Colorado officials argue U.S. Supreme Court should uphold ballot ruling against Trump
"This Court should affirm and uphold Colorado’s right to exclude from its presidential ballots ineligible insurrectionists." Also: So many amicus briefs.
On Wednesday, Colorado Secretary of State Jena Griswold urged the U.S. Supreme Court to uphold the Colorado Supreme Court’s ruling that Donald Trump is disqualified from being president under Section 3 of the Fourteenth Amendment and can be removed from the state’s presidential primary ballot under Colorado law.
While acknowledging that “[t]he facts of this case are unprecedented,” Griswold’s lawyers insisted that “the legal mechanism is routine“ that was used in Colorado.
“The dispute was capably and constitutionally handled by the procedures directed by Colorado’s legislature to resolve these precise issues,” Griswold’s brief urged. “This Court should affirm and uphold Colorado’s right to exclude from its presidential ballots ineligible insurrectionists.”
Represented by Colorado Attorney General Philip Weiser, the filing was the last of the initial merits briefs filed by the parties in the major U.S. Supreme Court challenge where oral arguments are set for Feb. 8 over Trump’s challenge to the Colorado Supreme Court’s December 2023 decision.
Party merits briefs:
Colorado Republican Party (Colorado Republican State Central Committee)
Republican and independent electors (the Anderson challengers)
Trump’s reply brief and the reply from the Colorado Republican Party are due by 5 p.m. Monday.
Law Dork will be covering and reporting on the arguments from the Supreme Court.
Colorado’s brief
Griswold and Weiser, both Democrats, did not begin the litigation — which was brought by Republican and independent voters challenging Trump’s inclusion on the 2024 presidential primary ballot — but Wednesday’s filing strongly defended the Colorado Supreme Court ruling those challengers received.
The filing was blunt:
To that end, Griswold’s brief argued that, as to Section 3 of the Fourteenth Amendment, “The Colorado Supreme Court carefully considered the legal arguments presented and concluded that this provision: applies to a former president; precludes an insurrectionist from holding the office of the president; and applies without further enabling legislation from Congress. … Based on these determinations, the Colorado Supreme Court properly concluded that Petitioner Trump should be excluded from the ballot.”
The brief also made arguments that the Colorado Supreme Court did not violate the U.S. Constitution’s Electors Clause — a follow-on of last term’s rejected “independent state legislature” scheme arguments in Moore v. Harper — and did not violate the Colorado Republican Party’s First Amendment associational rights.
As to the Electors Clause argument, the Griswold’s brief noted that Trump did not argue this issue below and thus forfeited it and that the decision in Moore v. Harper made clear why this argument fails here.
“[S]tate judicial review of state election laws governing federal elections is universal,” the brief argued. “Any departure from this practice would wreak havoc on this longstanding, reliable system and place insuperable challenges on this Court’s docket.
As to the latter argument, Weiser argued for Griswold that the party “does not have a First Amendment right to place candidates on Colorado’s presidential primary ballot who are ineligible to hold office.”
Specifically, the brief argues, “Excluding candidates who are not qualified to hold office from primary as well as general election ballots helps prevent voter confusion and deception and ensures that voters cast meaningful ballots.”
Amicus briefs supporting the challenge to Trump
Given the deadlines in the expedited case and the high-profile nature of the case, many notable amicus curiae — friend of the court — briefs supporting the Colorado Supreme Court’s opinion have been filed this week, as well as briefs supporting neither party but setting forth views on the many issues before the justices.
Former senior Republican officials — led by J. Michael Luttig, the retired appellate judge who has taken a leading role in opposing Trump in the aftermath of Jan. 6 — filed a brief arguing that courts can adjudge Section 3 disqualification questions and that the “fair meaning” of Section 3 disqualifies Trump from the presidency.
“Mr. Trump deliberately tried to break the Constitution—to incite threatened and actual armed force to prevent the peaceful transfer of executive power mandated by the Executive Vesting Clause and the Twelfth and Twentieth Amendments,” they argued. “That constituted engaging in an insurrection against the Constitution.”
A brief from a handful of former state supreme court justices argued that states can act under Section 3 of the Fourteenth Amendment regardless of whether Congress passes a law specifically authorizing them to do so — and that it is important that states remain able to do so:
Another compelling brief was filed by Sherrilyn Ifill, the former longtime head of the NAACP Legal Defense and Educational Fund. In it, she argued that “Section 3 is not some historical relic or afterthought but is instead a vital and integral part of the 14th Amendment.”
Specifically, she argued:
Section 3 was enacted for such a time as this, and for such a figure as President Trump. Perhaps we hoped we would never need to activate its use again, and certainly not against an officer as highly positioned as the President of the United States. Section 3’s use is compelled in only the most rare and extreme circumstances.
January 6th, and the weeks leading up to it, was such a circumstance.
In another brief, a dozen Republican former members of Congress weighed in, arguing that “any reasonable, good faith consideration of the events surrounding January 6 necessitates the conclusion that Trump encouraged an armed, violent mob to prevent Congress from taking an essential step in the transition of presidential power.”
