Early in 2021, overwhelming majorities of both the U.S. House of Representatives (by a vote of 232-197) and the Senate (57-43) determined that Donald Trump engaged in an insurrection on January 6, 2021; that such conduct amounted to “high crimes and misdemeanors”; that Trump’s conduct disqualified him from holding any office under the United States by virtue of Section 3 of the Fourteenth Amendment (which the Article of Impeachment expressly cited); and that Trump accordingly “warrants … disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”
Of course, that unprecedented bicameral congressional determination did not have any formal legal effect because “convict[ion]” under the Impeachment Clause of Article I, Section 3 requires “the Concurrence of two thirds of the [Senate] Members present,” and the Senate fell short of the necessary 67-vote mark. Had ten more Senators voted to convict, then the constitutional system would have operated as it was designed, Trump wouldn’t be running for President, and there’d be no Colorado case.
Unfortunately, however, 43 Republican Senators voted not to convict Trump despite his indefensible efforts to undo the election results. And although a grand jury has charged Trump with several criminal offenses related to those efforts, that indictment does not include an alleged violation of the criminal “insurrection” statute, 18 U.S.C. § 2383, which provides that “[w]hoever 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.” (Indeed, although DOJ has charged hundreds of individuals in connection with the January 6 attack on the Capitol—some even with “seditious conspiracy” under 18 U.S.C. § 2384—it has not (yet) charged anyone with involvement in an insurrection under section 2383.)
Despite the fact that neither Congress nor DOJ has yet taken steps sufficient to disqualify Trump from holding federal office, he might nevertheless be constitutionally ineligible to hold any future state or federal office, including the presidency, by virtue of Section 3 of the Fourteenth Amendment, which provides:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, 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.
Norma Anderson, an eligible Republican Party voter, and five other individuals who also are eligible to vote in the Colorado Republican presidential primary—the “plaintiffs” in Trump v. Anderson—contend that Trump is disqualified to serve as President. Although those plaintiffs lack any power to prevent Trump from serving as President (as does the State of Colorado), they claim that his alleged ineligibility has an incidental effect under Colorado law—namely, that it requires the Secretary of State not to include Trump’s name on the Republican party ballot in connection with the Colorado presidential primary election and (potentially) the Colorado general election ballot in November.
As Colorado law requires, Trump filed the necessary documents to appear on the primary election ballot, as did several other Republicans (including Nikki Haley and Ron DeSantis). In particular, Trump signed a Statement of Interest form in which he “affirm[ed]” that he “meet[s] all qualifications for the office prescribed by law,” which means that he has attested that, in his view, the Fourteenth Amendment does not bar him from holding the office. The state Republican Party also submited a document stating its view rthat Trump is a "bona fide" candidate affiliated with the Party. Accordingly, in the ordinary course Colorado law would require Secretary of State Jena Griswold to include Trump’s name on the primary election ballot: As the Colorado Supreme Court eventually held (Pet. App. 32a), she had "no duty to determine, beyond what is apparent on the face of the required documents, whether [Trump] is qualified." However, the Anderson plaintiffs brought suit (a “petition”) in Colorado district court against Secretary Griswold, arguing that she’s obliged under state law to exclude Trump’s name from any presidential ballots in Colorado because (in their view) he can’t lawfully serve in the office. The Colorado Supreme Court later held that Colorado Revised Statutes section 1-1-113(1) affords such voters the right to bring such a suit.[1] (Colorado’s constitution doesn’t impose any “standing” limitations, such as those the U.S. Supreme Court has established for a federal court suit, that would preclude such a petition in Colorado courts.)
Trump and the Colorado Republican Party intervened as parties. A state district court held, after an extensive hearing, that although Trump had “engaged in insurrection” on January 6, 2021, nevertheless he wasn’t subject to Section 3’s disqualification because, inter alia, he had not taken an oath as an “officer of the United States” and, indeed, has never served as an “officer of the United States.” The Anderson plaintiffs (and Trump and the CRSCC) appealed to the Colorado Supreme Court, which reversed the district court’s judgment by a 4-3 vote.
