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

SUPREME COURT OF COLORADO

BRIEF FOR REPUBLICAN NATIONAL

COMMITTEE AND NATIONAL REPUBLICAN

CONGRESSIONAL COMMITTEE AS

AMICI CURIAE IN SUPPORT OF PETITIONER

Christopher O. Murray

Julian R. Ellis, Jr.

BROWNSTEIN HYATT FARBER

SCHRECK, LLP

675 15th Street, Ste. 2900

Denver, CO 80202

(303) 223-1100

Patrick N. Strawbridge

Counsel of Record

CONSOVOY MCCARTHY PLLC

Ten Post Office Square

8th Floor South PMB #706

Boston, MA 02109

(617) 227-0548

patrick@consovoymccarthy.com

Gilbert C. Dickey

Jeffrey S. Hetzel

Thomas S. Vaseliou

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

January 18, 2024

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ......................... iii

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

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

ARGUMENT .............................................................. 4

I.

Courts are not the appropriate forum for this

dispute. ................................................................. 4

A. Section Three does not apply until after an

election. .......................................................... 4

B. Section Three did not give state officials

power to frustrate the federal government

or national will. ............................................. 9

C. This Court has cautioned against state

control over similar election issues. ............ 16

D. Congress has not authorized pre-election

enforcement of Section Three in state

courts............................................................ 17

II. Primary ballot cleansing violates National Republican Amici’s First Amendment rights. ....... 20

III. Section Three does not apply to former Presidents. .................................................................. 23

A. Presidents do not take an oath “to support” the Constitution. ................................ 23

B. The President is not an “officer of the

United States” because that phrase never

includes the President in the Constitution. .............................................................. 25

ii

IV. Section Three does not cover holding the presidency.................................................................. 31

CONCLUSION ......................................................... 33

iii

TABLE OF CITED AUTHORITIES

Cases

Allen v. Cooper,

140 S.Ct. 994 (2020) ..............................................5

Am. Commc’ns Ass’n, C.I.O. v. Douds,

339 U.S. 382 (1950) .............................................24

Anderson v. Celebrezze,

460 U.S. 780 (1983) .............................................32

Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n, 576 U.S. 787 (2015) .............................30

Biden v. Nebraska,

143 S.Ct. 2355 (2023) ..........................................32

Bostock v. Clayton Cnty.,

140 S.Ct. 1731 (2020) ..........................................30

Cale v. City of Covington,

586 F.2d 311 (4th Cir. 1978) ...............................18

Cal. Democratic Party v. Jones,

530 U.S. 567 (2000) ....................................... 20, 21

Chiafalo v. Washington,

140 S.Ct. 2316 (2020) ........................................4, 6

City of Rome v. United States,

446 U.S. 156 (1980) .............................................10

iv

Cousins v. Wigoda,

419 U.S. 477 (1975) .............................................21

Davis v. Wayne Cnty. Election Comm’n,

2023 WL 8656163 (Mich. Ct. App. Dec. 14) .........2

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

489 U.S. 214 (1989) ....................................... 20, 21

FCC v. AT&T Inc.,

562 U.S. 397 (2011) .............................................30

Forbes Pioneer Boat Line v. Bd. of Comm’rs,

258 U.S. 338 (1922) ...............................................7

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) .............................................29

In re Griffin,

11 F. Cas. 7 (C.C.D. Va. 1869) ...................... 18, 19

Growe v. Simon,

2023 WL 7392541 (Minn. Nov. 8) .........................2

Hall v. Hall,

138 S.Ct. 1118 (2018) ..........................................24

Hassan v. Colorado,

495 F. App’x 947 (10th Cir. 2012) ........................9

Helvering v. Gregory,

69 F.2d 809 (2d Cir. 1934) ..................................33

v

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) ...............................................31

Illinois v. Krull,

480 U.S. 340 (1987) .............................................23

John Doe No. 1 v. Reed,

561 U.S. 186 (2010) ................................... 8, 16, 17

Kusper v. Pontikes,

414 U.S. 51 (1973) ...............................................20

Lindsay v. Bowen,

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

Lubin v. Panish,

415 U.S. 709 (1974) .............................................21

M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819)...............................7

Mississippi v. Johnson,

71 U.S. 475 (1866) ...............................................29

Myers v. United States,

272 U.S. 52 (1926) .................................................5

Powell v. McCormack,

395 U.S. 486 (1969) .............................................17

Purcell v. Gonzalez,

549 U.S. 1 (2006) .................................................16

vi

Rothermel v. Meyerle,

136 Pa. 250 (1890)...............................................19

Seila Law LLC v. CFPB,

140 S.Ct. 2183 (2020) ..........................................29

Socialist Workers Party of Ill. v. Ogilvie,

357 F. Supp. 109 (N.D. Ill. 1972) ..........................9

State v. Buckley,

54 Ala. 599 (1875) ...............................................19

Tashjian v. Republican Party of Conn.,

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

Trump v. Mazars USA, LLP,

140 S.Ct. 2019 (2020) ..........................................29

United States v. Greathouse,

26 F. Cas. 18 (C.C.N.D. Cal. 1863) ............... 14, 15

United States v. Mouat,

124 U.S. 303 (1888) .............................................29

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

514 U.S. 779 (1995) ................................. 16, 17, 31

W. Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) ...............................................22

Yellen v. Confederated Tribes,

141 S.Ct. 2434 (2021) ..........................................11

vii

Constitution

U.S. Const. amend. I ............................. 2, 4, 20, 21, 22

U.S. Const. amend. XII .............................................28

U.S. Const. amend. XIV .... 7, 16, 17, 18, 19, 20, 26, 30

U.S. Const. amend. XIV, §3 .......................................211, 17-20, 22-25, 27, 31, 33

U.S. Const. amend. XIV, §5 ............................ 8, 17, 19

U.S. Const. amend. XX ............................................5, 7

U.S. Const. amend. XXII, §1 ...................................8, 9

U.S. Const. art. I, §6 ....................................................5

U.S. Const. art. II ........................ 23, 24, 25, 27, 28, 29

U.S. Const. art. II, §1 ............................................ 5, 24

U.S. Const. art. II, §1, cl. 5......................................8, 9

U.S. Const. art. II, §2 ................................................28

U.S. Const. art. II, §3 ................................................27

U.S. Const. art. II, §4 ................................................28

U.S. Const. art. VI ....................... 23, 24, 25, 27, 30, 31

viii

Statutes

Enforcement Act of 1870, ch. 114, §§14, 15, 16

Stat. 140 (May 31, 1870) ........................... 7, 18, 19

The Reconstruction Acts, 12 Op. Att’y Gen. 141

(1867) ...................................................................33

5 U.S.C. §3331 ............................................... 23, 24, 27

18 U.S.C. §2383 ................................................... 19, 20

Other Authorities

1 Hinds’ Precedents of the House of Representatives (1907) .................................................. 6, 7, 16

1 Joseph Story, Commentaries on the Constitution

of the United States 578 (1891) ..........................26

2 Debates on the Federal Constitution (Elliot ed.

1876) ....................................................................17

2 The Records of the Federal Convention of 1787

(Farrand ed., 1911) .............................................29

37 Cong. Globe 2173 (1862) ......................................15

39 Cong. Globe 919 (1866) ........................................31

39 Cong. Globe 2537 (1866) ......................................32

39 Cong. Globe 2544 (1866) ......................................18

ix

41 Cong. Globe 948-49, 2135, 5443-46, 5195-96

(1869-70) ................................................................6

Anti-Israel Protesters Vandalize White House

Gates, Try to Scale Fence, Jerusalem Post

(Nov. 5, 2023), perma.cc/67GR-UFVP ................14

@JoeBiden, X (Aug. 28, 2020), perma.cc/GSH6W9EP ...................................................................12

