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A Guide to Colorado’s Recent Efforts to Remove President Trump from the Ballot

Alexis Williams

Staff Reporter (2023–2024)


With the Colorado Supreme Court recently affirming a decision refusing to allow former President Donald Trump to be listed as a presidential candidate on their state’s presidential primary ballot, there is a new and vibrant conversation concerning a state’s ability to do such a thing. That decision, Anderson v. Griswold, came from the Colorado Supreme Court on December 19, 2023.¹ The decision discusses the “how” and “why” behind removing presidential candidate Donald Trump from the ballots.² As to the “why,” the court discusses in detail the insurrection clause contained within Section Three of the Fourteenth Amendment to the U.S. Constitution.³ However, on March 4, 2024, the United States Supreme Court issued a unanimous decision holding that states do not have the authority to remove a presidential candidate from their ballots.The Supreme Court’s decision will be discussed further below, but this article will primarily focus on the historical background and substance of Section Three as well as state instruments used to apply Section Three. Additionally, this article will not delve into President Trump’s actions with regard to insurrection as the Supreme Court did not address this issue in their decision.


What is the origin of this case?

Anderson began as a case between Colorado electors (“the electors”), against Jena Griswold in her official capacity as Colorado’s Secretary of State. The electors filed a petition in the District Court for the City and County of Denver seeking to remove President Trump from the Republican presidential primary ballot. The electors invoked both federal and state law in support of their request. The district court permitted President Trump and the Colorado Republican State Central Committee (“CRSCC”) to intervene in the action, and a five-day trial ensued.The district court found that President Trump engaged in insurrection as defined by Section Three, but that Section Three did not apply to the President.¹⁰ Thus, the petition to keep him from the ballot was denied.¹¹ The Supreme Court of Colorado, however, disagreed.¹² It found that “President Trump is disqualified from holding the Office of the President under Section Three.”¹³ Accordingly, the court reasoned, he could not be listed on the presidential primary ballot.¹⁴


Unsurprisingly, President Trump appealed the Colorado Supreme Court’s decision, and the Supreme Court agreed to take up the case.¹⁵ Many briefs were filed, and the Supreme Court heard oral arguments on February 8, 2024. As stated previously, the Supreme Court ruled on this case on March 4, 2024, and that holding will be discussed further below.¹⁶


What is Section Three?

The Anderson decision cites both state and federal sources to back the controversial holding.¹⁷ As for state sources, Colorado’s Uniform Election Code of 1992 (the “Election Code”) provides a large basis of discussion within the opinion.¹⁸ However, Section Three likely provides the more pertinent basis for removing President Trump from the ballot. Section Three states the following:

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.¹⁹

Congress ratified Section Three in 1868 to prevent those who fought for the Confederacy from holding positions of power in the United States.²⁰ However, since the 1890s, Section Three has been “almost completely forgotten.”²¹ It was not until January 6, 2021, that Section Three came back into political discourse, and courts are now carefully interpreting it to determine whether it provides a remedy to those who feel that President Trump should not be able to hold office in the United States.²²


What is the Election Code?

While Section Three dictates what disqualifies one from holding various positions within the United States government, the Colorado Supreme Court found that Colorado Election Code was the instrument for implementing a Section Three disqualification within the state.²³ Several provisions of the Election Code were used by the electors to support their claim.²⁴ A provision of great importance in this case can be found in part 12 of article 4 of the Election Code, which states that “each political party that has a qualified candidate . . . is entitled to participate in the Colorado presidential primary election.”²⁵ Further, the Election Code provides the ability to challenge “the listing of any candidate on the presidential primary election ballot.”²⁶ Such a challenge must be made in a writing that provides “notice in a summary manner of an alleged impropriety that gives rise to the complaint.”²⁷ If the challenge is submitted properly, “a hearing must be held at which time the district court shall hear the challenge and assess the validity of all alleged improprieties.”²⁸ Many other provisions of the Election Code were cited in the Anderson decision, but ultimately the Colorado Supreme Court found that the Election Code was a proper vehicle “to challenge President Trump’s status as a qualified candidate based on Section Three.”²⁹ The Court then went even further to state that the Election Code was not only a proper means to challenge President Trump’s status, but it was the only means the Electors had for such a challenge.³⁰


What were the arguments against using Section Three to remove President Trump from the ballot?

President Trump vehemently opposed the Anderson decision. One argument President Trump asserted is that Congress is the only body that can answer questions regarding a candidate’s eligibility to run for President, and that by taking that decision upon themselves, the Colorado Supreme Court had essentially “usurped Congressional authority.”³¹ President Trump also argued that Section Three only serves to prevent those who are not qualified from holding office, and it cannot be used to prevent one from running for office, or even being elected to office.³² In support of that argument, President Trump analyzed the language of Section Three that creates the power of Congress to remove a disqualification at any time; he contended that what Section Three means is that “Congress can remove that disability after a candidate is elected but before his term begins.”³³ Lastly, President Trump argued that Section Three does not apply to him because presidents are not “officer[s] of the United States” pursuant to the use of that term “throughout the Constitution.”³⁴ In support of that argument, he argued that an “officer of the United States” refers only to appointed officials, not elected officials such as presidents and members of Congress.³⁵ The constitutional bases for that argument can be found in “the Commissions Clause, the Impeachment Clause, and the Appointments Clause.”³⁶ This is just a short overview of some of the arguments that were made, and those interested in learning more can listen to the entirety of the oral arguments and view the briefs that were submitted.³⁷


How did the U.S. Supreme Court rule?