The Colorado Supreme Court majority held that although Secretary of State Griswold had no duty to investigate Trump's eligibility, nevetheless she would commit a “wrongful act” within the meaning of section 1-1-113 of the Colorado Election Code if she placed Trump’s name on the Republican presidential primary ballot because section 1-4-1203(2)(a) of the Code allows only “qualified” candidates to participate in such a primary election and Trump is not “qualified” to be President by virtue of his conduct on January 6.[2] “[W]e conclude,” wrote the court, “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.” Accordingly, the court decreed that the Secretary may not list Trump’s name on the 2024 presidential primary ballot nor count any write-in votes cast for him in that primary election (citing Colo. Rev. Stat. § 1-7-114(2) (“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.”)).[3] (The court did not opine on whether the Secretary must or could exclude Trump’s name from the Colorado general election ballot if and when the Republican Party nominates him to be President.)
Importantly, however, the Colorado Supreme Court stayed its holding in order to give Trump and the CRSCC an opportunity to seek certiorari in the U.S. Supreme Court, and further decreed that if any party sought Supreme Court review before the stay expired, which Trump and the CRSCC have done, the stay “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.”
Accordingly, the Anderson plaintiffs have not obtained the relief they were seeking for the primary election, and it's not clear that they'd be able to do so, even if the Supreme Court were to rule in their favor.
Trump’s name now appears on the Colorado primary election ballots the Secretary of State has certified. County clerks finished mailing those ballots to military and overseas voters last week (by January 20 at the latest), as required by the Uniformed and Overseas Citizens Absentee Voting Act (52 U.S.C. § 20302(a)(8)). And, as detailed in this Colorado chart, this coming Friday, February 2, clerks must also begin providing mail-in ballots to eligible voters who request them in person, and clerks will mail such ballots to voters between February 12 and 16. On February 20, clerks will begin counting any returned mail-in ballots. Polling centers for in-person voting will open on February 26, and will remain open for eight days, through Colorado’s primary “election day” on March 5. All ballots must be received by the county clerk by 7:00 p.m. on March 5.
As far as I know, even in the unlikely event the Supreme Court were to affirm the judgment of the Colorado Supreme Court before March 5--the primary Election Day in Colorado--Colorado election officials do not plan to provide some or all Colorado voters with alternative or replacement ballots on which Trump’s name doesn’t appear, and for good reason: Presumably that course of action would create an administrative nightmare, because Colorado Republican voters would then be casting votes on two different versions of the ballot—some would fill out Trump-inclusive ballots distributed before the Supreme Court decision (many of which, I assume, have already been returned with votes for Trump recorded), and others would cast their votes on “remedial” ballots on which Trump’s name does not appear.
What’s more, it bears emphasizing that the purpose of the Colorado presidential primary election is not to choose presidential electors pursuant to the State’s authority under the Electors Clause of Article II, Section 1 of the federal Constitution (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”), but instead “to allocate delegates to national nominating conventions of the major political parties.” Colo. Rev. Stat. § 1-4-1202(2). Thus, when Colorado voters in the Republican primary fill out their ballots for Donald Trump (as a majority will surely do both before and after any Supreme Court decision), Colorado law will then require the Secretary of State to “certify” those results to the Republican Party state chairperson and the Republican Party national committee, regardless of what the Supreme Court has or has not decided by then, Colo. Rev. Stat. § 1-4-1207(2), and the Republican Party will then “use the results … to allocate national delegate votes [at the Republican Convention] in accordance with the party’s state and national rules,” id. § 1-4-1207(3). Regardless of what happens in the Colorado primary, the Republican Convention is free to disregard the Secretary's certification, and to count Colorado's delegate votes in a different manner, if party rules so provide. See Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 126 (1981).
What all this means is that Trump has already effectively received all the relief from the effect of the Colorado Supreme Court's judgment that he’s seeking in the Supreme Court, and there appears to be very little chance that anything the Court might decide--even if it rules against Trump--would affect that result.