Baude & Paulsen, The Sweep and Force of Section

Three, 172 U. Pa. L. Rev. (forthcoming 2024),

perma.cc/7GQV-9853 .............................. 10, 13, 15

Blackman & Tillman, Sweeping and Forcing the

President into Section 3, 28(2) Tex. Rev. L. &

Pol. 350 (forthcoming 2024), perma.cc/2XLZX2RF ................................................................ 8, 18

Black’s Law Dictionary (2d ed. 1910) .........................4

Boyd, 10 Times Democrats Urged Violence Against

Trump and His Supporters, The Federalist

(Jan. 8, 2021), perma.cc/CQ37-F29E..................13

Boyd, Death Toll Rises to an Estimated 30 Victims

Since ‘Mostly Peaceful Protests’ Began, The

Federalist (Aug. 19, 2020), perma.cc/2V7VNTFP ...................................................................12

Calabresi, Donald Trump Should Be on the Ballot

and Should Lose, Volokh Conspiracy (Sept. 16,

2023), perma.cc/LP5Y-MJ97...............................27

x

In re Challenges of Rosen to Primary Nomination

Petition of Donald J. Trump, Republican Candidate for President of the United States (Dec.

28, 2023), perma.cc/KDL6-WFWZ ........................3

Congressional Record Containing the Proceedings

of the Senate Sitting for the Trial of William

Belknap (1876) ....................................................26

Cooley, A Treatise on the Constitutional Limitations Which Rest the Legislative Power of the

States of the American Union (1868) ..................22

Deese, Vandalism, Looting Following Floyd Death

Sparks at Least $1B in Damages Nationwide:

Report, The Hill (Sept. 16, 2020),

perma.cc/T2N4-KC67 ..........................................12

DeSantis Suggests Biden Could Be Removed from

Florida Ballot, CNN (Jan. 6, 2024),

perma.cc/AK6F-X9R4 .........................................15

Dobkin, Republicans Pull Trigger on Plan to Remove Joe Biden from Ballots, Newsweek (Dec.

22, 2023), perma.cc/JA8A-WR6D .......................15

Feldman, Alas, Trump Is Still Eligible to Run for

Office, Wash. Post (Aug. 20, 2023),

perma.cc/T5DT-V7BV ...........................................3

xi

Harrison & Prakash, If Trump Is Disqualified, He

Can Still Run, Wall Street J. (Dec. 20, 2023),

perma.cc/8EQ9-9VVP ...........................................5

Hoffman, More Than 60 Secret Service Officers

and Agents Were Injured Near the White House

This Weekend, CNN (May 31, 2020),

perma.cc/5H3J-Q2BD .........................................12

Holcombe & Boyette, Seattle Police to Remove

Concrete Barriers Around Precinct That Was

Temporarily Vacated During George Floyd

Protests, CNN (Apr. 3, 2021), perma.cc/KMJ8VU5U ...................................................................12

Keck, Illinois Voters Assert Biden ‘Ineligible’ to

Run for Office, Move to Strike Him from Ballot, The State Journal-Register (Jan. 15,

2024), perma.cc/QY46-HMZQ.............................15

Keeley, Rep. Steve Scalise, Shot by Sanders Supporter, Replies to Request for Evidence of ‘Bernie Bros’ Being Bad: ‘I Can Think of an Example’, Newsweek (Feb. 20, 2020),

perma.cc/3D4C-6SPX ..........................................13

Lange & Honeycutt, Biden Staff Donate to Group

That Pays Bail in Riot-Torn Minneapolis, Reuters (May 30, 2020), perma.cc/5FBJ-MTST .......12

Lash, The Meaning and Ambiguity of Section

Three of the Fourteenth Amendment (last updated Dec. 29, 2023), perma.cc/2WKV-CZYU ....32

xii

Leonnig, Protesters’ Breach of Temporary Fences

Near White House Complex Prompted Secret

Service to Move Trump to Secure Bunker,

Wash. Post (June 3, 2020), perma.cc/E75GXTJL ....................................................................12

Lessig, The Supreme Court Must Unanimously

Strike Down Trump’s Ballot Removal, Slate

(Dec. 20, 2023), perma.cc/Y4LP-PANK ................3

Lurie, Trump Officials Can No Longer Eat Out in

Peace, Mother Jones (June 23, 2018),

perma.cc/JJL3-YP3D ..........................................13

Marcus, Meet the Rioting Criminals Kamala Harris Helped Bail Out of Jail, The Federalist

(Aug. 31, 2020), perma.cc/9S6A-NBBG ..............12

McKnight, The Electoral System of the United

States (1878) .......................................................26

Memorandum from Antonin Scalia, Re: Applicability of 3 C.F.R. Part 100, OLC (Dec. 19, 1974),

perma.cc/GQA4-PJNN ........................................26

Memorandum from William H. Rehnquist, Re:

Closing of Government Offices, OLC (Apr. 1,

1969), perma.cc/P229-BAKL ..............................27

Moyn, The Supreme Court Should Overturn the

Colorado Ruling Unanimously, N.Y. Times

(Dec. 22, 2023), perma.cc/N6GQ-HW48 ...............3

xiii

Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis (2017) .........................11

Paschal, Lecture Delivered to the American Union

Academy of Literature, Science, and Art, in

The Constitution of the United States Defined and Carefully Annotated (1868),

bit.ly/49dXWM3 ............................................ 11, 24

Pro-Palestine Protestors Climb Up White House

Fence, Attack Secret Service, Times Now (Nov.

4, 2023), perma.cc/4GCF-H2HM ........................14

Retired St. Louis Police Captain Killed During Unrest Sparked by George Floyd Death, CBS

News (June 3, 2020), perma.cc/69RN-EYAM ....12

Scalia & Garner, Reading Law: The Interpretation

of Legal Texts (2012) ............................... 22, 28, 33

Smith, Hundreds Arrested After Pro-Palestinian

Demonstrators Flood Cannon Rotunda, Capitol Complex, Fox 5 D.C. (Oct. 18, 2023),

perma.cc/R6AF-XQA2 .........................................14

Stanton, Democrats Want Over 130 Republicans

Banned From Holding Office, Newsweek (Jan.

5, 2024), perma.cc/88CS-PVZD ..........................15

Tillman & Blackman, Offices and Officers of the

Constitution Part III: The Appointments,

Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349

(2023) .............................................................24, 27

xiv

John Tyler, White House Historical Ass’n,

perma.cc/23RJ-AWWJ ..........................................30

Vazquez, Democratic House Member Accuses

Biden of Supporting Palestinian ‘Genocide’,

Wash. Post (Nov. 3, 2023), perma.cc/RZW33QJG ....................................................................14

Warmbrodt, Waters Scares Democrats with Call

for All-Out War on Trump, Politico (June 25,

2018), perma.cc/E7XR-JAV4 ..............................13

Webster’s American Dictionary of the English

Language (1828) ...................................................4

Wilson, Texas Leader Wants Biden Kicked Off

State’s 2024 Ballot Over Immigration, Wash.

Times (Dec. 20, 2023), perma.cc/V8Y7-TUX6 ....15

INTEREST OF AMICI CURIAE*

Amici Republican National Committee and National Republican Congressional Committee—collectively, National Republican Amici—are political organizations that help their members achieve electoral

victories at the local, state, and national level, and

who work to ensure a fair and equal electoral process.

National Republican Amici have an interest in controlling their primaries and nominating the candidates of their choice. They also have an interest in ensuring that the rules governing elections are lawful

and fairly applied. And they have an interest in promoting any of their potential nominees’ ballot eligibility and electoral success.

