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

NO. 23-719

In the

Supreme Court of the United States

DONALD J. TRUMP,

Petitioner,

v.

NORMA ANDERSON, ET AL.,

Respondents.

__________________________

On Writ of Certiorari to the Supreme Court of Colorado

BRIEF OF AMICUS CURIAE

JORDAN L. MICHELSON

IN SUPPORT OF RESPONDENTS

Anthony Robert Zelle

Counsel of Record

380 Dedham St.

Newton, MA 02459

(617) 388-4782

tzelle@earthlaw.org

January 31, 2024

SUPREME COURT PRESS

Counsel for Amicus Curiae

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

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

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

INTRODUCTION ....................................................... 2

ARGUMENT ............................................................... 9

I.

Respondents Lack Article III Standing ............ 9

A. It Was Decided Below that the Six

Colorado Voters, Anderson, et al., Did

Not Have Article III Standing .................. 11

B. As a Matter of Law, Anderson, et al.,

Lack Article III Standing ......................... 13

C. Standing as Antidote to “Lawfare” .......... 14

II. To Answer the Certified Question on the

Merits, the Court Would Have to Adjudicate

Matters of Fact that Have Not Been

Litigated “At Law” ......................................... 18

III. The Matter Before the Court Is an Academic

Question Cloaked in Juridical Trappings ..... 21

A. Baude v. Blackman: the Rarified Debate

to Which the Court Has Been Invited...... 22

B. It is an Invitation the Court Must

Decline .....................................................25

CONCLUSION.......................................................... 25

ii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Aetna Life Ins. v. Haworth,

300 U.S. 227 (1937) ....................................... 8, 25

Anderson v. Griswold,

2023 CO 63 (Colo., 2023) ....... 4, 11, 12, 19, 22, 23

Anderson v. Griswold,

2023 WL 7017745

(Colo.Dist.Ct. Oct. 25, 2023) ............................. 17

Anderson v. Griswold,

2023 WL 8006216

(Colo.Dist.Ct. Nov. 17, 2023) ................. 11, 12, 23

Berg v. Obama,

586 F.3d 234 (3d Cir. 2009) ......................... 13, 16

California v. Texas,

141 S.Ct. 2104 (2021) .................................... 8, 25

Carney v. Adams,

592 U.S. 53 (2020) ......................................... 8, 21

Craig v. Masterpiece Cakeshop,

2015 COA 115 (2015) .......................................... 7

Elliott v. Cruz,

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

635 Pa. 212 (2016) ............................................. 17

Ex parte Caesar Griffin,

8 Am. Law Reg. (N.S.) 358 (1869) ....................... 4

Ex parte Levitt,

302 U.S. 633 (1937) ....................... 8, 13, 14, 21, 22

Frank v. Gaos,

139 S. Ct. 1041 (2019) ....................................... 10

iii

TABLE OF AUTHORITIES – Continued

Page

FW/PBS v. City of Dallas,

493 U.S. 215 (1990) ........................................... 10

Griffin’s Case,

11 F. Cas. 7 (C.C.D. Va. 1869) .................. 1, 5, 23

Griffin’s Ex’r v. Cunningham,

61 Va. 31 (Va. 1870) ............................................ 4

Grinols v. Electoral Coll.,

2013 WL 2294885 (E.D.Cal. 2013), aff’d,

622 F.App’x 624 (9th Cir. 2015) ........................ 16

Hassan v. Colorado,

870 F. Supp. 2d 1192 (D. Colo.), aff’d, 495

F. App’x 947 (10th Cir. 2012) .............................. 7

In re Caesar Griffin,

25 Tex. Supp. 623 (1869) ..................................... 4

Kerchner v. Obama,

669 F.Supp.2d 477 (D. N.J. 2009) ..................... 16

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ........................................... 13

Marbury v. Madison,

5 U.S. 137 (1803) ................................ 8, 21, 22, 26

Masterpiece Cakeshop v. Colorado Civil Rights

Commission, 138 S.Ct. 1719 (2018) .................... 7

North Carolina v. Rice,

404 U.S. 244 (1971) ................................. 8, 21, 26

Old Wayne Mut. Life Ass’n v. McDonough,

204 U.S. 8 (1907) ......................................... 19, 20

Renee v. Duncan,

686 F.3d 1002 (9th Cir. 2012) ........................... 10

iv

TABLE OF AUTHORITIES – Continued

Page

Robinson v. Bowen,

567 F. Supp. 2d 1144 (N.D. Cal. 2008) ....... 13, 16

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ......................................... 8

Scott v. McNeal,

154 U. S. 34 (1894) ................................ 18, 19, 20

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ........................................... 10

State ex rel. White v. Griffin,

No. D-101-CV-2022-00473, 2022 WL

4295619 (N.M.Dist.Ct. Sept. 6, 2022) ............... 17

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ............................................. 20

Strunk v. NY State Bd. of Elections,

2012 WL 1205117 (N.Y.Sup.Ct. 2012), aff’d,

5 N.Y.S.3d 483 (N.Y. App. Div. 2015) ............... 16

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ........................................... 10

Taitz v. Democrat Party of Mississippi,

2015 WL 11017373 (S.D. Miss. 2015) ............... 17

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) ..................................... 21, 25

United States v. Ferreira,

13 How. 40 (1852) ......................................... 9, 10

Valley Forge Christian Coll. v. Americans

United for Separation of Church & State,

454 U.S. 464 (1982) ................................. 9, 22, 24

v

TABLE OF AUTHORITIES – Continued

Page

Warth v. Seldin,

422 U.S. 490 (1975) ........................................... 10

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, § 3 ................. 3, 6, 15, 19, 22

U.S. Const. Art. I, § 6 .................................................. 8

U.S. Const. Art. III, § 2 ............................. 2, 4, 5, 7-10,

................................................... 12, 13, 18, 20, 25

U.S. Const. Art. IV, § 1 ............................................. 18

STATUTES

26 U.S.C. § 501(c)(3) ............................................. 5, 17

28 U.S.C. § 1257 .................................................... 5, 20

C.R.S. § 1-1-104(12) .................................................. 11

C.R.S. § 1-1-113 ................................................... 12, 20

C.R.S. § 1-1-113(1) .................................... 6, 12, 19, 20

C.R.S. § 1-1-113(3) ............................................ 6, 7, 19

C.R.S. § 1-4-1204(4) .............................................. 4, 12

JUDICIAL RULES

Sup. Ct. R. 37.6 ........................................................... 1

vi

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Bill Allison,

CREW’s Watchdog Status Fades After

Arrival of Democrat David Brock

(Bloomberg, April 11, 2016)

https://www.bloomberg.com/politics/article

s/2016-04-11/washington-watchdogadjusts-to-life-with-partisan-roommates.......... 15

