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

Supreme Court briefJan 31, 2024

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No. 23-719

IN THE

Supreme Court of the United States

————

DONALD J. TRUMP,

Petitioner,

NORMA ANDERSON, et al.,

Respondents.

————

On Writ of Certiorari to the

Supreme Court of Colorado

————

BRIEF FOR RETIRED STATE SUPREME

COURT JUSTICES AS AMICI CURIAE

SUPPORTING RESPONDENTS

————

CHARLES N. NAUEN

RONALD A. FEIN

LOCKRIDGE GRINDAL

Counsel of Record

NAUEN PLLP

JOHN C. BONIFAZ

100 Washington Avenue South BEN T. CLEMENTS

COURTNEY HOSTETLER

Suite 2200

FREE SPEECH FOR PEOPLE

Minneapolis, MN 55401

1320 Centre St. #405

(612) 339-6900

Newton, MA 02459

cnnauen@locklaw.com

(617) 244-0234

rfein@freespeechforpeople.org

Counsel for Amici Curiae

January 31, 2024

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

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

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

ARGUMENT ........................................................

I. States do not require federal legislation

to enforce Section 3 ...................................

A. State courts do not need congressional

permission to enforce the Fourteenth

Amendment .........................................

B. Nothing in the Fourteenth Amendment suggests Section 3 requires

federal legislation ................................

C. Griffin’s Case is wrong and does not

apply to state court proceedings .........

D. The federal criminal insurrection statute does not preempt state authority

to apply Section 3 in civil proceedings

II. The Constitution authorizes states to

adjudicate presidential candidates’ qualifications ......................................................

A. The Electors Clause grants states

plenary power to appoint electors, and

condition appointments on electors

voting for eligible candidates ..............

B. The political question doctrine does

not bar states from adjudicating presidential candidates’ qualifications ......

(i)

TABLE OF CONTENTS—Continued

Page

C. No contrived distinction between

“qualifications” and “disqualifications,”

or “easy” and “hard” cases, strips

states’ powers.......................................

D. A state legislature may enact a

process for adjudicating the qualifications of candidates who are “running”

for office, even if the Constitution only

bars insurrectionists from “holding”

office .....................................................

E. Banning state adjudication would

render all constitutional qualifications for president merely advisory

and invite a showdown on January 6.

III. Section 3 was enacted to prevent the

threats that Trump presents to state and

federal courts ............................................

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Allen v. McCurry,

449 U.S. 90 (1980) .....................................

ASARCO v. Kadish,

490 U.S. 605 (1989) ...................................

Baker v. Carr,

369 U.S. 186 (1962) .................. 16, 17, 19-21, 23

Brown v. Bd. of Educ.,

349 U.S. 294 (1955) ...................................

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ...................................

Bush v. Gore,

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

Castro v. Scanlan,

86 F.4th 947 (1st Cir. 2023)......................

Chiafalo v. Washington,

591 U.S. __, 140 S. Ct. 2316 (2020) .......... 14-16

City of Boerne v. Flores,

521 U.S. 507 (1997) ...................................

City of Portland v. City of Bangor,

65 Me. 120 (Me. 1876)...............................

Civil Rights Cases,

109 U.S. 3 (1883) ....................................... 6-7, 9

Claflin v. Houseman,

93 U.S. 130 (1876) .....................................

Cohens v. Virginia,

19 U.S. (6 Wheat) 264 (1821)....................

TABLE OF AUTHORITIES—Continued

Page(s)

Cory v. Carter,

48 Ind. 327 (Ind. 1874) .............................

Dallman v. Ritter,

225 P.3d 610 (Colo. 2010) .........................

Davis v. Wayne Cnty. Election Comm’n,

__ N.W.2d __, 2023 WL 8656163

(Mich. Ct. App. Dec. 14, 2023), leave to

appeal denied sub nom. LaBrant v. Sec’y

of State, No. 166470 (Mich. Dec. 27,

2023) ..........................................................

Egbert v. Boule,

596 U.S. 482 (2022) ...................................

Ex parte Ward,

173 U.S. 452 (1899) ...................................

Gebhart v. Belton,

91 A.2d 137 (Del. 1952).............................

Griffin’s Case,

11 F. Cas. 7 (C.C.D. Va. 1869) ..................... 10-13

Grinols v. Electoral College,

622 Fed. Appx. 624 (9th Cir. 2015) .........

Hassan v. Colorado,

495 Fed. Appx. 947

(10th Cir. 2012) ....................... 14, 18, 21, 23, 24

Howlett v. Rose,

496 U.S. 356 (1990) ...................................

In re Candidacy of Indep. Party

Candidates Moore v. Kiffmeyer,

688 N.W.2d 854 (Minn. 2004)...................

TABLE OF AUTHORITIES—Continued

Page(s)

Jankovich v. Ill. State Police,

78 N.E.3d 548 (Ill. App. Ct. 2017) ............

Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968) ...................................

Kerchner v. Obama,

612 F.3d 204 (3d Cir. 2010) ......................

Lindsay v. Bowen,

750 F.3d 1061 (9th Cir. 2014) .... 14, 18, 21, 23-25

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ...................................

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816)...................

McCabe v. Dep’t of Registration & Educ.,

413 N.E.2d 1353 (Ill. App. Ct. 1980) ........

McPherson v. Blacker,

146 U.S. 1 (1892) ................................. 14, 15, 17

Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456 (1981) ...................................

Moore v. Harper,

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

Moss v. Superior Ct.,

950 P.2d 59 (Cal. 1998) .............................

NLRB v. Noel Canning,

573 U.S. 513 (2014) ...................................

N.Y. Horse & Carriage Ass’n v.

City of New York,

545 N.Y.S.2d 439 (N.Y. Sup. Ct. 1989) ....

TABLE OF AUTHORITIES—Continued

Page(s)

Nixon v. Condon,

286 U.S. 73 (1932) .....................................

Nixon v. Herndon,

273 U.S. 536 (1927) ...................................

Nw. Austin Mun. Util. Dist. No. One v.

Holder,

557 U.S. 193 (2009) .....................................

Ownbey v. Morgan,

256 U.S. 94 (1921) .....................................

Passalino v. City of Zion,

928 N.E.2d 814 (Ill. 2010) .........................

Perry v. Judd,

840 F. Supp. 2d 945 (E.D. Va. 2012),

aff’d, 471 F. App’x 219 (4th Cir. 2012) .....

Robb v. Connolly,

111 U.S. 624 (1884) ...................................

Rucho v. Common Cause,

588 U.S. __, 139 S. Ct. 2484 (2019) .... 16, 17, 19

Sands Bethworks Gaming, LLC v.

Penn. Dep’t of Revenue,

207 A.3d 315 (Pa. 2019) ............................

Smith v. Allwright,

321 U.S. 649 (1944) ...................................

State ex rel. West v. LaRose,

161 N.E.3d 631 (Ohio 2020) .....................

Tafflin v. Levitt,

493 U.S. 455 (1990) ...................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Testa v. Katt,

330 U.S. 386 (1947) ......................................

Timmons v. Twin Cities Area New Party,

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

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

514 U.S. 779 (1995) ...................................

United States v. Powell,

27 F. Cas. 605 (C.C.D.N.C. 1871) .............

United States v. Trump,

88 F. 4th 990 (D.C. Cir. 2023) .................. 28, 29

Van Valkenburg v. Brown,

43 Cal. 43 (Cal. 1872) ......................................

Wood v. Fitzgerald,

3 Or. 568 (1870) ........................................

Worcester v. Georgia,

31 U.S. 515 (1832) .....................................

Worthy v. Barrett,

63 N.C. 199, appeal dismissed sub nom.

Worthy v. Comm’rs, 76 U.S. (9 Wall) 611

(1869) ...............................................................