The Supreme Court ultimately held that “responsibility for enforcing Section Three against federal officeholders and candidates rests with Congress and not the States.”³⁸ The majority opinion placed great weight on the history and context of the Fourteenth Amendment.³⁹ The Supreme Court stated that the Fourteenth Amendment “restricts state autonomy,” and was used to greatly expand the power of the federal government during a time when the nation needed unity over state power.⁴⁰ Further, the Supreme Court clarified that “States may disqualify persons holding or attempting to hold state office,” but it emphasized that “States have no power under the Constitution to enforce Section Three with respect to federal offices, especially the Presidency.”⁴¹


Although the decision was unanimous, two separate opinions supported the general conclusion while differing on the approach to reach it.⁴² Justice Barrett issued a concurring opinion stating that the Court need only consider the issue of Colorado enforcing Section Three and stressing the need for unanimity in attempting to “turn the national temperature down, not up.”⁴³ Justices Sotomayor, Kagan, and Jackson issued a concurring opinion concluding that the majority opinion went too far because it unnecessarily decided “novel constitutional questions” such as who can enforce Section Three and how it must be done.⁴⁴


Conclusion

While the ultimate decision regarding whether the States have the power to utilize the Fourteenth Amendment in removing presidential candidates was unanimous, there remain many unanswered questions as to how bans on potential insurrectionists should be addressed in the future. This can be seen not only within the concurring opinions, but also in the recent discourse surrounding this case.⁴⁵ The legal landscape surrounding these questions is changing and evolving rapidly, so it is important to stay apprised of current events and decisions.

 

Sources:

[1] Anderson v. Griswold, 543 P.3d 283, (Colo. 2023), rev’d sub nom. Trump v. Anderson, 601 U.S. 100 (2024).

[2] Id.

[3] Id. at 296.

[4] Trump v. Anderson, 601 U.S. 100 (2024).

[5] Id.

[6] Anderson, 543 P.3d at 296.

[7] Id.

[8] Id.

[9] Id.

[10] Anderson v. Griswold, No. 23CV32577, 2023 WL 8006216, at 33, 43, *45 (Colo. Dist. Ct. Nov. 17, 2023) aff’d in part, rev’d in part, 543 P.3d 283 (Colo. 2023).

[11] Id.

[12] Anderson, 543 P.3d 297.

[13] Id.

[15] Pet. for Writ of Cert., Trump v. Anderson, 601 U.S. 100 (2024) (No. 23-719), 2024 WL 81676, at *34; Trump v. Anderson, 144 S. Ct. 539 (2024) (granting writ of cert.).

[16] Trump v. Anderson, 601 U.S. 100, 101 (2024).

[17] Anderson, 543 P.3d at 297.

[18] Id. at 300.

[19] U.S. Const. amend. XIV, § 3.

[20] Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 91–92 (2021).

[21] Id. at 88.

[22] Id. at 87.

[23] Anderson, 543 P.3d at 297.

[24] Id. at 300.

[25] Colo. Rev. Stat. Ann. § 1-4-1203 (West 2023) (emphasis added).

[26] Colo. Rev. Stat. Ann. § 1-4-1204(4) (West 2019).

[28] Id.

[29] Anderson, 543 P.3d at 297.

[30] Id.

[31] Pet. for Writ of Cert., supra note 15, at 18.

[32] Id. at 31.

[33] Id.

[34] Tr. of Oral Arg. at 3, Trump v. Anderson, 601 U.S. 100 (2024). The full transcript of the oral arguments in the Trump case, held on February 5, 2024, can be found on the U.S. Supreme Court website here: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/23-719_5he6.pdf.

[37] To listen to oral arguments and read briefs filed with the U.S. Supreme Court, visit the U.S. Supreme Court’s website at https://www.supremecourt.gov/.

[38] Trump v. Anderson, 601 U.S. 100, 117 (2024).

[39] Id. at 108.

[40] Id. at 109.

[41] Id. at 110.

[42] Id. at 117­–23 (Barrett, J., concurring at 117–18) (Sotomayor, J., concurring at 118–23).

[43] Id. at 118 (Barrett, J., concurring).

[44] Trump, 601 U.S. at 119 (Sotomayor, J., concurring).

[45] Id. at 117–23 (Barrett, J., concurring at 117–18) (Sotomayor, J., concurring at 118–23).

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