* Under Rule 37.6, no counsel for a party authored this brief

in whole or in part, and no person other than amici, its members,

or its counsel made a monetary contribution to its preparation or

submission.

2

SUMMARY OF ARGUMENT

This case arises from a historically unprecedented

decision removing a presidential candidate from the

ballot based on a new theory of Section Three of the

Fourteenth Amendment. On the Colorado Supreme

Court’s theory, the Reconstruction Congress gave

States—including former Confederate States—the

power to unilaterally displace candidates for national

office, before they are elected, based on their own determinations about legitimacy and illegitimacy. The

Reconstruction Congress did not do that.

The Colorado Supreme Court made a series of legal errors. First, state courts are the wrong forum for

this dispute. The Colorado Supreme Court rewrote the

text of Section Three to prohibit not just “hold[ing] office” but running for it. It then ignored history and

common sense to give Section Three enforcement

power to state officials. And it ignored this Court’s

precedents enforcing the limited role of state courts in

our national democracy. Second, the court’s relief

would interfere with political-party primaries, violating National Republican Amici’s First Amendment

rights. Finally, the court misread the text and history

to apply Section Three to former Presidents, even

though the text, history, and tradition make clear Section Three references the Article VI oath of office that

Presidents do not take.

Before the Colorado Supreme Court’s decision,

many state courts had rejected challenges based on

the same theory. E.g., Growe v. Simon, 2023 WL

7392541 (Minn. Nov. 8); Davis v. Wayne Cnty. Election

Comm’n, 2023 WL 8656163 (Mich. Ct. App. Dec. 14).

3

But now Maine’s Secretary of State has adopted the

Colorado Supreme Court’s erroneous reading of Section Three. In re Challenges of Rosen to Primary Nomination Petition of Donald J. Trump, Republican Candidate for President of the United States (Dec. 28,

2023), perma.cc/KDL6-WFWZ. These States should

have taken the other path. Given the obvious risk of

political escalation, even President Trump’s most public critics hope that cooler heads prevail. See, e.g., Lessig, The Supreme Court Must Unanimously Strike

Down Trump’s Ballot Removal, Slate (Dec. 20, 2023),

perma.cc/Y4LP-PANK; Moyn, The Supreme Court

Should Overturn the Colorado Ruling Unanimously,

N.Y. Times (Dec. 22, 2023), perma.cc/N6GQ-HW48;

Feldman, Alas, Trump Is Still Eligible to Run for Office, Wash. Post (Aug. 20, 2023), perma.cc/T5DTV7BV.

National Republican Amici do not take sides in

presidential primary battles or endorse particular

presidential primary candidates in open elections. But

the Colorado Supreme Court’s decision threatens

massive upheaval to the political process and future

national candidates of all parties. As Justice Samour’s

dissent observes, the Colorado Supreme Court unleashes “potential chaos wrought by an imprudent,

unconstitutional, and standardless system in which

each state gets to adjudicate Section Three disqualification cases on an ad hoc basis.” App.160a ¶348.

This Court should reject the Colorado Supreme

Court’s reimagination of Section Three, restore the

proper balance of powers between the States and the

federal government, and vindicate political parties’

4

First Amendment right to select the candidate of their

choosing.

ARGUMENT

I. Courts are not the appropriate forum for

this dispute.

A. Section Three does not apply until after

an election.

1. Section Three cannot be enforced at the ballot

stage. By its plain text, Section Three governs only

who can “hold” office. U.S. Const. amend. XIV, §3 (emphasis added); see id. (“No person shall be a Senator

or Representative in Congress, or elector of President

and Vice President, or hold any office ….” (emphases

added)). It does not govern who can “run for” office or

“be elected to” anything. To “hold” office means to

presently possess it. See Hold, Black’s Law Dictionary

(2d ed. 1910) (“[T]o possess; to occupy; to be in possession and administration of; as to hold office.”); accord

Hold, Webster’s American Dictionary of the English

Language (1828) (“To have; as, to hold a place, office

or title.”). Former President Trump does not “hold” office by running for or being elected as President, so

Section Three does not forbid him from either. A

State’s application of Section Three at the ballot stage

contradicts Section Three’s text and is akin to adding

a new qualification for presidential candidates, which

States cannot do. See Chiafalo v. Washington, 140

S.Ct. 2316, 2324 n.4 (2020) (“[I]f a State adopts a condition on its appointments that effectively imposes

new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.”). And importantly, even if Section

5

Three’s prohibition on holding office is self-executing,

any “‘prophylactic’” extension to the ballot stage would

of course have to come from Congress. Allen v. Cooper,

140 S.Ct. 994, 1004 (2020).

The rest of the Constitution confirms that “hold”

has its ordinary meaning. The Constitution always

uses “hold” to refer to present occupation of the office,

not to candidacy or election. See, e.g., U.S. Const. art.

II, §1 (“He shall hold his Office during the Term of four

Years....”); id. art. I, §6 (“[N]o Person holding any Office under the United States, shall be a Member of either House....”). And the last clause of Section Three

gives Congress the power to “remove” the disability, a

power that would become ineffective if the disability

took force before the election. Id. amend. XIV, §3.

The Twentieth Amendment reinforces this reading. It sets the rules for what happens when a disqualified presidential candidate has been elected. The

elected Vice President will serve unless and until the

President elect becomes qualified: “if the President

elect shall have failed to qualify, then the Vice President elect shall act as President until a President

shall have qualified.” Id. amend. XX; see Harrison &

Prakash, If Trump Is Disqualified, He Can Still Run,

Wall Street J. (Dec. 20, 2023), perma.cc/8EQ9-9VVP.

If state officials decided qualification at the ballot

stage, then the Twentieth Amendment’s contingency

provision is meaningless in many cases. See Myers v.

United States, 272 U.S. 52, 229 (1926) (“‘It cannot be

presumed that any clause in the Constitution is intended to be without effect.’”).

6

Historical practice confirms that Section Three

does not prohibit running for a position but only holding it. See Chiafalo, 140 S.Ct. at 2326 (“‘Long settled

and established practice’ may have ‘great weight in a

proper interpretation of constitutional provisions.’”).

After Section Three’s ratification, several candidates’

qualifications were challenged. 1 Hinds’ Precedents of

the House of Representatives 474-86 (1907) [hereinafter Hinds’]. In each case, the challenges were not decided by election officials or judges, and they were not

decided before the relevant elections. Instead, Congress resolved each challenge after the candidate won

his election, but before he was sworn into office. See,

e.g., 41 Cong. Globe 948-49, 2135, 5443-46, 5195-96

(1870).

Even when the challenged candidate was obviously disqualified—such as when the candidate led

Confederate troops into battle—Section Three was enforced by Congress after the election. See Hinds’ 47886. At that time, a formal complaint would be lodged,

Congress would hear evidence, and Congress would

determine whether the candidate was disqualified before he was sworn in. See, e.g., Hinds’ 474-86; 41 Cong.

Globe 948-49, 2135, 5443-46, 5195-96 (1869-70).

Courts never decided qualification pre-election.

2. The Colorado Supreme Court misconstrued the

text, history, and other available evidence.

a. The court found “no textual evidence” against

enforcement of Section Three at the ballot stage.

App.45a-55a ¶¶88-107. But it never looked. It simply

ignored the word “hold” and treated Section Three as

7

if it said “run for” instead, without any explanation.

“Courts cannot go very far against the literal meaning

and plain intent of a constitutional text.” Forbes Pioneer Boat Line v. Bd. of Comm’rs, 258 U.S. 338, 340

(1922).

