A User’s Guide to Trump v. Anderson, Part Seven: Trump’s Two Remaining “Off-Ramp” Arguments: (i) That Colorado has Implemented a De Facto Extraconstitutional Presidential Qualification, in Violation of Term Limits v. Thornton; and (ii) That Colorado has Abused its Article II Authority to Appoint Presidential Electors in a “Manner” that Colorado Law Doesn’t Authorize

Marty Lederman

 In this post, I’ll examine the final two “off-ramp” arguments that Donald Trump offers the Court—arguments that would have the Court reverse the judgment of the Colorado Supreme Court without adjudicating whether the Constitution precludes Trump from serving as President.  In my next post, I’ll address the one remaining “off-ramp” argument, raised by the CRSCC (and some amici), which is based upon the First Amendment rights of Trump supporters in Colorado.

C.  Off-Ramp Argument No. 3:  That Colorado has Implemented a De Facto Extraconstitutional Presidential Qualification, in Violation of Term Limits v. Thornton

Trump concedes that Colorado could exclude him from its ballots—presumably both at the primary and general election stages—if he were 27 years old; or if he had already been elected twice to be President; or if he had been born in Guyana.  Indeed, Colorado once did exactly that:  It refused to place on its presidential ballot in the general election a person born in Guyana, on the ground that he was not a “natural born citizen” and therefore would not be able to serve as President if he were elected (see art. II, § 1, cl. 5).  That man, Abdul Hassan, challenged Colorado’s representation that it would exclude his name from the general election ballot, arguing (very similar to what Trump argues here) that “[e]ven if Article II properly holds him ineligible to assume the office of president, … it was still an unlawful act of discrimination for the state to deny him a place on the ballot.”  Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir. 2012) (emphasis in original).  

The case eventually reached the U.S. Court of Appeals for the Tenth Circuit, which upheld Colorado’s plan to exclude Hassan from the ballot, in an opinion written by then-Judge Neil Gorsuch.  Id.  Gorsuch explained that “a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.”  Id.  And in support of that proposition, Gorsuch cited two Supreme Court cases—Munro v. Socialist Workers Party (1986), and Bullock v. Carter (1972), in which the Court explained that for purposes of such ballot integrity and practical functioning, states can exclude from their ballots “frivolous” candidacies.  

In a similar case, California refused to place the name of a 27-year-old presidential candidate on its primary election ballot, and the U.S. Court of Appeals for the Ninth Circuit upheld the state’s power to do so because that candidate could not serve in the office during the term for which the election was being held (see art. II, § 1, cl. 5, providing that a person can’t serve as President if they have “not … attained to the Age of thirty five Years”).  Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014). 

Trump doesn’t take issue with these precedents.  Instead, he argues that the Colorado case is distinguishable from them, even if Donald Trump’s conduct on January 6, 2021 is covered by Section 3 of the Fourteenth Amendment, because there’s a theoretical possibility that two-thirds of both houses of Congress might (in the words of Section 3) “remove” his Section 3 “disability” to serve in the office of the presidency if he is elected to it.  Because of that possibility, Trump argues, Colorado has in effect established a new “qualification” for the office of President—namely, that someone not be ineligible under Section 3 at the time of the election (rather than on or after January 20, 2025).  Trump further argues that this is unconstitutional under U.S. Term Limits v. Thornton, 514 U.S. 779 (1995).  In Term Limits, the Court held both (i) that a state may not impose extraconstitutional conditions for holding federal office (such as, there, that a member of the House of Representatives from Arkansas not have already served more than three terms in the House), id. at 827, and (ii) that a state may not use exclusion from its ballot for the “avowed purpose,” id, at 831, or the “sole purpose,” id. at 836, of effecting such an extraconstitutional condition, where that ballot exclusion will have the “likely effect of handicapping” the ability of the excluded persons from holding the office, id.

This argument is elaborated upon and sharpened in Part I of the amicus brief for Senator Steve Daines, filed by Jones Day.

