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 the State of Colorado

______________________

BRIEF OF FORMER COLORADO SECRETARY

OF STATE MARY ESTILL BUCHANAN AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

______________________

Michael A. Caplan

Counsel of Record

T. Brandon Waddell

Alan M. Long

Emily C. Snow

CAPLAN COBB LLC

75 14th St., NE, Suite 2700

Atlanta, Georgia 30309

Tel: (404) 596-5600

mcaplan@caplancobb.com

Counsel for Amicus Curiae

January 31, 2024

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

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

ARGUMENT ...............................................................6

I.

STATES HAVE BROAD AUTHORITY TO

REGULATE

APPOINTMENT

OF

PRESIDENTIAL ELECTORS..............................6

A. The

Constitution

gives

States

considerable discretion over regulating

state-run presidential primary ballots ..........7

B. State regulation of presidential elections

is deeply rooted in the Nation’s history.......13

II. TRUMP

RECEIVED

MORE

THAN

ADEQUATE PROCESS .....................................17

A. Trump Has Identified No Interest

Cognizable Under the Due Process

Clause in Appearing on Colorado’s

Primary Ballot ..............................................18

B. Colorado Provided Trump Due Process.......20

i.

Trump Received Ample Notice ..............20

ii. Trump Had an Opportunity to Be

Heard ......................................................23

CONCLUSION ..........................................................30

ii

TABLE OF AUTHORITIES

Cases

Anderson v. Celebrezze,

460 U.S. 780 (1983) ....................................... 11, 28

Armstrong v. Manzo,

380 U.S. 545 (1965) ................................. 24, 25, 29

Baldwin v. Hale,

68 U.S. 223 (1863) ............................................... 20

Bd. of Regents of State Colls. v. Roth,

408 U.S. 564 (1972) ................................. 18, 20, 23

Boddie v. Connecticut,

401 U.S. 371 (1971) ................................. 23, 24, 28

Bridges v. Wixon,

326 U.S. 135 (1945) ............................................. 25

Bullock v. Carter,

405 U.S. 134 (1972) ......................................... 2, 19

Burdick v. Takushi,

504 U.S. 428 (1992) ............................................. 12

Burroughs v. United States,

290 U.S. 534 (1934) ............................................... 8

Burson v. Freeman,

504 U.S. 191 (1992) ............................................. 15

Bush v. Gore,

531 U.S. 98 (2000) ................................................. 7

Carpender v. Winn,

221 U.S. 533 (1911) ............................................. 29

Chiafalo v. Washington,

140 S. Ct. 2316 (2020)..........................4, 10, 13, 19

iii

City of West Covina v. Perkins,

525 U.S. 234 (1999) ............................................. 22

Cleaver v. Jordan,

393 U.S. 810 (1968) ............................................. 16

Clements v. Fashing,

457 U.S. 957 (1982) ............................................. 19

Cornett v. Sheldon,

894 F. Supp. 715 (S.D.N.Y. 1995) ...................... 20

Degen v. United States,

517 U.S. 820 (1996) ............................................. 24

Democratic Party of U.S. v. Wisconsin ex rel. La

Follette,

450 U.S. 107 (1981) ............................................... 7

Dowling v. United States,

493 U.S. 342 (1990) ............................................. 25

Elliot v. Cruz,

137 A.3d 646 (Pa. Commw. Ct. 2016), aff’d,

134 A.3d 51 (Pa. 2016) .......................................... 9

Farrar v. Obama,

OSAH-SECSTATE-CE-1215136-60-MALIHI

(Ga. Office of State Admin. Hearings Feb. 3,

2012) ...................................................................... 8

Fitzgerald v. Green,

134 U.S. 377 (1890) ....................................... 10, 14

Fuentes v. Shevin,

407 U.S. 67 (1972) ..................................... 5, 20, 23

Garst v. Lomenzo,

294 N.Y.S.2d 990 (App. Div.), aff'd, 242

N.E.2d 482 (N.Y. 1968) ....................................... 16

iv

Griswold v. Peters,

No. 22-cv-30007, 2022 Colo. Dist. LEXIS 703

(Mesa Cnty. Dist. Ct. May 10, 2022) .................. 28

Hanlen v. Gessler,

2014 CO 24 .......................................................... 11

Hassan v. Colorado,

495 F. App'x 947 (10th Cir. 2012) ................ 12, 16

In re Garst,

294 N.Y.S.2d 33 (Sup. Ct.).................................. 16

Jenness v. Fortson,

403 U.S. 431 (1971) ............................................. 11

Joyce v. Cruz,

16 SOEB GP 526 (Ill. State Bd. of Elections

Jan. 28, 2016) ........................................................ 8

Keyes v. Bowen,

117 Cal. Rptr. 3d 207 (Ct. App. 2010) ................ 16

Kuhn v. Williams,

2018 CO 30 .......................................................... 28

Landon v. Plasencia,

459 U.S. 21 (1982) ......................................... 24, 25

Leonard v. Texas,

580 U.S. 1178 (2017) ........................................... 17

Mackey v. Montrym,

443 U.S. 1 (1979) ................................................. 27

Mathews v. Eldridge,

424 U.S. 319 (1976) ................................. 24, 29, 30

McPherson v. Blacker,

146 U.S. 1 (1892) ......................................... 7, 8, 14

v

Moore v. Harper,

600 U.S. 1 (2023) ................................................. 13

Morrissey v. Brewer,

408 U.S. 471 (1972)) ........................................... 24

Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306 (1950) ................................. 21, 22, 24

Nev. Comm'n on Ethics v. Carrigan,

564 U.S. 117 (2011) ............................................. 18

Ray v. Blair,

343 U.S. 214 (1952) ....................................... 7, 8, 9

Reed v. Goertz,

598 U.S. 230 (2023) ............................................. 18

Santosky v. Kramer,

455 U.S. 745 (1982) ............................................. 30

Smiley v. Holm,

285 U.S. 355 (1932)). .......................................... 13

Snowden v. Hughes,

321 U.S. 1 (1944) ................................................. 19

Storer v. Brown,

415 U.S. 724 (1974) ............................................. 12

Taylor v. Beckham,

178 U.S. 548 (1900) ....................................... 18, 19

The Pocket Veto Case,

279 U.S. 655 (1929) ....................................... 13, 16

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

514 U.S. 779 (1995) ......................................... 7, 12

Walters v. Nat'l Ass'n of Radiation Survivors,

473 U.S. 305 (1985) ....................................... 27, 28

vi

Wilkinson v. Austin,

545 U.S. 209 (2005) ............................................. 19

Williams v. Cruz,

OAL Nos. STE 5016-16, STE 5018-16 (N.J.

