The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, a public interest organization (CREW) filed a lawsuit in Colorado state court seeking to have former President Donald Trump removed from the ballot on the ground that he is disqualified by Section Three of the Fourteenth Amendment. On Friday, Trump filed a notice of removal to put the case in federal court, under the theory that the case turns on a federal constitutional issue—the interpretation and application of the Fourteenth Amendment.
As with the fights to remove the criminal prosecutions in Fulton County, Georgia, what is at stake in a fight over removal is the forum that will hear the case—in principle, the substance will not change. But of course, litigants frequently care about the forum for both substantive and practical reasons. So here are a few thoughts on whether the motion will succeed:
First, this has happened before. In October 2021, a state court in New Mexico removed a state official, Couy Griffin, from office for his participation in the January 6 insurrection. Griffin, too, had tried to remove that case to federal court, and the federal court concluded that he could not do so and remanded the case. Whether Trump's attempt to remove will face the same fate will turn on two legal issues—Article III, and 28 U.S.C. 1331.
Article III: Issue One is whether the state court suit satisfies the federal "case" or "controversy" standard. There are federal standards of standing and ripeness under Article III of the Constitution and if they are not met, the federal courts do not have jurisdiction to take the case. The state courts need not and often do not have the same standards, so there can be a case that satisfies the state standards of standing and ripeness but can't be removed because it does not satisfy the federal standards. This is what happened to the attempt to remove Couy Griffin's case (linked above). The state quo warranto plaintiffs had state standing, but not federal standing, so the federal court remanded their case to state court.
Derek Muller has an insightful post at Election Law Blog about the intricacies of Colorado election law suggesting that CREW's Colorado suit may not be ripe in state court. That may be right. But whether it is right or not, the same ripeness problems also create a problem for removal to federal court. And indeed there is a distinct possibility that the case could end up flunking federal ripeness but still satisfying state ripeness standards if the state courts find enough elasticity in those standards.
28 U.S.C. 1331. If Trump surpasses that issue, he is still left with Issue Two—whether the case "arises under" federal law for purposes of the federal jurisdictional statute, which is not obvious. Most of the time, a case "arises under" the law that creates the cause of action, and in this case the cause of action is based on state election law. This case turns on a federal constitutional issue, to be sure, but in Merrell Dow the Supreme Court said that is generally not enough to support federal jurisdiction. Most of the time, if you have a state law cause of action that turns on a federal issue, it will be in state court.
But there are exceptions. In an ancillary jurisdictional doctrine most recently memorialized in the precedents of Grable & Sons v. Darue and Gunn v. Minton (quoted below) the Court has concluded that:
federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Where all four of these requirements are met, we held, jurisdiction is proper because there is a "serious federal interest in claiming the advantages thought to be inherent in a federal forum," which can be vindicated without disrupting Congress's intended division of labor between state and federal courts.
This is said to be "a 'small and special category' of cases," but it is plausible that federal constitutional qualifications to federal office could fall within it. It is hard to predict because this corner of federal jurisdiction is notoriously messy. As the Court put it in Gunn: "In outlining the contours of this slim category, we do not paint on a blank canvas. Unfortunately, the canvas looks like one that Jackson Pollock got to first."
(Finally there appears to be an Issue Three—a factual and technical dispute over something called "snap removal" which will determine whether Trump also needs the Colorado Secretary of State to consent to removal—which I will not discuss.)
While I can see a path to success for this attempt at removal, I wouldn't bet on it.
[Update: I see that Derek Muller has some broadly similar thoughts about these issues—insightful as usual, and perhaps even more skeptical than my assessment above.]