23-719 TRUMP V. ANDERSON DECISION BELOW: 2023 WL 8770111 ORDER OF JANUARY 5, 2024: THE CASE IS SET FOR ORAL ARGUMENT ON THURSDAY, FEBRUARY 8, 2024. EXPEDITED BRIEFING. CERT. GRANTED 1/5/2024 QUESTION PRESENTED: 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 question presented is: Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?
Lederman today turns to Griffin's case (1869). Chase denied the writ of habeas corpus sought by a criminal defendant who claimed that his conviction was ultra vires because Virginia Judge Hugh Sheffey was disqualified by virtue of Article 3 of the 14th Amendment. Chase's opinion is relied upon by Trump and his amici who say that the 14th Amendment is not "self-executing", so that without Congress having acted to enforce it the measure is toothless. But the Colorado Supreme Court is NOT enforcing the 14th Amendment. It is enforcing its own election law - to bar an unqualified candidate from appearing on the ballot as a candidate for the nomination as the presidential candidate of the state Republican Party.
The Colorado Supreme Court's Anderson v. Griswold per curiam opinion summarizes the remedy. It is directed to Secretary of State Jena Griswold. The plaintiffs - Republican and independent voters ("electors") - obtained this narrowly crafted relief:
we conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump's name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him. See § 1-7-114(2), C.R.S. (2023) ("A vote for a write-in candidate shall not be counted unless that candidate is qualified to hold the office for which the elector's vote was cast.").
But we stay our ruling until January 4, 2024 (the day before the Secretary's deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires, it shall remain in place, and the Secretary will continue to be required to include President Trump's name on the 2024 presidential primary ballot until the receipt of any order or mandate from the Supreme Court.
The Colorado Supreme Court does not bar Trump from taking office if he prevails in the electoral college. It does bar him from receiving any primary votes in Colorado - a closely contested state. Inferentially it may bar him from the general election ballot. So the order has consequences but does not bar Trump from again taking office [as an impeachment conviction could have], nor does it affect the ultimate federal question of Trump's eligibility. It does bar Trump from obtaining the Republican Party nomination in Colorado, and, if allowed to stand by the U.S. Supreme Court, may bar Trump from appearing on the general election ballot in other states following Colorado's lead, as did Maine's Secretary of State.
- GWC 2/7/2024
As I explained in one of my earlier posts, several or all of the Justices might be inclined to decide the case on some ground that doesn’t require the Court to decide whether Donald Trump is eligible to be President, if such an “off-ramp” solution is legally available.
Trump himself offers the Court at least three such “off-ramps,” and the respondent Colorado Republican State Central Committee (CRSCC) proposes two others. In this post, I’ll discuss the first of the CRSCC’s off-ramp arguments, which invokes Chief Justice Chase’s opinion in In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869), and the first of Trump’s three “off-ramp” arguments, which also depends upon Griffin’s Case, although in a very different way—as the predicate for an argument that Congress has “impliedly precluded” Colorado from acting as it did. In my next post, I’ll address the other two “off-ramp” arguments that Trump offers. And in the post after that one, I’ll address the remaining argument raised by the CRSCC (and some amici), which is based upon the First Amendment rights of Trump supporters in Colorado. Although Trump himself doesn’t make this argument (probably because the right in question isn’t his), I think it might be the most plausible of the “off-ramp” solutions before the Court.
A. Off-Ramp Argument No. 1: The Griffin’s Case Argument That Enforcement Requires Congressional Legislation
“Congress, and only Congress,” writes the CRSCC (Brief at pp.13-14), “has authority to enforce Section 3,” and therefore “states cannot claim for themselves authority to seek the disqualification of presidential candidates absent congressional authorization.” In support of this very broad proposition, the CRSCC cites In re Griffin, in which Chief Justice Chase, sitting by designation, wrote that the disability “create[d]” by Section 3 is “to be made operative … by the legislation of congress in its ordinary course.” 11 F. Cas. at 26.
In his opening brief, Donald Trump appeared to preserve this argument, though just barely: He didn’t devote any space to it.[1] His reply brief does even less with it than that, offering only the ambiguous sentence “that section 3 may be enforced only though the congressionally enacted methods of enforcement,” without even arguing that Chief Justice Chase got it right in Griffin’s Case. The CRSCC, however, spends more than ten pages on the argument in Part II of its reply brief.
The CRSCC’s argument is a variation on the now oft-heard claim that Section 3 is “not self-executing.” Before addressing the substance of the argument itself, it’s important to distinguish it from another, more draconian “non-self-execution” argument that no party is making but that has been prominent in some public discussions of the case—namely, that Section 3 does not apply to disqualify anyone from any office absent congressional legislation. That argument isn’t at issue in the case: Everyone agrees that if Donald Trump was subject to Section 3 as President, and if he engaged in an insurrection on January 6, 2021, then that conduct rendered him legally ineligible to serve as President or in the other covered state and federal offices (absent action by two-thirds of both houses of Congress to eliminate that disability). Indeed, in his reply brief (at p.19), Trump says in no uncertain terms that “President Trump is not arguing that section 3 is ‘non-self-executing.’” (Kim Roosevelt’s amicus brief is just terrific in explaining that Section 3 applies of its own force. I don’t believe, however, that anyone in the case disputes that.) The point of contention is not about whether Section 3 applies when its conditions are met, but instead about who can enforce it, under what circumstances, and in what manner.
Or at least, that’s what Trump (in his opening brief) and the CRSCC claim to be the point of contention. In fact, however, this whole argument rests on a mistaken premise—namely, that Colorado is, or is trying to, “enforce” Section 3. As I explained in an earlier post, that’s simply not so, although (unfortunately) all the parties in the case appear to assume otherwise.
Colorado is not taking any steps to "enforce" Section 3's disqualification rule. The state courts, for example, are not trying to enjoin Donald Trump from taking office. Colorado officials aren’t trying to arrest him to prevent him from performing the duties of that office. Colorado isn’t even trying to prevent Colorado’s presidential electors from casting their electoral votes for Donald Trump if he wins the popular vote in Colorado in November, nor (as I’ve explained earlier) has it asserted any state law authority to exclude Trump from the Colorado general election ballot (something that Colorado law does not appear to authorize).
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