chevron-down Created with Sketch Beta.
    December 14, 2023

    Trump v. Anderson

    FOURTEENTH AMENDMENT

    Did the Colorado Supreme Court Validly Exclude Former President Donald J. Trump from the State’s 2024 Presidential Primary Ballot?

     CASE AT A GLANCE

    Colorado voters sued former President Donald J. Trump and the Colorado secretary of state in state court seeking an order excluding Trump from the state’s 2024 presidential primary ballot. The plaintiffs argued that Trump was not qualified for the presidency under Section 3 of the Fourteenth Amendment because of his role in the insurrection on January 6, 2021. They claimed that the secretary of state would commit a “wrongful act” under state election law if she placed his name on the ballot.

    Trump v. Anderson
    Docket No. 23-719

    Argument Date: February 8, 2024
    From: The Colorado Supreme Court

    by Steven D. Schwinn
    University of Illinois Chicago School of Law, Chicago, IL

    Introduction
     

    The Colorado Supreme Court held that former President Donald J. Trump was disqualified from holding federal office under Section 3 of the Fourteenth Amendment. That provision prohibits any person “who, having previously taken an oath…as an officer of the United States…to support the Constitution of the United States” from “hold[ing] any office…under the United States.” Moreover, the court held that the Colorado secretary of state would commit a “wrongful act” under state election law if she placed his name on the ballot.

    Issue
     

    Did the Colorado Supreme Court correctly conclude that former President Trump was not qualified for the presidency under Section 3 of the Fourteenth Amendment, and therefore that it would be a “wrongful act” under state election law to place him on the state’s primary ballot?

    Facts
     

    On September 6, 2023, four Republicans and two unaffiliated voters sued former President Trump and the Colorado secretary of state in Colorado state court, seeking an order excluding Trump from the state’s presidential primary ballot. The plaintiffs claimed that former President Trump was disqualified for the presidency under Section 3 of the Fourteenth Amendment. That provision says:

    No person shall be a Senator or Representative in Congress, or elector of President and VicePresident, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

    The plaintiffs argued that former President Trump was disqualified under Section 3 because of his role in the PREVIEW of United States Supreme Court Cases 3 © 2024 American Bar Association insurrection on January 6, 2021. They argued that the secretary would commit a “wrongful act” under the Colorado Election Code if she placed him on the ballot.

    The district court held a five-day trial that included witnesses from both sides and dozens of exhibits. On November 17, 2023, the court issued a detailed, 102- page order concluding that the January 6 attack on the Capitol was an “insurrection” and that President Trump intentionally “engaged in” that insurrection. In particular, the court said that President Trump’s words and actions “were the factual cause of, and a substantial contributing factor to,” the attack. But at the same time the court held that Section 3 does not apply to insurrectionist presidents or to insurrectionists seeking the office of the presidency.

    Both sides appealed to the Colorado Supreme Court. In a lengthy and detailed opinion, the court reversed the trial court’s ruling that Section 3 did not apply to the presidency, and affirmed everything else. The court concluded that placing former President Trump on Colorado’s 2024 presidential primary ballot would be a “wrongful act” under the Colorado Election Code.

    This appeal followed.

    Case Analysis
     

    President Trump argues first that the president is not an “officer of the United States.” He claims that three other provisions in the Constitution—the Appointments Clause, the Commissions Clause, and the Impeachment Clause—distinguish between “the President” and “officers of the United States.” He says that Court precedent also distinguishes between these positions. (President Trump doesn’t dispute that the presidency is an “office.” But he contends that the president isn’t an “officer of the United States.”) He claims that the Colorado Supreme Court was wrong to rule otherwise.

    President Trump argues next that he did not “engage in insurrection.” To the contrary, he claims that his “words that day called for peaceful and patriotic protest and respect for law and order.” At most, he contends that he gave “a passionate political speech.” Moreover, he says that he did not “engage in” any of the activities that the Colorado Supreme Court found to be an “insurrection.” President Trump contends that the Colorado Supreme Court was wrong to rely on expert testimony that he used “coded language.” And he asserts that his speech on January 6 and his postelection tweets and statements fall short of the Court’s test for “incitement.” Third, President Trump argues that Section 3 does not authorize state courts or state officials to enforce it. He points to Griffin’s Case, in which Chief Justice Salmon P. Chase, sitting as a circuit court judge, held that Section 3 could be enforced only by congressional legislation. In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869). President Trump claims that Congress enacted such legislation in the Insurrection Act, which says that any person who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto…shall be incapable of holding any office under the United States.” 18 U.S.C. § 2383. He says that the Colorado Supreme Court had no authority to enforce Section 3.