Office of Admin. Law Apr. 13, 2016) .................... 9

Constitution

U.S. CONST. amend I .................................................. 8

U.S. CONST. amend X ................................................. 2

U.S. CONST. amend XIV ....................3, 5, 8, 18, 20, 29

U.S. CONST. amend XIV, § 3 ........................ 3, 5, 6, 12

U.S. CONST. art. II .................................................. 2, 4

U.S. CONST. art. II, § 1, cl. 1 .................................... 20

U.S. CONST. art. II, § 1, cl. 2 .............................. 7, 8, 9

Statutes

8 U.S.C. § 1229(c)(4)(A) ............................................ 25

Colo. Rev. Stat. § 1-1-104(12) .................................... 4

Colo. Rev. Stat. § 1-1-113 ................................. 2, 9, 28

Colo. Rev. Stat. § 1-1-113(1) .............................. 10, 21

Colo. Rev. Stat. § 1-4-1203(2)(a) ................................ 9

Colo. Rev. Stat. § 1-4-1204(4) ...................2, 10, 11, 28

Colo. Rev. Stat. § 1-14-1204 ..................................... 21

Rules

Sup. Ct. R. 37 ............................................................. 1

vii

Other Authorities

American Politics Research Lab, Univ. Colo

Boulder, Colorado Political Climate Survey

2022 Report ........................................................... 9

John H. Beisner, “The Centre Cannot Hold”—

The Need for Effective Reform of the U.S. Civil

Discovery Process, U.S. CHAMBER OF COM.

INST. FOR LEGAL REFORM .................................... 29

Mark R. Brown, Ballot Fees as Impermissible

Qualifications for Federal Office, 54 AM. U. L.

REV. 1283 (2005) ................................................. 15

Cong. Globe, 39th Cong., 1st Sess. 2901 (1866)

(statement of Sen. John Sherman). ................... 19

Tabatha Abu El-Haj, Changing the People: Legal

Regulation and American Democracy, 86

N.Y.U. L. REV. 1 (2011) ...................................... 15

Henry J. Friendly, “Some Kind of Hearing,” 123

U. PA. L. REV. 1267 (1975) .................................. 22

Joint Resp. to the Ct.’s Topics for the Oct. 30,

2023, Hr’g, Anderson v. Griswold, No.

2023CV32577 (Denver Dist. Ct. Oct. 20,

2023) .................................................................... 26

Minute Order, Anderson v. Griswold, No.

2023CV32577 (Denver Dist. Ct. Sept. 18,

2023) .................................................................... 22

Minute Order, Anderson v. Griswold, No.

2023CV32577 (Denver Dist. Ct. Sept. 22,

2023) ................................................................ 5, 25

viii

Notice of Filing of Notice of Removal to the U.S.

Dist. Ct. for the Dist. of Colo., Anderson v.

Griswold, No. 2023CV32577 (Denver Dist.

Ct. Sept. 7, 2023) .................................................. 5

Notice of Service of All Defendants (filed Sept.

14, 2023) .............................................................. 22

Stephen N. Subrin, Fishing Expedition Allowed:

The Historical Background of the 1938

Federal Discovery Rules, 39 B.C. L. REV. 691

(1998) ................................................................... 29

Topics for the Oct. 30, 2023 Hr’g, Anderson v.

Griswold, No. 2023CV32577 (Denver Dist. Ct.

Oct. 18, 2023) ................................................ 26, 27

Transcript of Proceeding, Challenge to Marco

Rubio, Case No. 2016-2 (Ind. Election

Comm’n Feb. 19, 2016),

https://perma.cc/T5RL-26P4 ............................. 8, 9

Verified Pet. Under C.R.S. § 1-4-1204, § 1-1-113,

§ 13-51-105, and C.R.C.P. 57(a), Anderson v.

Griswold, No. 2023CV32577 (Denver Dist.

Ct. Sept. 6, 2023) ...................................... 5, 21, 22

Adam Winkler, Voters' Rights and Parties'

Wrongs: Early Political Party Regulation in

the State Courts, 1886-1915, 100 COLUM. L.

REV. 873 (2000) ................................................... 16

1

INTEREST OF AMICUS CURIAE1

Mary Estill Buchanan has been a public servant

in Colorado for many years and a tireless advocate for

democracy and women in public service. Most

relevant here, Buchanan served two terms as

Colorado’s Secretary of State—from 1974 to 1983. She

was the first woman to hold that office in the state’s

then-98-year existence.

During her tenure as Colorado’s Secretary of

State, Secretary Buchanan was the only Republican

in statewide office, working across the aisle to ensure

efficient, effective administration of Colorado’s

elections. As Secretary, Buchanan advocated for and

implemented reforms to improve transparency for

elections and public office.

Before being elected Secretary of State, Buchanan

served on the Colorado Board of Agriculture and the

Colorado Commission on the Status of Women, for

which she created and served as chair for the Women

in Government Committee to recruit and elect women

to serve in public office.

1

Pursuant to Supreme Court Rule 37, Secretary

Buchanan states that no counsel for any party authored this

brief in whole or in part, and that no entity or person other than

amicus curiae and their counsel made any monetary

contribution toward the preparation and submission of this brief.

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

This Court has long recognized that States have

“an interest, if not a duty, to protect the integrity of

[their] political processes from frivolous or fraudulent

candidacies.” Bullock v. Carter, 405 U.S. 134, 145

(1972) (emphasis added).

To satisfy that duty, the Colorado General

Assembly enacted a statutory apparatus, pursuant to

its powers under Article II and the Tenth

Amendment, to, among other things, safeguard its

primary and general elections from candidates who

are not qualified to hold office. Colorado’s Election

Code allows affected voters to challenge the

qualifications of any candidate to appear (through

their delegates) on the presidential primary election

ballot. See Colo. Rev. Stat. § 1-4-1204(4). Colorado

requires such challenges to be made promptly (“no

later than five days after the filing deadline for

candidates”) and publicly. Id.; see also id. § 1-1-113.

And when a challenge is filed, the Code guarantees

“notice,” “an opportunity to be heard,” and “a hearing”

at which the state trial court must “assess the validity

of all alleged improprieties” and ultimately “issue

findings of fact and conclusions of law.” Id. §§ 1-41204(4), 1-1-113.

Colorado’s General Assembly broke no new ground

in authorizing its courts to resolve disputes over

which candidates may properly appear on the ballot.

As the Colorado Supreme Court observed in its

decision below, this integral part of the State’s

electoral process has “deep roots,” dating back to the

3

1890s. Pet. App. at 25a, ¶ 43. Then, as now, state law

sets forth clear “procedures for adjudicating

controversies” involving “candidate[s] * * * or persons

making nominations.” Id. (citations omitted). And

this system has served Coloradans well for more than

a hundred years.

Respondents—Colorado voters eligible to vote in

the Republican presidential primary—brought this

action on September 6, 2023, contending that

Petitioner Donald J. Trump is disqualified from

public office under Section 3 of the Fourteenth

Amendment because he has “taken an oath * * * as

an officer of the United States * * * to support the

Constitution of the United States” but “engaged in

insurrection or rebellion against the same” in

connection with the January 6, 2021 attack on the

U.S. Capitol. U.S. CONST. amend XIV, § 3. Because of

this constitutional disqualification, Respondents

sought to enjoin Colorado Secretary of State Jena

Griswold from listing Trump on the State’s 2024

Republican primary ballot. Both the trial court and

the Colorado Supreme Court found that clear and

convincing evidence supported the finding that

Trump engaged in insurrection. And the Colorado

Supreme Court held that Trump was therefore

ineligible to appear on the Republican primary ballot

in Colorado.2

The Colorado Supreme Court stayed that decision

pending this Court’s review. Until this Court rules, Donald

Trump’s name will appear on Colorado’s state-run Republican

Party primary ballot.