Citizens for Responsibility and Ethics in

Washington,

Colorado lawsuit enforcing Donald

Trump’s constitutional disqualification

(viewed Jan. 29, 2024) https://www.

citizensforethics.org/legal-action/lawsuits/

colorado-lawsuit-enforcing-donald-trumpsconstitutional-disqualification/ ......................... 15

Citizens for Responsibility and Ethics in

Washington,

Lawsuit Filed to Remove Trump from

Ballot in CO Under 14th Amendment

(Sept. 6, 2023) https://www.citizens

forethics.org/news/press-releases/lawsuitfiled-to-remove-trump-from-ballot-in-counder-14th-amendment/ ................................... 15

Gabriel Debenedetti,

Brock Groups Set $40 Million Budget to

Fight Trump (Politico, Jan. 21, 2017)

https://www.politico.com/story/2017/01/da

vid-brock-fundraising-trump-233974. .............. 15

vii

TABLE OF AUTHORITIES – Continued

Page

InfluenceWatch,

Citizens for Responsibility and Ethics in

Washington (CREW)

https://www.influencewatch.org/nonprofit/citizens-for-responsibility-andethics-in-washington/......................................... 15

John Jay, et al.,

Letter to George Washington from

Supreme Court Justices, 8 August 1793

(1793), https://founders.archives.gov/

documents/Washington/05-13-02-0263 ........... 21

Jordan L. Michelson,

Jordan Michelson’s Section Three

Companion (2024)

https://jordanmichelson.substack.com/............. 24

Josh Blackman & Seth Barrett Tillman,

Is the President an “Officer of the United

States” for Purposes of Section 3 of the

Fourteenth Amendment?, 15 NYU J. L. &

Liberty 1 (2021) ................................................. 23

Josh Blackman & Seth Barrett Tillman,

Sweeping and Forcing the President into

Section 3, 28 Tex. Rev. L. & Pol. 350

(forthcoming 2024) ............................................ 23

Kurt Lash,

The Meaning and Ambiguity of Section

Three of the Fourteenth Amendment, at 10

(Oct. 28, 2023).................................................... 23

viii

TABLE OF AUTHORITIES – Continued

Page

Lawfare,

CAMBRIDGE DICTIONARY, https://

dictionary.cambridge.org/us/dictionary/

english/lawfare .................................................. 14

Lawfare,

COLLINS DICTIONARY, https://www.

collinsdictionary.com/us/dictionary/english/

lawfare ............................................................... 14

Litigated,

OXFORD ENGLISH DICTIONARY (July 2023),

https://doi.org/10.1093/OED/7863758212 ......... 18

Rozina Sabur,

Inside the Left-Wing Pressure Group That

Has Vowed To Take Down Trump

(Telegraph, Dec. 20, 2023)

https://www.telegraph.co.uk/us/politics/20

23/12/20/left-wing-pressure-group-crewtaking-on-donald-trump/. .................................. 15

William Baude & Michael Stokes Paulsen,

The Sweep and Force of Section Three,

172 U. PA. L. Rev. 1 (forthcoming 2024) .... 22, 24

William Baude,

The Unconstitutionality of Justice Black,

98 Tex. L. Rev. 327 (2019) ................................. 14

1

INTEREST OF THE AMICUS CURIAE1

Jordan L. Michelson holds a J.D. from Boston

College and is pursuing graduate studies in Philosophy

at the same. His academic purviews include Philosophy

of Law, Legal Logic, and Judicial Epistemology. Amicus

is author of a forthcoming companion guide to the

academic debate surrounding Section Three and frequently publishes articles on the topic. He consults on

brief writing and legal research in civil rights cases

and will be admitted to the New York bar in February

2024.

While Amicus has no concrete interest in who

prevails in the Colorado Republican primary election

and no particularized stake in who serves as the

President of the United States during the 2025-2029

term, he has a profound interest in the Court’s proper

adjudication of this matter because he expects to

practice constitutional law for decades to come. He

therefore brings a long-term perspective on this issue

that the more seasoned advocates and amici cannot.

This is significant because, just as the modern Section

Three disqualification challenge was made possible by

Chief Justice Chase’s de facto advisory opinion in

Griffin’s Case 150 years ago, an advisory opinion in

the present day will not decisively settle the core legal

issues.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for a party authored this brief in whole or in part;

and that no person or entity, other than amicus and his counsel,

made a monetary contribution intended to fund the preparation

and submission of this brief.

2

INTRODUCTION

The Supreme Court of Colorado held that President

Donald J. Trump is disqualified from holding the office

of President because he “engaged in insurrection”

against the Constitution of the United States—and

that he did so after taking an oath “as an officer of the

United States” to “support” the Constitution. The state

supreme court ruled that the Colorado Secretary of

State should not list President Trump’s name on the

2024 presidential primary ballot or count any write-in

votes cast for him. The state supreme court stayed its

decision pending United States Supreme Court review.

The Court granted certiorari on the following question:

Did the Colorado Supreme Court err in

ordering President Trump excluded from the

2024 presidential primary ballot?

The threshold question this Court must ask is:

Does Article III of the United States Constitution authorize the U.S. Supreme Court to

determine whether the Colorado Supreme

Court erred?

3

SUMMARY OF ARGUMENT

Does Section Three of the Fourteenth Amendment

bar Donald J. Trump from holding office? The question

has been litigated in the national media, in the court

of public opinion, in academic journals, and in the

political arena. It has been litigated via podcasts, law

blogs, message boards, comment sections, and social

media platforms. It has been litigated at kitchen

tables, family gatherings, backyard barbecues, and

water coolers nationwide. But it has not been litigated

in the one place it should have been litigated: in a

proper adversary proceeding between proper parties

in a court of law with competent jurisdiction to grant

the relief that would finally settle this dispute.

