`
`No. 23-719
`
`In the Supreme Court of the United States
`
`
`DONALD J. TRUMP,
`Petitioner,
`v.
`
`NORMA ANDERSON, ET AL.,
`Respondents.
`________________________________________________
`
`On Petition for a Writ of Certiorari to the
`Supreme Court of Colorado
`
`
`
`
`
`
`
`
`ANDERSON RESPONDENTS’ BRIEF IN
`RESPONSE TO PETITIONER DONALD J.
`TRUMP’S PETITION
`________________________________________________
`Jason Murray
`Donald Sherman
` Counsel of Record
`Nikhel Sus
`Sean Grimsley
`Jonathan Maier
`CITIZENS FOR RESPONSIBILITY
`Eric Olson
`AND ETHICS IN WASHINGTON
`Isabel Broer
`OLSON GRIMSLEY KAWANABE
`
`HINCHCLIFF & MURRAY LLC
`Martha Tierney
`700 17th Street, Suite 1600
`TIERNEY LAWRENCE STILES
`LLC
`Denver, CO 80202
`
`303.535.9151
`Mario Nicolais
`jmurray@olsongrimsley.com
`KBN LAW, LLC
`
`
`Counsel for Respondents
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`i
`
`QUESTIONS PRESENTED
`
`
`Petitioner Donald J. Trump offers a single question
`presented, which wrongly conflates at least seven
`discrete legal and factual issues in his Petition.
`Properly framed, the questions presented are:
`
`
`1. Whether a challenge to the constitutional
`qualifications of a candidate for President presents a
`non-justiciable political question?
`
`2. Whether the Presidency and the President fall
`within the list of offices and officers to which Section
`3 of the Fourteenth Amendment applies?
`
`3. Whether states may exclude from the ballot
`candidates who are ineligible to hold office under
`Section 3?
`
`4. Whether Congress must first pass legislation under
`Section 5 of the Fourteenth Amendment before a state
`can enforce Section 3 of the Fourteenth Amendment,
`even if state law provides a cause of action to enforce
`it?
`
`5. Whether, by intentionally mobilizing, inciting, and
`encouraging the violent attack on the United States
`Capitol on January 6, 2021, Trump “engaged in
`insurrection” against the Constitution for purposes of
`Section 3?
`
`
`
`
`ii
`
`
`6. Whether the state trial court’s factual finding that
`Trump intentionally incited a violent insurrection on
`January 6, 2021, was clearly erroneous?
`
`7. Whether the Electors Clause requires this Court to
`override the Colorado Supreme Court’s interpretation
`of the Colorado Election Code?
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`B.
`
`TABLE OF CONTENTS
`
`INTRODUCTION ........................................................ 1
`STATEMENT .............................................................. 3
`REASONS FOR GRANTING CERTIORARI ............. 5
`A.
`The Petition Raises Five Questions of
`Significant National Importance That
`the Court Should Take Up ...................... 5
`The Court Should Deny Certiorari on
`The Remaining Questions ..................... 17
`1.
`Trump’s Electors Clause Claim
`Is Meritless and Forfeited ........... 17
`The Court Should Deny
`Questions
`That Relitigate
`Factual Findings .......................... 22
`CONCLUSION .......................................................... 31
`APPENDIX
`Motion for Expedited Case Management Conference
` (9/6/2023) .................................................................. 1a
`
`U.S. District Court Order (9/12/2023) ...................... 9a
`
`Agreed Response to District Court Order
` (10/2/2023) ............................................................. 14a
`
`
`
`2.
`
`
`
`
`
`
`
`iv
`
`TABLE OF AUTHORITIES
`
`Cases
`Anderson v. Bessemer City, 470 U.S. 564 (1985) 33, 35
`Babcock v. Kijakazi, 595 U.S. 77 (2022) ................... 21
`Carson v. Reiner, 2016 CO 38 ................................... 24
`Case of Fries, 9 F. Cas. 924 (C.C.D. Pa. 1800) ......... 15
`Castro v. N.H. Sec’y of State, — F. 4th. —, 2023 WL
`8078010 (1st Cir. 2023) ........................................... 9
`Davis v. Wayne Cnty. Election Comm’n, No. 368615,
`No. 368628, 2023 WL 8656163 (Mich. Ct. App. Dec.
