wrong.

The

Constitution does preclude States from “alter[ing] or

add[ing] to” the qualifications for the office of

President, including by extending those qualifications

to candidates in a manner that accelerates the

timeline for satisfying them. U.S. Term Limits, 514

U.S. at 796; see id. at 799 (may not “in any manner

change” the qualifications).

As discussed, this

preclusion follows a fortiori from U.S. Term Limits

and cases invalidating state-imposed pre-election

residency requirements for congressional candidates.

See supra at 5-6, 8-9. And the Colorado Supreme

Court also missed the plain import of the fact that

section 3 vests plenary authority in Congress to decide

whether and when to remove any disqualification it

imposes on a Presidential candidate or Presidentelect. In fact, the court noted that authority only in

two quotations but never discussed it, much less

reconciled it with the decision to preemptively exclude

President Trump from the Republican Party’s

primary election ballot. See Anderson, 2023 WL

8770111, at *6 ¶ 26, *31 ¶ 151.

18

The Colorado Supreme Court likewise devoted just

a few sentences to the Twentieth Amendment,

deeming it inapplicable because “[b]y its express

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

But that is entirely the point: the Twentieth

Amendment addresses what happens in any period

between Inauguration Day and an unqualified

President-elect becoming qualified to take office. See

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

that state courts do not police Presidential

qualifications by denying ballot access to candidates

who might be disqualified come Inauguration Day

depending on intervening events. See id. Just as the

Twentieth Amendment confirms that a State cannot

block from the ballot a Presidential candidate who

may not have satisfied the 14-year residency

requirement until the day after Inauguration Day, it

confirms that a state cannot block from the ballot a

Presidential candidate who may well have any alleged

section

3

disqualification

removed

before

Inauguration Day (or even Election Day). And the

Twentieth Amendment’s silence “about who

determines in the first instance whether the President

and Vice President are qualified to hold office,”

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

authorize state courts to alter those qualifications,

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

The Colorado Supreme Court cited prior judicial

decisions excluding Presidential candidates from the

ballot due to failure to satisfy the Constitution’s

qualifications for office, Anderson, 2023 WL 8770111,

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

None approved of altering a qualification rather than

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

19

was categorically disqualified from holding the office

of President on a ground that could not be removed by

the end of the Presidential term. See Hassan v.

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

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

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

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

was only 27 years old and thus would not attain 35

years of age at any point during the Presidential term

at issue, U.S. Const. art. II, § 1, cl. 5). Accordingly,

while the States enforced those disqualifications preelection, that timing did not materially alter the

qualifications, because the candidates had no means

under the Constitution to cure the disqualification

before the Presidential term would have expired. By

contrast, here, the Colorado Supreme Court required

President Trump to obtain removal of any section 3

disqualification many months before Inauguration

Day, despite the fact that section 3 allows him to do so

after the election. As for the third case, it offered no

attempt at developed reasoning and did not address

section 3 in any event. See Socialist Workers Party of

Ill. v. Ogilvie, 357 F. Supp. 109, 113 (N.D. Ill. 1972).

Thus, none of these cases supports the Colorado

Supreme Court’s modification of the qualifications for

the office of President or vitiation of Congress’s

plenary authority to remove any Section 3

disqualification.

At the petition stage, the Anderson Respondents

largely repeated the Colorado Supreme Court’s errors

on this question. See BIO 11-12. Their sole additional

argument—that the Colorado Supreme Court was just

exercising the State’s power over the “manner” of

appointing Presidential electors, id. at 11—is

20

fundamentally incorrect. The unanimous conclusion

in U.S. Term Limits that States cannot alter

qualifications for the office of President obviously

means that they cannot enact a law denying ballot

access to electors for a candidate who does not satisfy

the State’s altered qualifications. Were the law

otherwise, States could alter the qualifications for the

office of President through the back door of ballotaccess laws, in contravention of the Constitution and

the views of all nine Justices in U.S. Term Limits.

Reversing the Colorado Supreme Court based on

U.S. Term Limits would remedy the Colorado

Supreme Court’s constitutional errors in holding that

President Trump cannot appear on the ballot or

receive write-in votes in the Republican Party’s

primary election. It would eliminate the risk of the

Colorado Supreme Court’s decision touching off a

patchwork of conflicting state-court ballot-access

rulings across the country. It would also disentangle

the courts from the political thicket of adjudicating

any section 3 disputes unless and until they become

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

it would rightfully return section 3 disqualification

questions to Congress, preserving Congress’s plenary

authority over the substance and timing of section 3

disqualification-removal decisions. The Court should

reverse.

II. THE

COLORADO

SUPREME

COURT

VIOLATED THE FIRST AMENDMENT

“It is well settled that partisan political

organizations enjoy freedom of association protected

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

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

21

(1989).

The First Amendment extends robust

protection to “the freedom to join together in” political

parties in “furtherance of common political beliefs.”

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

(2000).