Younger v. Harris,

401 U.S. 37 (1971) .....................................

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ................................... 16, 17

CONSTITUTION

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

2, 6

U.S. Const. art. I, § 2, cl. 3 ...........................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Const. art. I, § 2, cl. 5 ...........................

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

2, 6

U.S. Const. art. I, § 3, cl. 6 ...........................

U.S. Const. art. I, § 4, cl. 1-2 ........................

U.S. Const., art. I, § 5, cl. 1............................

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

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

U.S. Const. art. II ......................... 2, 17, 22, 24, 25

U.S. Const. art. II, § 1, cl. 2 ...... 2, 8, 14, 15, 17, 20

U.S. Const. art. II, § 1, cl. 5 ........................ 2, 6, 22

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

U.S. Const. art. III, § 3 .................................

U.S. Const. art. III, § 3, cl. 2 ........................

U.S. Const. art. IV, § 3, cl. 2.........................

U.S. Const. art. VI, § 2 .................................

1-4

U.S. Const. amend. I ....................................

U.S. Const. amend. II ...................................

U.S. Const. amend. IV ..................................

U.S. Const. amend. V ...................................

U.S. Const. amend. X ...................................

U.S. Const. amend. XII ........................ 2, 6, 18, 20

U.S. Const. amend. XIII ...............................

6, 9

U.S. Const. amend. XIII, § 1 ........................ 9, 10

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Const. amend. XIII, § 2 ........................ 9, 10

U.S. Const. amend. XIV ......... 1, 4-9, 11-13, 22, 25

U.S. Const. amend. XIV, § 1 ........... 1, 2, 4-7, 9, 10

U.S. Const. amend. XIV,

§ 3 .................... 2, 4-13, 18, 19, 22-25, 27, 29, 30

U.S. Const. amend. XIV, § 5 ..................... 8-10, 12

U.S. Const. amend. XV ................................. 9, 25

U.S. Const. amend. XV, § 1 .......................... 9, 10

U.S. Const. amend. XV, § 2 .......................... 9, 10

U.S. Const. amend. XX ................................. 2, 18

U.S. Const. amend. XX, § 3 ..........................

U.S. Const. amend. XXII .............................. 22, 26

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

STATUTES

3 U.S.C. 15(d)(2)(C)(ii)..................................

18 U.S.C. 2383 ..............................................

42 U.S.C. 1983 ..............................................

An Act to suppress Insurrection, to punish

Treason and Rebellion, to seize and

confiscate the Property of Rebels, and for

other Purposes, § 2, Pub. L. 37-195, 12

Stat. 589, 590 (1862) .................................

Colo. Rev. Stat. § 1-1-113 .............................

Colo. Rev. Stat. § 1-4-1204 ...........................

TABLE OF AUTHORITIES—Continued

COURT FILINGS

Page(s)

Notes on Resentencing, United States v.

Little, No. 21-CR-315 (D.D.C. Jan. 25,

2024), ECF No. 73 .....................................

Op. & Order, United States v. Trump, No.

23-CR-257 (D.D.C. Oct. 17, 2023), ECF

No. 105 ......................................................

OTHER AUTHORITIES

Case Tracker, Ohio State Univ., https://

bit.ly/2020Cases (last visited Jan. 26,

2024) ..........................................................

Cong. Globe, 39th Cong., 1st Sess. 1095

(1866) .........................................................

Cong. Globe, 39th Cong., 1st Sess. 2544

(1866). ........................................................

Cong. Globe, 39th Cong., 1st Sess. 2916

(1866) .........................................................

Cong. Globe, 40th Cong., 3d Sess. 1263

(1869) .........................................................

Derek T. Muller, Scrutinizing Federal

Electoral Qualifications, 90 Ind. L.J. 559

(2015) ......................................................... 15, 18

Gerard N. Magliocca, Amnesty and Section

Three of the Fourteenth Amendment, 36

Const. Comment. 87 (2021) ......................

“Insurrection,” Webster’s Dictionary (1830) ..

TABLE OF AUTHORITIES—Continued

Page(s)

Kierra Frazier, The Violent Political

Threats Public Officials Are Facing Amid

Trump’s Legal Woes, Politico (Jan. 12,

2024), https://politi.co/3w2SUDq ..............

Nat’l Portrait Gallery, Chester Arthur: A

Birthplace Controversy, 1880, https://

npg.si.edu/blog/chester-arthur-birthplace

-controversy-1880 (last visited Jan. 26,

2024) ..........................................................

Pres. Abraham Lincoln, Instructions for the

Gov’t of Armies of the United States in the

Field, Gen. Orders No. 100 (Apr. 24, 1863),

https://avalon.law.yale.edu/19th_century/

lieber.asp .................................................... 18-19

Pres. Andrew Johnson, Proclamation No.

179, Granting Full Pardon and Amnesty

for the Offense of Treason Against the

United States During the Late Civil War

(Dec. 25, 1868), https://www.loc.gov/reso

urce/rbpe.23602600 ......................................

Pres. Andrew Johnson, Proclamation

Pardoning Persons who Participated

in the Rebellion (May 29, 1865),

https://www.loc.gov/resource/rbpe.235025

00....................................................................

The Reconstruction Acts, 12 U.S. Op. Att’y

Gen. 141 (1867) ......................................... 18, 19

xii

TABLE OF AUTHORITIES—Continued

Page(s)

William Baude & Michael Stokes Paulsen,

The Sweep and Force of Section Three,

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

https://papers.ssrn.com/sol3/papers.cfm?

abstract_id=4532751 (last revised Sept.

19, 2023) .................................................... 5, 23

INTEREST OF AMICI CURIAE

Amici are retired state supreme court justices

who seek to ensure that state courts retain their

ability to enforce the Fourteenth Amendment without

special permission from Congress, that states may

adjudicate candidate eligibility challenges; and that

state court judges and staff are protected from threats

and political violence:1

Paul H. Anderson (Associate Justice, Minnesota

Supreme Court, 1994-2013);

Fernande Duffly (Associate Justice, Massachusetts

Supreme Judicial Court, 2011-2016);

James Exum, Jr. (Associate Justice, North Carolina

Supreme Court, 1975-1986; Chief Justice, 1986-1994);

Joseph Grodin (Associate

Supreme Court, 1982-1987);

Justice,

California

James Nelson (Associate Justice, Montana Supreme

Court, 1993-2013);

Robert Orr (Associate Justice, North Carolina

Supreme Court, 1995-2004);

Peggy Quince (Associate Justice, Florida Supreme

Court, 1999-2008 and 2010-2019; Chief Justice, 20082010).

SUMMARY OF ARGUMENT

The Supremacy Clause requires state courts to enforce

federal constitutional provisions where they apply to

No party’s counsel authored the brief in whole or part or made

a monetary contribution to fund preparation or submission of

the brief. No party besides amici or their counsel contributed

monetarily to preparation or submission of the brief. Counsel of

record received advance notice of intent to file this brief.

state-law causes of action. And state courts have

continuously enforced Section 1 of the Fourteenth

Amendment—including the Equal Protection and Due

Process Clauses—since Reconstruction. In this respect,

Section 3, like the presidential qualifications established

in Article II, operates like Section 1: state courts do not

require congressional permission to enforce it.

Under the Electors Clause, states’ plenary power to

appoint presidential electors allows states to condition

appointment on their voting only for constitutionally

eligible candidates. This necessarily includes power to

decide whether candidates are eligible. Neither the

Twelfth nor the Twentieth Amendment, nor any other

constitutional provision, commits this determination

exclusively to Congress or strips states of their power.

State courts have a particular interest in vindicating Section 3’s purpose: protecting the republic from

insurrectionists returning to power. Trump exemplifies

this risk by repeatedly threatening judges, judicial

employees, and others involved in the court system.