    Fourth, President Trump argues that Section 3 cannot be used to deny him access to the ballot. He contends that doing so would amount to an impermissible modification of the Constitution’s eligibility criteria for the presidency. He says that Section 3’s remedial clause, allowing Congress to “remove such disability,” demonstrates that only Congress can enforce Section 3, and only by removing a disqualified candidate after they have been elected to office (and not removing them from the ballot, before the election).

    Finally, President Trump argues that the Colorado Supreme Court violated the Electors Clause and the Colorado Election Code. He says that the Electors Clause authorizes states to appoint presidential electors “in such Manner as the Legislature,” and not the courts, “therefore may direct.” Moreover, he claims, contrary to the Colorado Supreme Court, that the secretary of state would not commit a “wrongful act” under state law by including former President Trump on the ballot, “because Section 3 merely bars individuals from holding office, not from seeking or winning election to office.”

    (The Colorado Republican State Central Committee [the Committee], which intervened in the state-court litigation in support of President Trump, makes substantially similar arguments. But the Committee does not argue that President Trump did not engage in an insurrection, and it adds that the Colorado Supreme Court’s ruling violated the Committee’s First Amendment right to select its own presidential nominee.)

    The plaintiffs counter that President Trump “engaged in insurrection” based on his behavior around the January 6 attack. The plaintiffs say that the original public meaning of “engaged in insurrection” includes those who organized PREVIEW of United States Supreme Court Cases 4 © 2024 American Bar Association and incited an insurrection. They contend that the trial court issued comprehensive and detailed findings, “based on overwhelming and largely unrebutted evidence,” that President Trump “engaged in insurrection,” and that Trump cannot show that the court’s factual findings were clearly erroneous.

    The plaintiffs argue next that Section 3 applies to insurrectionist presidents. They contend that the Constitution says that the presidency is a federal “office,” and that the plain meaning of “officer of the United States” includes the president. They assert that this “plain meaning is confirmed by an opinion of Chief Justice Marshall, by authoritative attorney general opinions interpreting Section 3 at the time, and by consistent nineteenth-century usage….” They add that it would make no sense to exclude the presidency—“the highest office in the land”—from Section 3.

    Third, the plaintiffs argue that courts may adjudicate Section 3 qualification under state election law. They claim that “[t]he Constitution gives state legislatures near plenary authority to decide how to select presidential electors,” and that this “broad power allows state legislatures to limit the presidential ballot to candidates who are constitutionally eligible to hold the office.” The plaintiffs say that Section 3 qualification is just like any other constitutional qualification for office: “Section 3 has inherent legal force and states may enforce it through their own laws without awaiting federal legislation.” The plaintiffs say that this is exactly what happened here, when Colorado voters brought their claim to enforce Section 3 pursuant to Colorado’s election law.

    Finally, the plaintiffs argue that the Colorado Supreme Court did not violate the Electors Clause. They say that President Trump forfeited this claim, because he never raised it (until now). But in any event, they contend that “the state courts’ interpretation of state law was correct, and came nowhere close to arrogating the legislative power in a way that would infringe the Electors Clause.”

    Significance
     

    The Court has never ruled on a Section 3 challenge. Thankfully, it hasn’t had to. But as a result, there may be several significant unanswered questions: What does it mean to “have engaged in insurrection”? What is an “office under the United States” and “an officer of the United States”? And most importantly: Who gets to enforce Section 3? The Court took up the case to answer some or all of these questions, and to provide guidance to the several states that are considering Section 3 challenges.

    As this goes to print, voters and others have filed Section 3 challenges to President Trump’s candidacy in 34 states. Those claims are at very different stages: some have been dismissed by the plaintiffs; some of have been dismissed by the courts (for one reason or another); and some are pending, in some cases waiting for the Court to rule in this case. Courts and officials that have addressed the merits have ruled differently. (Lawfare has an excellent Section 3 litigation tracker here: https://www.lawfaremedia.org/ current-projects/the-trump-trials/section-3-litigationtracker). Of the 34 challenges, only two states (so far) have ruled against President Trump—Colorado and Maine. The Court’s ruling (whatever it says) will provide guidance to every state, and will likely seek to bring some unity and consistency to the states’ approaches.

    The Court seems to have these options:

    The Court could affirm the Colorado Supreme Court in whole, including its conclusion that President Trump “engaged in insurrection.” If so, the ruling would invite new and renewed challenges in every state for the primary election and, if necessary, the general election, and end President Trump’s candidacy. (After all, state courts would have to follow the Court’s ruling.) Even if this approach is factually and legally sound (and many impressive amici argue that it is), it may be politically unpalatable for a majority of this Court. It could also deepen political divisions in the country, threaten the standing of the Court in some quarters, and even “unleash chaos and bedlam” (as President Trump boldly threatened in his brief).