2

4

This Court should affirm. The courts below

followed the procedures established by the Colorado

legislature for resolving disputes about who can

appear on a presidential primary ballot. And those

procedures were enacted pursuant to the State’s

broad powers under Article II of the Constitution. The

Electors Clause “gives the States far-reaching

authority over presidential electors, absent some

other constitutional constraint.” Chiafalo v.

Washington, 140 S. Ct. 2316, 2324 (2020). To ensure

that its electors3 vote only for qualified candidates,

Colorado has exercised that authority by providing a

robust mechanism to resolve disputes about

candidate eligibility. Reversing the Colorado

Supreme Court’s decision would invade a legal

province that the Constitution expressly reserves to

the States, upend principles of federalism, and flout

practices that are deeply rooted in this Country’s

history.

Procedural due process does not present a

“constitutional constraint” that would prevent

Colorado from exercising its Article II authority in the

way it did here. For one thing, this Court has never

recognized appearing on a ballot as a protected life,

liberty, or property interest. See infra at Section II.A.

But even assuming it is, the Colorado trial court

afforded Trump process well above the constitutional

3

While Colorado’s Election Code defines “elector” as

someone “legally qualified to vote” in the state, Colo. Rev. Stat.

§ 1-1-104(12), this brief refers to these individuals as “voters”

and uses the term “elector” only in its Article II meaning—that

is, those appointed by the States to cast their allotted votes for

President in the Electoral College.

5

requirements this Court has consistently articulated

since before the Fourteenth Amendment was ratified.

E.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972).

Colorado law provided a robust procedure

requiring notice and an opportunity to be heard. And

Trump cannot dispute that the trial court here gave

him ample procedural protections. Respondents’ 115page petition gave a detailed recitation of the facts,

putting Trump on notice of the factual bases for their

claim that he is disqualified under Section 3 of the

Fourteenth Amendment to appear on Colorado’s

Republican primary ballot. See Verified Pet. Under

C.R.S. § 1-4-1204, § 1-1-113, § 13-51-105, and

C.R.C.P. 57(a), Anderson v. Griswold, No.

2023CV32577, at *13–79 (Denver Dist. Ct. Sept. 6,

2023). Trump waived service and responded the next

day, establishing that he was on notice. Notice of

Filing of Notice of Removal to the U.S. Dist. Ct. for

the Dist. of Colo., Anderson v. Griswold, No.

2023CV32577 (Denver Dist. Ct. Sept. 7, 2023). After

ensuring proper notice of the claims brought against

him, the trial court gave Trump weeks to identify

witnesses. Minute Order, Anderson v. Griswold, No.

2023CV32577 (Denver Dist. Ct. Sept. 22, 2023). The

trial court also ordered Respondents to disclose their

witnesses to Trump to facilitate pre-hearing

depositionsalthough Trump chose not to avail

himself of this additional opportunity for cross

examination. Id. Ultimately, the trial court held a

five-day trial, where the court heard from fifteen

witnesses and admitted nearly 100 exhibits. Pet. App.

12a–13a, 43a. Trump was permitted the opportunity

to cross-examine all witnesses at the hearing and

6

permitted broad leeway to submit evidence,

consistent with Colorado’s evidentiary code, which

the trial court applied to decide the admissibility of

evidence. Trump could have testified on his own

behalf, but he chose not to. Id. 77a–83a. The trial

court found that Respondents established—by clear

and convincing evidence—that Trump had engaged in

insurrection within the meaning of Section 3 of the

Fourteenth Amendment. See id. 243a, 276a–77a

¶¶ 209, 298. And it memorialized its conclusions in a

written order that ran 100 pages, permitting

thorough appellate review. See id. 184a–284a.

By any measure, the process afforded Trump

satisfies the Due Process Clause. Requiring more

than the ample procedures provided Trump in this

case would create dangerous precedent untethered to

the text of the Constitution, this Court’s procedural

due process jurisprudence, and common sense. And it

would invite innumerable challenges in scenarios

involving more serious deprivations of life, liberty, or

property than being disqualified from appearing on a

state-printed primary ballot, radically unsettling due

process jurisprudence and creating deep confusion in

courts nationwide. This Court should affirm.

ARGUMENT

I.

STATES HAVE BROAD AUTHORITY TO

REGULATE

APPOINTMENT

OF

PRESIDENTIAL ELECTORS

The Constitution gives States broad authority over

the appointment of presidential electors. The

Colorado General Assembly exercised that authority,

in part, by codifying procedures for resolving election

7

disputes in state-run primary elections. Here,

Colorado’s judiciary, including its Supreme Court,

followed those procedures in determining that Trump

could not appear on the 2024 Colorado Republican

presidential primary ballot.

A. The

Constitution

gives

States

considerable discretion over regulating

state-run presidential primary ballots

“It is surely no coincidence that the context of

federal elections provides one of the few areas in

which the Constitution expressly requires action by

the States.” U.S. Term Limits, Inc. v. Thornton, 514

U.S. 779, 804–05 (1995). For presidential elections,

the Electors Clause provides that “[e]ach State shall

appoint” electors “in such Manner as the Legislature

thereof may direct.” U.S. Const. art. II, § 1, cl. 2.

This Court has “long understood” that States have

virtually plenary authority to “set qualifications for

their Presidential electors” under this Clause. U.S.

Term Limits, 514 U.S. at 861 (Thomas, J., dissenting);

see also Democratic Party of U.S. v. Wisconsin ex rel.

La Follette, 450 U.S. 107, 126 (1981) (allowing

Wisconsin to run an open primary regardless of

national Democratic party opposition).

In fact, more than a century ago, the Court

recognized that Article II “convey[s] the broadest

power of determination” to the States. McPherson v.

Blacker, 146 U.S. 1, 27 (1892); see Ray v. Blair, 343

U.S. 214, 227 (1952) (recognizing “state’s right to

appoint electors in such manner, subject to possible

constitutional limitations, as it may choose”); see also

Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist,

8

C.J., concurring) (reiterating that Art II, § 1, cl.2 gives

“broad[] power” to the States and “‘leaves it to the[ir]

legislature[s] exclusively to define the method’ of

appointment” (quoting McPherson, 146 U.S. at 27)).

In fact, all functions of the Electoral College are

performed in the States by the States before ballots

are transmitted to Congress for counting. Burroughs

v. United States, 290 U.S. 534, 544 (1934).