Declining to apply Section 3 for fear of Trump-incited

mob violence would not prevent that violence; it would

simply shift its burden to thousands of justices, judges,

and court staff, and would invite more chaos, violence,

and insurrection.

ARGUMENT

I. States do not require federal legislation to

enforce Section 3.

A. State courts do not need congressional

permission to enforce the Fourteenth

Amendment.

State courts must apply the Constitution. U.S.

Const. art. VI, § 2 (U.S. Constitution is “the supreme

Law of the Land; and the Judges in every State shall

be bound thereby”). This Court has “consistently held

that state courts have inherent authority, and are thus

presumptively competent, to adjudicate claims arising

under the laws of the United States.” Tafflin v. Levitt,

493 U.S. 455, 458 (1990); Claflin v. Houseman, 93 U.S.

130, 136 (1876); Robb v. Connolly, 111 U.S. 624, 637

(1884) (Harlan, J.) (“Upon the State courts, equally

with the courts of the Union, rests the obligation to

guard, enforce, and protect every right granted or secured

by the [C]onstitution of the United States . . . .”).

Indeed, if federal law applies to a state law cause of

action, state courts must apply it. See Howlett v. Rose,

496 U.S. 356, 367 (1990) (“The Supremacy Clause

makes [federal law] ‘the supreme Law of the Land,’

and charges state courts with a coordinate responsibility to enforce that law according to their regular modes

of procedure.”); Testa v. Katt, 330 U.S. 386, 389-93 (1947).

When state-court civil plaintiffs raise federal constitutional claims through state law causes of action,

courts do not first demand a federal statute authorizing them to consider the claims. Instead, they review

the claims on their merits. See, e.g., Dallman v. Ritter,

225 P.3d 610, 619 (Colo. 2010) (First Amendment);

Jankovich v. Ill. State Police, 78 N.E.3d 548, 552 (Ill.

App. Ct. 2017) (Second Amendment); N.Y. Horse &

Carriage Ass’n v. City of New York, 545 N.Y.S.2d 439,

443-44 (N.Y. Sup. Ct. 1989) (Fourth Amendment);

McCabe v. Dep’t of Registration & Educ., 413 N.E.2d

1353, 1358-59 (Ill. App. Ct. 1980) (Fifth Amendment).

Sometimes, a federal constitutional question arises as

a defense in a state proceeding, but as these cases

illustrate, state courts routinely adjudicate affirmative

federal constitutional claims raised by civil plaintiffs

where state law supplies a cause of action.

In fact, this Court has developed doctrines of preference for state court adjudication of federal constitutional

questions. See, e.g., Allen v. McCurry, 449 U.S. 90, 105

(1980) (prior state court judgment on federal constitutional question binds federal courts by estoppel); Younger

v. Harris, 401 U.S. 37, 40-41 (1971) (federal court

cannot ordinarily enjoin pending state court criminal

proceeding based on federal constitutional claims).

In federal court, the availability of relief under the

Constitution depends on statutory or implied private

rights of action. See, e.g., 42 U.S.C. 1983; Egbert v.

Boule, 596 U.S. 482, 486 (2022). But state courts do not

require specific congressional statutes to enforce

federal constitutional rights through applicable state

law procedures.2 See ASARCO v. Kadish, 490 U.S. 605,

617 (1989) (state courts can “render binding judicial

decisions that rest on their own interpretations of

federal law”). Except where Congress grants federal

courts exclusive jurisdiction, state courts must apply

and enforce federal constitutional provisions when

properly invoked under state law.

That understanding was settled long before the

Fourteenth Amendment. See Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304, 339-42 (1816). Unsurprisingly,

state courts began adjudicating civil claims under the

Fourteenth Amendment soon after its passage, without

special authorization from Congress. See, e.g., Van

Valkenburg v. Brown, 43 Cal. 43 (Cal. 1872) (affirmative

claim under Section 1’s Privileges and Immunities

Clause); Cory v. Carter, 48 Ind. 327 (Ind. 1874) (Equal

Amicus Claremont Institute contends (Amicus Br. 13-14) that

neither the Supremacy Clause nor Section 3 creates an implied

private right of action. Amici agree. But state legislatures can (as

Colorado has here) create private rights of action in state court.

See Colo. Rev. Stat. §§ 1-1-113, 1-4-1204.

Protection Clause); City of Portland v. City of Bangor,

65 Me. 120 (Me. 1876) (Due Process Clause). With this

Court’s approval, this practice has continued to the

present time. See, e.g., Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 460-61 (1981) (reviewing

state supreme court decision affirming injunction

under Equal Protection Clause); Sands Bethworks

Gaming, LLC v. Penn. Dep’t of Revenue, 207 A.3d 315,

324 (Pa. 2019) (upholding Fourteenth Amendment

claim); Passalino v. City of Zion, 928 N.E.2d 814, 816

(Ill. 2010) (similar); In re Candidacy of Indep. Party

Candidates Moore v. Kiffmeyer, 688 N.W.2d 854, 85657 (Minn. 2004) (similar). Indeed, Brown v. Board of

Education arose partly from a Delaware state court

case deciding plaintiffs’ Fourteenth Amendment claim.

See Gebhart v. Belton, 91 A.2d 137, 139-40 (Del. 1952),

aff ’d sub nom. Brown v. Bd. of Educ., 349 U.S. 294

(1955). The Fourteenth Amendment is thus “selfexecuting” in the sense that state courts may enforce

it through state law causes of action, without need for

any federal statute.

B. Nothing in the Fourteenth Amendment

suggests Section 3 requires federal

legislation.

1. Section 3 states a direct prohibition, not an

authorization. It says: “No person shall be a [Member

of Congress or presidential elector] or hold any office”

after breaking the oath and engaging in insurrection.

(Emphasis added.) “It lays down a rule by saying what

shall be. It does not grant a power to Congress (or any

other body) to enact or effectuate a rule of disqualification. It enacts the rule itself.” William Baude &

Michael Stokes Paulsen, The Sweep and Force of

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

(manuscript at 17-18) (emphasis in original), https://

papers.ssrn.com/sol3/papers.cfm?abstract_id=4532751

(last revised Sept. 19, 2023). It parallels other constitutional qualifications that require no special implementing

legislation. See U.S. Const. art. I, § 2, cl. 2 (“No Person

shall be a Representative” who does not meet age,

citizenship, and residency requirements); id. art. I,

§ 3, cl. 3 (same for Senators); id. art. II, § 1, cl. 5 (“No

Person . . . shall be eligible to the Office of President”

who does not meet age, citizenship, and residency

requirements); id. amend. XII (“no person constitutionally ineligible to the office of President shall be eligible

to that of Vice-President”) (emphases added).

Likewise, Section 3’s prohibitory language parallels

Section 1. See id. amend. XIV, § 1 (“No State shall make

or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.”) (emphases added).

State courts do not need congressional legislation to

enforce the Due Process or Equal Protection Clauses.

In fact, the Fourteenth Amendment constitutionalizes

these protections precisely so they do not depend on

the whims of Congress. See, e.g., Cong. Globe, 39th

Cong., 1st Sess. 1095 (1866) (Rep. Hotchkiss) (arguing

for constitutional protection of civil rights because

“We may pass laws here to-day, and the next Congress

may wipe them out”). Section 1 is in this sense “selfexecuting.” City of Boerne v. Flores, 521 U.S. 507, 52224 (1997) (“Section 1 of the new draft Amendment

imposed self-executing limits on the States . . . . As

enacted, the Fourteenth Amendment confers substantive

rights against the States which, like the provisions of

the Bill of Rights, are self-executing.”); Civil Rights

Cases, 109 U.S. 3, 20 (1883) (“[The Thirteenth] amendment, as well as the Fourteenth, is undoubtedly selfexecuting without any ancillary legislation . . . .”)