So why is Trump even appealing? Well, for one thing, if he hadn't done so, the Colorado primary ballot would have excluded his name. More significantly, I think virtually everyone understands that the stakes of the case in the Supreme Court have virtually nothing to do with any Colorado election, let alone with the presidential primary in that State. Instead, Trump wants the U.S. Supreme Court to reverse the decision of the Colorado Supreme Court in order to eliminate the risk that any other states, particularly the handful whose votes could affect the outcome of the national presidential election, might refuse to include Trump’s name on their general election ballots. (More on that below.)
Why The Court Might Not Rule that the Case is Moot
If I’m right that the Court’s decision almost surely couldn’t affect whether Trump’s name appears on the Colorado presidential primary ballot, nor affect whether Colorado conveys the results of its primary vote to Republican Party officials, isn’t the case moot? See, e.g., DeFunis v. Odegaard, 416 U.S. 312 (1974) (per curiam) (suit challenging law school admissions policy was moot when plaintiff neared graduation).
I'm not sure of the answer to that question. [Warning to readers: The discussion below is very in-the-weeds, and my analysis is concededly tentative. The upshot is simply that the Court might need to consider and resolve questions of mootness (and a question of statutory jurisdiction I discuss at the end of the post) before proceeding to address the Question Presented.]
For one thing, although it is true that “if an event occurs while a case is pending on appeal that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party, the appeal must be dismissed,” Church of Scientology of Cal. v. United States, 506 U. S. 9, 12 (1992), the Court has been fairly strict in recent years about insisting that it be truly “‘impossible for a court to grant any effectual relief whatever to the prevailing party’” before finding mootness. Mall Holdings LLC v. Transform Holdco LLC, 143 S. Ct. 927, 934 (2023), quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013) (emphasis added)). Therefore, if, for example, the Colorado Secretary of State explains in her forthcoming brief that a ruling by the Court for the Anderson plaintiffs still might affect what happens to the ballots in the Colorado primary election, that would likely be enough to keep the appeal alive. [UPDATE: In her brief, the Secretary of State confirmed (pp. 22-23) that Trump's name appears on the primary ballot along with six other Republican candidates and two write-in candidates. Unfortunately, she did not explain how, if at all, some or all of the ballots might change if the Supreme Court were to hold that Trump is ineligible.]
In addition, there is a well-established exception to the Article III mootness barrier when the issue presented “is capable of repetition, yet evades review.” In order for this exception to apply, two conditions must be met. First, “the challenged action is in its duration too short to be fully litigated prior to cessation or expiration.” Davis v. FEC, 554 U.S. 724, 735 (2008) (internal quotation marks omitted). That condition is likely satisfied here. Second, there must be “a reasonable expectation that the same complaining party will be subject to the same action again.” Id. This second condition is the potential problem here. If I’m right about Colorado law, Donald Trump doesn’t have a reasonable expectation of ever being excluded from a Colorado primary ballot, and therefore the Court’s answer to the Question Presented—which is whether the Colorado Supreme Court erred “in ordering President Trump excluded from the 2024 presidential primary ballot”—will never have any legal effect.
The fact that this is a dispute about an election might affect the mootness analysis, however. When it comes to election-related disputes, the Supreme Court has applied the second condition of the “capable of repetition, yet evading review” exception in a very capacious manner, sometimes resolving disputed questions even long after the election in question is over and “no effective relief can be provided to the candidates or voters,” as long as the issues might be relevant as “applied in future elections.” Storer v. Brown, 415 U.S. 724, 737 (1974) (citing Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333 n.2 (1972); Moore v. Ogilvie, 394 U.S. 814, 816 (1969); and Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)); see also Republican Party of Penn. v. Degraffenreid, 141 S. Ct. 732, 737 (2021) (mem.) (Thomas, J., dissenting from denial of certiorari) (arguing that an election dispute could be adjudicated after the election of 2020 was complete where there was a “a reasonable expectation that these petitioners—the State Republican Party and legislators—will again confront nonlegislative officials [of the defendant state] altering election rules”). Indeed, in several cases the Court has even held that an election did not render moot a challenge to ballot-access requirements despite the absence of any evidence that the particular candidates in question had plans to run for office again. See Anderson v. Celebrezze, 460 U.S. 780, 784 n.3 (1983); Mandel v. Bradley, 432 U.S. 173, 175 n.1 (1977); Brown v. Chote, 411 U.S. 452, 457 n.4 (1973). Thus, as Justice Scalia noted in his dissent in Honig v. Doe, “some of our election law decisions … differ from the body of our mootness jurisprudence not in accepting less than a probability that the issue will recur, in a manner evading review, between the same parties; but in dispensing with the same-party requirement entirely, focusing instead upon the great likelihood that the issue will recur between the defendant and the other members of the public at large without ever reaching us.” 484 U.S. 305, 335–36 (1988) (Scalia, J., dissenting) (emphasis in original).