    Alternatively, the Court could dodge the core substantive question (whether President Trump “engaged in insurrection”) and look to a procedural off-ramp. For example, it could rule that the presidency isn’t covered by Section 3. Or, more likely, it could say that enforcement requires congressional action. Such a ruling would keep President Trump on the ballot in every state where he otherwise qualifies, except in the highly unlikely event that Congress intervened.

    Finally, the Court could pass on the core substantive question, but rule that Section 3 covers the presidency, and that states can enforce Section 3 and decide for themselves whether Trump “engaged in insurrection.” This is probably the least-likely result, in part because it would lead to a patchwork of state decisions, with President Trump disqualified in some states but qualified in others. (The Court may see that as a practical problem, even if not a legal one.)

    At oral argument, look for the justices to focus on the history and original understanding of Section 3. In addition, look for them to ask about the practical results of any approach they may take. Finally, look for the justices to inquire about the effects of their ruling on voters’ choices at the ballot box. (President Trump and his supporters argue that the Colorado Supreme Court’s decision is antidemocratic because it “disenfranchises” voters who wish to vote for him. But it’s not at all clear why this is problematic, given that the Constitution similarly “disenfranchises” voters who prefer a presidential candidate under the age of 35, or one who is not a natural born citizen, or one who hasn’t been a resident for 14 years.)

    The case predictably drew abundant amici briefs. While several are excellent, I especially recommend the briefs by Akhil Reed Amar and Vikram David Amar (in support of neither party), the historians (there are two, one under the name of several named historians and the other under the name of “American Historians,” both supporting the plaintiffs), Professors and Legal Scholars (in support of neither party), and Former Attorneys General and Law Professors (supporting President Trump).

    Steven D. Schwinn

    Professor of law at the University of Illinois Chicago School of Law

    Steven D. Schwinn is a professor of law at the University of Illinois Chicago School of Law and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at 312.386.2865 or [email protected].

    PREVIEW of United States Supreme Court Cases 50, no. 3 (November 28, 2022): 42–48. © 2022 American Bar Association 

    ATTORNEYS FOR THE PARTIES

    • For Petitioner Donald J. Trump (Jonathan F. Mitchell, 512.686.3940) 
    • For Respondents Norma Anderson, et al. (Jason Clifford Murray, 303.535.9157) 
    • For Respondents Colorado Republican State Central Committee (Jay Alan Sekulow, 202.546.8890) 
    • For Respondents Colorado Secretary of State Jena Griswold (Shannon Wells Stevenson, 720.703.0999)

    AMICUS BRIEFS

    In Support of Petitioner Donald J. Trump

    • 102 Colorado Registered Electors (J. Gregory Troutman, 502.412.9179)
    • America’s Future, Gun Owners of America, Inc., Gun Owners Foundation, Gun Owners of California, Inc., Heller Foundation, Tennessee Firearms Association, Tennessee Firearms Foundation, Inc., Public Advocate of the United States, U.S. Constitutional Rights Legal Defense Fund, Constitution Party National Committee, and Conservative Legal Defense and Education Fund (William Jeffrey Olson, 703.356.5070)
    • Christian Family Coalition (CFC) Florida, Inc. (Dennis Grossman, 516.466.6690)
    • Chuck Gray, Secretary of State of Wyoming (Judd Edward Stone II, 737.465.7248)
    • Claremont Institute’s Center for Constitutional Jurisprudence (John Choon Yoo, 510.331.6708)
    • Condemned USA (George T. Pallas, 305.856.8580) David E. Weisberg (David E. Weisberg, 919.378.9843)
    • Devin Watkins and Charles Watkins (Charles Devin Watkins, 503.753.8104)
    • Former Attorneys General Edwin Meese III, Michael B. Mukasey, and William P. Barr; Law Professors Steven Calabresi and Gary Lawson; Citizens United and Citizens United Foundation (Gene Clayton Schaerr, 202.787.1060)
    • Former United States Attorneys Robert S. Brewer Jr., et al. (Robert Trent Shores, 918.595.4800)
    • Gavin M. Wax, New York Young Republican Club, Inc., and National Constitutional Law Union, Inc. (Edward Andrew Paltzik, 516.526.0341)
    • Honorable Peter Meijer (Charles R. Spies, 202.457.0160)
    • Indiana, West Virginia, 25 Other States, and the Arizona Legislature (James Allen Barta, 317.232.0709)
    • James Madison Center for Free Speech (James Bopp Jr., 812.232.2434)
    • Judicial Watch, Inc., and Allied Educational Foundation (Robert D. Popper, 202,646.5172)
    • Kansas (Anthony John Powell, 785.368.8539)
    • Kansas Republican Party and 31 Other State and Territorial Republican Parties (Craig Lee Uhrich, 720.878.7688)
    • Landmark Legal Foundation (Michael James O’Neill, 703.554.6105)
    • Larry Kidd (Larry James Obhof Jr., 614.463.9441)
    • League for Sportsmen, Law Enforcement and Defense (Earl Neville Mayfield III, 703.268.5600)
    • Pearl O. Madrial (Harold Emmett Lucas Jr., 252.432.0015)
    • Professor James T. Lindgren (Benjamin Michael Flowers, 513.201.5775)
    • Professor Kurt T. Lash (Christopher E. Mills, 843.606.0640)
    • Professor Seth Barrett Tillman (Joshua Michael Blackman, 202.294.9003)
    • Public Interest Legal Foundation and Hans von Spakovsky (John Christian Adams, 703.745.5870)
    • Republican National Committee and National Republican Congressional Committee (Patrick Strawbridge, 207.522.3163)
    • Senator Steve Daines and National Republican Senatorial Committee (John Matthew Gore, 202.879.3939)
    • Terpsehore “Tore” Maras and Eligible Voters of All 50 States and 1 Territory (Warner DeWitt Mendenhall, 330.535.9160)
    • Vivek Ramaswamy (Jonathan Philip Lienhard, 540.341.8808)
    • William Jones (Stephen Yagman, 310.452.3200)
    • U.S. Senator Ted Cruz, Majority Leader Steve Scalise, and 177 Other Members of Congress (R. Trent McCotter, 202.706.5488)