(emphasis added).3

As with Section 1, the Framers did not leave Section

3 to the whims of “the next Congress” which could pass

or repeal legislation by bare majority. Instead, they

removed any possible doubt that Section 3 is selfexecuting, by expressly providing that only a bicameral

two-thirds vote could remove disqualification.

In contrast, constitutional provisions that require

affirmative congressional action for enforcement contain

no direct prohibition; they merely authorize Congress

to act. For example, Article I authorizes Congress “[t]o

provide for the Punishment of counterfeiting the

Securities and current Coin of the United States.” U.S.

Const. art. I, § 8, cl. 6. This neither prohibits counterfeiting, nor establishes a punishment; it authorizes

Congress to “provide for” such punishment. The Treason

Clause defines treason and authorizes Congress “to

declare [its] Punishment,” but does not itself impose

consequences for treason. Id. art. III, § 3. The

Impeachment Clause defines impeachable offenses, id.

art. II, § 4, but the Constitution expressly and exclusively leaves the House to decide whether to impeach,

id. art. I, § 2, cl. 5, and the Senate to decide whether to

convict, id. art. I, § 3, cl. 6.

Ownbey v. Morgan held only that Delaware did not violate

the Due Process Clause; its use of “self-executing” bears no

relation to the usage in this case. See 256 U.S. 94, 110-12 (1921).

Here, Colorado did enforce the Fourteenth Amendment; Trump

and his amici contend that Colorado cannot do so without federal

legislation.

Authorizing language typically provides that Congress

“may” or “shall” do something “by Law”, e.g., id. art. I,

§ 2, cl. 3; id. art. I, § 4, cl. 1-2, or that Congress “shall

have Power” to do something, e.g., id. art. I, § 8, cl. 1;

id. art. III, § 3, cl. 2; id. art. IV, § 3, cl. 2. But Section 3

enacts its own disqualification—“No person shall be . . .

or hold”—and, like other provisions of the Fourteenth

Amendment, does not require congressional action before

states may implement it. Rather, the only exclusive

role Section 3 grants Congress is power to remove

disqualification—a power which Congress has not

exercised for Trump.4

2. Section 5’s authorization of congressional legislation does not make Section 3 unenforceable without

legislation. See id. amend. XIV, § 5 (“Congress shall

have power to enforce, by appropriate legislation, the

provisions of this article.”).5 This provision authorizes

federal legislation but does not require it. As this Court

recognized soon after the amendment’s enactment—in

a dispute over the scope of Congress’s Section 5

enforcement power—“the Fourteenth [Amendment],

Amicus Republican National Committee (RNC) cites (Amicus

Br. 18) a badly out-of-context quote from Rep. Thaddeus Stevens

involving an earlier draft of Section 3 that would have banned exConfederates from voting. See Cong. Globe, 39th Cong., 1st Sess.

2460, 2544 (1866). Stevens admitted this earlier draft would

require implementing legislation; Congress abandoned that

draft. See id. at 2544, 2869. The RNC also complains (Amicus Br.

10) that the Fourteenth Amendment was designed to limit state

power. But Article II grants states plenary power over appointing

electors. See Part II.A, infra. The RNC’s dispute is not with

Section 3, but with the Electoral College.

Section 5 is occasionally misquoted as “Congress shall have

the power.” If anyone might misinterpret “the” power as meaning

exclusive power, the fact that Section 5 does not say that refutes

the argument.

is undoubtedly self-executing without any ancillary

legislation.” Civil Rights Cases, 109 U.S. at 20

(emphasis added).

Section 5 applies to the entire Fourteenth Amendment,

including Section 1’s Due Process and Equal Protection

Clauses. If Section 5 meant states could not adjudicate

questions under Section 3 without congressional

legislation, then it would also mean states could not

adjudicate Due Process or Equal Protection Clause

questions without congressional legislation—but they

can and do. See Part I.A, supra.

The Thirteenth and Fifteenth Amendments further

confirm this reading. Their first sections create direct

prohibitions. U.S. Const. amend. XIII, § 1 (slavery or

involuntary servitude); id. amend. XV, § 1 (deprivation

of vote on account of race, color, or previous servitude).

Their second sections provide: “Congress shall have

power to enforce this article by appropriate legislation.”

Id. amend. XIII, § 2; id. amend. XV, § 2. But no one

contends that if Congress failed to legislate, then

Section 1 of the Thirteenth or Fifteenth Amendment

would be unenforceable. Indeed, state courts directly

adjudicate claims under these amendments’ substantive

sections, see, e.g., Moss v. Superior Ct., 950 P.2d 59, 7273 (Cal. 1998) (Thirteenth Amendment), and have

done so since immediately after their adoption, e.g.,

Wood v. Fitzgerald, 3 Or. 568, 577 (1870) (Fifteenth

Amendment). Rather, the legislation clause “empowered

Congress to do much more” than what the amendments

themselves do. Jones v. Alfred H. Mayer Co., 392 U.S.

409, 439 (1968) (emphasis added); see also Nw. Austin

Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 197 (2009)

(Section 1 of Fifteenth Amendment is “self-executing”).

Section 5 of the Fourteenth Amendment is nearly

verbatim identical to Section 2 of the Thirteenth and

Fifteenth Amendments, and the Fourteenth Amendment’s legislation clause stands in precisely the same

relationship to the insurrectionist disqualification

clause as the Thirteenth and Fifteenth Amendments’

legislation clauses stand to their substantive prohibitions. The same legislation clause—which indisputably

does not preempt independent judicial enforcement

of the Thirteenth Amendment’s ban on slavery, the

Fourteenth Amendment’s protections of equal protection and due process, or the Fifteenth Amendment’s

ban on race-based deprivation of the vote—cannot

somehow act in an entirely different way to preempt

independent judicial enforcement of Section 3.

C. Griffin’s Case is wrong and does not

apply to state court proceedings.

1. Griffin’s Case, 11 F. Cas. 7 (C.C.D. Va. 1869), openly

contradicts the plain meaning of the Constitution’s

text. Chief Justice Chase (riding circuit) acknowledged

that the “literal construction”—what today would

be called the plain meaning—of Section 3 disqualified

the Virginia judge who had sentenced the habeas

petitioner. Id. at 24. Noting that the judge’s counsel

“seemed to be embarrassed by the difficulties” supposedly presented by that plain meaning, Chase expounded

upon the “great inconvenience” of applying it, sympathizing with various “calamities which have already

fallen upon the people of these [ex-Confederate]

states.” Id. at 24-25. But courts cannot disregard the

Constitution’s plain text due to “inconvenience.” See

NLRB v. Noel Canning, 573 U.S. 513, 600 (2014)

(Scalia, J., concurring in the judgment) (criticizing

constitutional interpretation that rejects plain meaning

due to “embarrassing inconveniences”). Section 3 was

intended to exclude oath-breaking insurrectionists

from public office—even when inconvenient.

2. Its constitutional interpretation is wrong. First,

Chase relied on Section 5, which authorizes congressional

legislation. See 11 F. Cas. at 26. But authorizing

Congress to enact legislation does not deprive states of

their inherent authority and obligation to enforce the

Constitution. Then, Chase observed that Congress’s exclusive role in removing disqualifications gives Congress

“absolute control of the whole operation of the

amendment.” Ibid. But Section 3’s grant of exclusive

authority to Congress to remove disqualification (by

two-thirds vote of each house), coupled with the

absence of such authority regarding disqualification

itself, refutes this.

3. It does not address state procedures in state court.

Chase noted that “[t]o accomplish this ascertainment

[of who is disqualified] and ensure effective results,

proceedings, evidence, decisions, and enforcements of

decisions, more or less formal, are indispensable.” Ibid.