Those decisions, all of which are more than 40 years old, do not apply directly here, because there isn’t any realistic likelihood that Colorado will ever again try to exclude anyone from a presidential primary election ballot on Section 3 grounds, let alone do so in a way that triggers the particular legal questions raised in Trump’s case.
Nevertheless, a decision by the Court in this case might have an effect on whether the Anderson plaintiffs are entitled to additional relief that they’ve sought in state court—namely, an injunction against the Secretary of State “taking any action that would allow Trump to access … any future … general election ballot in Colorado” (emphasis added). And if the Court’s ruling in this case would incidentally resolve whether Colorado may exclude Trump from the ballot in November, perhaps that would be sufficient to trigger the “capable of repetition” requirement for a mootness exception. Whether the Court's decision might have that effect would depend, however, on whether Colorado law empowers or requires the Secretary of State to exclude Trump from the general election ballot on Section 3 grounds if and when the Republican Party nominates him. (Regardless of how Colorado’s delegates at the Republican Party July convention vote, presumably the Party will nominate Trump for President at that convention. Indeed, even if the Supreme Court ruled that Trump is ineligible to serve, there’s a significant possibility the Party would nominate him anyway, a scenario I discuss in my next post.) The Colorado Supreme Court did not address this question in its opinion—indeed, it did not say anything at all about the plaintiffs’ request for an injunction with respect to the November election ballot.
If my reading of Colorado statutes is correct, there’s no provision in Colorado law, akin to the reference to “qualified” primary election candidates in Election Code section 1-4-1203(2)(a) (upon which the Colorado Supreme Court relied in this case), that would authorize or require the Secretary of State to exclude Trump’s name as the Republican candidate on the general election ballot in November if the national Republican Party nominates him. (In a footnote below, I explain my doubts about the argument to the contrary that the plaintiffs offered in state court.[4])
That said, I might be mistaken about what the Colorado Secretary of State could or would do regarding the general election ballot if and when Trump is the Republican Party nominee. One previous case in Colorado suggests some uncertainty about that question.
In 2011, Abdul Hassan, who was born in Guyana and later became a naturalized U.S. citizen, wrote to the Colorado Secretary of State to ask whether he could appear on the 2012 ballot as an “unaffiliated” candidate for President notwithstanding that he acknowledge that he was not a “natural born citizen.” See U.S. Const. art. II, 1, cl. 5 (“No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President.”). Hassan asserted that he was eligible to serve as President because the Fourteenth Amendment had implicitly repealed Article I’s natural-born-citizenship requirement.
The Colorado Secretary of State responded to Hassan that he (the Secretary of State) “is responsible for ensuring that only eligible candidates are placed on the ballot”; that because “no court has held that any of the qualifications for the office of President as outlined in the U.S. Constitution are invalid,” the Secretary “must give effect to those requirements”; and that therefore when a potential candidate “affirmatively discloses that he or she does not meet the constitutional qualifications for the office,” that person “will not be placed on the ballot in Colorado.” Complaint for Declaratory and Injunctive Relief ¶ 37 (Nov. 28, 2011), Hassan v. Colorado, No. 11-CV-031162011 (D. Colo.), 2011 WL 13516190. The Secretary did not identify any statutory authority for taking steps to “ensur[e] that only eligible candidates are placed on the [general election] ballot.” A district court later dismissed Hassan’s subsequent suit against the Secretary, 870 F. Supp. 2d 1192 (D. Colo. 2012), and the U.S. Court of Appeals affirmed, in an opinion written by then-Judge Gorsuch, 495 Fed. App’x. 947 (10th Cir. 2012).
