Friday, February 02, 2024

A User’s Guide to Trump v. Anderson, Part Three: Two Important Things All the Parties Get Wrong, and One Other Important Thing They Don’t Address

Marty Lederman

Now that the Colorado Secretary of State has filed her brief, all the parties’ (and amici’s) briefs have been submitted except for the reply briefs of Petitioner Trump and Respondent Colorado Republican State Central Committee, which are due on Monday, three days before the oral argument next Thursday.

In this post I address a couple of important mischaracterizations about Colorado’s actions that all of the parties make—as do many amici—that could have a distorting effect on several of the questions the Court might answer.  I also flag below one important question the parties have failed even to address, about what Colorado law authorizes or requires officials to do with Donald Trump's name on the general election ballot after the Republican Party nominates him for President.

1.  Colorado Is Not “Enforcing” or “Implementing” Section 3.  The briefs of all four of the parties in the Supreme Court (and those of many amici, as well) proceed on the assumption, articulated repeatedly in their briefs, that if Colorado were to omit Donald Trump’s name from its presidential primary ballot—something that, as I explain in this post, Colorado has not in fact done and is unlikely to do—the state would acting to “enforce” or “implement” Section 3 of the Fourteenth Amendment.[1]  Indeed, some of the parties' arguments take this as a jumping-off point, and depend upon it.

But it's wrong.  Colorado isn't purporting to "enforce" Section 3, and states don't have any power to enforce its disqualification directive with respect to federal officers.  

To be sure, a state has the power to enforce Section 3 with respect to state officers who are subject to Section 3’s disqualification rule.  Relevant state officials or courts with statutory or state constitutional authority, for example, can refuse to appoint a Section-3-disqualified person, or remove such a person from office.  And, if state law prescribes it, a state legislature might be able to remove state legislators, as well as other state officers by way of impeachment, etc.

But a state does not have any legal authority--nor, to my knowledge, has any state ever claimed such power--to enjoin a disqualified federal official from holding office, or to remove him or her from such office.  A state court, for example, could not issue an injunction to prohibit someone from taking federal office or to order that person to vacate the office (or order another federal actor to remove the allegedly ineligible person).  Cf. M'Clung v. Silliman, 19 U.S. (6 Wheat.) 598 (1821) (state courts can't issue writs of mandamus against federal officials).  Nor could any state police force arrest someone purporting to hold a federal office (e.g., a Senator, a Representative in the House, a civil or military officer in the federal executive branch, a federal judge, or ... a President or Vice-President) on the ground that the state has determined that that person is acting in derogation of Section 3.

Importantly, neither the Colorado Election Code nor the Colorado Supreme Court decision on appeal in this case says anything to the contrary, notwithstanding what some of the parties represent in their briefs.  The Anderson Plaintiffs, for example, represent (Br. at 12) that the Colorado Supreme Court held that “states have constitutional power to enforce Section 3 through ballot access laws” and (p. 52) that the Colorado Election Code “allows voters to sue for enforcement of federal constitutional qualifications at the ballot-access stage.”  The Colorado Secretary of State adds (Br. at 23), somewhat obliquely, that the Colorado legislature “direct[ed]“ Colorado’s courts “to implement the promise of the Fourteenth Amendment.”

The Colorado Election Code, however, says nothing about the state "enforcing" federal qualifications for federal office or “implementing” the “promise” of the Fourteenth Amendment.  And, most importantly for present purposes, the Colorado Supreme Court did not rule that Trump’s name should be removed from Colorado's presidential primary ballot in order to enforce the Fourteenth Amendment.  To the contrary, that court explained (Pet. App. 30a-31a) that such removal--like the removal of the name of any other candidate, for federal or state office, who is (according to the state) ineligible to serve--was designed to “advanc[e]” the state’s own “legitimate” interests “‘in protecting the integrity and practical functioning of the political process’” (quoting Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J., explaining why Colorado could exclude from its general election ballot the name of an unaffiliated presidential candidate who can’t serve in office because he was born in Guyana) (emphasis added)); accord Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364 (1997) (“States certainly have an interest in protecting the integrity, fairness, and efficiency of their ballots and election processes as means for electing public officials.”); Bullock v. Carter, 405 U.S. 134, 145 (1972) (“a State has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies”).[2]

Thus, as the Colorado Supreme Court noted (Pet. App. 20a), the Colorado statute it relied upon as the alleged authority for the exclusion of Trump’s name was enacted to carry into execution not the Fourteenth Amendment of the U.S. Constitution but “Article VII, Section 11 of the Colorado Constitution[, which] commands the General Assembly to ‘pass laws to secure the purity of elections, and guard against abuses of the elective franchise.’”  See also id. at 34a-35a (“to read [the term] ‘qualified’ [in that statute] not to encompass federal constitutional qualifications would undermine the purpose of the Election Code—'to secure the purity of elections’—while compromising the Secretary’s ability to advance that purpose”) (citing the Colorado Constitution).