But he never addressed why state legislatures could

not establish such proceedings by law. Indeed, both

sides’ counsel essentially conceded that quo warranto

could lie in state court against a state judge holding

office in violation of Section 3. Compare id. at 14

(Griffin’s counsel) with id. at 21 (Virginia judge’s

counsel). Instead, Chase simply assumed that “these

can only be provided for by congress.” Id. at 26. Even

if true in federal court, that does not explain why a

state court would need federal legislation to enforce

the Fourteenth Amendment.6

John Marshall Harlan understood that states could enforce

Section 3. On December 1, 1868—eighteen months before any

federal law enforcing Section 3 in Kentucky—he wrote to Congress

supporting a Kentucky resident’s amnesty petition. See Cong.

Globe, 40th Cong., 3d Sess. 1263 (1869). This would have been

pointless if Section 3 were not already enforceable.

4. It was, in modern parlance, affirmed on other

grounds. Per Chief Justice Chase, the full Court

“unanimously concur[red] in the opinion that a person

convicted by a judge de facto acting under color of

office, though not de jure, and detained in custody in

pursuance of his sentence, can not be properly discharged

upon habeas corpus.” Id. at 27. Chase did not state

whether he presented his theory that Section 3

requires implementing legislation to the full Court

before resorting to the de facto officer doctrine, which

sufficed to resolve the case, but that omission suggests

that the full Court did not support that view.7

D. The federal criminal insurrection statute

does not preempt state authority to

apply Section 3 in civil proceedings.

The federal criminal insurrection statute, 18 U.S.C.

2383, predates the Fourteenth Amendment. It derives

from the Second Confiscation Act of 1862, which made

it a crime to “incite, set on foot, assist, or engage in any

rebellion or insurrection against the authority of the

United States, or the laws thereof.” An Act to suppress

Insurrection, to punish Treason and Rebellion, to seize

and confiscate the Property of Rebels, and for other

Purposes, § 2, Pub. L. 37-195, 12 Stat. 589, 590 (1862).

This pre-Fourteenth Amendment statute could neither

implement congressional authority under Section 5

nor preempt state authority to enforce Section 3.

Amicus Seth Barrett Tillman (Amicus Br. 5) claims that in

Ex parte Ward, 173 U.S. 452 (1899), this Court cited Griffin’s

Case “favorably, on point, and as good law.” The Court did cite

Griffin’s Case favorably—but only for the de facto officer ruling,

not the proposition that Trump invokes here. See Ward, 173 U.S.

at 454–56.

Historically, the statute played no role under Section

3—as preemption or otherwise. Before the Fourteenth

Amendment was even proposed, President Johnson

pardoned most ex-Confederates. See Pres. Andrew

Johnson, Proclamation Pardoning Persons who Participated in the Rebellion (May 29, 1865), https://www.loc.

gov/resource/rbpe.23502500. Congress’s outrage helped

motivate the development of the Fourteenth Amendment and Section 3’s insistence that only Congress

could remove disqualification. See Gerard N. Magliocca,

Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 94-95 (2021). In 1868,

Johnson pardoned all remaining ex-Confederates, without exception. Pres. Andrew Johnson, Proclamation

No. 179, Granting Full Pardon and Amnesty for the

Offense of Treason Against the United States During

the Late Civil War (Dec. 25, 1868), https://www.loc.gov/

resource/rbpe.23602600. Thus, the criminal insurrection

statute ensnared zero people.

If the statute occupied the field of insurrection

disqualification, then no one would have been disqualified after December 25, 1868. Yet state courts continued

to apply Section 3; ex-Confederates continued to seek

congressional amnesty; and Congress, eventually,

enacted broad amnesties in 1872 and 1898. See

Magliocca, supra, at 111-27. No one in any of the

judicial decisions enforcing Section 3, nor in Griffin’s

Case, nor in congressional or public debates regarding

amnesty, suggested that the criminal insurrection

statute preempted states from enforcing Section 3

against individuals not charged under that statute.

II. The Constitution authorizes states to adjudicate presidential candidates’ qualifications.

A. The Electors Clause grants states plenary

power to appoint electors, and condition

appointments on electors voting for

eligible candidates.

The Electors Clause empowers states to appoint

presidential electors in the manner they choose. See

U.S. Const., art. II, § 1, cl. 2. This power is plenary

absent some other constitutional constraint. Moore v.

Harper, 600 U.S. 1, 37 (2023) (“[I]n choosing Presidential

electors, the Clause leaves it to the legislature exclusively to define the method of effecting the object.”)

(cleaned up); Chiafalo v. Washington, 591 U.S. __, 140

S. Ct. 2316, 2324 (2020) (Electors Clause gives states

“far-reaching authority over presidential electors”);

Bush v. Gore, 531 U.S. 98, 104 (2000) (legislature’s

power is “plenary”); McPherson v. Blacker, 146 U.S. 1,

35 (1892) (similar).

This plenary power includes conditioning electors’

appointment on their candidates’ meeting constitutional eligibility criteria.8 Lindsay v. Bowen, 750 F.3d

1061, 1063 (9th Cir. 2014) (for presidential primary

ballot, state’s interest in “protecting the integrity of

the election process” allows it to enforce “the lines that

the Constitution already draws”) (cleaned up); Hassan

v. Colorado, 495 Fed. Appx. 947, 948 (10th Cir. 2012)

(Gorsuch, J.) (“[A] state’s legitimate interest in protecting the integrity and practical functioning of the

States cannot add to the constitutional qualifications for

president. See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,

800-04 (1995). But this case does not involve an additional

qualification—it involves a qualification from the Constitution

itself.

political process permits it to exclude from the ballot

candidates who are constitutionally prohibited from

assuming office.”); Derek T. Muller, Scrutinizing Federal

Electoral Qualifications, 90 Ind. L.J. 559, 604 (2015)

(“[B]ecause the legislature[] may choose the manner

by which it selects its electors, it follows that it may

restrict the discretion of the election process through

an ex ante examination of candidates’ qualifications.”).

This comports with the Clause’s history: a compromise between competing visions of who should choose

presidential electors. See McPherson, 146 U.S. at 28.

For years, many state legislatures directly appointed

presidential electors; Colorado did so as recently as

1876. See id. at 29-33. An eighteenth or nineteenth

century legislature that planned to appoint electors

directly could require those electors to vote for specific

candidates. Chiafalo, 140 S. Ct. at 2323-24. And it could

have first authorized a committee to examine whether

candidates met constitutional eligibility requirements—

e.g., Chester Arthur, who was dogged by rumors of

foreign birth9—before appointing electors, so the legislature would not waste electoral votes on ineligible

candidates. And since a legislature could direct a

committee to examine candidates’ constitutional qualifications before appointing electors, it likewise can

authorize a court to adjudicate that question.

Nothing has stripped states of that power. In states

like Colorado, legislatures have specified that electors

will be selected by popular vote, but have empowered

See, e.g., Nat’l Portrait Gallery, Chester Arthur: A Birthplace

Controversy, 1880, https://npg.si.edu/blog/chester-arthur-birthpl

ace-controversy-1880 (last visited Jan. 26, 2024).

their courts, as is their prerogative, to screen constitutionally ineligible candidates.10

B. The political question doctrine does not

bar states from adjudicating presidential candidates’ qualifications.

The political question doctrine constrains the jurisdiction of federal courts, not of states. “[I]t is the

relationship between the judiciary and the coordinate

branches of the Federal Government, and not the

federal judiciary’s relationship to the States, which gives

rise to the ‘political question.’” Baker v. Carr, 369 U.S.