`14, 2023), appeal denied sub nom., LaBrant v.
`Sec’y of State, No. 166470, 2023 WL 8897825
`(Mich. Dec. 27, 2023) ......................................... 9, 26
`Easley v. Cromartie, 532 U.S. 234 (2001) ................. 33
`Elliott v. Cruz, 137 A.3d 646 (Pa. Commw. Ct. 2016),
`aff’d, 635 Pa. 212 (2016) .......................................... 9
`Ex parte Bollman, 8 U.S. 75 (1807) .......................... 18
`Glossip v. Gross, 576 U.S. 863 (2015) ................. 33, 35
`Growe v. Simon, 997 N.W.2d 81 (Minn. 2023) ......... 25
`Hassan v. Colorado, 495 F. App’x 947 (10th Cir.
`2012) ....................................................................... 13
`Hemphill v. New York, 595 U.S. 140 (2022) ............. 21
`Hernandez v. New York, 500 U.S. 352 (1991) .......... 33
`In re Charge to Grand Jury, 30 F. Cas. 1032
`(C.C.S.D. N.Y. 1861) .............................................. 18
`In re Charge to Grand Jury-Treason, 30 F. Cas. 1047
`(C.C.E.D. Pa. 1851) ................................................ 19
`Lindsay v. Bowen, 750 F.3d 1061 (9th Cir. 2014) ...... 9
`Mahaffey v. Barnhill, 855 P.2d 847 (Colo. 1993) ..... 25
`Moore v. Harper, 600 U.S. 1 (2023) ................ 2, 20, 22
`Nicholls v. Barrick, 62 P. 202 (Colo. 1900) ............... 24
`Nixon v. United States, 506 U.S. 224 (1993) .............. 7
`
`
`
`
`
`v
`
`
`The Prize Cases, 67 U.S. (2 Black) 635 (1862) ......... 15
`U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779
`(1995) ...................................................................... 13
`United States v. Hanway, 26 F. Cas. 105 (C.C.E.D.
`Pa. 1851)................................................................. 15
`United States v. Mitchell, 2 U.S. (2 Dall.) 348 (C.C.D.
`Pa. 1795)................................................................. 16
`United States v. Wells, 519 U.S. 482 (1997) ............. 21
`Williams v. Cruz, OAL Dkt. No. STE 5016-16 (N.J.
`Off. of Admin. Law Apr. 12, 2016) ........................ 10
`Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189
`(2012) ........................................................................ 7
`Statutes
`28 U.S.C. § 1441(a) .................................................... 19
`COLO. REV. STAT. § 1-1-113 ....................................... 20
`COLO. REV. STAT. § 1-1-113(1) ................................... 20
`COLO. REV. STAT. § 1-11-214 ..................................... 21
`COLO. REV. STAT. § 1-4-1101(1) ................................. 20
`COLO. REV. STAT. § 1-4-1203(2)(a) ............................. 19
`COLO. REV. STAT. § 1-4-1204(4) ................................... 3
`Other Authorities
`12 U.S. Op. Att’y Gen. 141 (1867) ............................. 17
`12 U.S. Op. Att’y Gen. 182 (1867) ............................. 18
`Cong. Globe, 39th Cong., 1st Sess. 2899 (1866) ....... 12
`James D. Richardson, A Compilation of the Messages
`and Papers of the Presidents, Volume VI (1897).. 18
`Milwaukee Daily Sentinel, July 3, 1867 .................. 12
`Noah Webster, An American Dictionary of the
`English Language 613 (1860) ................................ 16
`Pittsburgh Commercial, June 29, 1867 .................... 12
`Public Ledger, Oct. 3, 1871 ....................................... 12
`
`
`
`
`
`vi
`
`
`William Baude & Michael Stokes Paulsen, The
`Sweep and Force of Section 3, 172 U. Pa. L. Rev.