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

Republican Party to select their own candidate

unquestionably implicates an associational freedom”

protected by the First Amendment. Id. at 575

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

any populous unit of government is unimaginable

without the ability of citizens to band together in

promoting among the electorate candidates who

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

no area” is this fundamental First Amendment right

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

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

After all, that process “often determines the

party’s positions on the most significant public policy

issues of the day” and in all events anoints the

nominee as “the party’s ambassador to the general

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

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

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

to common principles may be translated into

concerted action, and hence to political power in the

community.” Id. (cleaned up).

This Court’s cases thus “vigorously affirm the

special place the First Amendment reserves for, and

the special protection it accords, the process by which

a political party selects a standard bearer who best

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

(cleaned up). This Court therefore has not hesitated

22

to declare unconstitutional laws that interfere with

the right of voters and their political party to select

their own nominees for office. This includes laws

requiring parties to conduct “an open presidential

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

or closed primary, Tashjian v. Republican Party of

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

delegates to vote at the national convention in

accordance with the results of the primary election,

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

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

political parties from endorsing candidates in primary

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

As in such prior cases, the Colorado Supreme

Court’s decision unconstitutionally “suffocates” the

First Amendment rights of the Republican Party and

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

“ban[s]” Republican voters participating in the

Republican Party’s Colorado primary election from

voting to nominate President Trump either on the

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

well be qualified to take office on Inauguration Day.

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

It thus construes state law to interfere with the

Republican Party’s “candidate-selection process” in

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

President Trump as the “standard bearer who best

represents the party’s ideologies and preferences” in

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

575. In these ways, the decision achieves the Colorado

Supreme Court’s unconstitutional “intended outcome

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

at 568.

23

Such burdens on the Republican Party also extend

beyond Colorado. The Colorado Supreme Court’s

decision constitutes a “substantial intrusion into the

associational freedom of members of the National”

Republican Party outside Colorado. Democratic Party

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

to infringe the right of the national Republican Party

and Republican voters across the country to select a

single nationwide “standard bearer” and “ambassador

to the general electorate in winning it over to the

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

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

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

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

from the ballot in the Republican Party primary

election, which “is an internal party election to serve

internal party purposes”).

These burdens on bedrock First Amendment rights

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

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

political party’s associational freedom” than the

burdens this Court has determined are severe in prior

cases. Id.

The Colorado Supreme Court, however, made no

effort to justify these burdens on First Amendment

rights as “narrowly tailored to serve a compelling

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

may limit “presidential primary ballot access to only

qualified candidates.” Anderson, 2023 WL 8770111,

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

have been correct if the disqualification at issue were

one that could not be resolved during the next

Presidential term of office, such as a candidate who is

24

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

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

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

disqualification, which Congress has the plenary

authority to remove at the time of its choosing. See

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

Court provided no explanation of what interest the

State has in preventing citizens from voting for a

candidate whose alleged disqualification is subject to

Congressional removal, let alone one sufficient to

overcome the voters’ compelling First Amendment

right to cast their ballots for the Presidential

candidate of their choice. That failure is especially

glaring here: the Colorado Supreme Court cannot

justify its disenfranchisement of voters when it is

impossible to know whether the alleged section 3

disqualification will be in place on Inauguration Day,

much less throughout the next Presidential term.

Moreover, none of the four cases the Colorado

Supreme Court cited supports its view that the

Constitution permits limiting “primary ballot access”

to candidates it concludes are free of a section 3

disqualification as of the date of its judgment. One of

those cases disapproved on First Amendment grounds

a Connecticut law prohibiting independent voters

from voting in Republican primaries. See Tashjian,

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

8770111, at *16 ¶ 75). Another enjoined enforcement

of a ballot-access deadline on First Amendment

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

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

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

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

25

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

at *16 ¶ 76).

The final case, Timmons v. Twin Cities Area New

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

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

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

a different “juncture” in the election process than

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

through a primary election, Cal. Democratic Party,

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

candidate from appearing on the general election

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

redundantly placing on the ballot a candidate who

already appeared as another party’s nominee. See 520

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

retained the right and opportunity to “campaign for,

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

rights the Colorado Supreme Court has denied the

Republican Party and its members in the upcoming

Republican Party primary election, see Anderson,

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

Timmons made passing reference to denial of ballot

access to candidates “ineligible for office,” it

mentioned only eligibility for state elected office, not

section 3 or any qualifications for federal office that

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

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

therefore provides no basis for the Colorado Supreme

Court’s exclusion of President Trump from the

Republican Party’s primary election ballot in violation

of the right of “the members of the Republican Party

to select their own candidate” for President. Cal.

Democratic Party, 530 U.S. at 575.

26

CONCLUSION

The Court should reverse the judgment below.

JANUARY 2024

NOEL J. FRANCISCO

JOHN M. GORE

Counsel of Record

E. STEWART CROSLAND

HASHIM M. MOOPPAN

JONES DAY

51 Louisiana Avenue, NW

Washington, DC 20001

(202) 879-3939

jmgore@jonesday.com

Counsel for Amici Curiae