The Hassan case is not directly on-point here for two reasons: First, Hassan did not challenge the Secretary’s statutory authority to exclude his name from the Colorado general election ballot, and therefore that question was not adjudicated. Second, whereas Hassan acknowledged the facts that (in the Secretary’s view) disqualified him from becoming President, Trump has not done so—to the contrary, he flatly denies that he engaged in any insurrection. Therefore this is not a case in which the individual “affirmatively discloses that he or she does not meet the constitutional qualifications for the office.”
Even so, the Hassan case does suggest that the Colorado Secretary of State apparently was of the view, at least as of 2011, that he could exclude a candidate from the general election ballot when that person is disqualified to serve in the office, under at least some circumstances, and even in the absence of a statute germane to the general election analogous to the one the Colorado Supreme Court relied upon in the Trump case (Colo. Rev. Stat. § 1-4-1203(2)(a)) as authority for a primary-ballot exclusion.
Obviously, the Supreme Court should not assume that I've properly construed Colorado election law. I hope that if the Colorado Secretary of State files a brief this coming week, she will address whether (and, if so, how) the Supreme Court’s decision might possibly affect Colorado ballots in 2024—including whether Colorado law affords the Secretary authority or an obligation to exclude Trump’s name from the general-election ballot. If the Secretary persuades the Court that its decision could determine whether Trump appears on the November ballot, that could be sufficient to overcome any mootness problem. [UPDATE: Unfortunately, in her brief the Secretary of State did not say a word about how the Court's decision could affect any Colorado ballots. Nor did she opine on whether she'd have authority to omit Trump's name from the general election ballot. On these important questions, the parties have not offered the Court any assistance.]
Moreover, the Justices may well think there’s another practical reason, having nothing to do with Colorado, why it would be best for them to adjudicate the question now. The real danger, some Justices might think, is that one or more other states that Trump might carry in November could decide to exclude his name from their general election ballot(s) in a way that could deny him the 270+ electoral votes that he would otherwise obtain. In other words, Justices might think this is the flip-side of the cases cited above (Anderson v. Celebrezze, et al.)—one in which there’s a risk that the same aggrieved party might suffer the same fate at the hands of a different state in a way that might possibly affect the outcome of the presidential election. And the Court understandably would be loath to adjudicate the question of Trump’s qualification for office in the heat of the fall campaign, after the Republican Party has already nominated him on the assumption that he can serve as President and after state ballots have been printed and (possibly) distributed.
Frankly, I’m not sure that concern would be well-taken, because it’s far from certain that any other states that could tip the scales in the election would try to exclude Trump from their ballots. To be sure, the issue might be a live one in Maine, where the Secretary of State has determined that Trump’s name can’t appear on the primary ballot and the state courts have postponed adjudication of that question in light of the Supreme Court’s grant of certiorari in Anderson. But even if the Maine courts (i) were to agree with its Secretary of State and (ii) were to apply that holding to the Maine general election ballot, and even if (as is likely) such an exclusion from the November ballot could flip the single electoral vote in Maine’s second district from Trump to Biden, it’s very difficult to conjure a scenario in which that one electoral vote is the difference between 269 and 270 nationwide, given the expected electoral vote breakdowns among the states.