Here, final relief entails either a nationwide injunction against the Trump campaign or an authoritative

declaratory judgment affirming (or disaffirming)

Respondents’ theory that Mr. Trump is, in the absence

of Congressional amnesty, disqualified from holding

public office by virtue of Section Three. Such relief

was not available below and cannot become available

for the first time on Supreme Court review.

4

Trump v. Anderson is not an Article III

controversy. The court of first instance, the District

Court of Denver, had no authority to issue a

nationwide injunction. Nor could it have issued a

declaratory judgment with coast-to-coast effect. Nor

could it prevent Donald Trump from being sworn in as

President of the United States on January 20, 2025, a

conclusion that even the stingiest application of

federalism demands. In short: the court of first instance

lacked the authority to actually “disqualify” Donald

Trump in any meaningful sense. Moreover, even if it

did have that authority, the taxpayer-plaintiffs did

not have Article III standing to ask for that relief. See

Anderson v. Griswold, 2023 CO 63 ¶ 15 (Colo., 2023)

(noting that “the federal district court remanded the

case back to state court, concluding that it lacked

jurisdiction because the Electors had no Article III

standing”).

Respondents’ C.R.S. § 1-4-1204(4) “challenge to

the listing of [a] candidate” was in fact a collateral

attack on Donald Trump’s eligibility. This collateral

attack was carefully designed to end-run the standing

requirement, the case-and-controversy requirement,

due process of law, and foundational principles of federalism; the primary goal, it seems, was not to obtain an

order disqualifying Mr. Trump from office per se but

rather to bring public attention to his alleged disqualification. Cf. Griffin’s Case,2 11 F.Cas. 7, 14-15 (C.C.Va.

2 Cited as “Griffin’s Case” as per the Federal Reporter. It appears

as In re Griffin or Ex parte Griffin elsewhere in the historical

record. Compare Ex parte Caesar Griffin, 8 Am. Law Reg. (N.S.)

358 (1869), with In re Caesar Griffin, 25 Tex. Supp. 623 (1869);

see also Griffin’s Ex’r v. Cunningham, 61 Va. 31 (Va. 1870)

(referring to “In re Griffin”).

5

1869) (using collateral attack on conviction to cast

aspersions on insurrectionist judge’s qualifications).

Nor does it matter that the 501(c)(3) nonprofit behind

this “challenge” has very close ties to an organization

that probably does have standing: the Democratic

Party.3 If the Democratic Party, Joe Biden, Nikki Haley,

Robert F. Kennedy, Jr., or any other bona fide

electoral adversaries of Donald Trump want to have

Mr. Trump removed from the ballot, they know where

the courthouse is.

Nevertheless, this Court should reject the Petitioner’s appeal because the Court may not, as a fundamental

matter of constitutional law,4 reach the merits. What

Donald Trump and Anderson, et al., are jointly5

asking for is a textbook “advisory opinion” from the

Supreme Court.6 To even reach the certified question

(“Did the Colorado Supreme Court err in ordering

President Trump excluded from the 2024 presidential

primary ballot?”), the Court would first be “forced” to

adjudicate a raft of substantive questions of law and

3 See Part I(C), infra.

4 This amicus brief addresses the constitutional prohibition on

advisory opinions. It therefore assumes arguendo that 28 U.S.C.

§ 1257 provides the Supreme Court with the most expansive

appellate jurisdiction allowable under Article III.

5 The fact that both parties were in favor of certiorari should

have been a red flag. See Anderson Respondents’ Brief in Response

to Petitioner Donald J. Trump’s Petition, p.31 (“The Petition for

Writ of Certiorari should be granted.”)

6 Indeed, a more accurate caption to this case would be Baude,

et al., v. Blackman, et al. See Part III, infra.

6

fact.7 These substantive questions – tempting as it may

be for this Court to decide them – have not been properly

litigated “at law”. They have only been litigated via an

expedited C.R.S. § 1-1-113(1) “hearing” and an expedited

C.R.S. § 1-1-113(3) “appeal” that would not be entitled

to “full faith and credit” as a final judicial determination.8

7 To borrow some examples:

1.

Whether a challenge to the constitutional qualifications

of a candidate for President presents a non-justiciable

political question?

2.

Whether the Presidency and the President fall within

the list of offices and officers to which Section 3 of the

Fourteenth Amendment applies?

3.

Whether states may exclude from the ballot candidates

who are ineligible to hold office under Section 3?

4.

Whether Congress must first pass legislation under

Section 5 of the Fourteenth Amendment before a state

can enforce Section 3 of the Fourteenth Amendment,

even if state law provides a cause of action to enforce

it?

5.

Whether . . . Trump “engaged in insurrection” against

the Constitution for purposes of Section 3?

6.

Whether the state trial court’s factual finding that

Trump intentionally incited a violent insurrection on

January 6, 2021, was clearly erroneous?

7.

Whether the Electors Clause requires this Court to

override the Colorado Supreme Court’s interpretation

of the Colorado Election Code?

Anderson Respondents’ Brief in Response to Petitioner Donald J.

Trump’s Petition at i-ii.

8 See Part II, infra. The end product of the C.R.S. § 1-1-113(1)

“hearing” before the District Court of Denver was, in essence, a

preliminary prediction as to whether a court of competent

7

Moreover, the proper parties are not before the

Court.9 It may be that Donald Trump is aggrieved by

his removal from the Republican primary ballot; but

his gripe is not really with the six Colorado voters. It

is with the State of Colorado and its statutory

framework, which (according to the Colorado Supreme

Court) imbues the state judiciary with plenary power

to deny ballot access to a candidate it deems unqualified

after an attenuated hearing on the merits. To the

extent that this framework violates the Constitution

or trammels Mr. Trump’s fundamental rights, redress

must be sought against the state actor. See, e.g.,

Hassan v. Colorado, 870 F. Supp. 2d 1192, 1197-98 (D.

Colo.), aff’d, 495 F. App’x 947 (10th Cir. 2012) (wouldbe candidate, a naturalized citizen, had standing to sue

the State of Colorado on constitutional grounds for

refusing to list him on the ballot); compare Craig v.