A State’s appointment power is, of course, “subject

to possible constitutional limitations,” Ray, 343 U.S.

at 227—for instance, to preserve equal protection

under the Fourteenth Amendment and associational

rights under the First Amendment. And Congress

may also supervise electors via “appropriate

legislation” aimed to “preserve the purity of

presidential and vice presidential elections,” so long

as it does not “interfere with the power of a state to

appoint electors or the manner in which their

appointment” is made. Burroughs, 290 U.S. at 544–

45. But “otherwise the power and jurisdiction of the

state” over presidential electoral balloting “is

exclusive.” McPherson, 146 U.S. at 35.

All states manifest this constitutional authority,

in part, through their election laws administering

presidential primary and general elections. And state

courts and state officials regularly assess presidential

qualifications—or lack thereof—during the primary

elections. See, e.g., Farrar v. Obama, OSAHSECSTATE-CE-1215136-60-MALIHI (Ga. Office of

State Admin. Hearings Feb. 3, 2012); Joyce v. Cruz,

16 SOEB GP 526 (Ill. State Bd. of Elections Jan. 28,

2016); Transcript of Proceeding at 23, Challenge to

Marco Rubio, Case No. 2016-2 (Ind. Election Comm’n

9

Feb. 19, 2016), https://perma.cc/T5RL-26P4; Williams

v. Cruz, OAL Nos. STE 5016-16, STE 5018-16 (N.J.

Office of Admin. Law Apr. 13, 2016); Elliot v. Cruz,

137 A.3d 646, 658 (Pa. Commw. Ct. 2016), aff’d, 134

A.3d 51 (Pa. 2016).

Here, Colorado’s legislature limited participation

in its state-run presidential primary to only

“qualified candidate[s]” and their delegates. Colo.

Rev. Stat. §§ 1-4-1203(2)(a) (emphasis added). And

Colorado’s legislature established a procedure

authorizing primary voters in Colorado to challenge

the entitlement of a candidate who is not qualified to

participate in the state-run primary. Id. § 1-1-113.

This statutory regime fits squarely within Colorado’s

exclusive authority to direct the “Manner” in which

its electors ultimately are appointed. See U.S. CONST.

art. II, § 1, cl. 2. And Colorado’s robust electoral

process has served its citizens well, with the

overwhelming majority of Coloradans (including

Republicans) believing in the State’s electoral

processes and agreeing elections in the State produce

“fair and accurate” results. American Politics

Research Lab, Univ. Colo Boulder, Colorado Political

Climate Survey 2022 Report, at 6.

Colorado’s undisputed authority to regulate its

presidential electors after they are appointed and

after they have voted logically extends to Colorado’s

authority to regulate the “Manner” in which state-run

primary elections are administered. See Ray, 343 U.S.

at 228 (explaining States can require electors to

pledge support to a political party’s nominee);

Chiafalo, 140 S. Ct. at 2324–28 (concluding States

may penalize electors for breaking such a pledge); id.

10

at 2333–35 (Thomas, J., concurring) (agreeing States

have such authority, derived from the Constitution’s

structure and the Tenth Amendment).

Colorado’s goal of protecting the integrity of how

its electoral votes are cast is most effectively achieved

on the front end, through the ballot-access laws in its

election code. After all, electors are agents of the State

that appoints them, their “sole function” being “to

cast, certify, and transmit the vote of the state for

president and vice-president of the nation.”

Fitzgerald v. Green, 134 U.S. 377, 379 (1890).

Evaluating candidate qualifications when deciding

who appears on the state-administered primary ballot

is a reasonable way for Colorado to ensure that its

voters, and ultimately its presidential electors, will

not vote for a candidate ineligible to hold the office of

President.4 And it allows a State to prevent dilution

of its electoral votes and influence.

4

This is also why Colorado has a substantial interest in

regulating who appears on official, state-provided primary

ballots—because those candidates may ultimately appear on the

ballots in the general election. And Colorado law does not allow

its state officials to list on the ballot (any ballot, for the primary

or general election) candidates who have been determined,

under the process set forth by the Colorado Election Code, to be

unqualified for the office they seek. Unlike the electoral systems

in other states, the Colorado Election Code does not allow

political parties to unilaterally designate which candidates

appear on a presidential primary ballot. Nor does Colorado

permit state officials to overlook the placement of a

disqualified candidate on a ballot, whether for the primary or

general election. Instead, the Colorado Election Code expressly

allows eligible voters, such as Respondents, to challenge a

candidate’s qualifications. Colo. Rev. Stat. §§ 1-1-113(1), 1-4-

11

This Court’s precedent also supports Colorado’s

right to ensure its electoral votes are cast only for

constitutionally eligible candidates. For instance, this

Court has routinely upheld state laws excluding

candidates from a primary ballot unless they

demonstrate significant support. See Jenness v.

Fortson, 403 U.S. 431, 442 (1971) (“There is surely an

important state interest in requiring some

preliminary showing of a significant modicum of

support before printing the name of a political

organization’s candidate on the ballot * * * *”); see

also Anderson v. Celebrezze, 460 U.S. 780, 788 n.9

(1983) (“The State has the undoubted right to require

candidates to make a preliminary showing of

substantial support in order to qualify for a place on

the ballot * * * *”).

If a State can prevent a candidate from appearing

on a primary ballot because that candidate or their

party lacks sufficient support, the State can also

prevent a candidate from appearing on a ballot

because he or she is constitutionally disqualified from

holding office. Indeed, Justice Gorsuch, while serving

as a Judge for the Tenth Circuit, recognized in a case

originating in Colorado that “a state’s legitimate

interest in protecting the integrity and practical

functioning of the political process permits it to

exclude from the ballot candidates who are

constitutionally prohibited from assuming

1204(4). And once such a challenge is brought, “the power to

resolve issues regarding candidate eligibility resides with the

courts,” with Colorado officials bound by the judicial

determination as to candidate eligibility. Hanlen v. Gessler, 2014

CO 24, ¶ 44. That is what happened here.

12

office.” Hassan v. Colorado, 495 F. App’x 947, 948

(10th Cir. 2012) (emphasis added).

Concluding otherwise would severely restrict the

well-established authority of the States to regulate

elections. See Storer v. Brown, 415 U.S. 724, 730

(1974) (recognizing that States enjoy broad power

over elections and that “there must be a substantial

regulation of elections if they are to be fair and

honest”); Burdick v. Takushi, 504 U.S. 428, 433 (1992)

(“Common sense, as well as constitutional law,

compels the conclusion that government must play an

active role in structuring elections * * * *”).

To be sure, States may not impose additional

qualifications beyond those set forth in the Federal

Constitution. U.S. Term Limits, 514 U.S. at 838. But

requiring a candidate to be constitutionally eligible to

hold office is not an additional qualification. As this

Court has recognized, Section 3 of the Fourteenth

Amendment is “part of the text of the Constitution”

and thus does not represent an “add[ed] qualification

[beyond] those that appear in the Constitution.” Id. at

787 n.2. Given States’ broad and well-established

power to set state-run primary election procedures to

adjudicate candidates’ qualifications, there can be no

meaningful dispute that they also have power,

consistent with those election procedures, as Justice

Gorsuch wrote, “to exclude from the ballot candidates

who are constitutionally prohibited from assuming

office.” Hassan, 495 F. App’x at 948.