The court also never acknowledged that the Fourteenth Amendment provides a mechanism for Congress to remove the Section Three disability. And the

court said that the Twentieth Amendment was irrelevant because it “applies post-election” and “says nothing about who determines in the first instance

whether the President and Vice President are qualified to hold office.” App.58a-59a ¶119. But that cursory interpretation fails to explain why the Twentieth

Amendment presupposes that qualification will not be

resolved before election. See M’Culloch v. Maryland,

17 U.S. (4 Wheat.) 316, 406 (1819) (courts must give

“a fair construction of the whole instrument”).

b. The court glossed over the “historical evidence”

too. App.50a ¶97. It never acknowledged the historical

practice of Congress deciding disqualification after

elections. See supra 8. It never explained why plainly

disqualified candidates still ran and were elected

without pre-election interference. See Hinds’ 478-86.

And it never acknowledged Congress’s belief that it

must enact implementing legislation for anyone else

to enforce Section Three. See, e.g., App.143a-45a

¶¶314-18 (Samour, J., dissenting) (explaining Congress’s practice of enacting implementing legislation,

including the Enforcement Act of 1870).

8

c. Instead, the court concluded that the Constitution’s natural-born-citizen, age, residency, and termlimit requirements mean that Section Three can be

enforced at the ballot stage. App.57a ¶116; see U.S.

Const. art. II., §1, cl. 5 (citizenship, age, and residency); id. amend. XXII, §1 (term limits).

But the history is unclear on whether those requirements could be properly enforced by state courts

at the ballot stage. See Blackman & Tillman, Sweeping and Forcing the President into Section 3, 28(2)

Tex. Rev. L. & Pol. 350 (forthcoming 2024) (manuscript at 372), perma.cc/2XLZ-X2RF. When those requirements were ratified, state and local governments

did not control who was on the ballot at all, so it is a

stretch to assume that pre-election enforcement was

proper. See John Doe No. 1 v. Reed, 561 U.S. 186, 226

(2010) (Scalia, J., concurring in the judgment). The

Colorado Supreme Court cited no original historical

evidence to suggest that they could. See App.49a n.12

(conclusorily stating otherwise with no historical support).

More importantly, this Court need not decide

whether these other requirements can be enforced

pre-election because they critically differ from Section

Three. None of these requirements is followed by an

appropriate-legislation modifier. App.148a-49a ¶324

(Samour, J., dissenting); but see U.S. Const. amend.

XIV, §5 (“Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”).

None involve qualifications that can be cured by congressional action before the candidate takes office. But

see id. amend. XIV, §3 (“Congress may by a vote of

9

two-thirds of each House, remove such disability.”).

And none limit themselves to candidates who “hold”

office, instead applying to the ability to be “elected” or

“eligib[le]” in the first place. Id. amend. XXII, §1; id.

art. II., §1, cl. 5.

The Colorado Supreme Court cited three modern

lower-court opinions in support of its position that it

could decide Section Three qualification at the ballot

stage. App.30a-31a ¶¶53-55. But all three cases involved requirements that cannot be cured by congressional action before holding office and provisions that

refer only to “eligibility,” not “holding” the position.

See Hassan v. Colorado, 495 F. App’x 947, 948-49

(10th Cir. 2012) (natural-born citizen who could not

become one); Lindsay v. Bowen, 750 F.3d 1061, 106266 (9th Cir. 2014) (27-year-old who could not become

35 in time); Socialist Workers Party of Ill. v. Ogilvie,

357 F. Supp. 109, 113 (N.D. Ill. 1972) (similar). Here,

the requirement can be cured and is limited to serving

in the position post-election. See U.S. Const. amend.

XIV, §3.

B. Section Three did not give state officials

power to frustrate the federal

government or national will.

1. Even if Section Three applied to running for office, it would not give enforcement power to States.

The Colorado Supreme Court’s view that state courts

and officials can decide Section Three qualification is

historically implausible because it makes Section

Three a states’-rights superpower.

10

On the court’s account, the Reconstruction Congress handed state judges and election officials a

grave power to undermine the federal government. It

gave these state officials, including in the former Confederate States, the power to decide national-office eligibility based on independent judgments about loyalty and legitimacy. And as the court’s supporters explain, the question which national officers or candidates are insurrectionists under Section Three can be

decided not just by state supreme courts, but by “anybody who possesses legal authority” at the state level.

Baude & Paulsen, The Sweep and Force of Section

Three, 172 U. Pa. L. Rev., at 22-29 (forthcoming 2024),

perma.cc/7GQV-9853 (emphasis added). This authority extends even beyond eliminating candidates for

federal office, allowing state officials to nullify the acts

of current officeholders because “[t]hose who cannot

constitutionally hold office cannot constitutionally exercise government power, so the subjects of that power

can challenge their acts as ultra vires.” Id. at 29. In

other words, the Reconstruction Congress crafted a secessionists’ dream: a new constitutional basis to not

only eliminate pro-Union candidates from the ballot,

but also nullify acts of such officials, including their

enactment or enforcement of federal legislation.

That is the last thing the Reconstruction Congress

would have done. The Reconstruction Amendments

“were specifically designed as an expansion of federal

power and an intrusion on state sovereignty.” City of

Rome v. United States, 446 U.S. 156, 179 (1980). They

were enacted by the Reconstruction Congress as it

fought to reassert its authority over States that

warred against it and viewed the federal government

11

and its officials as illegitimate. See Paschal, Lecture

Delivered to the American Union Academy of Literature, Science, and Art, in The Constitution of the

United States Defined and Carefully Annotated, xxiv

(1868), bit.ly/49dXWM3 (explaining that the Reconstruction-era amendments’ purpose and effect were to

“enlarge[] the powers of the nation, [and] abridge[]

those of the States”). Many during Reconstruction still

believed that the Union was illegitimate. See generally Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis (2017). If Section Three gave

state officials the power to disqualify any candidates

whom—in the state officials’ views—engaged in insurrection, then it would have been a self-sabotaging

laughingstock. The Colorado Supreme Court erred in

endorsing this “highly counterintuitive result.” Yellen

v. Confederated Tribes, 141 S.Ct. 2434, 2448 (2021).

2. The perils of giving enforcement power to States

are no less obvious today. If state officials can independently enforce Section Three—and decide for

themselves who has really “engag[ed] in insurrection

or rebellion”—it would court anarchy.

Under the Colorado Supreme Court’s approach,

state officials can and will remove other candidates

from the ballot or from office, often along partisan

lines. A handful of examples illustrate this point:



During the summer of 2020, Vice President

Harris, President Biden, and their staffs advocated for, marched with, and provided material

support (in the form of bail money) to rioters in

12

the wake of George Floyd’s death.1 These rioters stormed the White House, injuring police officers and forcing the President, his family, and

his staff to shelter in a bunker.2 They killed people, took over government buildings, burned

down buildings, and sought to establish alternative “governments” in the form of so-called

“autonomous zones.”3 If a state official believes

that President Biden or Vice President Harris

aided these efforts, he may eliminate President

Biden and Vice President Harris from the ballot. And all their past actions can be nullified as

1 E.g., Marcus, Meet the Rioting Criminals Kamala Harris

Helped Bail Out of Jail, The Federalist (Aug. 31, 2020),

perma.cc/9S6A-NBBG; Lange & Honeycutt, Biden Staff Donate

to Group That Pays Bail in Riot-Torn Minneapolis, Reuters (May

30, 2020), perma.cc/5FBJ-MTST; @JoeBiden, X (Aug. 28, 2020),

perma.cc/GSH6-W9EP.