`(forthcoming 2024) ................................................. 14
`Rules
`Supreme Court Rule 14(g)(i) ..................................... 18
`Constitutional Provisions
`U.S. Const. amend. XII ......................................... 8, 11
`U.S. Const. amend. XIV, § 3 ....................................... 7
`
`U.S. Const. amend. XX, § 3 ......................................... 8
`
`U.S. Const. amend. XXII ........................................... 11
`U.S. Const. amend. XXV ........................................... 11
`U.S. Const. art. I, § 3 ................................................. 11
`U.S. Const. art. I, § 3, cl. 7 ........................................ 11
`U.S. Const. art. I, § 6, cl. 2 ........................................ 11
`U.S. Const. art. I, § 9, cl. 8 ........................................ 11
`U.S. Const. art. II, § 1 ............................................... 11
`U.S. Const. art. II, § 1, cl. 2. ........................................ 7
`U.S. Const. art. II, § 1, cl. 5 ....................................... 12
`U.S. Const. art. II, § 4 ............................................... 11
`
`
`
`
`
`
`
`
`
`1
`
`INTRODUCTION
`
`
`For the reasons the Anderson Respondents
`
`explained in their response to the Petition filed by the
`Colorado Republican State Central Committee
`(“Colorado Republican Party”), the urgency and
`importance of this case merit the Court granting
`certiorari on some of the questions presented. But
`Trump’s petition lumps no fewer than seven distinct
`legal and factual issues into a single imprecise
`question presented. While some of the discrete issues
`raised by Trump in his brief warrant the Court’s
`attention, others do not.
`
`The Anderson Respondents agree the Court
`should grant certiorari on questions about the legal
`interpretation of Section 3 of the Fourteenth
`Amendment (questions 2–5 as framed above) and on
`related justiciability issues (question 1 as framed
`above). Although the Colorado Supreme Court’s
`decision on each of these issues was correct, these are
`important issues of first impression that this Court
`should resolve.
`That said, the Court should not take up any
`issues (like question 6) that would require the Court
`to re-weigh the facts found by the state trial court. The
`trial court had the benefit of hearing testimony from
`fifteen witnesses alongside hours of video evidence
`and dozens of other exhibits. Based on the totality of
`the evidence and its weighing of witness credibility,
`the trial court found by “clear and convincing
`evidence” that Trump was the “factual cause” of the
`insurrection on January 6, 2021, having intentionally
`
`
`
`2
`
`
`
`incited the mob to violence in a desperate ploy to cling
`to power. That
`factual
`finding
`is entitled to
`substantial deference, and Trump’s petition does not
`offer any plausible basis for overturning it. Instead of
`re-weighing facts, the Court should limit its review to
`whether the facts found by the trial court satisfy the
`legal standard for engaging in insurrection under
`Section 3.
`Additionally, the Court should decline Trump’s
`invitation to second-guess the Colorado Supreme
`Court’s interpretation of the Colorado Election Code.
`First, Trump’s argument is both waived and forfeited
`because he did not present his Electors Clause claim
`below and because he invited the state court to make
`the very deviations from state-law deadlines about
`which he now complains. Second, the Colorado
`Supreme Court did not “transgress the ordinary
`bounds of judicial review,” Moore v. Harper, 600 U.S.
`1, 36 (2023), but simply resolved whether Colorado’s
`Election Code provides a cause of action to exclude a
`constitutionally
`ineligible
`candidate
`from
`a
`presidential primary ballot. And finally, deciding this
`case on state-law grounds would only kick the
`important federal issues here down the road, because
`similar challenges to Trump’s candidacy are pending
`in many other states, each with different state
`election codes.
`
`
`
`
`
`
`
`
`
`
`
`
`3
`
`STATEMENT
`
`
`The Anderson Respondents explained most of
`
`the relevant procedural and factual background in
`their Brief in Response to Colorado Republican State
`Central Committee Petition (“Resp. to CO Rep. Pty.
`Pet.”) in Case No. 23-696, at 3–14. They incorporate
`that discussion by reference here and add only a few
`additional facts that relate to new claims that Trump
`has advanced.