13

B. State regulation of presidential elections

is deeply rooted in the Nation’s history

This Court has emphasized the “great weight” that

“[l]ong settled and established practice” may have in

gleaning “a proper interpretation of constitutional

provisions.” The Pocket Veto Case, 279 U.S. 655, 689

(1929). And the Court has “found historical practice

particularly pertinent when it comes to the Elections

and Electors Clauses.” Moore v. Harper, 600 U.S. 1,

32 (2023) (citing Chiafalo, 140 S. Ct. at 2325–27, and

Smiley v. Holm, 285 U.S. 355, 369 (1932)).

Here, two particularly relevant practices are

deeply rooted in this country’s history. First, States

have long regulated elections, including the

appointment of presidential electors. And second, an

unquestioned, inherent component of that State

regulatory power has been States’ authority to control

ballots and ballot access.

“In the Nation’s earliest elections, state

legislatures mostly picked the electors * * * *”

Chiafalo, 140 S. Ct. at 2321. State legislatures did not

abdicate that role when the popular vote evolved as

the principal mechanism for choosing electors.

Instead, “State election laws evolved to reinforce that

development, ensuring that a State’s electors would

vote the same way as its citizens,” with States

enacting laws in the early twentieth century that

required presidential electors to vote for the

candidate chosen by the State’s voters. Id. at 2328.

This Court has consistently recognized the

constitutionality of this historical practice. In the first

case to directly address States’ power to appoint

14

electors, Green, 134 U.S. at 377, this Court affirmed

that the States, not the federal government, hold

power to regulate presidential elections. As the Court

observed in Green:

Congress has never undertaken to

interfere with the manner of appointing

electors, or, where * * * the mode of

appointment prescribed by the law of the

state is election by the people, to

regulate

the

conduct

of

such

election * * * * but has left these

matters to the control of the states.

Id. at 380. Green confirmed that States’ power over

elections must be construed broadly. That power, this

Court stated, was “unaffected by anything in the

Constitution and laws of the United States.” Id.

Two years later, in 1892, this Court surveyed the

first four presidential elections in this country and

concluded that “from the formation of the government

until now the practical construction of [the Electors

Clause] has conceded plenary power” to the states

“in the matter of the appointment of electors.”

McPherson, 146 U.S. at 35 (emphasis added). “In

short,” the Court observed, “the appointment and

mode of appointment of electors belong exclusively to

the states under the constitution of the United

States.” Id. States’ considerable authority to appoint

presidential electors is thus deeply rooted in this

country’s history.

A long-established corollary is States’ authority to

regulate ballots and ballot access, as an integral

dimension of their power to appoint electors. The

15

States “had uniformly adopted paper ballots” by the

Constitutional Convention. Mark R. Brown, Ballot

Fees as Impermissible Qualifications for Federal

Office, 54 AM. U. L. REV. 1283, 1287 (2005); see also

Burson v. Freeman, 504 U.S. 191, 200 (1992) (“Within

20 years of the formation of the Union, most States

had incorporated the paper ballot into their electoral

system.”). But those ballots were not provided by the

States. Brown, supra, at 1287. By the mid-nineteenth

century, “political parties began to produce their own

ballots for voters.” Burson, 504 U.S. at 200. This

practice, however, led to fraud and concerns about

voter intimidation. Id. at 200–02.

To address these concerns, in 1888, three

governments—the

municipal

government

of

Louisville, Kentucky, and the state governments of

New York and Massachusetts—adopted the

Australian system. Id. at 202. The Australian

system’s “most famous feature” was the use of an

official, state-provided ballot. Id. And “[b]y 1896,” less

than 30 years after the Fourteenth Amendment was

ratified, “almost 90 percent of the States had adopted

the Australian system. This accounted for 92 percent

of the national electorate.” Id. at 204–05.

Thus, within just two decades of the Fourteenth

Amendment’s ratification, States began directly

regulating ballots and ballot access. And adopting an

electoral system with an official ballot led States to

implement formal processes to resolve disputes about

those ballots—including the qualifications of the

candidates who appeared on them. E.g., Tabatha Abu

El-Haj, Changing the People: Legal Regulation and

American Democracy, 86 N.Y.U. L. REV. 1, 25 (2011).

16

Adopting a “pre-printed official ballot necessitated a

procedure for determining whose names could be

listed.” Adam Winkler, Voters’ Rights and Parties’

Wrongs: Early Political Party Regulation in the State

Courts, 1886–1915, 100 COLUM. L. REV. 873, 884

(2000). One such State process for resolving disputes

about which candidates are qualified (or disqualified)

from appearing on the state-approved ballots is

Colorado’s Election Code. Colorado’s process fits well

within the long traditions of State electoral

regulation.

In short, for most of the history of the Republic,

States have exercised control over the candidates who

appear on official, state-administered ballots based on

the States’ textually-committed and judiciallyreinforced constitutional authority. Courts, including

members of this Court, have long reiterated that

States may exercise this authority to exclude

candidates who are not constitutionally qualified to

hold the office they seek. E.g., Hassan, 495 F. App’x

at 948.5 That historical practice is entitled to “great

weight” in assessing Colorado’s exercise of such

authority here. The Pocket Veto Case, 279 U.S. at 689.

And it weighs in favor of affirming Colorado’s

application of its well-established election code to

5

See also Keyes v. Bowen, 117 Cal. Rptr. 3d 207, 215 (Ct.

App. 2010) (citing Cleaver v. Jordan, 393 U.S. 810 (1968), in

which this Court declined certiorari after California excluded a

constitutionally disqualified candidate); In re Garst, 294

N.Y.S.2d 33, 34 (Sup. Ct.) (New York excluded constitutionally

disqualified candidate), aff’d sub nom. Garst v. Lomenzo, 294

N.Y.S.2d 990 (App. Div.), aff’d, 242 N.E.2d 482 (N.Y. 1968).

17

determine that Trump is disqualified from appearing

on its state-administered primary ballot.

II. TRUMP

RECEIVED

ADEQUATE PROCESS

MORE

THAN

Trump received far more than adequate

procedural due process here. Of course, in his merits

brief, Trump does not assert he was deprived of

procedural due process. Nor did he do so below.6 But

certain amici have raised questions about the

sufficiency of the process afforded Trump in the

proceedings before the Colorado courts. See Brief of

Judicial Watch, Inc., and Allied Educational

Foundation, as Amici Curiae in Support of Petitioner.

Those concerns are unfounded, and procedural due

process is no basis for disturbing the decision of the

Colorado Supreme Court.

First, Trump cannot point to any case suggesting

that he has a property or liberty interest, cognizable

under the Due Process Clause, in appearing on

Colorado’s presidential primary ballot.

Second, even if Trump could raise a procedural

due process argument, he received (more than)

sufficient process before Colorado’s trial and

appellate courts.

6

The question of the process Trump received is thus not

properly before this Court. Leonard v. Texas, 580 U.S. 1178

(2017) (Thomas, J., concurring in denial of certiorari) (observing

this Court does not consider due process arguments that were

not sufficiently raised so as to the give the courts below an

opportunity to address them in the first instance).