In the handful of states on which the result of the election might turn (e.g., Arizona, Georgia, Michigan, Nevada, New Hampshire, North Carolina, Pennsylvania, Wisconsin), there is, to my knowledge, only one in which there’s been any suggestion at all that the state might exclude Trump from the general election ballot. In Michigan, a Justice of its Supreme Court recently wrote in a concurring opinion that although the court of appeals there was correct to hold that there’s nothing in Michigan law authorizing removal of Trump’s name from the primary election ballot, Trump and the party might “renew their legal efforts as to the Michigan general election later in 2024 should Trump become the Republican nominee for President of the United States.” Even there, however, the (Democratic) Michigan Secretary of State argues that Michigan law does not authorize Michigan officials to exclude nominated-but-ineligible presidential candidates from the general election ballot; and, based upon my very cursory review of the Secretary's brief and the court of appeals' decision, I'd hazard to predict that it's extremely unlikely the Michigan Supreme Court will hold that the Secretary could or must exclude Trump from the November ballot.
For these reasons, I think it’s likely that if the Supreme
Court were to dismiss the Colorado case as moot, that wouldn’t have any
impact at all on the results of the 2024 presidential election (but for perhaps
the one electoral vote from the Maine second district, which wouldn’t change
the outcome). [UPDATE: In his reply brief, Trump rightly notes that "[t]o date, at least 60 state and federal courts throughout the country have refused to remove President Trump from the ballot" and that the Colorado Supreme Court
"is the lone outlier." Trump then rather inexplicably adds that "this Court should reverse" to "protect the rights of the tens of millions of Americans who wish to vote for President Trump." But if Colorado is "the lone outlier," then its decision to exclude Trump's name from the primary ballot" (which, again, will not affect the ballot, which is now fixed, or the delegates chosen from Colorado) will not have the slightest effect on the ability of "tens of millions of Americans" to vote for Trump if the Court dismisses the case as moot.]
That said, none of the parties in the case has even surfaced the mootness issue, let alone urged the Court to dismiss the case on that ground. And if the Justices are assured that the Court’s decision could affect either Colorado’s treatment of its primary election ballots, or the state's treatment of Trump on the November election ballot, they might conclude that the case is not moot, even though the precise Question Presented, concerning the content of Colorado’s primary ballot, appears to have been overtaken by events.
The Court's Statutory Jurisdiction
The parties likewise have not addressed whether the Supreme Court has statutory jurisdiction to consider Trump’s certiorari petition. 28 U.S.C. 1257(a) gives the Supreme Court jurisdiction to review by writ of certiorari “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had” in only three circumstances. First, the Court can review such a state-court judgment “where the validity of a treaty or statute of the United States is drawn in question.” That’s inapposite here. The Court can also review such a judgment “where any title, right, privilege, or immunity is specially set up or claimed [by the petitioner] under the Constitution or the treaties or statutes of, or any commission held or authority exercised under, the United States.” The Colorado Republican Party has claimed in its petition that the decision of the state court violates the First Amendment rights of its members, but Trump hasn’t alleged that the judgment violates any of his federal rights (or any title, privilege, or immunity he might have under federal law), presumably because it doesn’t. (Candidates for office generally don’t enjoy any First Amendment or other constitutional rights to appear on state primary (or general-election) ballots so long as the restrictions are rational. See, e.g., Bullock v. Carter, 405 U.S. 134, 142-43 (1972). Trump’s cert. petition stated that “the Colorado Supreme Court decision would unconstitutionally disenfranchise millions of voters in Colorado,” but he hasn’t pressed any argument on behalf of voters’ rights.)