As applied to what Colorado has done here (or what it would do if it removed Trump’s name from the primary ballot, which in fact it hasn’t done), I think this argument is fundamentally flawed in at least two ways.

First, it’s already well-established that a state may keep a candidate off of a ballot because of a reasonable assessment that there’s virtually no chance that person will ever hold office, even that assessment is not 100% foolproof and is (in Trump’s words) “contingent” upon future events.    For example, a state may require that a candidate or a party have made “a showing of a modicum of support among the potential voters for the office,” Munro v. Socialist Workers Party, 479 U.S. 189, 193, either in past elections or by obtaining the signatures of a certain number of voters, in order to be named on a ballot.  See, e.g., Munro (as applied to election for U.S. Senator); Anderson v. Celebrezze, 460 U.S. 780, 788-89 n.9 (1983); Illinois Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979); Storer v. Brown, 415 U.S. 724, 738 (1974) (as applied to candidates for President and Congress); Jenness v. Fortson, 403 U.S. 431 (1971).  Virtually all of those cases involved challenges to ballot exclusion based upon the First Amendment or Equal Protection rights of voters or parties—the subject of my next post—rather than claims that the exclusions imposed “extraconstitutional qualifications.”  Significantly, however, the Supreme Court affirmed in U.S. Term Limits itself that such exclusions are constitutional, and do not amount to imposing extraconstitutional conditions on holding office.  See 514 U.S. at 834-35 (discussing Storer and Munro).  The ballot restrictions there were permissible because they “served the state interest in protecting the integrity and regularity of the election process, an interest independent of any attempt to evade the constitutional prohibition against the imposition of additional qualifications for service in Congress.”  Id. at 835.  And that was so even though, in those cases, there was at least a theoretical possibility that the candidates in question might be elected and take office.  

So, too, in this case.  If we assume, as Trump does here for the sake of this argument, that Trump is covered by Section 3 and that he did engage in an insurrection—which is what Colorado determined to be the case—then it is much more than reasonable for Colorado to assume, as it did with Abdul Hassan, that Trump cannot and will not assume the office of President, despite the (wholly) theoretical possibility that two-thirds of both Houses might vote to alleviate his ineligibility, and to exclude him from the ballot on the ground that it is virtually certain he will not serve as President, just as it can exclude from that same ballot minor-party candidates that haven’t demonstrated the requisite level of support, notwithstanding that there’s an infinitesimal chance they’d be elected and would take office.  Accordingly, it’s simply inaccurate to say, as the Daines amicus brief does (at page 14), that “the Colorado Supreme Court extended any section 3 disability beyond ‘be[ing]’ President to also merely running for President.”  The Colorado Court did nothing of the sort—nor would it ever deign to suggest that Section 3 bars anyone from running for President.  Instead, the state court has merely determined that Trump’s name should be excluded from its primary ballot because Section 3 is virtually certain to preclude him from serving as President, even if there is (barely) a hypothetical chance that Congress might revive his eligibility to serve.

The second (somewhat related) reason that Trump’s Term Limits argument doesn’t work is simply that it doesn’t satisfy the conditions for the test the Court announced in that case for when state ballot restrictions amount to an impermissible effort to impose extraconstitutional conditions on holding the federal office itself.

For one thing, for reasons I explained in Part One of this series of posts, if Colorado actually did remove Trump’s name from its primary election ballot, that would not “likely” have the “effect of handicapping” his ability to be President, in the way that excluding a candidate for Congress from Arkansas’ general election ballot would have done in Term Limits.  Indeed, it almost surely wouldn’t have any impact at all on his prospects to be President.  Even if such an exclusion resulted in, say, Nikki Haley receiving more votes in the Colorado primary than she otherwise would have received (and Trump fewer), the Republican Party could (and likely would) establish rules for its convention that would disregard the allocation of delegates certified by the Colorado Secretary of State, see Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 126 (1981), and, in any event, obviously the Republican Party at its convention will nominate Trump to be President.  As I also explained in that post, I doubt Colorado law would then authorize or require the omission of Trump’s name on the Colorado general election ballot—but, even if it did, and even if Colorado did not include his name on that ballot, that almost certainly wouldn’t affect the outcome of the national election.