18

A. Trump Has Identified No Interest

Cognizable Under the Due Process Clause

in Appearing on Colorado’s Primary

Ballot

Even if he had preserved such an argument,

Trump cannot satisfy the threshold prerequisite for a

procedural due process claim: the existence of an

interest protected under the Fourteenth Amendment.

This Court need not proceed any further to reject any

such claim. See Nev. Comm’n on Ethics v. Carrigan,

564 U.S. 117, 128–29 (2011).

A petitioner contending his procedural due process

rights have been violated must identify “a protected

interest in life, liberty, or property” that a State has

interfered with and articulate why the process he was

provided was “inadequate.” Reed v. Goertz, 598 U.S.

230, 236 (2023).

Any argument that Trump was deprived of due

process falters at the first hurdle because Trump has

failed to demonstrate that he has a protected interest

under the Fourteenth Amendment in appearing on

Colorado’s presidential primary ballot. “The

requirements of procedural due process apply only to

the deprivation of interests encompassed by the

Fourteenth Amendment’s protection of liberty and

property.” Bd. of Regents of State Colls. v. Roth, 408

U.S. 564, 569 (1972). Over a century ago, this Court

held that public office is not a property right. Taylor

v. Beckham, 178 U.S. 548, 577 (1900) (“[T]he nature

of the relation of a public officer to the public is

inconsistent with either a property or a contract

right.”). And public office does not implicate any

19

liberty interest. Cf. Wilkinson v. Austin, 545 U.S. 209,

222 (2005) (protected liberty interests are “generally

* * * limited to freedom from restraint”); see also

Clements v. Fashing, 457 U.S. 957, 963 (1982) (“Far

from recognizing candidacy as a ‘fundamental right,’

we have held that the existence of barriers to a

candidate’s access to the ballot ‘does not of itself

compel close scrutiny.’” (quoting Bullock v. Carter,

405 U.S. 134, 143 (1972))).7 The Court has since

reaffirmed these principles. See Snowden v. Hughes,

321 U.S. 1, 7 (1944) (reaffirming Taylor’s holding that

“an unlawful denial by state action of a right to state

political office is not a denial of a right of property or

of liberty secured by the due process clause”).

True, these cases concerned state office—not

federal office. But this distinction makes no difference

here. Trump, through his delegates, seeks to appear

on the Colorado Republican presidential primary

ballot—a state-created ballot. And he seeks to run for,

7

One group of amici question whether “disqualification

under Section Three [may be] a form of punishment” rather than

an “affirmative criteria for holding office,” which they suggest

may necessitate additional procedural safeguards. See Brief of

the Secretaries of State of Missouri, Alabama, Arkansas, Idaho,

Kansas, Montana, Ohio, Tennessee, and West Virginia, as Amici

Curiae in Support of Neither Party, at 21 n.7. Of course, Trump

had robust procedural safeguards here, as explained below. But

notably, at least one drafter of Section Three answered the

question these amici pose in the negative, observing that

reversible disqualification under that provision was “no

punishment to any man, no deprivation of property, no

deprivation of any right whatever except the right to hold office.”

Cong. Globe, 39th Cong., 1st Sess. 2901 (1866) (statement of Sen.

John Sherman).

20

and ultimately hold, the office of the Presidency—an

office created under the Constitution. See U.S. CONST.

art. II, § 1, cl. 1. But “[p]roperty interests, of course,

are not created by the Constitution.” Roth, 408 U.S.

at 577; see also Cornett v. Sheldon, 894 F. Supp. 715,

726 (S.D.N.Y. 1995) (no property interest in federal

office). They must instead come from “existing rules

or understandings that stem from an independent

source such as state law.” Roth, 408 U.S. at 577.

Trump cannot point to an independent source for a

protected interest in being a candidate for the office of

the Presidency because none exists.

The Fourteenth Amendment does not recognize

any protected interest in public office. And because

public office is the interest here, Trump cannot claim

a due process violation.

B. Colorado Provided Trump Due Process

Even if Trump could present a due process

challenge to this Court, any such challenge would fail

because he received sufficient process.

“For more than a century [and a half] the central

meaning of procedural due process has been clear:

‘Parties whose rights are to be affected are entitled to

be heard; and in order that they may enjoy that right

they must first be notified.’” Fuentes, 407 U.S. at 80

(quoting Baldwin v. Hale, 68 U.S. 223, 233 (1863)).

Procedural due process thus requires notice and an

opportunity to be heard. Trump received both.

i. Trump Received Ample Notice

First, notice: To satisfy the Due Process Clause,

notice must be given that is “reasonably calculated,

21

under all the circumstances, to apprise interested

parties of the pendency of the action and afford them

an opportunity to present their objections.” Mullane

v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314

(1950). It “must be of such nature as reasonable to

convey the required information * * * and it must

afford a reasonable time for those interested to make

their appearance.” Id. (citations omitted).

Trump undeniably received notice of the

underlying action. Respondents began these

proceedings on September 6, 2023, with a 115-page

petition. See Verified Pet. Under C.R.S. § 1-4-1204, §

1-1-113, § 13-51-105, and C.R.C.P. 57(a), Anderson v.

Griswold, No. 2023CV32577 (Denver Dist. Ct. Sept. 6,

2023). As Colorado’s Election Code required, that

petition was verified—sworn under oath, which

provides protection against factually baseless claims.

Colo. Rev. Stat. § 1-1-113(1). And as Colorado’s Code

expressly required, it provide “notice * * * of [the]

alleged impropriety” in the proposed candidate

appearing on the state’s primary ballot. Id. § 1-141204. Consistent with that requirement, Respondents

set out in detail over those 115 pages the factual basis

for their challenge: Trump’s repeated use of

inflammatory and violent rhetoric leading to January

6, 2021; his refusal to accept the results of the 2020

presidential election; and his direct participation in

and inducement of the events that unfolded on

January 6, 2021. Id. at 13–79. Respondents then set

forth their legal claim: that Trump is disqualified

from holding the office of the Presidency under

Section 3 of the Fourteenth Amendment. Specifically,

Respondents alleged that Trump was an “officer of the

22

United States”; that the January 6, 2021, attack on

the United States Capitol constituted an

“insurrection”; that Trump “engaged in” that

insurrection; and that he is consequently disqualified

from holding the office of the Presidency. Id. at 82–

100. Respondents’ detailed, sworn petition apprised

Trump in full of the issues to be adjudicated. City of

West Covina v. Perkins, 525 U.S. 234, 240 (1999) (“A

primary purpose of the notice required by the Due

Process Clause is to ensure that the opportunity for a

hearing is meaningful.”); see also Henry J. Friendly,

“Some Kind of Hearing,” 123 U. PA. L. REV. 1267, 1280

(1975) (“It is likewise fundamental that notice be

given and that it be timely and clearly inform the

individual of the proposed action and the grounds for

it.”).