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 light of Section 3 (Pet. 29a) in order to determine whether their names should appear on a primary ballot; accord id. at 56a.  But that “assess[ment]” of a federal question does not in any way amount to “enforcing” Section 3 of the Fourteenth Amendment to the federal Constitution, something the State of Colorado (and every other state) lacks the power to do when it comes to federal offices. 

I hasten to add that if Colorado were seeking to in some sense "enforce" Section 3 (which it's not), excluding a candidate's name from a presidential primary ballot would be a singularly ineffective way of doing so.  To be sure, such a ballot exclusion might result in somewhat fewer voters in the Republican primary voting for the candidate in question (though Donald Trump would likely receive the most votes in Colorado, just as Joe Biden "won" in a landslide in the Democratic primary election despite not being on the ballot there).  As I explain below, however, the only legal effect of that diminution in votes would be that the Republican Party might allocate fewer of Colorado's delegates to Trump than it otherwise would have done for purposes of its July convention ... if that's what the Republican Party delegate-selection rules require (and they might not, particularly if the Party continues to believe that Colorado shouldn't have struck Trump's name from the ballot).  And even if that happened ... Trump would still be the Republican nominee for President, and his name would appear as such on the Colorado general election ballot for presidential electors unless the state took further actions to remove his name from that ballot, as well, which is anything but certain.  (As I wrote in my earlier post, the Colorado Supreme Court decision was limited to the primary ballot, and it depended upon a Colorado statute that doesn't apply to the general election.  Therefore the state court decision in this case does not, as far as I can tell, affect whether Trump appears on the November ballot.)  

This case is, therefore, fundamentally different from the situation in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).  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).  (I pulled that example from Derek Muller’s excellent amicus brief.)

2.  Colorado Also is Not (Yet) Exercising Its Authority Under Article II’s “Electors” Clause

One of Trump’s arguments (see Part V of his brief) is that the Colorado Supreme Court violated the Electors Clause of the U.S. Constitution, Art. II, § 1, cl. 2, which requires states to appoint presidential electors “in such Manner as the Legislature thereof may direct,” by misreading Colorado law to require exclusion of Trump’s name from the presidential primary ballot.  Somewhat surprisingly, the Anderson plaintiffs appear to accept this framing, insisting (at page 46 of their brief) that the Electors Clause “gives the states ‘far-reaching authority’ to run presidential elections, ‘absent some other constitutional constraint’” (quoting Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020)) (emphasis added).  Secretary of Griswold likewise implies (Br. at 25) that Colorado is exercising its “far-reaching” Electors Clause authority here, and several amicus briefs do the same.

The Anderson plaintiffs have misquoted Chiafalo.  The Chiafalo Court did not say that Article II, section 1, clause 2 gives the states “far-reaching authority” “to run presidential elections such as the primary election currently ongoing in Colorado.  The Court wrote, instead, that “Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint.”  120 S. Ct. at 2324 (emphasis added).  By replacing the words “over presidential electors” with “to run presidential elections,” the plaintiffs’ brief misleadingly implies that the U.S. Constitution empowers the states to run presidential primary elections.  But it doesn’t.  And this case involves a primary election ballot.

As I wrote in Part One of this series, “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 … , but instead ‘to allocate delegates to national nominating conventions of the major political parties.’  Colo. Rev. Stat. § 1-4-1202(2).”  Therefore, assuming that a majority of Colorado voters in the Republican primary fill out their ballots for Donald Trump (which is virtually certain to happen), 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, 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).  (As I note above, that might not result in any fewer delegates for Trump at all at the July convention, and surely won't affect the inevitability that the party will nominate him.) 

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.[4]  It was right not to do so.  Unfortunately, the parties’ briefs engender confusion along these lines.