`
`First, Trump notes that “[t]he district court did
`not . . . hold a hearing within five days of the filing” of
`the initial petition as required by COLO. REV. STAT. §
`1-4-1204(4). Pet. 8. Trump neglects to mention that
`this delay was his own doing. The Anderson
`Respondents made clear from the outset they were
`prepared to try the case within five days. They said as
`much in a motion for expedited hearing they filed the
`day after filing the petition. Second Supp. App. 3a.1 At
`the
`initial
`status
`conference,
`the Anderson
`Respondents again stated they were prepared for trial
`and requested a hearing as soon as possible. It was
`Trump who asked that the trial court set a hearing
`date no earlier than November 2023.
`
`Second, Trump claims that the district court
`did not issue its decision within 48 hours of the
`hearing as required by COLO. REV. STAT. § 1-4-1204(4).
`Pet. 9. That is wrong. After the close of evidence on
`
`1 The Anderson Respondents refer to the appendix to this Brief
`in Response as “Second Supp. App.”, and the appendix to their
`Brief in Response in Case No. 23-696 as “Supp. App.”
`
`
`
`
`
`4
`
`
`
`November 3, 2023, the trial court continued the
`hearing until November 15, 2023, when it held closing
`arguments and closed the hearing. Pet. App. 16a, 9c.2
`The trial court issued its decision within 48 hours, on
`November 17, 2023. Id. at 16a, 1c. And once again,
`Trump never objected to this procedure in the trial
`court, even though the trial court specifically asked
`the parties in advance to advise it whether this
`process would satisfy state law. Second Supp. App.
`14a–15a. Instead, all parties (including Trump)
`advised the trial court that they either believed the
`48-hour requirement did not apply or that it was
`waivable and that they would waive it. Id.
`
`Third, while Trump now argues that the
`Colorado courts’
`interpretation of the Colorado
`Election Code violates the Electors Clause in the
`federal Constitution, this was never an argument he
`made below. Nor did he lack opportunity. The trial
`court squarely held that the Colorado Election Code
`provides a cause of action to exclude constitutionally
`ineligible candidates from the ballot, in reasoning that
`mirrored what the Colorado Supreme Court later
`held. See Pet. App. 24b–34b, 75c–82c. Yet Trump’s
`brief in the Colorado Supreme Court did not mention
`the Electors Clause, and for that reason the Colorado
`
`2 Instead of citing to the appendix filed by Petitioner Colorado
`Republican Party in Case No. 23-696, Trump filed his own
`petition appendix including duplicate material. To avoid
`confusion between the Anderson Respondents’ two response
`briefs, citations to “Pet. App.” in this brief will refer to the
`original Petition Appendix filed by the Colorado Republican
`Party, not to the new appendix filed by Trump.
`
`
`
`
`
`5
`
`
`
`Supreme Court’s opinion did not address it. See
`generally Pet. App. 1a–360a; Trump Opening-Answer
`Brief, http://bit.ly/3tz8Ht5 .
`
`
`REASONS FOR GRANTING CERTIORARI
`
`A.
`
`The Petition Raises Five Questions
`of Significant National Importance
`That the Court Should Take Up
`
`
`The Anderson Respondents agree the Court
`
`should grant certiorari. As explained more fully in
`their response to the Colorado Republican Party’s
`petition,
`the weighty Fourteenth Amendment
`questions here warrant the Court’s attention even in
`the absence of a split, and this case presents an ideal
`vehicle for resolving them. See Resp. to CO Rep. Pty.
`Pet. 15–13.
`However, the Court should grant certiorari on
`discrete issues rather than on the indiscriminate
`hodgepodge of legal and factual issues raised in
`Trump’s petition. As properly framed, this case
`presents five questions that warrant this Court’s
`attention (two of which overlap with questions
`presented
`in the Colorado Republican Party’s
`petition):
`
`
`
`
`
`
`1. Whether a challenge to the constitutional
`qualifications of a candidate for President
`presents a non-justiciable political question?
`
`
`
`
`
`6
`
`2. Whether the Presidency and the President
`fall within the list of offices and officers to
`which Section 3 of the Fourteenth Amendment
`applies?
`
`3. Whether states may exclude from the ballot
`candidates who are ineligible to hold office
`under Section 3?
`
`4. Whether Congress must first pass legislation
`under Section 5 of the Fourteenth Amendment
`before a state can enforce Section 3 of the
`Fourteenth Amendment, even if state law
`provides a cause of action to enforce it?