More importantly, as I discussed at length in Part Three of this series, Colorado would not be omitting Trump’s name from the primary ballot even for the purpose of enforcing the actual qualification of the Fourteenth Amendment, let alone for the “sole purpose,” Term Limits, 514 U.S. at 836, of imposing a new, extraconstitutional condition.  Concededly, the plaintiffs in this case may have brought the suit in order to try to prevent Trump from becoming President because of a Section 3 disqualification.  But even if they were successful here, this suit wouldn’t lead to that result (see above) and, more importantly, the Colorado Supreme Court issued its ruling for far different reasons.

The Supreme Court “must, of course, accept the state court's view of the purpose of its own law.”  Term Limits, 514 U.S. at 829.  And as I elaborated in Part Three, the Colorado Supreme Court explained that Colorado law demanded that Trump’s name be removed from the presidential primary ballot not in order to “enforce” any qualifications for office, constitutional or extraconstitutional, but instead, as in the Hassan case, to “advanc[e]” the state’s own “legitimate” interests “‘in protecting the integrity and practical functioning of the political process’” (quoting 495 F. App’x at 948 (Gorsuch, J.)); see also Term Limits, 514 U.S. at 829 (“We must, of course, accept the state court's view of the purpose of its own law.”).

To be sure, and as the Colorado court explained, in order to advance those state interests related to the “purity,” “integrity” and “practical functioning” of state-administered elections, state courts and officials in this and analogous cases (such as Hassan) must “assess presidential candidates’ qualifications” in order to determine whether their names should appear on a primary ballot, Pet. App. 29a; accord id. at 56a.  But that “assess[ment],” or “ascertainment,” of a federal question does not in any way amount to “enforcing” Section 3 of the Fourteenth Amendment to the federal Constitution, let alone to impose an extraconstitutional condition that Colorado would be powerless to effect. 

And so, as I wrote in the earlier post, “[t]his case is … fundamentally different from the situation in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)” for the following reasons:

There, an Arkansas law prohibited the name of an otherwise-eligible candidate for the House of Representatives from appearing on the state's general election ballot if that candidate had already served three terms in the House.  As the Court explained, id. at 829-30, the "sole purpose" of that ballot exclusion was to try to prevent the election of longtime incumbents, and the effect of the ballot exclusion was to "make it significantly more difficult for the barred candidate to win the election," id. at 831—an election that was, of course, limited to persons filling out Arkansas ballots (because the race was for a House seat from Arkansas).  Here, by contrast, Colorado's purpose is not to prevent anyone's election but instead to "protect[] the integrity and practical functioning" of Colorado's own "political process" (Gorsuch, J., in Hassan); and the effect on the national election for President if Trump's name did not appear on the Colorado primary ballot would be negligible and speculative, at most.

Once one understands that Colorado is simply enforcing its own state-law rule prescribing exclusion of ineligible candidates from primary election ballots for purposes of state election management—a rule not confined to presidential candidates—one can see that Trump’s argument that Colorado is imposing an additional “qualification” for Trump to hold office (according to Trump, Colorado has effectively required a candidate not to be subject to Section 3 ineligibility at the time of the primary election rather than on January 20, 2025) rests upon a category error:  By declaring that candidates for President may not appear on its presidential primary ballot unless they meet certain conditions (including apparent eligibility to hold the office), Colorado is no more imposing extraconstitutional “qualifications” on persons holding that national office than Virginia did in 2012 when it excluded Rick Perry from its presidential primary ballot because he failed to timely submit the necessary number of voter signatures.  See Perry v. Judd, 471 F. App’x 219 (4th Cir. 2012). 