186, 210 (1962); Rucho v. Common Cause, 588 U.S. __,

139 S. Ct. 2484, 2500 (2019) (describing “a political

question beyond the competence of the federal courts”)

(emphasis added).11 If the political question doctrine

applied here, then finding this case nonjusticiable in

federal court would deprive this Court of jurisdiction,

leaving the Colorado Supreme Court’s judgment intact.

Even if the political question doctrine applied to a

state’s actions, it is a “narrow exception.” Zivotofsky ex

rel. Zivotofsky v. Clinton, 566 U.S. 189, 194-95 (2012).

It concerns “‘political questions,’ not . . . ‘political cases.’

The courts cannot reject as ‘no law suit’ a bona fide

controversy as to whether some action denominated

‘political’ exceeds constitutional authority.” Baker, 369

States also retain inherent authority to bind electors to

vote for eligible candidates. States retain “all powers that the

Constitution does not withhold from them.” Chiafalo, 140 S. Ct.

at 2334 (Thomas. J., concurring in the judgment) (cleaned up);

see U.S. Const. amend. X.

For example, Baker explained how in Worcester v. Georgia,

31 U.S. 515 (1832), “despite the consequences in a heated federalstate controversy and the opposition of the other branches of the

National Government,” the political question doctrine had not

rendered the case nonjusticiable. Baker, 369 U.S. at 215 n.43.

U.S. at 217. Rather, a court “has a responsibility to

decide cases properly before it, even those it ‘would

gladly avoid.’” Zivotofsky, 566 U.S. at 194-95 (quoting

Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404 (1821)).

And the doctrine does not apply simply because a

presidential election is involved. McPherson, 146 U.S.

at 23 (“It is argued that the subject-matter of the

controversy is not of judicial cognizance, because it is

said that all questions connected with the election of a

presidential elector are political in their nature . . . .

But the judicial power of the United States extends

to all cases in law or equity arising under the

[C]onstitution and laws of the United States, and this

is a case so arising . . . .”).

Baker identified six relevant factors, but this Court

has recently focused on whether the issue (1) is textually

committed to another branch of government, or

(2) lacks judicially manageable standards for resolution.

See Rucho, 139 S. Ct. at 2494 (citing only second

factor); Zivotofsky, 566 U.S. at 195 (citing only first two

factors).

1. Appointment of presidential electors is textually

committed to states, not Congress. As discussed above,

the Electors Clause establishes states’ authority to

limit electoral appointments to only those electors who

will vote for constitutionally eligible candidates. That

necessarily includes power to determine whether

particular candidates are eligible.

Conversely, the Constitution does not expressly

commit that power to Congress. While Article I explicitly

authorizes Congress to judge qualifications of incoming

members, U.S. Const., art. I, § 5, cl. 1 (“Each House

shall be the Judge of the . . . Qualifications of its own

Members . . . .”), neither Article II nor any other constitutional provision explicitly authorizes—let alone

directs—Congress to judge presidential candidate

eligibility. The Twelfth Amendment authorizes Congress

to count electoral votes; it does not explicitly authorize

Congress to judge presidential qualifications. See id.

amend. XII. Similarly, the Twentieth Amendment

provides a contingency procedure “if the President

elect shall have failed to qualify,” but does not commit

adjudication of eligibility to Congress or anyone else.

Id. amend. XX, § 3.

Even if Congress holds some unwritten power to

judge presidential candidates’ qualifications, that power

is not exclusive. See Lindsay, 750 F.3d at 1065 (“[N]othing

in the Twentieth Amendment states or implies that

Congress has the exclusive authority to pass on the

eligibility of candidates for president.”); Hassan, 495

Fed. Appx. at 948-49; Muller, supra, at 605 (“[T]he

power of Congress to examine the qualifications of

executive candidates is, at the very best, debatable,

and certainly not exclusive.”).

2. Section 3 involves judicially manageable standards.

Interpreting constitutional text and applying that

text to (sometimes disputed) facts is precisely what

courts do. Like “due process” and “equal protection,” the

meanings of “engage” and “insurrection” are judicially

discoverable. Indeed, the terms “insurrection” and

“engage” are more clearly defined than terms like “due

process” and “equal protection.”

“Insurrection” was interpreted and defined repeatedly

by courts, law dictionaries, and other authoritative

legal sources before, during, and after Reconstruction.

See, e.g., The Reconstruction Acts, 12 U.S. Op. Att’y

Gen. 141, 160 (1867) (language in similarly-worded

statute “comprehend[ed] not only the late rebellion,

but every past rebellion or insurrection . . . in the

United States”); Pres. Abraham Lincoln, Instructions

for the Gov’t of Armies of the United States in the Field,

Gen. Orders No. 100 (Apr. 24, 1863), art. 149 (“Insurrection

is the rising of people in arms against their government, or a portion of it, or against one or more of its

laws, or against an officer or officers of the government.

It may be confined to mere armed resistance, or it may

have greater ends in view.”), https://avalon.law.yale.

edu/19th_century/lieber.asp; Webster’s Dictionary (1830)

(“combined resistance to . . . lawful authority . . .,

with intent to the denial thereof ”).

Likewise, the judicial interpretation of “engage” under

Section 3 has been settled for 150 years. See United

States v. Powell, 27 F. Cas. 605, 607 (C.C.D.N.C. 1871)

(“a voluntary effort to assist the Insurrection . . . and

to bring it to a successful [from insurrectionists’ perspective] termination”); Worthy v. Barrett, 63 N.C. 199,

203 (1869) (“[v]oluntarily aiding the rebellion, by personal

service, or by contributions, other than charitable, of

any thing that was useful or necessary”), appeal dismissed sub nom. Worthy v. Comm’rs, 76 U.S. (9 Wall)

611 (1869); 12 U.S. Op. Att’y Gen. at 161-62 (similar).

Unlike Rucho, which held that broad principles of

“fairness” implicit in equal protection were not judicially manageable, see 139 S. Ct. at 2500, this case does

not require interpreting implicit values (like fairness),

nor arbitrarily dividing a continuous spectrum. Rather,

it involves interpreting explicit terms (“engage” and

“insurrection”) that were well defined when the amendment was enacted and were construed soon after its

ratification.

3. None of Baker’s final three prudential factors

apply here. First, there is no “impossibility of a court’s

undertaking independent resolution without expressing

lack of the respect due coordinate branches of government.” Baker, 369 U.S. at 217. The “branch” due respect

is Colorado’s legislature. Different entities control

different stages of the presidential selection process.

In the first (current) stage, states have plenary

authority to appoint electors “in such Manner as the

Legislature thereof may direct.” U.S. Const., art. II,

§ 1, cl. 2. Colorado’s legislature has chosen to appoint

electors via a process that includes empowering courts

to hear ballot access challenges. After electors cast

their votes, Congress will take the lead in counting votes.

Id. amend. XII. Colorado’s use of a judicial process to

help ensure it appoints electors only for constitutionally

eligible candidates does not disrespect Congress.

Second, there is no “unusual need for unquestioning

adherence to a political decision already made,” Baker,

369 U.S. at 217, nor could there be at this stage. After

electors are appointed, that need might arise. But the

election is nine months away. No political decision has

been made, nor will be made any time soon.

Third, there is no “potentiality of embarrassment

from multifarious pronouncements by various departments on one question.” Ibid. The Constitution obligates

“Each State” to appoint electors “in such Manner as the

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

cl. 2 (emphases added). The states are not different

“departments” of the federal government, and interstate differences in Electoral College processes are not

an “embarrassment” —they are the result of separate

sovereigns whose courts may interpret federal law differently unless this Court pronounces a uniform rule.

As between this Court and Congress, there is no potential for multifarious pronouncements. If this Court

rules that Trump is, in fact, disqualified, Congress can

(if it chooses) remove that disqualification. This is no

more embarrassing than when this Court renders an

opinion and Congress responds by passing a statute.