`
`intentionally mobilizing,
`5. Whether, by
`inciting, and encouraging the violent attack on
`the United States Capitol on January 6, 2021,
`Trump “engaged in insurrection” against the
`Constitution for purposes of Section 3?
`
`
`
`
`
`
`
`
`
`
`
`
`The Colorado Supreme Court resolved each of
`these questions correctly.
`First, the political question doctrine does not
`apply here because
`there
`is no
`“textually
`demonstrable constitutional commitment of the
`[Section 3] issue to a coordinate political department”
`nor is there “a lack of judicially discoverable and
`manageable standards for resolving it.” Pet. App.
`98a–113a; Zivotofsky ex rel. Zivotofsky v. Clinton, 566
`U.S. 189, 195 (2012) (quoting Nixon v. United States,
`
`
`
`
`
`7
`
`
`
`506 U.S. 224, 228 (1993)). To the contrary, Article II
`of the Constitution grants state legislatures near
`plenary authority to “direct” the “manner” of
`appointing presidential electors. U.S. Const. art. II, §
`1, cl. 2. This includes the authority to pass laws
`restricting ballot access to only constitutionally
`eligible candidates and providing causes of action that
`enable state courts to enforce that restriction.
`Moreover, by requiring a two-thirds supermajority of
`both houses of Congress to lift disqualification,
`Section 3 makes clear the power to decide its
`applicability in the first instance does not reside with
`Congress. U.S. Const. amend. XIV, § 3 (providing that
`“Congress may by a vote of two-thirds of each House,
`remove such disability”). As the Colorado Supreme
`Court recognized, “if Congress were authorized to
`decide by a simple majority that a candidate is
`qualified under Section Three . . . this would nullify
`Section Three’s supermajority requirement.” Pet.
`App. 103a.
`Nor do the remaining constitutional provisions
`Trump cites confer any (much less exclusive) decision-
`making authority on Congress
`to
`judge
`the
`constitutional eligibility of presidential candidates.
`For instance, the Twelfth Amendment simply sets
`forth the process by which presidential electors
`submit votes and how those votes are counted. It
`confers no substantive decision-making power on
`Congress other than requiring the House of
`Representatives to act where no candidate receives an
`electoral majority. U.S. Const. amend. XII. Section 3
`
`
`
`
`
`8
`
`
`
`of the Twentieth Amendment provides that, if a
`President-elect dies or fails to qualify before taking
`office, the Vice President-elect steps in. The only
`responsibility it commits to Congress is determining
`how a temporary, acting President is selected where
`both the President- and Vice President-elect fail to
`qualify. U.S. Const. amend. XX, § 3. Nothing suggests
`Congress has exclusive authority to determine
`whether a President-elect meets constitutional
`qualifications. And even if Congress had power to
`evaluate the qualifications of a president-elect after
`the electors voted, nothing gives Congress any role in
`evaluating candidate qualifications before an election.
`Article II delegates elector selection to the states, not
`to Congress.3
`
`
`3 Trump falsely states that “every court except Colorado” that
`has addressed Section 3 challenges against him “has held that
`question is nonjusticiable and reserved to Congress.” Pet. 20. In
`reality, other than the decision below, no appellate court has
`addressed the question and two have expressly declined to reach
`it. See, e.g., Castro v. N.H. Sec’y of State, — F. 4th. —, 2023 WL
`8078010 at *5 (1st Cir. 2023) (“confin[ing] analysis to the issue
`of standing”); Davis v. Wayne Cnty. Election Comm’n, 2023 WL
`8656163, at *16 fn.18 (Mich. Ct. App. Dec. 14, 2023) (ruling solely
`on state law grounds). And in other contexts, courts and
`administrative bodies have adjudicated on the merits challenges
`to presidential candidates’ qualifications under state ballot
`access procedures, rejecting arguments that such challenges
`present non-justiciable political questions. See, e.g., Lindsay v.