2 E.g., Hoffman, More Than 60 Secret Service Officers and

Agents Were Injured Near the White House This Weekend, CNN

(May 31, 2020), perma.cc/5H3J-Q2BD; Leonnig, Protesters’

Breach of Temporary Fences Near White House Complex

Prompted Secret Service to Move Trump to Secure Bunker, Wash.

Post (June 3, 2020), perma.cc/E75G-XTJL.

3 E.g., Holcombe & Boyette, Seattle Police to Remove Con-

crete Barriers Around Precinct That Was Temporarily Vacated

During George Floyd Protests, CNN (Apr. 3, 2021),

perma.cc/KMJ8-VU5U; Retired St. Louis Police Captain Killed

During Unrest Sparked by George Floyd Death, CBS News (June

3, 2020), perma.cc/69RN-EYAM; Deese, Vandalism, Looting Following Floyd Death Sparks at Least $1B in Damages Nationwide:

Report, The Hill (Sept. 16, 2020), perma.cc/T2N4-KC67; Boyd,

Death Toll Rises to an Estimated 30 Victims Since ‘Mostly Peaceful Protests’ Began, The Federalist (Aug. 19, 2020),

perma.cc/2V7V-NTFP.

13

“ultra vires” by state officials. Baude &

Paulsen, supra, at 29.



During the last Administration, prominent

Democrats publicly directed their supporters to

confront Administration officials. As Congresswoman Maxine Waters said, “If you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get

out and you create a crowd and you push back

on them….”4 Around the same time, many

Democrat supporters did confront Administration officials.5 A Democrat supporter tried to

murder Republican officeholders when he attacked a Republican baseball practice before

the Congressional Baseball Game, shooting at

several sitting Republican members and staff

and seriously wounding Representative Steve

Scalise.6 Under the lower court’s theory, state

officials may disqualify these Democrats or nullify their acts if they determine that they aided

an insurrection or rebellion.

4 E.g., Warmbrodt, Waters Scares Democrats with Call for

All-Out War on Trump, Politico (June 25, 2018), perma.cc/E7XRJAV4; Boyd, 10 Times Democrats Urged Violence Against Trump

and His Supporters, The Federalist (Jan. 8, 2021),

perma.cc/CQ37-F29E.

5 E.g., Lurie, Trump Officials Can No Longer Eat Out in

Peace, Mother Jones (June 23, 2018), perma.cc/JJL3-YP3D.

E.g., Keeley, Rep. Steve Scalise, Shot by Sanders Supporter, Replies to Request for Evidence of ‘Bernie Bros’ Being Bad:

‘I Can Think of an Example’, Newsweek (Feb. 20, 2020),

perma.cc/3D4C-6SPX.

6

14



Recently, left-wing pro-Palestine protesters, after receiving vocal support from elected Democrats, violently stormed the White House complex.7 Just before that, another coalition of leftwing pro-Palestine protesters invaded the Capitol complex.8 State officials could, on the lower

court’s theory, remove all the previous oathtakers who supported these rioters—including

through their public speeches—from ballots

and void their official acts.

Just like the events underlying the Colorado Supreme

Court’s theory, state officials and Americans in general are divided in how to view each of these events.

But that is the point: If state officials can unilaterally

decide the facts and make the relevant legal judgments, then those disagreements will produce a fractured government and a dysfunctional democracy.

The Colorado Supreme Court’s construction of

“engag[ing] in insurrection or rebellion” exacerbates

these concerns. Although that phrase was originally

understood to cover only constitutional treason, see

United States v. Greathouse, 26 F. Cas. 18 (C.C.N.D.

7

Pro-Palestine Protestors Climb Up White House Fence, Attack Secret Service, Times Now (Nov. 4, 2023), perma.cc/4GCFH2HM; Anti-Israel Protesters Vandalize White House Gates, Try

to Scale Fence, Jerusalem Post (Nov. 5, 2023), perma.cc/67GRUFVP; Vazquez, Democratic House Member Accuses Biden of

Supporting Palestinian ‘Genocide’, Wash. Post (Nov. 3, 2023),

perma.cc/RZW3-3QJG.

8

Smith, Hundreds Arrested After Pro-Palestinian Demonstrators Flood Cannon Rotunda, Capitol Complex, Fox 5 D.C.

(Oct. 18, 2023), perma.cc/R6AF-XQA2.

15

Cal. 1863) (Field, J.) (insurrection or rebellion are no

less than treason); accord, e.g., 37 Cong. Globe 2173

(1862) (Sen. Howard) (insurrection or rebellion “nothing more nor less than treason”), the Colorado Supreme Court said that an insurrection or rebellion

“need not involve bloodshed,” need not “be so substantial as to ensure probable success,” and need not even

be “highly organized at [its] inception.” App.86a-87a

¶184. And of course, other state officials could interpret the phrase differently. Baude & Paulsen, supra,

at 29.

None of this is hypothetical anymore. In the wake

of the lower court’s decision, officials in other States

have announced plans to remove other candidates

from the ballot. See, e.g., Wilson, Texas Leader Wants

Biden Kicked Off State’s 2024 Ballot Over Immigration, Wash. Times (Dec. 20, 2023), perma.cc/V8Y7TUX6; Dobkin, Republicans Pull Trigger on Plan to

Remove Joe Biden from Ballots, Newsweek (Dec. 22,

2023), perma.cc/JA8A-WR6D (“Republican lawmakers in three swing states,” Arizona, Georgia, and

Pennsylvania, “have announced their plan to remove

President Joe Biden from their state ballots.”); Stanton, Democrats Want Over 130 Republicans Banned

From Holding Office, Newsweek (Jan. 5, 2024),

perma.cc/88CS-PVZD; DeSantis Suggests Biden

Could Be Removed from Florida Ballot, CNN (Jan. 6,

2024), perma.cc/AK6F-X9R4; Keck, Illinois Voters Assert Biden ‘Ineligible’ to Run for Office, Move to Strike

Him from Ballot, The State Journal-Register (Jan. 15,

2024), perma.cc/QY46-HMZQ.

16

“Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4

(2006). Allowing political opponents to pick each other

off ballots based on their political disagreements

would destroy that confidence, threaten this Nation’s

system of representative democracy, and unravel the

Reconstruction Congress’s design.

C. This Court has cautioned against state

control over similar election issues.

Even outside the context of the Reconstruction

Amendments, this Court has long warned against

state control over national election qualifications.

“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.” U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 810 (1995). States cannot

even enforce state law to disqualify someone from federal office; those qualifications are set and enforced by

the federal government, usually Congress. Id. at 81011. Indeed, in the aftermath of the Civil War, Congress itself judged whether candidates for federal office were disqualified even under state law, just like

they did for federal law. See Hinds’ 471.

The notion of state control over who can run for

federal office would have been unfamiliar to the ratifiers of the Fourteenth Amendment. At the time, state

and local governments did not control who was on the

ballot at all. See John Doe No. 1, 561 U.S. at 226

17

(Scalia, J., concurring in the judgment). Parties distributed ballots; state and local governments accepted

and counted them. Id. An argument that Section

Three empowers state and local officials to enforce

their views of federal qualifications at the ballot stage

would have surprised the ratifiers.

Our system of government gives the power to elect

candidates not to state courts, but to the people. “The

people are the best judges [of] who ought to represent

them. To dictate and control them, to tell them whom

they shall not elect, is to abridge their natural rights.”

Thornton, 514 U.S. at 794-95 (quoting 2 Debates on

the Federal Constitution 292-93 (Elliot ed. 1876) (Livingston)). “‘The true principle of a republic,’” in Alexander Hamilton’s famous words, “‘is[] that the people

should choose whom they please to govern them.’”