Their conclusion is simple: “As a result of his own actions, Trump is not qualified to serve as president or in any other role proscribed by Section 3 of the Fourteenth Amendment.”
In a brief from the libertarian law professor Ilya Somin, meanwhile, he addressed a narrow, but important, point arguing that Section 3 does not require a criminal conviction and that Trump “was not deprived of due process” by the Colorado courts.
Finally, in a brief from constitutional scholars Akhil Reed Amar and Vikram David Amar, they examined what they call “the First Insurrection of the 1860s” — an attempt to prevent Abraham Lincoln from taking office at all — and explained how it influenced the passage of Section 3 of the Fourteenth Amendment. Then, they examine
Of course the president is an “officer” covered by Section Three. Of course a detailed congressional statute is not necessary to implement Section Three. Of course an ineligible person is ineligible unless and until amnestied. Of course a person can engage in an insurrection with words as well as deeds. Of course an insurrection can begin locally. And so on.
In the end, this momentous case is easier than it may at first seem, once one understands the historical events that triggered Section Three.
It’s a good read, certainly intended to be able to be understood by non-lawyers as well as the justices set to hear Trump’s case next week.
Amicus briefs supporting Trump
There had previously been several briefs filed supporting Trump, most notably from Republican members of Congress (represented by, among others, former Trump administration official Gene Hamilton through his role in the Stephen Miller-led America First Legal Foundation); Sen. Steve Daines and the National Republican Senatorial Committee (represented by, among others, former top lawyers from the Justice Department in the Trump administration who are now at Jones Day); state Republican parties; and Republican state attorneys general.
The briefs are largely political exercises, especially the AGs’ brief, although the Daines brief — aka, the Jones Day brief — does dive more deeply, if the result is similarly dissatisfactory.
Its premise is that the Colorado Supreme Court “erred by modifying the qualifications for president,” specifically by applying Section 3 to the presidency and then determining that a person who has violated Section 3 by having engaged in insurrection cannot appear on the ballot for president. From there, we move into hypothetical territory:
Far from enforcing the Constitution’s qualifications for the Presidency—as occurs where States deny ballot access to candidates who are categorically barred from serving at all, see infra at 17—the Colorado Supreme Court altered the time for satisfying section 3. It effectively accelerated the date by which any section 3 disqualification may be removed by Congress, requiring that to occur before state primary elections that will take place many months prior to Inauguration Day.
The argument is, essentially, because Congress can remove the disqualification under Section 3 — but has no obligation even to consider doing so — all actions must be taken as if that vote is going to happen. At some point. Maybe.
The extreme reach of this argument is hidden in the Daines-Jones Day brief. Although its focus is on allowing Congress to decide to remove the disqualification after the election, there is no end point: “Congress can choose to remove any section 3 disability before Election Day, before Inauguration Day, or even during a President-elect’s term.” In other words, they are arguing because Congress can vote to remove a Section 3 disqualification of Trump in, say, 2026, Colorado cannot enforce the Fourteenth Amendment now.
It’s an absurd argument — that a governmental body’s ability to make a change in the future prevents current exercise of the law as it applies at the time — that would be laughed out of any other case and should be unsuccessful here.
The argument here is even more extreme. If Section 3 is not self-executing, it seems to me that Section 3 would have to say so, particularly when it lays out that “Congress may by a vote of two-thirds of each House, remove such disability.”
If it lays out how Congress can “remove” the disability, then such disability must exist under the terms of Section 3 itself.
Last but not (or maybe) least, and not to be left out, John “Torture Memos” Yoo also filed a brief in support of Trump on behalf of the Claremont Institute’s Center for Constitutional Jurisprudence, the place where John “Election Certification Memo“ Eastman is the founding director — which serves both as a question about why the institute would file a brief in this case and its answer.
The brief argues, in part, that Trump, as a former president, “is not among those whom Section 3 of the Fourteenth Amendment subjects to sanctions.”
Clearly, the most powerful pieces written by the Respondents and supportive AC point toward the correctness of the Colorado SC decision, arguing strongly upon constitution grounds for rightfully barring tRump under §3. But, as is noted, the petitioners are taking the "political" route to argue against removing the insurrectionist, and which, I'm sorry to say, a SCOTUS majority is likely to tee up in overturning the CO ruling. It is what it is, but I'm hopeful of some stinging dissents that would embrace much of the constitutional arguments for tossing tRump off the ballot, not just in Colorado, but in any other states' ballots where the same §3 arguments can be raised.
Which raises the salient question: If the Constitution can't protect us against an insurrectionist running for federal office, who or what can?
One of the briefs noted the confusion the term "self-executing" brings.
After all, Colorado law provides a means to execute it. There was a process. See also, Maine and other states. It is not as if challengers (Republicans and independents, to be clear, here) just went to the Colorado court and asked them to remove him from the ballot.
There was a process in place to challenge illegibility. Another thing that comes up is the power states have over choosing electors. After all Bush v. Gore told us the people don't directly elect presidents. The faithless electors' cases from a few years ago also noted this.