`Bowen, 750 F.3d 1061, 1063–65 (9th Cir. 2014) (upholding
`exclusion of 27-year-old from presidential primary ballot and
`holding that the Twentieth Amendment does not render the
`
`
`
`
`
`
`
`
`
`Nor is there anything about the concept of
`“engaging in insurrection” that eludes judicially
`discoverable and manageable standards. Interpreting
`and applying such provisions is precisely what courts
`do. Pet. App. 109a–113a. That concept is far less
`elusive than “due process” and “equal protection,”
`Fourteenth Amendment standards courts grapple
`with all the time.
`Chaos would ensue were the Court to accept
`Trump’s argument that the Twelfth or Twentieth
`Amendments grant Congress exclusive authority to
`determine presidential qualifications. Trump offers
`no explanation why anyone would design a system
`where voters must wait until after a presidential
`election is over before learning whether the winning
`candidate is qualified to hold office. That is a recipe
`for ensuring the events of January 6, 2021, become a
`regular part of American politics. Far better to allow
`states to hash out such issues at the ballot access
`stage well before elections (subject, of course, to
`judicial review), so that the public knows who is
`qualified for office before they cast their ballots.
`Second, as the Anderson Respondents have
`explained, Section 3 applies to the President and the
`Presidency. Resp. to CO Rep. Pty. Pet. 17–19. It
`applies to the President because he is an “officer of the
`United States” and swears an oath to “preserve,
`
`issue nonjusticiable); Elliott v. Cruz, 137 A.3d 646 (Pa. Commw.
`Ct. 2016), aff’d, 635 Pa. 212 (2016); Williams v. Cruz, OAL Dkt.
`No. STE 5016-16 (N.J. Off. of Admin. Law Apr. 12, 2016),
`https://perma.cc/7G6F-AL3J.
`
`9
`
`
`
`
`
`10
`
`
`
`protect, and defend” the Constitution, which no doubt
`includes an obligation to “support” it. Id.; see also Pet.
`App. 113a–146a. And while Trump argues that
`Section 3 does not cover the Presidency because it is
`not an “office under” the United States, even the
`Colorado Republican Party refused to make this
`dubious claim in a full-throated way. See Resp. to CO
`Rep. Pty. Pet. 18–19.
`The Constitution repeatedly refers to the
`Presidency as an “office” and requires the president to
`swear an “oath of office” before assuming the
`execution of his “office.” See, e.g., U.S. Const. art. I, §
`3, art. II, §§ 1, 4; amends. XII, XXII, XXV. And it refers
`to an office “under the United States” in several
`contexts that plainly include the Presidency. See id.
`art. I, § 3, cl. 7 (Impeachment Clause), § 6, cl. 2
`(Incompatibility Clause), § 9, cl. 8 (Emoluments
`Clause). That the President holds an “office” is not
`“bur[ied],” as Trump claims, Pet. 23–24; it is a basic
`fact of American civics. And during Reconstruction,
`both supporters and opponents of the Fourteenth
`Amendment agreed that Section 3 disqualified
`confederate leaders like Jefferson Davis from all
`federal office, including the Presidency, unless they
`received amnesty from Congress. See, e.g., Pet. App.
`129a–130a; Pittsburgh Commercial, June 29, 1867
`(Section 3 applies to “any office civil or military, State
`or Federal, even to the Presidency”); Public Ledger,
`Oct. 3, 1871 (similar, by opponent of the Fourteenth
`Amendment); Milwaukee Daily Sentinel, July 3, 1867
`(defending proposed Section 3 as modest because
`
`
`
`
`
`11
`
`
`
`“[e]ven Jefferson Davis, unless by some miracle of
`justice he should first expiate his atrocious crimes
`upon the gallows, may be rendered eligible to the
`Presidency by a two-thirds vote of Congress”). During
`Congressional debates over Section 3, members of
`Congress likewise agreed that the words “any office,
`civil or military, under the United States” included
`the Presidency. Cong. Globe, 39th Cong., 1st Sess.
`2899 (1866).
`Third, the Colorado Supreme Court correctly
`held that Section 3 may be enforced prior to an
`election and need not wait until the disqualified
`person takes office. See Pet. App. 58a–60a. Section 3
`does not, by its express terms, prevent a person from
`seeking office. The same is true for other presidential
`qualifications such as age, residency, or citizenship.