Masterpiece Cakeshop, 2015 COA 115 (2015) (challenging administrative determination) with Masterpiece Cakeshop v. Colorado Civil Rights Commission,

138 S.Ct. 1719 (2018) (challenging statutory scheme).

Accordingly, the question certified by the Court is

not attached to a bona fide Article III “case or controversy.” See U.S. Const. Art. III, § 2, cl. 1 (the judicial

power extends only to certain types of “cases” and

“controversies”). Answering that certified question,

jurisdiction over the question would, upon a full adversarial

disposition with proper adversaries, conclude that Donald

Trump had “engaged in insurrection” and that Section Three

thereby prevented him from assuming office. The C.R.S. § 1-1113(3) “appeal” sought a de facto “advisory opinion” from the

Colorado Supreme Court; simply put, there was no bona fide

Article III “case or controversy” for that court to adjudicate.

9 See Part I, infra.

8

especially as it is currently framed, would thus require

the Supreme Court to issue an “advisory opinion” – a

solemn and categorical taboo. See Carney v. Adams,

592 U.S. 53, 58 (2020) (“We have long understood [Art.

III] to require that a case embody a genuine, live

dispute between adverse parties, thereby preventing

the federal courts from issuing advisory opinions”);

California v. Texas, 141 S.Ct. 2104, 2116 (2021) (Advisory opinions “would threaten to grant unelected judges

a general authority to conduct oversight of decisions

of the elected branches of Government”); North Carolina

v. Rice, 404 U.S. 244, 246 (1971) (“To be cognizable in

a federal court, a suit ‘must be definite and concrete,

touching the legal relations of parties having adverse

legal interests’”) (quoting Aetna Life Ins. v. Haworth,

300 U.S. 227, 240-41 (1937)).

The Supreme Court has a preeminent obligation

to the United States Constitution. Often, that obligation

requires the Court “to say what the law is.” Marbury

v. Madison, 5 U.S. 137, 177 (1803). Sometimes, however,

that obligation commands the Supreme Court to keep

mum. E.g., Ex parte Levitt, 302 U.S. 633 (1937) (refusing

to pass on whether Justice Hugo Black was constitutionally disqualified from the Supreme Court by Article I,

§ 6, cl. 2).10 The matter before the Court (1) involves

a party, Anderson, et al., that does not have Article III

standing and never did, (2) would require the Court

10 This is true even where the Court is presented with “a

question deeply interesting to the United States,” Marbury, 5

U.S. at 176 (refusing to decide “whether an act, repugnant to the

constitution, can become the law of the land”) or when judicial

inaction allows egregious unfairness or morally outrageous

conduct to continue. E.g., Rucho v. Common Cause, 139 S. Ct.

2484 (2019).

9

to stipulate contested matters of fact that have not

been conclusively litigated at law, and (3) is clearly an

academic question cloaked in juridical trappings. Consequently, an opinion on the merits would constitute a

prohibited advisory opinion and a flagrant arrogation

of constitutional authority, in direct violation of the

Constitution and the separation of powers.

Therefore, the relief requested by the Petitioner

(that “[t]he judgment of the Colorado Supreme Court

should be reversed,” Brief for the Petitioner p.50) must

not be granted because the Court is constitutionally

forbidden from reaching the merits of this dispute.

There is no Article III “judgment” to reverse, much

less a “final” judgment at law; and even if there were,

the proper parties are not before the Court. Simply

put, the Supreme Court does not have jurisdiction.

ARGUMENT

I.

Respondents Lack Article III Standing

“Article III of the Constitution limits the ‘judicial

power’ of the United States to the resolution of ‘cases’

and ‘controversies.’” Valley Forge Christian Coll. v.

Americans United for Separation of Church & State,

454 U.S. 464, 471 (1982) (quoting U.S. Const. Art. III,

§ 2, cl. 1). Thus, in the absence of an “actual” conflict

between legitimate parties, “[t]he power to declare the

rights of individuals and to measure the authority of

governments . . . ‘is not judicial . . . in the sense in which

judicial power is granted by the Constitution to the

courts of the United States.’” Id. (quoting U.S. v.

Ferreira, 13 How. 40, 48 (1852)). “As an incident to

10

the elaboration of this bedrock [case or controversy]

requirement, th[e Supreme] Court has always required

that a litigant have ‘standing’ to challenge the action

sought to be adjudicated in the lawsuit.” Id.

Standing “limits the category of litigants empowered to maintain a lawsuit in federal court.” Spokeo,

Inc. v. Robins, 578 U.S. 330, 338 (2016), as revised

(May 24, 2016). It can be established only where,

among other things, “the plaintiff has ‘alleged such a

personal stake in the outcome of the controversy’ as to

warrant his invocation of federal-court jurisdiction.”

Warth v. Seldin, 422 U.S. 490, 498–99 (1975). Because

“Article III standing . . . serves to prevent the judicial

process from being used to usurp the powers of the

political branches, and confines the federal courts to a

properly judicial role,” Spokeo, 578 U.S. at 338 (cleaned

up), it is a “threshold question in every federal case,

determining the power of the court to entertain the

suit.” Warth, 422 U.S. at 518-19.11 In other words, it

is a constitutional requirement of profound importance

in every case. Where, as here, a necessary party lacks

Article III standing, the Supreme Court lacks jurisdiction.

11 Standing “cannot be ‘inferred argumentatively from averments

in the pleadings,’ but rather ‘must affirmatively appear in the

record.’” FW/PBS v. City of Dallas, 493 U.S. 215, 231 (1990)

(citations omitted). A statutory or procedural right of action does

not, alone, establish standing. See Summers v. Earth Island

Inst., 555 U.S. 488, 496 (2009) (procedural right); Spokeo, 578

U.S. at 331 (statutory violation). And standing cannot be waived.

Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019); see Renee v. Duncan,

686 F.3d 1002, 1012 (9th Cir. 2012) (“Lack of Article III standing

is a non-waivable jurisdictional defect”).

11

A. It Was Decided Below that the Six

Colorado Voters, Anderson, et al., Did

Not Have Article III Standing

In the first and second instances, the matter now

before the court involved “a group of Colorado electors

eligible to vote in the Republican presidential primary”12 (Anderson, et al.) on one side of the “v.” and a

respondent (Jenna Griswold, as Colorado Secretary of

State) and two intervenors (the Colorado Republican

State Central Committee and Donald J. Trump) on

the other. Anderson v. Griswold, 2023 CO 63, ¶ 1.