Finally, section 1257(a) affords the Court jurisdiction to review a state-court judgment that has “drawn in question” the “validity of a statute of any State … on the ground of its being repugnant to the Constitution, treaties, or laws of the United States.” Some of Trump’s principal arguments—such as that the presidency isn’t a covered “office of the United States” for Section 3 purposes and that he didn’t “engage in” an insurrection—do not appear to be based on any claim that Colorado law, as construed by the Colorado Supreme Court, is “repugnant to” the U.S. Constitution. Those arguments are, instead, merely premised on the notion that the state court misconstrued federal law in applying the state’s own law—which isn’t sufficient to established section 1257(a) jurisdiction. Indeed, in a very early Section 3 case, the Court held that it lacked statutory jurisdiction in such a case. In Worthy v. Commissioner, 71 U.S. 611 (1869), North Carolina officials, applying a North Carolina statute, refused to allow an individual to take the sheriff’s office for which he was elected because he was disqualified under Section 3, and he challenged that refusal in state court on the ground that Section 3 didn’t extend to the office in question. See Worthy v. Barrett, 63 N.C. 199, 201-03 (1869). When the state supreme court denied his claim, id., Worley appealed to the U.S. Supreme Court, which held not only that Worthy had failed to raise any claim of constitutional right in state court, but also that the North Carolina court decision had not upheld “the validity of a statute of, or authority exercised under a State,” against a claim that it was “alleged to be repugnant to the Constitution, treaties, or laws of the United States.” 71 U.S. at 613. Accordingly, the Supreme Court concluded that there was a “Want of Jurisdiction,” id., under Section 25 of the Judiciary Act of 1789, which prescribed conditions for such jurisdiction similar to those in the current successor provision, section 1257(a). If Worley’s arguments about Section 3 in 1869 did not suffice to establish the Court's jurisdiction, then the same thing appears to be true with respect to Trump’s “merits”-based arguments.
In other of his arguments, however, Trump now does appear to assert that the application of Colorado statutes to exclude his name from the primary ballot, as the state supreme court decreed it must, is inconsistent with (“repugnant to”) federal law. For example, he now argues (see page 40 of his merits brief) that Colorado’s ballot exclusion is implicitly “precluded” by a congressionally designed scheme prescribing the manner of enforcing Section 3 as to federal officers (an argument I’ll discuss in a later post). That would probably be enough to trigger the Supreme Court’s section 1257(a) jurisdiction if Trump raised such “repugnant to federal law” arguments in state court, because the Supreme Court has often recognized or assumed its statutory jurisdiction on appeal from state court decisions rejecting a claim that a particular application of a state law is “repugnant” to federal law. See, e.g., Atchison, T. & S. F. Ry. Co. v. Public Utilities Commission of Cal., 346 U.S. 346, 348–349 (1953) (entertaining an appeal from a state court decision that upheld an administrative order and noting that “[i]n sustaining the Commission’s orders by denying writs of review, the Supreme Court of California upheld the statute as applied by the Commission, and the cases are properly here on appeal”); 16B Wright & MIller’s Federal Practice & Procedure § 4012 at notes 39-60 (3d ed.). That said, I’m not certain whether Trump advanced such claims in Colorado state court.
The Court “has an obligation to satisfy itself … of its own jurisdiction" under section 1257(a), “even though the parties are prepared to concede it.” Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 95.
* * * *
[1] That statute provides in pertinent part:
When … any eligible elector [i.e., qualified voter] files a verified petition in a district court of competent jurisdiction alleging that a person charged with a duty under this [Election] code has committed or is about to commit a breach or neglect of duty or other wrongful act, after notice to the official which includes an opportunity to be heard, upon a finding of good cause, the district court shall issue an order requiring substantial compliance with the provisions of this code. The order shall require the person charged to forthwith perform the duty or to desist from the wrongful act or to forthwith show cause why the order should not be obeyed. The burden of proof is on the petitioner.
Section 1-4-1204(4) of the Colorado Election Code, in turn, provides that “[a]ny challenge to the listing of any candidate on the presidential primary election ballot must be made in writing and filed with the district court in accordance with section 1-1-113(1) no later than five days after the filing deadline for candidates.” It further provides that “[n]o later than five days after the challenge is filed, a hearing must be held at which time the district court shall hear the challenge and assess the validity of all alleged improprieties. The district court shall issue findings of fact and conclusions of law no later than forty-eight hours after the hearing.”