`See, e.g., U.S. Const. art. II, § 1, cl. 5 (laying out these
`requirements to be “eligible to the Office of
`President”). Yet states’ “legitimate
`interest
`in
`protecting the integrity and practical functioning of
`the political process” allow them “to exclude from the
`ballot
`[presidential]
`candidates
`who
`are
`constitutionally prohibited from assuming office.” See
`Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir.
`2012) (Gorsuch, J.) (emphasis added). Colorado’s
`legislature has required that only those qualified to
`hold the office may appear on the presidential primary
`ballot. See infra 19–21. That law falls squarely within
`Colorado’s broad Article II authority to “direct” the
`“manner” of appointing presidential electors. See
`supra at 7–8.
`
`
`
`
`
`
`
`
`12
`
`This case does not implicate U.S. Term Limits,
`Inc. v. Thornton, 514 U.S. 779 (1995). While that case
`held that states could not add an “additional
`qualification” for office, the Court clarified that its
`holding did not cast doubt on states’ ability to enforce
`qualifications in the Constitution, expressly including
`“§ 3 of the 14th Amendment.” Id. at 787 n.2, 835–36.
`Nor does Congress’s power to remove the
`Section 3 disability by a two-thirds vote imply
`otherwise. Just the opposite. Congress’s power to
`“remove” a disability connotes that the disability
`already exists the moment that an individual engages
`in insurrection. Thus, Trump is currently ineligible
`for office, and has been since January 6, 2021. Trump
`remains free to petition Congress to remove this
`disability by a two-thirds vote. But implausible
`speculation that Congress might in the future grant
`him amnesty does not negate Trump’s present
`disqualification or prevent states from enforcing it.
`Fourth, for reasons the Anderson Respondents
`have explained
`in response
`to
`the Colorado
`Republican Party’s Petition, the Colorado Supreme
`Court correctly concluded that federal implementing
`legislation is not the exclusive means of enforcing
`Section 3. See Resp. to CO Rep. Pty. Pet. 19–21.
`Fifth, based on the facts found by the trial
`court, Trump’s intentionally mobilizing, inciting, and
`encouraging an armed mob to attack the United
`States Capitol on January 6 satisfies the legal
`definition of “engag[ing] in insurrection.” Pet. App.
`162a–195a; William Baude & Michael Stokes
`
`
`
`
`
`13
`
`
`
`Paulsen, The Sweep and Force of Section 3, 172 U. Pa.
`L. Rev. (forthcoming 2024) (manuscript at 63–104,
`112–22),
`https://papers.ssrn.com/sol3/papers.cfm?
`abstract_id=4532751
`(surveying
`the historical
`evidence about
`the meaning of
`“engaged
`in
`insurrection,” and concluding that the question of
`whether Trump’s conduct on January 6 meets this
`definition “is not even close”).
`Trump claims that the historical meaning of
`“insurrection” was limited to “taking up of arms and
`waging war upon the United States,” but he cites not
`one source to support this claim. Pet. 27. As this Court
`has held, “[i]nsurrection against a government may or
`may not culminate in an organized rebellion, but a
`civil war always begins by insurrection against the
`lawful authority of the Government.” The Prize Cases,
`67 U.S. (2 Black) 635, 666 (1862). “Insurrection” is
`thus necessarily less than “civil war” or full-scale
`“rebellion.”
`Instead, an “insurrection” refers to a “rising of
`any body of people within the United States, to attain
`or effect by force or violence any object of a great
`public nature” or “to resist, or to prevent by force or
`violence, the execution of any statute of the United
`States.” Case of Fries, 9 F. Cas. 924, 930 (C.C.D. Pa.
`1800) (Chase, J.); United States v. Hanway, 26 F. Cas.
`105, 127–28 (C.C.E.D. Pa. 1851) (similar); United
`States v. Mitchell, 2 U.S. (2 Dall.) 348, 349 (C.C.D. Pa.
`1795) (Marshall, C.J.) (similar). Dictionary definitions
`from before
`the Civil War
`likewise defined
`“insurrection” as “[a] rising against civil or political
`
`
`
`
`
`14
`
`
`
`authority; the open and active opposition of a number
`of persons to the execution of law in a city or state.”