Powell v. McCormack, 395 U.S. 486, 540-41 (1969)

(brackets omitted) (quoting 2 Debates on the Federal

Constitution 257 (Elliot ed. 1876) (A. Hamilton)). Allowing state courts to subvert that principle would

render our government no longer one “‘by the people.’”

Thornton, 514 U.S. at 821 (quoting Lincoln, Gettysburg Address (1863)).

D. Congress has not authorized preelection enforcement of Section Three

in state courts.

The Fourteenth Amendment contemplates a

mechanism by which Congress can authorize others to

enforce Section Three, but Congress has not done so.

Section Five gives Congress the “power to enforce, by

appropriate legislation, the provisions of this article,”

including Section Three. U.S. Const. amend. XIV, §5.

18

That Congress has not exercised that power to authorize private plaintiffs to sue or state officials to adjudicate Section Three means that this determination still

belongs exclusively to Congress.

The drafters of Section Three believed that it

would require implementing legislation. “[I]f this

amendment prevails,” its principal proponent explained, “[i]t will not execute itself.” 39 Cong. Globe

2544 (1866) (Rep. Stevens) (emphasis added). Even

when Congress wanted Section Three enforced with

respect to state offices, it believed that implementing

legislation was required. So it authorized federal lawenforcement actions to remove such officers. See Enforcement Act of 1870, ch. 114, §§14, 15, 16 Stat. 140,

143-44 (May 31, 1870).

Soon after Section Three was ratified, Chief Justice Chase dismissed a Section Three lawsuit because

“legislation by Congress is necessary to give effect to”

Section Three. In re Griffin, 11 F. Cas. 7, 26 (C.C.D.

Va. 1869). He said that the removal of disqualified officeholders “can only be provided for by [C]ongress.”

Id. That remains the law today. See App.131a-43a

¶¶285-313 (Samour, J., dissenting) (defending Griffin

at length); Blackman & Tillman, supra, at 404-504

(same); Cale v. City of Covington, 586 F.2d 311, 316

(4th Cir. 1978) (explaining that Griffin held “that the

third section of the Fourteenth Amendment, concerning disqualifications to hold office, was not self-executing absent congressional action” and concluding that

“the Congress and Supreme Court of the time were in

agreement that affirmative relief under the [Fourteenth] [A]mendment should come from Congress”);

19

Rothermel v. Meyerle, 136 Pa. 250, 254 (1890) (“[I]t

has also been held that the Fourteenth Amendment,

as indeed is shown by the provision made in its fifth

section, did not execute itself.” (citing Griffin)); State

v. Buckley, 54 Ala. 599, 616 (1875) (same).

Congress has enacted Section Three enforcement

legislation, and it does not include pre-election lawsuits by private plaintiffs in state courts. “One year

after Griffin’s Case was decided, and perhaps in response to it, Congress enacted the Enforcement Act of

1870.” App.143a-44a ¶314 (Samour, J., dissenting).

The Act “contained two provisions for the specific purpose of enforcing Section Three.” App.143a-44a ¶314

(Samour, J., dissenting). The first provision authorized “a quo warranto mechanism” in which a federal

district attorney could bring “a civil suit in federal

court to remove from office a person who was disqualified by Section Three.” App.143a-44a ¶314 (Samour,

J., dissenting) (citing Enforcement Act of 1870, ch.

114, 16 Stat. 140, 143). The second provision authorized “a criminal prosecution for knowingly accepting

or holding office in violation of Section Three, and included punishment by imprisonment of not more than

a year, a fine of not more than $1,000, or both.”

App.143a-44a ¶314 (Samour, J., dissenting) (citing 16

Stat. at 143-44).

Congress later repealed the civil-suit provision

(i.e., the quo warranto provision) in 1948, but the descendant of the criminal provision remains: 18 U.S.C.

§2383. App.144a-45a ¶316 (Samour, J., dissenting).

This provision “specifically criminalizes insurrection

and requires that anyone convicted of engaging in

20

such conduct be fined or imprisoned and be disqualified from holding public office.” App.127a-28a ¶276;

see 18 U.S.C. §2383 (“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 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.”). “If any federal legislation

arguably enables the enforcement of Section Three,

it’s section 2383.” App.127a-28a ¶276 (Samour, J., dissenting). But “President Trump has never been

charged with, let alone convicted of, violating it. The

instant litigation [is] an end run around section 2383.”

App.145a-46a ¶319 (Samour, J., dissenting).

II. Primary ballot cleansing violates National

Republican Amici’s First Amendment

rights.

Enforcing Section Three at the primary stage

would violate the First Amendment rights of National

Republican Amici and their members and supporters.

“Under our political system, a basic function of a political party is to select the candidates for public office

to be offered to the voters at general elections.” Kusper

v. Pontikes, 414 U.S. 51, 58 (1973). National Republican Amici help carry out this function.

A party’s right to select candidates is protected by

the First Amendment. Cal. Democratic Party v. Jones,

530 U.S. 567, 572-73 (2000). “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

21

U.S. 214, 224 (1989). “The ability of the members of

the Republican Party to select their own candidate unquestionably implicates an associational freedom.”

Jones, 530 U.S. at 575 (cleaned up). It is “central to

the exercise of the right of association.” Tashjian v.

Republican Party of Conn., 479 U.S. 208, 214 (1986).

When a State intrudes “upon the selection of the

party’s nominee,” it violates that First Amendment

right. Jones, 530 U.S. at 577 n.7; accord Cousins v.

Wigoda, 419 U.S. 477, 487-88 (1975). Among other

things, that means “ballot access must be genuinely

open to all, subject to reasonable requirements,” like

objective popular-support metrics. Lubin v. Panish,

415 U.S. 709, 719 (1974). States must leave it up to a

party and its members “to select a ‘standard bearer

who best represents the party’s ideologies and preferences.’” Eu, 489 U.S. at 224; see Tashjian, 479 U.S. at

216 (primary 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”).

Removing former President Trump from the ballot

violates this right. It denies ballot access to one of the

Party’s potential candidates. It ruptures the “process[]

by which [Republicans] select their nominees” and denies them their “‘ability … to select their own candidate.’” Jones, 530 U.S. at 572, 575. And it unconstitutionally puts in the hands of the State—rather than

the party (and the people)—the right to select a

“‘standard bearer who best represents the party’s ideologies and preferences.’” Eu, 489 U.S. at 224. If Republicans cannot nominate the candidate of their

22

choice, then the primary system will no longer be

theirs, violating the First Amendment.

Nor can Section Three supersede this First

Amendment right. “[T]here can be no justification for

needlessly rendering provisions in conflict if they can

be interpreted harmoniously.” Scalia & Garner, Reading Law: The Interpretation of Legal Texts 180 (2012).

Since Section Three’s phrase “hold office” and the

First Amendment right of political parties can easily

be interpreted harmoniously by not applying Section

Three at the primary stage, that interpretation must

prevail. See Cooley, A Treatise on the Constitutional

Limitations Which Rest the Legislative Power of the

States of the American Union 58 (1868) (“[O]ne part is

not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.”); W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S.

83, 101 (1991) (“[I]t is our role to make sense rather

than nonsense out of the corpus juris.”).

Even if they did conflict, the conflict would be governed by the general-specific canon, and the First

Amendment would win. “[W]hen conflicting provisions simply cannot be reconciled,” “the specific provision is treated as an exception to the general rule.”

Scalia & Garner, supra, at 183. The First Amendment

carves out a specific protected right—the right of political parties to select their own candidates at the primary stage—from the lower court’s vast construction

of Section Three’s prohibitions. That specific protection must prevail.

23

III. Section Three does not apply to former

Presidents.