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For these reasons, I think Trump’s Term Limits argument is fatally flawed as applied to this Colorado case.    [RECOMMENDED:  Will Baude and Michael Paulsen just posted on this same question.]  

I’d be remiss, however, if I didn’t mention the elephant in the middle of the room—the problem that will undoubtedly be on the Justices’ minds.

Let’s say this weren’t a case about a primary election ballot, nor about Colorado.  Imagine instead that it’s August, and the State of Wisconsin determines that, because Trump will be ineligible to hold office, it will not include his name on its general election ballot, even after the Republican Party has nominated him.[1]  I should be clear that I don’t have any reason to think that would happen in Wisconsin (or in any other possible “swing” or “tipping point” state):  It might be that Wisconsin law, like that of most states, does not authorize a ballot exclusion under those circumstances, or that Wisconsin officials or its Supreme Court would find—for that or other reasons—that Trump’s name should not be omitted, just as the Michigan Secretary of State and courts have determined thus far.  The Supreme Court, however, doesn’t have a good sense (nor do I) of what the prospects are of such an exclusion in the general election.  So I think the Justices will have this situation in mind.    

And they will be much more concerned about that sort of Wisconsin ballot exclusion in November than they are (or ought to be) about Colorado’s ballot in March, because the hypothetical Wisconsin ballot exclusion might very well determine whether Trump is able to assume office in January.  At a minimum, it would have the “likely effect of handicapping” Trump’s prospects, Term Limits, 514 U.S. at 836.  Moreover, the Supreme Court would likely at least suspect that Wisconsin would be removing Trump’s name in order to help prevent him from becoming President, even if the Wisconsin courts also (or only) cited “ballot integrity” or similar objectives.

If it were conclusively established by that time that Trump is ineligible to serve as President, then such an exclusion from the Wisconsin ballot (or any other) would be unproblematic, notwithstanding the theoretical possibility that two-thirds of the Senate and House could relieve Trump of the effect of Section 3.  No Justice, and no serious observer, thinks that there’s any possibility at all of that happening.  After all, significant majorities of both Houses already concluded that Trump is disqualified under Section 3 and that his actions on January 6, 2021 were high crimes or misdemeanors that warrant precluding him from ever again serving in federal office.  The notion that 67 or more Senators and at least 290 Representatives will now vote to absolve him so that he may serve again is, frankly, ludicrous.       

The problem that will concern the Justices, therefore, would not be that Wisconsin might be effectively imposing an extraconstitutional qualification, but instead that Wisconsin, and Wisconsin alone, would be empowered to adjudicate, with potentially conclusive effect, that Section 3 does, in fact, disqualify Trump, even though that is a deeply contested question across the nation (unlike, say, the eligibility of a 27-year-old or Barack Obama or George W. Bush to be President).  That concern does not describe a Term Limits problem.  Yet the Justices will undoubtedly be deeply troubled by it, because they’ll think that a single state (or two or three) should not be permitted to effectively resolve such a disqualification question for the entire nation as applied to a national office that is filled collectively by the will of the people of all the states (and D.C.).  That autumn scenario brings to mind something Justice Thomas wrote in his dissenting opinion in Term Limits.  In his view (contrary to the majority), states can establish extraconstitutional conditions for House Representatives from that state.  Even so, Justice Thomas was careful to explain that a state could not do so for the President, any more than Maryland and like-minded states could try to impose taxes to effectively kneecap the Second Bank of the United States (citing McCulloch, of course, 17 U.S. at 428 (“the means employed by the government of the Union … are not given by the people of a particular state, not given by the constituents of the legislature, which claim the right to tax them, but by the people of all the states”); see also id. at 430 (describing “the usurpation of a power which the people of a single state cannot give”)).  “[T]he people of a single State may not prescribe qualifications for the President of the United States,” wrote Justice Thomas, because “the selection of the President, like the operation of the Bank of the United States, is not up to the people of any single State.”  514 U.S. at 856 n.6.