See, e.g., Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 694 (2014). And, unsurprisingly, Baker says

nothing about different state courts deciding matters

differently; the doctrine is meant to protect the federal

government’s branches from each other.

For this reason, federal and state appellate courts

have consistently rejected or declined to adopt this

political question theory. The Ninth and Tenth Circuits

have confirmed states’ authority to exclude constitutionally ineligible candidates from their ballots. See

Lindsay, 750 F.3d at 1065 (confirming state’s authority

to remove ineligible candidate from presidential primary

ballot, and explicitly rejecting the idea that the

Constitution commits presidential candidates’ qualification determinations exclusively to Congress); Hassan,

495 Fed. Appx. at 948. Conversely, no federal or state

The sky does not fall when even famous presidential

candidates appear on some states’ ballots but not others. In 2012,

four major Republican candidates (Rick Perry, Rick Santorum,

Newt Gingrich, and Jon Huntsman) were excluded from

Virginia’s Republican primary ballot. See Perry v. Judd, 840 F.

Supp. 2d 945, 953 (E.D. Va. 2012) (upholding exclusion), aff’d, 471

F. App’x 219 (4th Cir. 2012) (denying emergency motion). In the

2020 general election, multiple states excluded Kanye West from

their ballots. See, e.g., State ex rel. West v. LaRose, 161 N.E.3d 631

(Ohio 2020) (upholding exclusion).

appellate court has ever adopted this political question

argument.13

C. No contrived distinction between

“qualifications” and “disqualifications,”

or “easy” and “hard” cases, strips states’

powers.

States’ power to adjudicate cannot turn on whether

Section 3 is characterized as a “qualification” or

“disqualification.” These terms are mirror images.

Nothing materially distinguishes the presidential

“qualifications” in Article II from the Fourteenth

(or Twenty-Second) Amendment’s “disqualifications.”

They are phrased in parallel. U.S. Const. art. II, § 1,

cl. 5 (“No Person . . . shall be eligible to the Office of

President. . . .”); id. amend. XIV, § 3 (“No person shall

. . . hold any office . . . under the United States . . . .”);

id. amend. XXII, § 1 (“No person shall be elected to the

office of the President . . .”). One might equally say that

Article II, the Fourteenth Amendment, and the TwentySecond Amendment declare qualifications or that—

per their negative phrasing—they disqualify anyone

who does not meet these criteria from the presidency.

Trump’s amici cite various unpublished state and federal

trial court decisions that were affirmed on other grounds. State

and federal appellate courts have consistently and expressly

declined to indulge any trial court suggestion that the political

question doctrine preempts state authority to adjudicate presidential candidates’ qualifications. See Castro v. Scanlan, 86 F.4th

947, 953 (1st Cir. 2023) (declining to decide political question

issue discussed below); Grinols v. Electoral College, 622 Fed.

Appx. 624, 625 n.1 (9th Cir. 2015) (similar); Kerchner v. Obama,

612 F.3d 204, 209 n.3 (3d Cir. 2010) (similar); Davis v. Wayne

Cnty. Election Comm’n, __ N.W.2d __, 2023 WL 8656163, at *16

n.18 (Mich. Ct. App. Dec. 14, 2023) (similar), leave to appeal

denied sub nom. LaBrant v. Sec’y of State, No. 166470 (Mich. Dec.

27, 2023) (mem.).

Attempts to distinguish “qualifications” from

“disqualifications,” claiming that states may

adjudicate one but not the other, are sophistry.14

Likewise, states’ power to condition appointment of

electors on their voting for eligible candidates cannot

turn on the supposed difficulty of adjudication. None

of Baker’s factors turn on the existence of factual or

legal disputes, and no constitutional principle says

that “harder” cases are nonjusticiable. See Baude &

Paulsen, supra, at 22 (“More difficult it may be, to

interpret and apply the disqualification of Section

Three than the disqualifications of age, citizenship,

and residency. But the fact of difficulty is a non

sequitur. . . . The Constitution says what it says and

we must try to apply it as best we can.”).

If all eligibility questions were textually committed

to Congress, then—contra Lindsay and Hassan—

states could not exclude any candidates as ineligible,

even on undisputed facts. Nothing in the Constitution

supports a concocted division of labor wherein states

can decide “easier” questions, but Congress must

decide “harder” questions. Rather, it assigns states

plenary authority to appoint electors and Congress

authority to count those electors’ votes.

States might assign the burden of proof differently depending on the qualification challenged. Here, Colorado assigned the

challengers the burden to prove Trump’s engagement in insurrection, and they met it.

D. A state legislature may enact a process

for adjudicating the qualifications of

candidates who are “running” for office,

even if the Constitution only bars

insurrectionists from “holding” office.

Trump argues that Section 3 only bars disqualified

individuals from holding office, not from running for

or being elected to that office. But this is also true of

Article II’s age, citizenship, and residency requirements, for which courts have confirmed states’ authority

to exclude ineligible candidates from ballots, including

primary ballots. See Lindsay, 750 F.3d at 1063-64

(upholding exclusion of underage candidate from

presidential primary ballot); Hassan, 495 Fed. Appx.

at 948-49; see also Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 359 (1997) (noting that a political

party is not “absolutely entitled to have its nominee

appear on the ballot as that party's candidate” because

“[a] particular candidate might be ineligible for

office”). The Tenth Circuit rejected this argument in

Hassan. Like Trump, Hassan argued that “[e]ven if

Article II properly holds him ineligible to assume the

office of president,” it was unlawful “for the state to

deny him a place on the ballot.” 495 Fed. Appx. at 948

(emphasis in original). The Tenth Circuit rejected

this distinction, concluding 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 office.” Ibid. (emphasis

added). Likewise, while Section 3 itself only prohibits

disqualified individuals from holding office, states

may limit their appointment of electors—and, hence,

ballots used to select those electors—to candidates

eligible to take office.15

Trump claims that Section 3 differs from Article II’s

requirements because Congress might, in theory,

remove his disqualification. But he has not even asked

Congress to do so. This Court does not decide cases

based on fanciful scenarios that are “conjectural or

hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555,

560 (1992) (cleaned up).

Under Trump’s view, if a disqualified insurrectionist

seeks the presidency, the issue could only be resolved

after the general election—either by Congress at the

counting of electoral votes, on January 6, 2025, or by

persons unknown (the Chief Justice?) at noon on

January 20, 2025. Trump’s contention that election

officials and the courts cannot enforce Section 3 unless

and until a disloyal insurrectionist has successfully

run for an office from which he is currently disqualified,

The fact that this is a presidential primary election is

irrelevant. Primaries using state-prepared ballots and state-run

elections are not strictly internal party processes. When political

parties choose to use the election machinery of the state, they are

subject to constitutional requirements. See Smith v. Allwright,

321 U.S. 649 (1944) (exclusion of African-Americans from party

primary violated Fifteenth Amendment); Nixon v. Condon, 286

U.S. 73 (1932) (state Democratic Party’s action amounted to

delegation of state power and was invalid under Fourteenth

Amendment); Nixon v. Herndon, 273 U.S. 536 (1927) (statute

barring African-Americans from participation in Democratic primary

violated Fourteenth Amendment). Just as the state cannot delegate

to a party or its membership the effective “right” to discriminate

based on race, the state cannot delegate to a party the effective

“right” to list ineligible candidates on the state-printed presidential primary ballot. At minimum, states clearly have the authority to

remove ineligible candidates from presidential primary ballots.

See Lindsay, 750 F.3d at 1065.

then belatedly and unsuccessfully asked Congress to

remove the disability, invites chaos and perhaps another

insurrection. Right now, he is not constitutionally

qualified to hold office; Colorado acted within its

authority to exclude him from the ballot.

E. Banning state adjudication would

render all constitutional qualifications

for president merely advisory and

invite a showdown on January 6.