[2] Trump argues, and he may well be right, that the Colorado Supreme Court erred on this question of Colorado law—i.e., that section 1-4-1203(2)(a) does not prohibit the Secretary of State from including the name of an “unqualified” candidate on the ballot. The statute simply says that “each political party that has a qualified candidate entitled to participate in the presidential primary election pursuant to this section is entitled to participate in the Colorado presidential primary election.” There’s no dispute that the Colorado Republican Party has several candidates entitled to participate in the presidential primary (including Haley and DeSantis) who are qualified to serve as President, regardless of whether Trump is qualified, and therefore the Republican Party may participate in the primary election. As Justice Berkenkotter explained in dissent, see Pet. App. 177a-181a, the text of section 1-4-1203(2) doesn’t go further and require the exclusion from the primary election ballot of any candidate who is (arguably or in fact) unqualified. In a later post, I’ll discuss why it's unlikely the U.S. Supreme Court will rely upon the Colorado Supreme Court’s apparent misreading of Colorado law as the basis for its holding in Trump v. Anderson.
[3] As far as I know, the plaintiffs never asked for an
injunction against counting Trump write-in votes. As I explain below, however, that part of the
Colorado Supreme Court holding is beside the point because the Colorado primary
ballots do, and will continue to, include Trump's name.
[4] In their briefing in the Colorado
Supreme Court, the Anderson plaintiffs suggested that C.R.S. § 1-4-501
provides a means of ensuring that individuals unqualified to hold office may not appear
on the general election ballot. For
at least two reasons, I have doubts about that argument.
First, even if Joe Biden’s and Donald Trump’s names will appear on the
November ballot, the actual persons being chosen in that election are
presidential electors from Colorado rather than the candidates for the
presidency, see Colo. Rev. Stat. §
1-4-301 (“At the general election in 1984 and every fourth year
thereafter, the number of presidential electors to which the state is entitled
shall be elected.”), and Section 3
of the Fourteenth Amendment clearly does not disqualify the persons
running to serve as electors from holding those positions by virtue of Donald Trump's conduct on January 6. Second, the pertinent portions of the state
statutory provision cited by the Anderson plaintiffs appear to be
designed to ensure that candidates satisfy qualifications for offices
specific to Colorado—residency requirements, in particular. The title of the statute is “Only eligible electors eligible for office,” where
“eligible electors” refers to Colorado voters. Obviously, persons other than Colorado voters
are eligible to be President, which is a good reason to think that section 1-4-501
doesn’t address eligibility for that office. Subsection (1) of the statute provides:
(1) No person except an
eligible elector who is at least eighteen years of age, unless another age
is required by law, is eligible to hold any office in this state. No person is eligible to be a designee or
candidate for office unless that person fully meets the qualifications of that
office as stated in the constitution and statutes of this state on or
before the date the term of that office begins. The designated election official shall not
certify the name of any designee or candidate who fails to swear or affirm
under oath that he or she will fully meet the qualifications of the office if
elected; or who is unable to provide proof that he or she meets any
requirements of the office relating to registration, residence, or property
ownership; or who the designated election official determines is not
qualified to hold the office that he or she seeks based on residency
requirements. The information found
on the person's voter registration record is admissible as prima facie evidence
of compliance with this section.
Although subsection (1) certainly applies to the eligibility of Colorado presidential electors, it doesn’t appear to empower the Secretary of State to adjudicate whether a candidate who has made the requisite affirmation is qualified to serve in the office of President under the federal Constitution: its plain language focuses on state-law eligibility. The Anderson plaintiffs also cited subsection 1-4-501(3). It reads:
The qualification of any candidate may be challenged by an eligible elector of the political subdivision within five days after the designated election official's statement is issued that certifies the candidate to the ballot. The challenge shall be made by verified petition setting forth the facts alleged concerning the qualification of the candidate and shall be filed in the district court in the county in which the political subdivision is located. The hearing on the qualification of the candidate shall be held in not less than five nor more than ten days after the date the election official's statement is issued that certifies the candidate to the ballot. The court shall hear the testimony and other evidence and, within forty-eight hours after the close of the hearing, determine whether the candidate meets the qualifications for the office for which the candidate has declared.
Read literally, perhaps subsection (3) could be construed to authorize a “challenge” to a presidential candidate’s qualifications to hold office under the U.S. Constitution. The references to the state official’s “certification statement,” however, along with the reference to the relevant “political subdivision,” indicate that subsection (3) is cognate to subsection (1), and thus provides for “challenges” only with respect to state-law eligibility for offices other than the presidency.