(Dec. 19, 2023); see also Anderson v. Griswold, 2023

WL 8006216 (Colo.Dist.Ct. Nov. 17, 2023). The Coloradoans, through a petition procedure under the Colorado

Election Code, “requested that the district court

prohibit Jena Griswold, in her official capacity as

Colorado’s Secretary of State . . . from placing President

Trump’s name on the presidential primary ballot.” Id.

¶ 2; see Secretary of State Jena Griswold’s Application

for Enlargement and Division of Time for Oral Argument

p.4 (“The Respondent Electors . . . filed this case as

petitioners against the Secretary.”)

The Colorado voters also “requested declaratory

relief against both the Secretary and Trump.” 2023

WL 8006216, at *2. “The declaratory relief requested

included a declaration that Trump was not constitutionally eligible for the office of the presidency.” Id.

Mr. Trump then intervened and attempted to remove

the case to federal court; but “the federal district court

remanded the case back to state court, concluding that

it lacked jurisdiction because the Electors had no

12 “‘Elector’ means a person who is legally qualified to vote in

this state.” C.R.S. § 1-1-104(12).

12

Article III standing and the Secretary had neither

joined nor consented to the removal.”13 2023 CO 63, ¶

15. When Mr. Trump moved to dismiss the claim for

declaratory relief on the grounds that “there [wa]s no

standing on the declaratory judgment claim because

there is no particularized or concrete injury . . . the

Petitioners agreed to dismiss their declaratory judgment

claim.” 2023 WL 8006216, at *3.

Thus, it was mutually understood from early on

in litigation that Anderson, et al., had no Article III

standing. In fact, the voters strategically benefitted

from this lack of standing, insofar as Mr. Trump was

not able to remove to federal court. The matter was

able to proceed solely because of C.R.S. § 1-1-113,

which outlines Colorado’s atypical “expedited statutory

procedure for litigating election disputes.” 2023 CO

63, ¶ 46. That statutory procedure, as interpreted by

Colorado courts, permits “[c]andidates, or other

electors, who disagree with the Secretary of State’s

decision regarding whether to certify a candidate to the

ballot can challenge the Secretary’s decision in court.”

2023 WL 8006216, at *58. To issue such a challenge,

“any eligible elector” can file a “verified petition in a

district court of competent jurisdiction.” C.R.S. § 1-1113(1); see also C.R.S. § 1-4-1204(4) (permitting a

“challenge to the listing of any candidate on the

presidential primary election ballot . . . in accordance

with section 1-1-113(1).”) Since the Election Code

contemplates a proceeding pursuant to state law, the

petitioners do not need Article III standing.

13 i.e., because Secretary Griswold was on Mr. Trump’s side of

the “v.”, the matter could not be removed to federal court.

13

B. As a Matter of Law, Anderson, et al.,

Lack Article III Standing

One well-established principle in the doctrine of

standing is that “a plaintiff raising only a generally

available grievance about government—claiming only

harm to his and every citizen’s interest in proper

application of the Constitution and laws, and seeking

relief that no more directly and tangibly benefits him

than it does the public at large—does not state an

Article III case or controversy.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 573–74 (1992). Courts have

consistently applied this principle to reject voter standing. See, e.g., Robinson v. Bowen, 567 F. Supp. 2d

1144, 1146 (N.D. Cal. 2008) (no standing to challenge

candidate John McCain’s qualifications where “plaintiff

himself is not a candidate in competition with John

McCain”); Berg v. Obama, 586 F.3d 234, 240 (3d Cir.

2009) (plaintiff’s “angst that the presence on the ballot

of an ineligible candidate might lessen the chances

that an eligible candidate might win was a noncognizable derivative harm.”)

The Supreme Court specifically affirmed this

principle with respect to constitutional qualifications

for public office in Ex parte Levitt, 302 U.S. 633 (1937).

There, two members of the Supreme Court bar

challenged the eligibility of former Alabama Senator

Hugo Black to serve as a Justice of the Supreme

Court. On paper, they were probably right.14 But the

14 Article I, § 6, cl. 2 states that “No Senator or Representative

shall, during the Time for which he was elected, be appointed to

any civil Office under the Authority of the United States, which

shall have been created, or the Emoluments whereof shall have

been encreased during such time.” Black had been a senator

when Congress “encreased” Supreme Court salaries. See, generally,

14

Court rejected this challenge without even

considering its merits. Id. at 636 (“It is an established

principle that to entitle a private individual to invoke

the judicial power to determine the validity of

executive or legislative action . . . it is not sufficient

that he has merely a general interest common to all

members of the public.”) If members of the Supreme

Court bar lacked standing to challenge the plausibly

unconstitutional appointment of a Justice to the

Supreme Court, the six everyday Colorado voters can

scarcely expect a different result.

C. Standing as Antidote to “Lawfare”

The issue before the Court has significant

political implications. While that alone is not a reason

to find that the matter is not justiciable, it gives rise

to legitimate concerns about the potential for partisan

abuses of the judiciary – i.e., “lawfare.”15 Of

significance here is the fact that Anderson, et al., are

not an organic group of litigants who sought out legal

representation after suffering personal harm. They

are so-called “proxy plaintiffs” for a partisan advocacy

William Baude, The Unconstitutionality of Justice Black, 98 Tex.

L. Rev. 327 (2019) (arguing that Hugo Black should have been

automatically constitutionally precluded from serving on the

Supreme Court).

15 See Lawfare, Cambridge Dictionary, [https://dictionary.

cambridge.org/us/dictionary/english/lawfare] (“the use of legal

action to cause problems for an opponent”); Lawfare, Collins

Dictionary [https://www.collinsdictionary.com/us/dictionary/english/

lawfare]; (“the strategic use of legal proceedings to intimidate or

hinder an opponent”).