And just one day later—on September 7, 2023—

Trump appeared in the action. His immediate

appearance8 conclusively shows he was “informed

that the matter [was] pending” and was able to

“choose for himself whether to appear or default,

acquiesce or contest.” Mullane, 339 U.S. at 314.

Trump also received notice of the trial. The district

court held a status conference on September 18, 2023

at which counsel for Trump appeared and set a fiveday trial to begin on October 30, 2023. See Minute

Order, Anderson v. Griswold, No. 2023CV32577

(Denver Dist. Ct. Sept. 18, 2023). As discussed more

fully in the next section, Trump received ample notice

not only of the time of the trial but of the topics to be

8

Trump waived service. See Notice of Service of All

Defendants (filed Sept. 14, 2023).

23

addressed and the witnesses who would testify. See

Fuentes, 407 U.S. at 81 (“If the right to notice and a

trial is to serve its full purpose, then, it is clear that it

must be granted at a time when the deprivation can

still be prevented.”). In short, by any measure, Trump

received constitutionally sufficient notice.

ii. Trump Had an Opportunity to Be

Heard

Colorado also provided Trump with a robust

opportunity to present his case and challenge the

evidence presented against him—process more robust

than many types of civil proceedings. The trial court

held a five-day trial that included fifteen witnesses,

hours of video evidence, and documentary evidence

included in nearly one hundred exhibits that more

than satisfied what Due Process requires. Trump’s

counsel participated in full—admitting documents,

presenting witnesses, cross-examining Respondents’

witnesses, challenging the admissibility of evidence

under Colorado’s evidentiary rules, and having ample

opportunity to present his contentions regarding the

legal significance (or insignificance) of the evidence

the trial court admitted.

The Fourteenth Amendment requires only “some

kind of hearing.” Bd. of Regents of State Colls., 408

U.S. at 570 n.7. “Due process does not, of course,

require that the defendant in every civil case actually

have a hearing on the merits.” Boddie v. Connecticut,

401 U.S. 371, 378 (1971). Instead, the Constitution

requires only that “‘an opportunity * * * granted at a

meaningful time and in a meaningful manner,’ ‘for a

hearing appropriate to the nature of the case.’” Id.

24

(cleaned up) (quoting Armstrong v. Manzo, 380 U.S.

545, 552 (1965) and Mullane, 339 U.S. at 313).

Ultimately, “[d]ue process is flexible and calls for such

procedural protections as the particular situation

demands.” Mathews v. Eldridge, 424 U.S. 319, 334

(1976) (quoting Morrissey v. Brewer, 408 U.S. 471, 481

(1972)); see also Boddie, 401 U.S. at 378 (“The

formality and procedural requisites for the hearing

can vary, depending upon the importance of the

interests involved and the nature of the subsequent

proceedings.”).

This Court has identified three factors to consider

when evaluating what process is due: “the interest at

stake for the individual, the risk of an erroneous

deprivation of the interest through the procedures

used as well as the probable value of additional or

different procedural safeguards, and the interest of

the government in using the current procedures

rather than additional or different procedures.”

Landon v. Plasencia, 459 U.S. 21, 34 (1982) (citing

Mathews, 424 U.S. at 334–35). Considering these

factors shows Trump received sufficient process.

First, as set out above, Trump has no cognizable

interest in appearing on Colorado’s ballot. See supra

Section II.A. But even if he did, that interest is much

less substantial than others this Court has found may

be impaired through procedures less robust than

those Trump enjoyed here.9

9

For example, “[a] criminal defendant is entitled to rather

limited discovery, with no general right to obtain the statements

of the Government’s witnesses before they have testified.” Degen

v. United States, 517 U.S. 820, 825 (1996). Here, the trial court

25

Second, the procedures used by the trial court

minimized the risk of any erroneous deprivation. The

court held a five-day trial and heard thirty-six hours

of testimony from fifteen witnesses. And well before

the trial, the court took great pains to provide Trump

with an opportunity to be heard “in a meaningful

manner.” Armstrong, 380 U.S. at 552.

The trial court afforded Trump seventeen days to

identify fact witnesses and twenty-one days to

identify expert witnesses. See Joint App. Vol. I at JA2;

Minute Order, Anderson v. Griswold, No.

2023CV32577 (Denver Dist. Ct. Sept. 22, 2023).

Trump had the opportunity to testify on his own

behalf. He chose not to. The trial court ordered

Respondents to identify their fact witnesses and to

detail the anticipated subjects of their testimony “so

that parties can make a request for depositions.” Id.

ordered Respondents to provide Trump a written description of

the testimony their witnesses would provide, “fulsome” reports

for their experts, and contemplated Trump could depose their

fact witnesses, although he did not do so. Joint App. Vol. I at

JA2; Minute Order, Anderson v. Griswold, No. 2023CV32577

(Denver Dist. Ct. Sept. 22, 2023). And here, Respondents bore

the burden of proof, not Trump, while noncitizens typically bear

the burden of proof in immigration proceedings, e.g., 8 U.S.C.

§ 1229(c)(4)(A), even though this Court has repeatedly observed

that the right “‘to stay and live and work in this land of freedom’”

is “a right that ranks high among the interests of the individual,”

Landon, 459 U.S. at 34 (quoting Bridges v. Wixon, 326 U.S. 135,

154 (1945)). And of course, civil forfeiture proceedings that may

deprive individuals of enormous amounts of valuable property

typically require only proof by a preponderance of the evidence—

lower than the “clear and convincing” standard Trump enjoyed

here. E.g., Dowling v. United States, 493 U.S. 342, 349 (1990).

26

Again, Trump chose not to avail himself of that

opportunity.

Twelve days before the trial, the trial court

provided a list of nine topics for the parties to address.

See Topics for the Oct. 30, 2023 Hr’g, Anderson v.

Griswold, No. 2023CV32577 (Denver Dist. Ct. Oct. 18,

2023). In other words, Trump had an even greater

opportunity to take advantage of the hearing

Colorado gave him because the trial court identified

its precise areas of concern. The parties filed a joint

response in which Trump proposed three additional

topics. See Joint Resp. to the Ct.’s Topics for the Oct.

30, 2023, Hr’g, Anderson v. Griswold, No.

2023CV32577 (Denver Dist. Ct. Oct. 20, 2023).

Although the court did not expressly rule on Trump’s

proposal, those topics were addressed in briefing, at

trial, and in the final order. And Trump also had the

opportunity to brief all relevant legal issues before

trial.

After these considerable pre-trial procedures, the

court began the five-day trial on October 30, 2023.

Respondents called eight witnesses; Trump called

seven. Pet. App. 43a. The trial court even offered to

hear additional witnesses outside the five-day trial if

any were unavailable during the trial period. See Pet.

App. at 199a n.6. Trump had the opportunity to crossexamine Respondents’ witnesses. Pet. App. 43a.

Nearly 100 exhibits were admitted. Id. During the

trial, the trial court applied the Colorado Rules of

Evidence. E.g., id. at 43a. The trial court gave him

eighteen hours, but he took only twelve, confirming

he had no evidence to offer that he had not already

put before the Court. Pet. App. 198a n.6. The trial

27

court then permitted the parties—including Trump—

nearly two weeks to prepare closing arguments based

on the evidence adduced. Id. at 14a.