Section Three applies only to people who have previously taken the Article VI Oath to support the Constitution. A prerequisite to Section Three disqualification is “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.” U.S. Const. amend. XIV, §3. But that is not

the oath that Presidents take. They take the Article II

oath to “preserve, protect and defend the Constitution.” U.S. Const. art. II. And they are not and never

have been considered “executive … Officers … of the

United States” under the Article VI Oath Clause. This

exclusion of the presidency makes sense because the

drafters had no former Presidents on their minds.

A. Presidents do not take an oath “to

support” the Constitution.

Section Three applies only to people who previously took a specified “oath”: the Article VI oath. U.S.

Const. amend. XIV, §3. It refers to not just any oath,

but the oath to “support the Constitution.” Id. Article

VI, which was part of the original Constitution, requires an “Oath” of “Senators and Representatives,”

“Members of the several State Legislatures,” and “all

executive and judicial Officers, both of the United

States and of the several States.” U.S. Const. art. VI.

They must take an oath to “support this Constitution.”

Id.; see Illinois v. Krull, 480 U.S. 340, 351 (1987). Congress has always required this oath by law. See 5

U.S.C. §3331 (to “support” the Constitution).

24

When “‘a word [or phrase] is obviously transplanted from another legal source,’” it “‘brings the old

soil with it.’” Hall v. Hall, 138 S.Ct. 1118, 1128 (2018).

The drafters of Section Three referred to the same

oath “to support” the Constitution everybody already

knew. See Paschal, supra, at xxxviii, bit.ly/3vzTTuW

(Article VI and Section Three cover “precisely the

same class of officers”). Thus, it incorporates the same

categories of people who take that oath: “a member of

Congress,” “a member of any State legislature,” “an

officer of the United States,” or “an executive or judicial officer of any State.” Id.

But Presidents have never taken the Article VI

oath. The statute carrying into effect the Article VI

Oath Clause confirms that it applies to a wide range

of government officials “except the President.” 5 U.S.C.

§3331 (emphasis added). There is “no historical evidence that the President has ever taken a separate

oath pursuant to the Article VI Oath or Affirmation

Clause.” Tillman & Blackman, Offices and Officers of

the Constitution Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses,

62 S. Tex. L. Rev. 349, 423 (2023).

Presidents take a different oath prescribed by Article II. See U.S. Const. art. II, §1; see also Am.

Commc’ns Ass’n, C.I.O. v. Douds, 339 U.S. 382, 415

(1950) (“For the President, a specific oath was set

forth in the Constitution itself. Art. II, §1.”). In that

oath, they do not swear to “support” the Constitution,

as Section Three requires. They swear to “preserve,

protect and defend the Constitution.” See U.S. Const.

art. II, §1 (“I do solemnly swear (or affirm) that I will

25

faithfully execute the office of President of the United

States, and will to the best of my ability, preserve, protect and defend the Constitution of the United

States.”). Former President Trump has never taken

the Article VI oath “to support” the Constitution as

used in Section Three, but only the Article II oath. He

thus falls outside Section Three’s coverage.

The Colorado Supreme Court disagreed because

in its view, the presidential oath to “‘preserve, protect,

and defend the Constitution’ … is consistent with the

plain meaning of the word ‘support.’” App.75a ¶156.

But that argument answers the wrong question. The

question is not whether the President’s commitments

can broadly be characterized as “support”; the question is whether the President takes the oath that Section Three references. He does not; Section Three

points to the Article VI oath, not the Article II oath.

B. The President is not an “officer of the

United States” because that phrase

never includes the President in the

Constitution.

The presidency is also not among those positions

whose past oath would subject them to Section Three.

Section Three applies only to a “member of Congress,”

“officer of the United States,” “member of any State

legislature,” or “executive or judicial officer of any

State.” U.S. Const. amend. XIV, §3. The Colorado Supreme Court determined that the President must be

an “officer of the United States.” He is not.

When Section Three was ratified, the President

was not understood to be an “officer of the United

26

States” for constitutional purposes. Joseph Story

wrote that because the Constitution’s Impeachment

Clause lists the President, Vice President, “and all

civil officers (not all other civil officers),” that means

that the President and Vice President were “contradistinguished from, rather than ... included in the description of civil officers of the United States.” 1 Joseph Story, Commentaries on the Constitution of the

United States 578 (1891).

Less than a decade after the Fourteenth Amendment’s ratification, at least two Senators said the

same thing. Senator Newton Booth said that “the

President is not an officer of the United States.” Congressional Record Containing the Proceedings of the

Senate Sitting for the Trial of William Belknap 454

(1876). Senator Boutwell said that “according to the

Constitution, as well as upon the judgment of eminent

commentators, the President and Vice-President are

not civil officers.” Id. at 409. A contemporaneous treatise confirmed what Justice Story wrote: “[I]t is obvious that ... the President is not regarded as ‘an officer

of, or under, the United States.’” McKnight, The Electoral System of the United States 346 (1878).

More recently, two future Justices came to similar

conclusions. Future-Justice Scalia wrote that “when

the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President or

Vice President.” Memorandum from Antonin Scalia,

Re: Applicability of 3 C.F.R. Part 100, OLC, at 2 (Dec.

19, 1974), perma.cc/GQA4-PJNN. And future-Chief

Justice Rehnquist wrote that “statutes which refer to

27

‘officers’ or ‘officials’ of the United States are construed not to include the President unless there is a

specific indication that Congress intended to cover the

Chief Executive.” Memorandum from William H.

Rehnquist, Re: Closing of Government Offices, OLC,

at 3 (Apr. 1, 1969), perma.cc/P229-BAKL. One scholar

who was initially hopeful about Section Three disqualification concluded that it would not work because the

President is not an “officer of the United States.” See

Calabresi, Donald Trump Should Be on the Ballot and

Should Lose, Volokh Conspiracy (Sept. 16, 2023),

perma.cc/LP5Y-MJ97.

Each of the four other constitutional uses of the

phrase “officer of the United States” confirm the President’s exclusion:



Article VI Oath Clause. Article VI requires

an oath of “all executive and judicial Officers …

of the United States.” U.S. Const. art. VI. Presidents do not take the Article VI Oath. See Tillman & Blackman, supra, at 423. Indeed, the

statute carrying into effect the Article VI Oath

Clause confirms that it applies to a wide range

of government officials “except the President.”

5 U.S.C. §3331.



Commissions Clause. Article II assigns the

President the duty to “Commission all the Officers of the United States.” U.S. Const. art. II,

§3. But “[t]he President has never commissioned himself.” Tillman & Blackman, supra, at

412. Nor have Presidents received commissions

from their predecessors. See id. That unbroken

28

practice would be unconstitutional if “all the officers of the United States” included the President.



Appointments Clause. Article II assigns the

President the power to “appoint Ambassadors,

other public Ministers and Consuls, Judges of

the supreme Court, and all other Officers of the

United States, whose Appointments are not

herein otherwise provided for, and which shall

be established by Law.” U.S. Const. art. II, §2

(emphases added). Because the President does

not appoint himself, the phrase “all other Officers of the United States” does not include him.

And his “[a]ppointment[]” is not otherwise provided for because the President is not

“[a]ppoint[ed]” at all—he is elected. See id.

amend. XII; id. art. II.



Impeachments Clause. Last, Article II describes the impeachment process for the “President, Vice President and all civil officers of the

United States,” U.S. Const. art. II, §4. (emphasis added). The first two items are superfluous

if “all” of the “officers of the United States” included the President. But see Scalia & Garner,

supra, at 174 (“If possible, every word ... is to be

given effect.”). And because the last category

does not contain the word “other,” it is not a

catch-all clause that also comprehends the first

two categories, but a distinct third category.