15

group, Citizens for Responsibility & Ethics in Washington (“CREW”),16 which has close ties to the

Democratic Party.17 When it comes to Donald Trump,

CREW’s partisan bias is particularly pronounced: it has

been openly committed to hamstringing Mr. Trump’s

political ambitions since the former president first

took office in 2017.18 While CREW’s partisan disposition

does not affect the merits of this litigation whatsoever,

the fact remains that this matter has been brought

before the Supreme Court by a third-party organization

that raised money from Democratic Party megadonors

on the promise to “kick Donald Trump’s ass.”19

16 CREW, Lawsuit Filed to Remove Trump from Ballot in CO

Under 14th Amendment (Sept. 6, 2023) https://www.citizens

forethics.org/news/press-releases/lawsuit-filed-to-remove-trumpfrom-ballot-in-co-under-14th-amendment/ (announcing legal

challenge); CREW, Colorado lawsuit enforcing Donald Trump’s

constitutional disqualification (viewed Jan. 29, 2024) https://

www.citizensforethics.org/legal-action/lawsuits/colorado-lawsuitenforcing-donald-trumps-constitutional-disqualification/.

17 See InfluenceWatch, Citizens for Responsibility and Ethics in

Washington (CREW) https://www.influencewatch.org/non-profit/

citizens-for-responsibility-and-ethics-in-washington/; Bill Allison,

CREW’s Watchdog Status Fades After Arrival of Democrat David

Brock (Bloomberg, April 11, 2016) https://www.bloomberg.com/

politics/articles/2016-04-11/washington-watchdog-adjusts-to-lifewith-partisan-roommates.

18 Gabriel Debenedetti, Brock Groups Set $40 Million Budget to

Fight Trump (Politico, Jan. 21, 2017) https://www.politico.com/

story/2017/01/david-brock-fundraising-trump-233974.

19 Rozina Sabur, Inside the Left-Wing Pressure Group That Has

Vowed To Take Down Trump (Telegraph, Dec. 20, 2023)

https://www.telegraph.co.uk/us/politics/2023/12/20/left-wingpressure-group-crew-taking-on-donald-trump/.

16

The specter of “lawfare” litigation presents serious

practical and ethical problems that make Trump v.

Anderson a particularly inapt vehicle for a legal issue

of this magnitude. For one thing, it detracts from the

legitimacy of the judiciary and the franchise. What

message does it send to Donald Trump’s supporters if

a project funded by political megadonors obtains a

judicial veto of their first (and in many cases only)

choice for president? Not a good one.

Moreover, there is a real worry that CREW’s

campaign to disqualify Trump, if successful, will

(further) open the proverbial floodgates to partisan

exploitation of election law to cripple political

campaigns. Under this paradigm, we are warned, a

flurry of politically motivated and carefully timed

lawsuits will emerge on the eve of every major election,

forcing candidates to spend valuable time and resources

in the courthouse rather than the campaign trail. See,

generally, Brief of Former Attorneys General Edwin

Meese III, Michael B. Mukasey, and William P. Barr;

Law Professors Steven Calabresi and Gary Lawson;

and Citizens United as Amici Curiae at 27-30.

If standing to challenge electoral qualifications

were to only attach to those with a particularized

stake in the outcome, (e.g., bona fide candidates, political

parties, or state actors), as was the rule prior to

January 6, 2021,20 concerns such as these are

20 E.g., Berg v. Obama, 586 F.3d 234 (3d Cir. 2009); Robinson v.

Bowen, 567 F.Supp.2d 1144 (N.D. Cal. 2008); Kerchner v. Obama,

669 F.Supp.2d 477 (D. N.J. 2009); Keyes v. Bowen, 117

Cal.Rptr.3d 207 (Cal.Ct.App. 2010); Grinols v. Electoral Coll.,

2013 WL 2294885 (E.D.Cal. 2013), aff’d, 622 F.App’x 624 (9th

Cir. 2015); Strunk v. NY State Bd. of Elections, 2012 WL 1205117

(N.Y.Sup.Ct. 2012), aff’d, 5 N.Y.S.3d 483 (N.Y. App. Div. 2015);

17

ameliorated. The legitimacy concern is blunted

because the legal challenge comes directly from the

political adversary (be that an opponent, a party, or a

state-level politician). Such suits would be more

transparent, would be funded out of both sides’ war

chests, and would allow those who launch specious

suits to be held politically accountable. Meanwhile,

the floodgates would not be opened because “proxy

plaintiffs” would not be able to anchor “lawfare”

litigation campaigns. Quo warranto-style relief would

still be available to those with proper standing, but it

would proceed in a consolidated, orderly, above-thebelt, and transparent manner.

There is also a more serious concern where, as

here, a 501(c)(3) organization sponsors or facilitates

“lawfare” litigation. A 501(c)(3) organization is a taxexempt nonprofit, and therefore may “not participate

in, or intervene in . . . any political campaign on behalf

of (or in opposition to) any candidate for public office.”

26 U.S.C. § 501(c)(3). Initiating and supporting legal

initiatives aiming to limit Mr. Trump’s ballot access,

with the express goal of preventing him from

assuming office in 2025, fits squarely into that

prohibition. This presents two further reasons that

the Court should be particularly adamant that parties

demonstrate standing in high stakes “lawfare”

litigation: (1) to avoid any whiff of impropriety whereby

the general public might infer that the legal action

Taitz v. Democrat Party of Mississippi, 2015 WL 11017373 (S.D.

Miss. 2015); but see Elliott v. Cruz, 137 A.3d 646 (Pa. Commw.

Ct. 2016), aff’d, 635 Pa. 212 (2016) (dismissing on other grounds);

State ex rel. White v. Griffin, No. D-101-CV-2022-00473, 2022 WL

4295619 (N.M.Dist.Ct. Sept. 6, 2022) (CREW test suit); Anderson

v. Griswold, 2023 WL 7017745 (Colo.Dist.Ct. Oct. 25, 2023).

18

has, to any degree, been ginned up as a political

hatchet job, and (2) to draw a very bright line between

public interest lawsuits and federal tax fraud.

II. To Answer the Certified Question on the

Merits, the Court Would Have to Adjudicate

Matters of Fact That Have Not Been

Litigated “At Law”

Unless this Supreme Court decides the certified

question on case-specific legal technicality, it will be

forced to weigh in on the facts as well as the law.

However, the facts were never litigated “at law.” The

proceedings in the courts below certainly had the

appearance of judicial proceedings: there were adverse

parties, represented by counsel, in a courtroom, with

a judge (or, in the case of the Colorado Supreme Court,

seven justices). But Article III justice is not about

appearances. It is about procedures. The mere fact

that this matter was “litigated” in the colloquial sense21

is not enough. The question is whether it was litigated

“at law”; that is, whether there was a bona fide “case

or controversy” with suitable due process between

proper parties before a court of competent jurisdiction.