The position that states cannot protect their ballots

from ineligible candidates renders all presidential

constitutional qualifications merely advisory. Congress is

only called upon to adjudicate a presidential candidate’s

eligibility if the candidate either received a majority of

electoral votes or came sufficiently close that real or

pretended irregularities put the counting of electoral

votes into play. An objection based on the candidate’s

ineligibility would require “separate concurring votes

of each House.” 3 U.S.C. 15(d)(2)(C)(ii). Since one

chamber can defeat an objection, and a presidential

candidate rarely wins without his party also taking

one chamber, all constitutional qualifications for the

presidency would be merely advisory. Under this view,

if a two-term president seeks a third term, no state

can exclude him from its ballot; as long as his party

controls one chamber, neither states nor Congress

nor this Court could enforce the Twenty-Second

Amendment to prevent third or fourth terms.

Further, Trump claims that allowing states to

adjudicate eligibility of presidential candidates would

“unleash chaos and bedlam.” Pet. Br. 2. But Trump’s

view would maximize “chaos and bedlam” by postponing adjudication of a candidate’s eligibility until

either January 6, 2025—the anniversary of the bloody

insurrection that gave rise to this matter—or January

20, 2025 at high noon.16

III. Section 3 was enacted to prevent the

threats that Trump presents to state and

federal courts.

Trump’s ongoing threats against state and federal

courts before and after January 6 highlight the hardlearned lesson that motivated Section 3. As Senator

Grimes explained, “the man who has once violated his

oath will be more liable to violate his fealty to the

Government in the future.” Cong. Globe, 39th Cong.,

1st Sess. 2916 (1866).

Trump illustrates this danger. He abuses court

proceedings to intimidate court officials. In 2020, Trump

and his allies filed over sixty court cases challenging

election results. All courts, including this Court, categorically rejected Trump’s baseless attempts to overturn

Amicus Peter Meijer (Amicus Br. 20-27) presents an “endless”

but irrelevant parade of horribles. On January 6, 2021, a violent,

armed mob acting on Trump’s behalf and at his direction attacked

the U.S. Capitol, defeated law enforcement, conquered the seat of

our national government, nearly assassinated the vice president

and congressional leaders, obstructed Congress, and disrupted

the peaceful transfer of power. See, e.g., Notes on Resentencing

at 5, United States v. Little, No. 21-CR-315 (D.D.C. Jan. 25, 2024),

ECF No. 73 (noting that the mob “interfered with a necessary

step in the constitutional process, disrupted the lawful transfer

of power, and thus jeopardized the American constitutional order,”

and that they “achieved this result through force”). Nothing in

our history compares; not even the Confederacy reached the

Capitol or disrupted the transfer of power. Courts can consider

other challenges on their own merits when raised. Colorado

correctly applied Section 3 on these facts; hypothetical (and

frivolous) challenges about unrelated facts do not change that.

the election. See Case Tracker, Ohio State Univ.,

https://bit.ly/2020Cases (last visited Jan. 26, 2024).

But instead of accepting his losses, Trump exploited

them to foment violence against courts and stoke the

unrest that culminated in the insurrection. This includes

Trump’s inflammatory rhetoric in support of the “Million

MAGA Marches” on November 14 and December 12,

2020, which focused on this Court, and Trump’s public

justification of his supporters’ violence there as selfdefense against “ANTIFA SCUM.” Pet. App. 93a, 218a.

As the 2024 election approaches, Trump continues to

exhort followers to target specific judges, prosecutors,

court employees, and potential witnesses in his criminal

and civil cases. In a decision partially upholding an

order restraining Trump’s speech about his federal

criminal case for conspiring to overturn the 2020

presidential election through unlawful means, the D.C.

Circuit described some of Trump’s public attacks:

The day after his initial court appearance, Mr.

Trump posted on his social media account: “IF

YOU GO AFTER ME, I’M COMING AFTER

YOU!” He then shared with his over six

million social media followers on Truth Social

his view that the district court judge is a

‘fraud dressed up as a judge[,]’ ‘a radical

Obama hack[,] and a ‘biased, Trumphating

[sic] judge[.] He labeled the prosecutors in the

case ‘[d]eranged[,]’ ‘[t]hugs[,]’ and ‘[l]unatics[.]

United States v. Trump, 88 F. 4th 990, 998 (D.C. Cir.

2023). His supporters swiftly responded with violent

threats against the district court judge and other

participants in the case. Ibid.

That case followed a dangerous pattern: Trump

singles out judges, prosecutors, and court officials on

social media. They are immediately threatened. Id. at

1011. He has repeatedly and baselessly claimed that

prosecutors, judges, and court officials are politically

biased, maintaining a narrative of aggrievement that

leads his supporters to threaten violence if he loses the

election. See Op. & Order at 2, United States v. Trump,

No. 23-CR-257 (D.D.C. Oct. 17, 2023), ECF No. 105

(“[W]hen [Trump] has publicly attacked individuals,

including on matters related to this case, those individuals are consequently threatened and harassed. . . .

[Trump] has continued to make similar statements

attacking individuals involved in the judicial process,

including potential witnesses, prosecutors, and court

staff. . . [including] that particular individuals involved

. . . deserve death.”).17 Unrepentant, Trump boasts

that his followers “listen to [him] like no one else.”

Trump, 88 F.4th at 1018 (quoting Trump).

Trump’s attacks on judges and court employees demonstrate his ongoing willingness to threaten, intimidate,

and exhort his supporters to attack the court system

with the same tactics and rhetoric that fueled the

insurrection. While he remains on the ballot, he will

continue to threaten court personnel and use court

proceedings to inflame his supporters into violence.

This Court must not be swayed by fear of mob

violence that Trump may incite upon its affirming

Colorado’s decision.18 The Constitution and the rule of

law demand enforcing Section 3. The arguments for

See Kierra Frazier, The Violent Political Threats Public

Officials Are Facing Amid Trump’s Legal Woes, Politico (Jan. 12,

2024), https://politi.co/3w2SUDq.

Trump’s own brief to this Court threatens “chaos and

bedlam” unless this Court reverses the Colorado Supreme Court’s

judgment. Pet. Br. 2.

reversal are political arguments, not based on law but

rather on threats and fears of supposedly adverse

consequences. But those political arguments are for

Congress, which can, by two-thirds bicameral vote,

grant Trump amnesty. Until it does, he remains

disqualified, and this Court—bound by the Constitution’s

plain text and original public meaning—cannot indulge

such politics. Failing to enforce Section 3 out of fear

Trump and his supporters’ reactions would prostrate

the Constitution before a mob.

Conversely, allowing Trump to appear on ballots

despite his disqualification would avoid neither violence

nor further insurrection. It would convey that our

Constitution does not apply to individuals who threaten

it, precisely because they threaten it. And because the

2024 election will likely involve dozens of contested

court cases before and after Election Day, Trump’s

propensity to threaten and incite violence against

court personnel means that allowing him onto ballots

would endanger thousands of justices, judges, and

court employees—and election workers and voters—

nationwide.

CONCLUSION

The judgment of the Colorado Supreme Court

should be affirmed.

Respectfully submitted,

CHARLES N. NAUEN

RONALD A. FEIN

LOCKRIDGE GRINDAL

Counsel of Record

NAUEN PLLP

JOHN C. BONIFAZ

100 Washington Avenue South BEN T. CLEMENTS

COURTNEY HOSTETLER

Suite 2200

FREE SPEECH FOR PEOPLE

Minneapolis, MN 55401

1320 Centre St. #405

(612) 339-6900

Newton, MA 02459

cnnauen@locklaw.com

(617) 244-0234

rfein@freespeechforpeople.org

Counsel for Amici Curiae

January 31, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.