Again, that’s because the President is never a

constitutional “officer of the United States.”

29

Drafting history confirms what the text suggests.

When the Impeachments Clause was drafted, it initially referred to the President, Vice President, and

“other civil officers of the U.S.” 2 The Records of the

Federal Convention of 1787, at 545, 552 (Farrand ed.,

1911). But upon further deliberation, the drafters

changed the Impeachments Clause to remove the

word “other.” Id. at 600. That change makes no sense

if the President is an “officer of the United States.”

Precedent supports this conclusion. The President

is commonly called a “department” or “branch,” not an

“Officer of the United States.” See, e.g., Mississippi v.

Johnson, 71 U.S. 475, 500 (1866) (“the President is the

executive department”); Trump v. Mazars USA, LLP,

140 S.Ct. 2019, 2034 (2020) (“The President is the only

person who alone composes a branch of government.”).

This Court’s precedent has long assumed that the

President is not an “Officer of the United States.” See,

e.g., Free Enter. Fund v. PCAOB, 561 U.S. 477, 497-98

(2010) (“The people do not vote for the ‘Officers of the

United States.’”); accord United States v. Mouat, 124

U.S. 303, 307 (1888) (“Unless a person in the service

of the government, therefore, holds his place by virtue

of an appointment by the president, or of one of the

courts of justice or heads of departments authorized

by law to make such an appointment, he is not, strictly

speaking, an officer of the United States.”); Seila Law

LLC v. CFPB, 140 S.Ct. 2183, 2199 (2020) (“Article II

distinguishes between two kinds of officers—principal

officers (who must be appointed by the President with

the advice and consent of the Senate) and inferior officers (whose appointment Congress may vest in the

30

President, courts, or heads of Departments).” (emphases added)).

The Colorado Supreme Court ignored this evidence. First, the court thought excluding the President was “absurd.” App.54a ¶106. But the Fourteenth

Amendment’s ratifiers had no reason to include Presidents. At the time, all former Presidents had previously taken the Article VI oath. And only one former

President had joined the Confederacy, but he was

dead. See John Tyler, White House Historical Ass’n,

perma.cc/23RJ-AWWJ.

Second, the court focused almost entirely on the

word “officer,” not the phrase “officer of the United

States.” See App.70a-72a ¶¶145-50. But phrases often

have meanings that are not captured by the definitions of their individual words. See, e.g., Bostock v.

Clayton Cnty., 140 S.Ct. 1731, 1826-27 (2020) (Kavanaugh, J., dissenting) (“This Court has often emphasized the importance of sticking to the ordinary

meaning of a phrase, rather than the meaning of

words in the phrase.”); FCC v. AT&T Inc., 562 U.S.

397, 406 (2011) (“two words together may assume a

more particular meaning than those words in isolation”). The phrase “officer of the United States” is used

four times in the Constitution, and all four times it

does not cover the President. “When seeking to discern

the meaning of a word [or phrase] in the Constitution,

there is no better dictionary than the rest of the Constitution itself.” Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n, 576 U.S. 787, 829 (2015) (Roberts, C.J., dissenting).

31

IV. Section Three does not cover holding the

presidency.

Even if former President Trump had taken the Article VI Oath, Section Three does not disqualify anyone from becoming President. By its terms, Section

Three disqualifies people only from holding these positions: “Senator or Representative in Congress,”

“elector of President and Vice President,” or “any office, civil or military, under the United States, or under any State.” U.S. Const. amend. XIV, §3.

The first draft of what became Section Three provided that nobody could “hold the office of President

or Vice President of the United States, Senator or Representative in the national Congress, or any office now

held under appointment from the President of the

United States, and requiring the confirmation of the

Senate.…” 39 Cong. Globe 919 (1866). Congress then

eliminated “the office of President or Vice President of

the United States” and enacted Section Three without

it. Of course, courts “presume differences in language

like this convey differences in meaning.” Henson v.

Santander Consumer USA Inc., 582 U.S. 79, 86

(2017); see Thornton, 514 U.S. at 810 n.20 (deciding

election-qualifications questions based in part on

“[t]he Framers’ decision to reject a proposal allowing

for States to recall their own representatives”). It is

not for this Court to second-guess the drafters’ decision.

If the drafters wanted to use Section Three to

block presidential candidates, they would not have

been so subtle. Although the drafters identified specifically “member[s] of Congress,” “member[s] of any

32

State legislature,” and even “elector[s] of President

and Vice President,” the Colorado Supreme Court contends that they also covered duly elected Presidents—

the most important position in America—in the same

catch-all class as entry-level bureaucrats. It is far

more likely that “office under the United States” referred only to subordinate offices and that the highest

offices were identified by name. This follows from the

“commonsense principle[] of communication” that

drafters communicate major decisions—like whether

they are proposing to disqualify duly elected Presidents—with clarity. Biden v. Nebraska, 143 S.Ct.

2355, 2380 (2023) (Barrett, J., concurring).

This understanding also makes sense in historical

context. “[T]he President and the Vice President of the

United States are the only elected officials who represent all the voters in the Nation.” Anderson v. Celebrezze, 460 U.S. 780, 795 (1983). The drafters of the

Fourteenth Amendment were not trying to subvert

the national will, but a regional will. Their concerns

were with things like “prevent[ing] the intrusion of

arch traitor Jefferson Davis into the Senate.” 39 Cong.

Globe 2537 (1866). Section Two, which restricted representatives from the former Confederate States, ensured that no Confederate would soon become President as a matter of math, and nobody mentioned such

a concern in the ratification debates. Lash, The Meaning and Ambiguity of Section Three of the Fourteenth

Amendment 46-48, 54 (last updated Dec. 29, 2023),

perma.cc/2WKV-CZYU.

The Colorado Supreme Court came to the contrary

conclusion, but it repeated the same mistake it made

33

for “officer of the United States.” It focused on the

meaning of “office,” not the meaning of the phrase “office … under the United States.” App.116a-20a ¶¶13033. But this phrase cannot be understood by looking

just to the “hyperliteral meaning of each word in the

text…. The full body of a text contains implications

that can alter the literal meaning of individual

words.” Scalia & Garner, supra, at 356; cf. Helvering

v. Gregory, 69 F.2d 809, 810-11 (2d Cir. 1934) (L.

Hand, J.) (“[T]he meaning of a sentence may be more

than that of the separate words, as a melody is more

than the notes.”).

*

*

*

Finally, if this Court has any doubt concerning

Section Three’s application, it should resolve such

doubt against disqualification. As the Attorney General wrote in 1867, “[t]hose who are expressly brought

within [Section Three’s] operation cannot be saved

from its operation.” The Reconstruction Acts, 12 Op.

Att’y Gen. 141, 160 (1867). But “[w]here, from the generality of terms of description, or for any other reason,

a reasonable doubt arises, that doubt is to be resolved

against the operation of the law.” Id.

CONCLUSION

This Court should reverse the Supreme Court of

Colorado.

34

January 18, 2024

Christopher O. Murray

Julian R. Ellis, Jr.

BROWNSTEIN HYATT FARBER SCHRECK, LLP

675 15th Street, Ste. 2900

Denver, CO 80202

(303) 223-1100

Patrick N. Strawbridge

Counsel of Record

CONSOVOY MCCARTHY PLLC

Ten Post Office Square

8th Floor South PMB #706

Boston, MA 02109

(617) 227-0548

patrick@consovoymccarthy.com

Gilbert C. Dickey

Jeffrey S. Hetzel

Thomas S. Vaseliou

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

Attorneys for Amici Curiae