The Court itself wrote something similar in Anderson v. Celebrezze, 460 U.S. at 795:

[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest.  For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.  Thus in a Presidential election a State’s enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders.  Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries. 

OK, but if the Justices are concerned about this sort of a possible “Wisconsin in November” scenario, as I think they will be, what should they do about it, assuming they do not reach the “merits” question of whether Trump may serve as President?

For the reasons I’ve set forth above, I don’t think the answer is to preclude Colorado from excluding Trump’s name on its primary election ballot or, indeed, to issue a Term Limits-based ruling at all.  Rather, the Court should wait to see if any state does try to exclude Trump’s name from the ballot in November, and then, at that point, either adjudicate the legality of that exclusion under the First Amendment, as it has done in Anderson v. Celebrezze and many other ballot-exclusion cases (the topic of my next post), or, if necessary, adjudicate the merits of the Section 3 question itself at that time.  

In the meantime, if the Court settles upon one of the other “off-ramp” dispositions here, the Court might, in its opinion in this case, endeavor to send a strong signal to states that if they do try to take such a step on their general election ballots, it will raise very significant constitutional questions—a red flag designed to deter them from doing any such thing.

D.  Off-Ramp Argument No. 4:  That Colorado is Abusing Its Article II Authority to Appoint Presidential Electors by Establishing a “Manner” of Appointment that Colorado Law Doesn’t Authorize

Trump’s final proposed “off-ramp” argument is that the Court could hold that Colorado is violating its authority, under Article I, section 2, clause 1 of the Constitution, to determine the “manner” by which it will “appoint” presidential electors, by doing something that Colorado law doesn’t in fact authorize—namely, to exclude a candidate from the primary ballot on the grounds that the person is ineligible to hold the office he’s seeking.

As I mentioned back in Part One of this series of posts, I tend to agree with dissenting Colorado Justice Berkenkotter that the majority of the Colorado Supreme Court did seriously misconstrue a Colorado election statute in order to reach its conclusion that the Secretary of State must exclude from the primary ballot a candidate determined not to be “qualified” to hold office.[2]  Therefore, if this case involved Colorado’s exercise of its Article I authority to choose the manner of “appointing” presidential electors, it would raise a question about whether, notwithstanding the great deference that the federal courts must afford to state court interpretations of state law, the Colorado Supreme Court “transgress[ed] the ordinary bounds of judicial review such that [it] arrogate[d] to [itself the power vested in state legislatures to regulate federal elections.”  Moore v. Harper, 600 U.S. 1, 36 (2023).

This is not such a case, however.  As I explained in an earlier post:

[T]he 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 … , but instead ‘to allocate delegates to national nominating conventions of the major political parties.’  Colo. Rev. Stat. § 1-4-1202(2).” …

The state’s role in this process is not an exercise of any federal constitutional power or responsibility.  “The States themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates.”  Cousins v. Wigoda, 419 U.S. 477, 489-490 (1975).  (Indeed, as the Court in Cousins noted, id. at 190 n.9, early presidential nominations were made by caucuses of the national parties’ members of Congress, a system that afforded states qua states no role whatsoever.)  And “[a]ny connection between the process of selecting electors and the means by which political party members in a State associate to elect delegates to party nominating conventions is so remote and tenuous as to be wholly without constitutional significance."  Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 126 (1981).

In contrast to the parties' descriptions, the Colorado Supreme Court did not suggest that an exclusion of Trump from the primary election ballot would be an exercise of the state’s role under the Electors Clause.  It was right not to do so.  

For that reason, the Supreme Court shouldn’t credit Trump’s Electors Clause argument.  (Besides which, a ruling on that ground would only kick the can down the road to another state that might have a more secure footing in its statutory election code for removing Trump from the ballot, and I assume the Court doesn’t want to start from scratch again a month or two from now.)

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