After considering closing arguments, the court

issued a comprehensive, 102-page order setting forth

its findings of fact and conclusions of law—which

permitted thorough appellate review. See id. at 184a.

In that order, the trial court found that Respondents

had proved their case by clear and convincing

evidence—id. at 243a, ¶ 209—a burden of proof that

exceeds the burden in most civil cases. And notably,

Trump won before the district court.

Amicus is unaware of any case where this Court

found that a party who won at trial—like Trump did

here—was nonetheless deprived of the opportunity

to be heard.

This Court has held that “the process necessary to

ensure ‘fundamental fairness’” does not require that

“the procedures used to guard against an erroneous

deprivation * * * be so comprehensive as to preclude

any possibility of error.” Walters v. Nat’l Ass’n of

Radiation Survivors, 473 U.S. 305, 320–21 (1985)

(alteration in original) (quoting Mackey v. Montrym,

443 U.S. 1, 13 (1979)). But here, Trump had weeks to

identify witnesses; the opportunity to provide input

on the issues to be addressed at the trial; and eighteen

hours in which to present his case (although he used

just two thirds of the time allotted to him). E.g., Joint

App Vol. 1 at JA12; Topics for the Oct. 30, 2023

Hearing, Anderson v. Griswold, No. 2023CV32577

(Denver Dist. Ct. Oct. 18, 2023); Pet. App. 198a n.6.

He had the protections of cross-examination and a

28

higher-than-normal evidentiary standard. And even

though due process does not require “a hearing on the

merits,” Boddie, 401 U.S. at 378, that is what Trump

received. These procedures were, in fact, “so

comprehensive as to preclude any possibility of error,”

Walters, 473 U.S. at 320–21—which is above and

beyond what is needed to satisfy due process.

Third and finally, Colorado has a strong—indeed,

overriding—interest in using these procedures rather

than additional or different procedures. As explained

above, the Colorado legislature established a process

for resolving disputes about candidate eligibility in

exercise of its constitutional authority to protect the

integrity of its electoral system. That is the procedure

that was used here.10 And this procedure is part of the

“comprehensive * * * election code[]” that Colorado

enacted to regulate “the registration and

qualifications of voters, the selection and eligibility of

candidates, [and] the voting process itself.”

Celebrezze, 460 U.S. at 788. Requiring Colorado to use

10

If anything, the trial court here afforded Trump even

greater procedural protections. To the extent that doing so led

the trial court to deviate from the precise statutory deadlines

contemplated by §§ 1-4-1204(4) and 1-1-113, that is not unusual.

In fact, Colorado courts have always understood these provisions

to permit the flexibility necessary to implement procedures

appropriate to the nature of the challenge. See, e.g., Kuhn v.

Williams, 2018 CO 30, ¶¶ 14–15 (hearing held seven days after

verified petition filed); Griswold v. Peters, No. 22-cv-30007, 2022

Colo. Dist. LEXIS 703 *1–2 (Mesa Cnty. Dist. Ct. May 10, 2022)

(hearing held three months after verified petition filed).

29

more or different procedures would usurp the

constitutional role of the Colorado legislature.11

The factors this Court has identified as relevant to

whether a petitioner’s rights to due process have been

violated all show that “the specific dictates of due

process” were not only easily met, but far exceeded, in

this case. Mathews, 424 U.S. at 335.

*

*

*

“The fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and

in a meaningful manner.’” Id. at 333 (quoting

Armstrong, 380 U.S. at 552). Trump received that

opportunity. Due process is thus no basis for

disturbing the decision of the Colorado Supreme

Court.12

11

Demanding additional process in this context would also

be ahistorical. Sweeping civil discovery, particularly pretrial

discovery, did not exist in 1868 when the Fourteenth

Amendment was ratified. Stephen N. Subrin, Fishing Expedition

Allowed: The Historical Background of the 1938 Federal

Discovery Rules, 39 B.C. L. REV. 691, 694 (1998) (“Historically,

discovery had been extremely limited in both England and the

United States.”). In fact, this Court displayed “antagonism” to

discovery as recently as 1911. John H. Beisner, “The Centre

Cannot Hold”— The Need for Effective Reform of the U.S. Civil

Discovery Process, U.S. CHAMBER OF COM. INST. FOR LEGAL

REFORM, at 6 (citing Carpender v. Winn, 221 U.S. 533, 540

(1911)). Therefore, any argument that Trump was

constitutionally entitled to more discovery would not be

grounded in the text or history of the Due Process Clause.

12

If this Court concludes that Trump preserved a

procedural due process argument, that he was entitled to

procedural process in the first instance, and that the process

below was inadequate, reversal would still not be appropriate.

30

CONCLUSION

As this Court has explained, “procedural due

process rules[] are shaped by the risk of error inherent

in the truth-finding process as applied to the

generality of cases, not the rare exceptions.” Santosky

v. Kramer, 455 U.S. 745, 759 (1982) (quoting

Mathews, 424 U.S. at 344). The central premise of the

Due Process Clause is that the rules don’t change

based on how popular or unpopular, or how powerful

or powerless, a party to a proceeding may be.

Despite this, Trump seeks a different set of rules.

He suggests that, because he was formerly the

President, again seeks the Presidency, and has the

support of many voters nationally, he is entitled to

enhanced treatmentBut Trump has never

articulated any legal basis for that contention or what

amount of process would be sufficient. He argues that

the generally applicable rules for deciding disputes

about the eligibility of candidates to appear on

Colorado’s ballot—rules that have functioned well

and without question for more than a century—

should not apply to him. Such a contention is

fundamentally at odds with the Due Process Clause

and the rule of law.

Colorado’s legislature exercised its unquestioned

constitutional authority by enacting its Elections

Code, which includes a robust judicial procedure for

challenging candidate eligibility. The trial court

properly implemented that procedure and provided

The only appropriate remedy would be a remand for further

proceedings.

31

Trump protections far beyond those demanded by the

Due Process Clause by any qualitative or quantitative

measure. Trump received detailed notice of the

allegations against him. He knew precisely the

evidence Respondents intended to present and had a

full opportunity to cross examine all witnesses who

testified against him. He ultimately had a five-day

trial (which he initially won) before a neutral

decisionmaker with the additional protection of a

clear-and-convincing burden of proof. The trial court

issued an exhaustive order that provided for full

appellate review. The Due Process Clause provides no

basis for this Court to reverse the decision of the

Colorado Supreme Court.

Respectfully submitted.

Michael A. Caplan

Counsel of Record

T. Brandon Waddell

Alan M. Long

Emily C. Snow

CAPLAN COBB LLC

75 14th St., NE, Suite 2700

Atlanta, Georgia 30309

Tel: (404) 596-5600

mcaplan@caplancobb.com

bwaddell@caplancobb.com

along@caplancobb.com

esnow@caplancobb.com

Counsel for Amicus Curiae

January 31, 2024