3.  Whether and How the Supreme Court’s Decision Could Affect the Content of Colorado Ballots in 2024

In my first substantive post in this series, I suggested that the case might be moot unless the U.S. Supreme Court is persuaded that its decision could possibly affect the content of the primary election ballot in Colorado—or at least the state’s general election ballot in November.  As I read the state supreme court’s judgment and the Colorado Election Code, it’s not clear to me how the Supreme Court’s decision could make any difference at all on any Colorado ballots, particularly because the statute upon which the state supreme court relied to establish a governmental authority to strike from the primary ballot the names of unqualified candidates for federal office does not, best I can tell, apply to the general election.  

I wrote in that earlier post that I hoped the Secretary of State would in her brief “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.” 

Unfortunately, however, in her brief the Secretary of State does not say a word about how the Court's decision could affect whether Trump’s name appears on any Colorado ballots.  In particular, she does not opine on whether she'd have authority under Colorado law to omit Trump's name from the general election ballot.  On these important questions, I’m afraid the parties haven’t offered the Court any insight at all.

* * * *

Complete series of my posts on Trump v. Anderson:

[1] See, e.g., Trump Br. at 3 (“The state courts should have regarded congressional enforcement legislation as the exclusive means for enforcing section 3.”); id. Part III (pp. 38-40) (arguing that Section 3 “does not confer enforcement authority on state courts or state officials,” and that Congress’ chosen methods of enforcement have “implicitly preclude[d]” enforcement by “state courts or state officials”); id. at 40-46 (arguing that Colorado is “using” section 3 to impose a new qualification on the Presidency--namely, Section 3 eligibility as of March 2024 rather than in January 2025); id. at 42 (a state can’t “usurp” Congress’s power to grant immunity under Section 3 “by denying candidates access to the ballot under the guise of ‘enforcing’ section 3”); CRSCC Br. at 14 (“states cannot claim for themselves authority to seek the disqualification of presidential candidates absent congressional authorization”); id. at 23 (“The Constitution’s text explicitly vests in Congress, not the states, the authority to enact enforcement of presidential disqualification.”); id. at 24 (“No textual provision [of the Constitution] vests states with any … authority to enforce Section Three.”); Anderson Plaintiffs’ Br. at 12 (mischaracterizing the Colorado Supreme Court to have held that “states have constitutional power to enforce Section 3 through ballot access laws”); id. at 45-46 (“Trump cites no constitutional provision stripping states of the power to enforce constitutional qualifications for the Presidency.”); id. at 49 (“Enforcing Section 3 at the ballot access stage does not impose an additional qualification for office.”); id. at 50 (“Allowing states to enforce Section 3 at the ballot access stage also does not contravene Congress’s amnesty power.”); id. at 52 (inaccurately stating that “the Colorado Election Code … allows voters to sue for enforcement of federal constitutional qualifications at the ballot-access stage”); id. at 53 (“Colorado remains free to enforce Section 3 through its own laws.”); id. at 53 n.19 (“The criminal insurrection statute, 18 U.S.C. § 2383, does not implement Section 3, much less preempt state implementation.”); id. at 55 (“[In re] Griffin does not speak to the power of states like Colorado to enforce Section 3 under their own law.”); id. at 60 (“There is no basis to disrupt the state court’s interpretation of state law, which enforced rather than ‘circumvent[ed]’ the Constitution.”); Secretary of State Griswold Br. at 23 (inaccurately suggesting that the Colorado legislature “direct[ed]“ Colorado’s courts “to implement the promise of the Fourteenth Amendment—that officers who have engaged in insurrection against the very Constitution they swore to support may not hold future office,” when the Colorado legislature (and the Colorado Supreme Court) did so such thing); id. at 28-29 (Colorado’s Election Code “enforces” the federal Constitution’s “qualifications for office”); id. at 36 (the Colorado Supreme Court’s “interpretation of Colorado’s Election Code resulted in the enforcement of Section 3 of the Fourteenth Amendment”). 

[2] Elsewhere in her brief, the Secretary of State accurately invokes these ballot-integrity interests rather than a "Section 3 enforcement" rationale:  She writes (p.44) that excluding unqualified candidates, even at the primary election stages, “helps prevent voter confusion and deception and ensures that voters cast meaningful ballots.”  See also id. at 46 (“to include a candidate who is ineligible to hold office effectively disenfranchises those who vote for that candidate when they could have voted for a different, qualified candidate”); id. at 41 (“By limiting presidential primary ballots to candidates qualified to hold office, Colorado law advances the State’s interest in ballot integrity … .”).

[3] In one paragraph (Pet. App. 29a-30a), that court discussed the states’ Electors Clause power, but that discussion concerned elections in which the state chooses … electors, not delegates to a party convention.

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