    In Support of Respondents Norma Anderson, et al.

    • American Historians (Jonathan B. Miller, 510.738.6788)
    • Brian J. Martin (Wallace K. Lightsey, 864.242.8200) Common Cause (Gregory L. Diskant, 212.336.2000)
    • Former Republican Governors (Jeffrey A. Mandell, 608.210.6303)
    • G. Antaeus B. Edelsohn (Joan Deborah Bolinsky Edelsohn, 415.944.9509)
    • J. Michael Luttig, Peter Keisler, Larry Thompson, Stuart Gerson, Donald Ayer, et al. (Richard Douglas Bernstein, 301.775.2064)
    • Professor Kermit Roosevelt (Robert S. Peck, 202.944.2874)
    • Professors Carol Anderson and Ian Farrell (Anna Estelle Cayton Holland Edwards, 303.860.1331)
    • Professors Orville Vernon Burton, Allan J. Lichtman, Nell Irwin Painter, James M. McPherson, Manisha Sinha, et al. (Michael J. Kasper, 312.704.3292)

    Suggesting Affirmance

    • Floyd Abrams, Bruce Ackerman, Maryam Ahranjani, Lee C. Bollinger, Erwin Chemerinsky, Alan Chen, Kent Greenfield, Martha Minow, and Geoffrey R. Stone (Steven A. Hirsch, 415.391.5400)

    In Support of Neither Party

    • Akhil Reed Amar and Vikram David Amar (Vikram David Amar, 925.858.8855)
    • Association of the Bar of the City of New York (Susan J. Kohlmann, 212.891.1600)
    • Brennan Center for Justice, Protect Democracy, Campaign Legal Center, League of Women Voters (Michelle Shane Kallen, 202.639.6000)
    • Children’s Rights Legal Scholars and Advocates (Julia Ann Olson, 415.786.4825)
    • David Boyle (David Christopher Boyle, 734.904.6132)
    • Derek T. Muller (Heather Gebelin Hacker, 512.399.3022)
    • Edward B. Foley, Benjamin L. Ginsberg, and Richard L. Hasen (Michael B. Kimberly, 202.756.8901)
    • Jack Coben (Larry E. Coben, 480.515.4745)
    • Michigan Secretary of State Jocelyn Benson (Ann Maurine Sherman, 517.335.7628)
    • NAACP Legal Defense and Educational Fund (Samuel Spital, 212.965.2205)
    • Professors and Legal Scholars (Mari Newman, 720.850.5770)
    • Ryan Binkley, Binkley for President 2024, Wisconsin Voter Alliance, Pure Integrity Michigan Elections, and Michigan Fair Elections (Erick G. Kaardal, 612.465.0927)
    • Secretaries of State of Missouri, Alabama, Arkansas, Idaho, Indiana, Kansas, Montana, Nebraska, Ohio, Tennessee, and West Virginia (Jesus Armando Osete, 573.556.6620)
    • U.S. Term Limits (David H. Thompson, 202.220.9600)