To avail itself of the factual record below, this

Court would first have to establish that the hearing of

first instance constituted the sort of judicial proceeding

“at law” that would be entitled to “full faith and credit”

across the nation. See U.S. Const. Art. IV, § 1 (“Full

Faith and Credit” clause); Scott v. McNeal, 154 U. S.

21 “Litigated, adj. . . . (b) gen. Contested, disputed.” Litigated,

Oxford English Dictionary (July 2023), https://doi.org/10.1093/

OED/7863758212. As opposed to “Litigated, adj. . . . (a) Made the

subject of a lawsuit; contested at law.” Id.

19

34, 46 (1894) (“No judgment of a court is due process

of law, if rendered without jurisdiction in the court”);

Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8,

15 (1907) (“The constitutional requirement that full

faith and credit shall be given in each state to the

public acts, records, and judicial proceedings of every

other state is necessarily to be interpreted in connection

with other provisions of the Constitution, and therefore

no state can obtain in the tribunals of other jurisdictions

full faith and credit for its judicial proceedings if they

are wanting in the due process of law enjoined by the

fundamental law.”)

Here, there was not a case “at law.” There was an

expedited C.R.S. § 1-1-113(1) administrative hearing

overseen by the District Court of Denver and an

expedited C.R.S. § 1-1-113(3) appeal of the

determination that Section Three “does not apply to

Presidents who engage in insurrection or to

insurrectionists wanting to be President.”22 See also

Anderson v. Griswold, 2023 CO 63 at ¶ 46 (explaining

that “Colorado’s expedited statutory procedure for

litigating election disputes may be unfamiliar

nationally”). These expedited proceedings did not

22 See Petitioner’s Application for Review Under § 1-1-113(3)

C.R.S. (Nov. 20, 2023) at 2-3:

Petitioners-Appellants request this Court review the following

issue:

Did the district court commit reversible error in

ruling that Section 3 of the Fourteenth Amendment,

which disqualifies people who engaged in insurrection

against the Constitution after taking an oath to

support the Constitution, does not apply to Presidents

who engage in insurrection or to insurrectionists

wanting to be President?

20

have parties with Article III standing, did not involve

a court with final authority to decide whether Mr.

Trump would be permitted to assume office if

elected,23 and were litigated at a pace more befitting

a preliminary injunction than “one of the most

important cases in American history.” Amar & Amar,

p.1.

The Court should recognize the decisions below

for what they are: an administrative hearing in the

first instance and an advisory opinion by the Colorado

Supreme Court in the second. This poses a problem

because, even assuming that these expedited C.R.S.

§ 1-1-113 determinations are “final judgments or

decrees” for purposes of 28 U.S.C. § 1257 (which is not

a given), the constitutional “case or controversy” requirement still applies. Thus, to the extent that the C.R.S.

§ 1-1-113(1) hearing was “wanting in the due process

of law,” Old Wayne Mut., 204 U.S. at 15, or its

determinations “rendered without jurisdiction,” Scott,

154 U. S. at 46, the Court must operate as if the fruit

of that proceeding (i.e., the factual record) does not exist

– effectively liquidating any “case” or “controversy.”

23 Even the most ardent supporters of disqualification understand

that the Colorado decision would not bind other states, let alone

the national government. See, e.g., Amicus Curiae Brief of Akhil

Reed Amar and Vikram David Amar in Support of Neither Party

pp.4-5 & 30 (Amar & Amar) (abstention by the Supreme Court

would beget a “fifty-state solution” whereby every state would

make its own individual decision as to Mr. Trump’s (dis)qualifications under Section Three). This is significant because a court

has no Article III jurisdiction when it cannot redress the

grievance at hand. Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 107 (1998).

21

III. The Matter Before the Court Is an Academic

Question Cloaked in Juridical Trappings

If the Supreme Court must abide by one commandment, it is this: “THOU SHALT NOT ISSUE ADVISORY

OPINIONS.” The prohibition against advisory opinions

has been in effect since the beginning of the Republic24

and remains the rule today. Marbury v. Madison, 5

U.S. 137, 176-77 (1803); Ex parte Levitt, 302 U.S. 633,

636 (1937); North Carolina v. Rice, 404 U.S. 244, 246

(1971); Carney v. Adams, 592 U.S. 53, 58 (2020);

TransUnion LLC v. Ramirez, 594 U.S. 413, 423–24

(2021). The parties in this matter urge the Supreme

Court to violate this most sacred dictate based solely

on exceptional exigency and national significance. See

Petitioner Donald J. Trump’s Petition for Writ of

Certiorari, p.18 (the issues raised “are of exceptional

importance and urgently require this court’s prompt

resolution”); Anderson Respondents’ Brief in Response

to Petitioner Donald J. Trump’s Petition, p.5 (the

issues raise “questions of significant national

importance that the Court should take up”).

This Court must not yield. As John Marshall

wrote in Marbury v. Madison, Supreme Court

advisory opinions are categorically forbidden even

when the matter raises “a question deeply interesting

to the United States.” 5 U.S. at 176. The Marbury

24 See Letter to George Washington from Supreme Court

Justices, 8 August 1793 (“The Lines of Separation drawn by the

Constitution between the three Departments of Government—

their being in certain Respects checks on each other—and our

being Judges of a court in the last Resort—are Considerations

which afford strong arguments against the Propriety of our

extrajudicially deciding the questions” of law that President

Washington had asked the Justices to answer).

22

Court considered an issue far more fundamental than

the one the Court is presented with today – “whether

an act, repugnant to the constitution, can become the

law of the land” – but refused to answer it. Id.

Likewise, in Ex parte Levitt, the Court refused to pass

on a question of paramount national importance:

whether one of its own was constitutionally ineligible

to sit on the nation’s highest court. 302 U.S. at 636.

The import of this precedent is clear: the U.S. Supreme

Court may not entertain threadbare controversies

that amount to mere academic quarrels “in the

rarified atmosphere of a debating society.” Valley Forge

Christian Coll. v. Americans United for Separation of

Church & State, 454 U.S. 464, 472 (1982).

