Rule of Law

Who’s weighing in on Trump’s ballot eligibility before the Colorado Supreme Court?

The court received more than one dozen amicus briefs making arguments about Donald Trump’s potential disqualification

By the time the Colorado Supreme Court convened on Wednesday to hear arguments about whether Donald Trump remains eligible to appear on the state’s presidential primary ballot next year, the justices had received input from several groups and individuals arguing in favor of or against disqualification.

Last month, Denver District Court Judge Sarah B. Wallace found Trump remained eligible to seek the presidency because Section 3 of the 14th Amendment — which disqualifies “an officer of the United States” from holding office if they previously took an oath to the U.S. Constitution but subsequently engaged in insurrection — did not apply to the presidency.

More than a dozen amicus, or “friend of the court,” briefs flowed into the Supreme Court from academics, elected officials and advocacy groups engaging with specific pieces of Wallace’s decision: the meaning of insurrection, the 14th Amendment’s applicability to Trump and the ability of state courts to even hear this case, for example.

Here is a look at who wrote to the Supreme Court and what they argued on behalf of the people who petitioned to disqualify Trump, or on behalf of Trump himself.

In favor of petitioners

 Colorado Common Cause and Mary Estill Buchanan, a Republican former secretary of state in Colorado:

Common Cause and Buchanan defended the ability of courts to adjudicate candidate disqualification through states’ election codes. They distanced Colorado’s procedures from those of other states that give more autonomy to political parties and they argued there would be far more “public unrest” if Trump were found ineligible to hold office after he already won election.

• First Amendment scholars Floyd Abrams, Bruce Ackerman, Maryam Ahranjani, Lee C. Bollinger, Erwin Chemerinsky, Alan Chen, Kent Greenfield, Martha Minow and Geoffrey R. Stone:

The professors labeled the disqualification provision as another constitutional condition for holding office. Because the 14th Amendment is on “equal footing” with the First Amendment, Trump’s free speech rights do not shield him from consequences under Section 3. His speech leading up to the Jan. 6, 2021 Capitol attack “was so likely to induce violent, criminal action and was so threatening that it does not enjoy First Amendment protection,” they argued.

• University of Denver Associate Prof. Ian Farrell and Emory University Prof. Carol Anderson:

The academics criticized Trump’s attempt to liken the Jan. 6 insurrection to demonstrations for racial justice that took place in 2020 following the police killing of George Floyd in Minneapolis. They argued Trump’s popularity within the Republican Party does not negate the fact that voters have no right to vote for an ineligible candidate.

• Free Speech for the People:

The campaign finance reform group, which has advocated for using Section 3 against Jan. 6 participants, believes Trump’s eligibility is not a “political question” for Congress alone to decide. If the Supreme Court declared Trump ineligible in Colorado, the 14th Amendment empowers Congress to remove that disqualification. Although other courts have turned aside eligibility challenges, the brief argued, none of those other cases relied on a “well-established” state election procedure like Colorado’s.

• Constitutional Accountability Center:

The progressive think tank argued the president is “an officer of the United States,” as understood at the time of the 14th Amendment’s ratification, and Section 3 consequently applies to him. The center deemed it illogical to permit “enemies to the Union” to return to positions of trust and possibly stoke another rebellion.

• Prof. Mark A. Graber of the University of Maryland

Graber wrote that the historical record indicates those who incite an insurrection were considered “insurrectionists,” and an insurrection simply entails the obstruction of federal law through force or intimidation. He added Section 3 was intended as a “comprehensive constitutional disqualification” for all insurrectionist officials, with no suggestion at the time that the president was excluded.

In favor of Trump

• Republican National Committee, National Republican Senatorial Committee and National Republican Congressional Committee

The GOP campaign organizations argued that Section 3 only prevents insurrectionist candidates from “holding” office, and does not authorize a “pre-emptive ballot cleansing” by state officials. They believed the petitioners’ position would give states ammunition to disqualify Democratic politicians who supported the 2020 racial justice protests or encouraged abortion rights demonstrations at U.S. Supreme Court justices’ homes — assuming those actions amounted to “insurrection.” A post-Civil War Congress seeking to reassert federal authority would never have authorized that “secessionist’s dream,” the Republican groups maintained.

• Republican parties of Kansas, Michigan, Oklahoma, West Virginia, Wyoming, North Dakota, Wisconsin, Delaware, Georgia, Nebraska, Maine, Idaho and Rhode Island

The state GOPs defended their party’s right to set requirements for Republican nominees. “More fundamental” than the question of whether Trump engaged in an insurrection, they explained, is whether anyone is allowed to petition to bar a candidate from office. The state parties argued Congress needed to authorize such legal proceedings, as it has with other types of constitutional violations. Here, Congress has not opened up Section 3 to private litigants.

• Secretaries of State Chuck Gray, R-Wyo.; Jay Ashcroft, R-Mo; and Frank LaRose, R-Ohio

The secretaries worried the trial judge’s finding that Trump engaged in an insurrection will be used elsewhere to disqualify him from the ballot. Such an outcome would “circumvent the electoral process,” and declaring a candidate ineligible in one state “artificially alters momentum” in the entire primary election.

• Indiana, West Virginia, Alabama, Alaska, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and Wyoming

The Republican-led states argued there should be a single national standard for whether Trump is disqualified from the ballot, and only Congress can make that decision. The states also noted there is not a clear dividing line for when a “riot” becomes an “insurrection,” and suggested that there should be some sort of proclamation issued to notify people they may be participating in an insurrection.

• Prof. Seth Barrett Tillman of Maynooth University

Tillman argued various constitutional provisions provide evidence that the president is not “an officer of the United States.” He also cited an 1869 federal decision out of Virginia that held a judge who aided the Confederacy could not be removed unless Congress acted to do so.

• Prof. Kurt T. Lash of the University of Richmond

Lash suggested the focus should be on whether the presidency is an office “under the United States,” which is language also included in Section 3. He believes the answer is no, as precedent established the president and members of Congress are “the government,” and not “under it.” Lash also argued that there was seemingly little concern post-Civil War about an insurrectionist becoming president.

• Treniss Jewell Evans III

Evans, of Texas, who was convicted for his own participation in Jan. 6, alleged the petitioners “fabricated evidence” in the trial court. The petitioners’ attorneys played footage of Evans reading one of Trump’s tweets to the rioters, but allegedly misidentified the time of his announcement. Evans believed the petitioners’ “entire case collapses” if the correct timing were given.

In favor of neither side

• Prof. Derek T. Muller of Notre Dame Law School

Muller pointed to multiple federal candidates throughout history who have appeared on ballots despite being ineligible to hold office due to their age or citizenship. At the same time, he noted states do have the power to adjudicate a presidential candidate’s qualifications, as long as their legislatures pass laws to that effect. Muller warned the Supreme Court that he is not convinced Colorado’s lawmakers had done so.

“Even if this court disagrees with my interpretation of state law, it should carefully explain how state law empowers the state court to investigate qualifications,” he wrote.