`Noah Webster, An American Dictionary of the English
`Language 613 (1860). In the case of Section 3, the
`insurrection must specifically be “against” “the
`Constitution,” meaning that the violent uprising is
`intended to prevent the execution of the Constitution.
`But whatever
`the
`outer
`bounds
`of
`“insurrection” are, any plausible definition grounded
`in historical understanding would encompass “a
`concerted and public use of force” by “a group of people
`to hinder or prevent the U.S. government from taking
`the actions necessary to accomplish a peaceful
`transfer of power in this country.” Pet. App. 166a.
`That was exactly what happened on January 6. Id. at
`166a–172a. A mob of thousands descended on the
`Capitol and engaged in a coordinated and violent
`assault for the purpose of preventing the counting of
`the electoral votes mandated by the Constitution. Id.
`at 166a–172a, 88c–89c. The attackers, many of whom
`were armed or clad in tactical gear, “assaulted law
`enforcement officers, engaging them in hours of hand-
`to-hand combat and using weapons such as tasers,
`batons, riot shields, flagpoles, poles broken apart from
`metal barricades, and knives against them.” Id. at
`60c, 88c–89c. Many law enforcement officers were
`injured, and one lost his life. Id. at 61c. The attackers
`breached the Capitol and entered the House and
`Senate chambers, forcing lawmakers and the Vice
`President to halt their constitutional duties and flee
`for their lives to a secure location. Id. at 59c–61c. This
`
`
`
`
`
`15
`
`
`
`attack was an “insurrection” against the Constitution
`by any standard.
`Moreover, by inciting insurrection, Trump
`“engaged in” it for purposes of Section 3. As Attorney
`General Stanbery explained in his authoritative
`opinion interpreting Section 3, the phrase “engaged
`in” covers any “direct overt act, done with the intent
`to further the rebellion.”4 12 U.S. Op. Att’y Gen. 141,
`164 (1867). He made clear that “persons may have
`engaged in rebellion without having actually levied
`war or taken arms.” Id. at 161. And in a second
`opinion, he clarified that while “[d]isloyal sentiments,
`opinions, or sympathies would not disqualify . . . when
`a person has, by speech or by writing, incited others to
`engage in rebellion, [h]e must come under the
`disqualification.” 12 U.S. Op. Att’y Gen. 182, 205
`(1867) (emphasis added). President Andrew Johnson
`and his Cabinet directed the Union army to follow this
`understanding during Reconstruction. James D.
`Richardson, A Compilation of the Messages and
`Papers of the Presidents, Volume VI, 528–531 (1897).
`This interpretation mirrored a long line of case
`law defining what it meant to “levy war” under the
`Treason Clause. As Chief Justice Marshall explained,
`“if a body of men be actually assembled for the purpose
`of effecting by force a treasonable purpose, all those
`
`4 Because Stanbery was interpreting Section 3 in the specific
`context of the Civil War, his opinions generally referred to
`“rebellion” rather than “insurrection.” But of course, “engaged in”
`in Section 3 modifies both “insurrection” and “rebellion” and
`must carry the same meaning in both contexts.
`
`
`
`
`
`16
`
`
`
`who perform any part, however minute, or however
`remote from the scene of action, and who are actually
`leagued in the general conspiracy, are to be considered
`as traitors.” Ex parte Bollman, 8 U.S. 75, 126 (1807).
`In accordance with this rule, courts held that “levying
`war” was not limited to taking up arms but included
`“inciting and encouraging others” to insurrection. In
`re Charge to Grand Jury, 30 F. Cas. 1032, 1034
`(C.C.S.D. N.Y. 1861); accord In re Charge to Grand
`Jury-Treason, 30 F. Cas. 1047, 1048–49 (C.C.E.D. Pa.
`1851). Just as incitement to treasonous violence
`sufficed for the capital offense of “levying war,” so too
`incitement to insurrection suffices to be disqualified
`for having “engaged in” insurrection.
`Trump argues that he never explicitly “told his
`supporters to enter the Capitol.” Pet. 27. That he did
`not use those precise words is irrelevant. In factual
`findings that this Court should not re-weigh, see infra
`22–31, the trial court concluded that Trump’s speech
`when considered in context, “i
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