A. Baude v. Blackman: the Rarified Debate

to Which the Court Has Been Invited

In The Sweep and Force of Section Three, a law

review article so contemporary that it has yet to be

officially published, professors William Baude and

Michael Stokes Paulsen make the argument that

Donald Trump is “automatically” disqualified under

Section Three of the Fourteenth Amendment. See,

generally, William Baude & Michael Stokes Paulsen,

The Sweep and Force of Section Three, 172 U. PA. L.

Rev. 1 (forthcoming 2024) (Aug. 10, 2023, preprint).

Virtually the exact same argument was made by

Anderson, et al., in the court of first instance, then in

the Colorado Supreme Court, and now in their brief

before this Court. See, e.g., Brief on the Merits for

Anderson Respondents pp. 15, 16, 34, 36, & 53 (citing

Sweep and Force at pp. 17-49, 63-104, 106-107, & 112122). Likewise, the Colorado Supreme Court majority

cited Baude and Paulsen at virtually every step of its

analysis. 2023 CO 63 ¶¶ 93 (Section Two is “self-

23

executing”), 98 (original intent), 100 & 103 (whether

Griffin’s Case is good law), 150 (President is an “Officer

of the United States”), & 194 (defining “engage in”).

Nor is the opposite position immune to the crutch

of nascent academic scholarship. Mr. Trump’s brief

directly addresses arguments made by Baude and

Paulsen, see Brief for the Petitioner, pp.29-30 & n.41,

and appeals to their principal scholarly rivals,

professors Blackman and Tillman. Id. p.32 & n.42

(citing Josh Blackman & Seth Barrett Tillman, Is the

President an “Officer of the United States” for

Purposes of Section 3 of the Fourteenth Amendment?,

15 NYU J. L. & Liberty 1, 46 (2021)). One of the

dissents in the 4-3 Colorado Supreme Court decision

cited to Blackman and Tillman several times for

important substantive propositions. See Anderson v.

Griswold, 2023 CO 63 (Samour, J., dissenting) at ¶¶

279, 299, & 324 (citing Josh Blackman & Seth Barrett

Tillman, Sweeping and Forcing the President into

Section 3, 28 Tex. Rev. L. & Pol. 350 (forthcoming

2024) (Nov. 24, 2023, preprint) at pp. 15, 23, 140, &

214-15). Most substantively, the District Court of

Denver predicated its decision on the issue that was

appealed to the Colorado Supreme Court on the

scholarship of professor Kurt Lash. See 2023 WL

8006216 at *97 (citing Kurt Lash, The Meaning and

Ambiguity of Section Three of the Fourteenth

Amendment, at 10 (Oct. 28, 2023))

Baude, Paulsen, Blackman, Tillman, Lash and

many others have initiated a vibrant debate with

incredible potential for the future of jurisprudential

scholarship.25 However, as this is a nascent field of

25 This is not idle praise. Amicus has set out to chronicle this

24

legal inquiry, many of these complex and critical issues

have weathered few (if any) iterations of academic

criticism. As a result, some sub-domains have been

neglected.26 Others have produced theories that, though

not “half-baked,” are certainly “undercooked.”27

Which is all to say that Baude, et al., v.

Blackman, et al., is unripe for disposition even in the

domain of academia. To say “the jury’s not out” on

these issues is to falsely imply that one has been

empaneled. Instead, the parties have appealed the

academic quarrel directly to the United States

Supreme Court, so that the Justices may consider the

clashing arguments in what can only be described as

“the rarified atmosphere of a debating society.” Valley

Forge Christian Coll., 454 U.S. at 472.

debate at length precisely because it is uncharacteristically

vibrant (especially in the stodgy world of legal academia). See,

generally, Jordan L. Michelson, Jordan Michelson’s Section

Three Companion (2024) https://jordanmichelson.substack.com/

26 Notably, Baude and Paulsen’s treatment of “Prior Constitutional

Provisions” (an Orwellian name for the Bill of Rights if ever there

was one), has garnered little attention despite several very

controversial provocations. See, e.g., Sweep and Force at 56

(speculating that a person can be deprived of “the right to hold

public office” without due process of law because public office is

not property); Id. 56-57 (ex cathedra proclamation that Section

Three was last-in-time and therefore supersedes the Bill of

Rights); Id. 57-61 (arguing that “free speech principles must give

way” to the ostensibly tremendous force of Section Three).

27 E.g., Baude and Paulsen’s theory of constitutional self-execution

cashes out to the old economist’s saw: “first, assume a can

opener.”

25

B. It is an Invitation the Court Must Decline

Baude v. Blackman wears Trump v. Anderson

like a skin suit, demanding that this country’s apex

Justices weigh in on whether Baude and Paulsen’s

theory is “right” as a matter of law or whether the

criticisms of Blackman, Tillman, and Lash should

prevail. This has the character of an advisory opinion,

not a “real and substantial controversy admitting of

specific relief through a decree of a conclusive

character.” Aetna Life Ins. v. Haworth, 300 U.S. 227,

240–41 (1937). Consequently, these academic questions

are not germane to the Supreme Court of the United

States. See TransUnion LLC, 594 U.S. at 423–24

(“Under Article III, federal courts do not adjudicate

hypothetical or abstract disputes.”) Not yet.

CONCLUSION

Advisory opinions are forbidden by Article III,

and for good reason: such opinions “grant unelected

judges a general authority to conduct oversight of

decisions of the elected branches of Government.”

California v. Texas, 141 S.Ct. 2104, 2116 (2021). The

fact that the Colorado Supreme Court exercised such

authority is of no moment – that tribunal is not

governed by Article III. What matters is that the

opinion issued by the state court cannot be reviewed

by the Supreme Court of the United States; such

opinion was a de facto advisory opinion, not a final

judgment on a “case or controversy” litigated “at law,”

and thus is not subject to the Supreme Court’s

appellate jurisdiction.

26

This outcome will come as a disappointment to

many. The issue of Donald Trump’s constitutional

eligibility for office is no doubt “a question deeply

interesting to the United States.” Marbury v. Madison,

5 U.S. at 176. But unless a bona fide “case or controversy” arises between “parties having adverse legal

interests,” Rice, 404 U.S. at 246, this Court has no

business addressing it. Until then: mum’s the word.

Respectfully submitted,

Anthony Robert Zelle

Counsel of Record

380 Dedham St.

Newton, MA 02459

(617) 388-4782

tzelle@earthlaw.org

Counsel for Amicus Curiae

January 31, 2024