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Analyzing Removal Jurisdiction over Section Three Lawsuit in Colorado
Time to brush off your federal courts outlines.
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.]
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Give it a fucking rest already.
Prof. Volokh has given it plenty of rest — the full Kozinzki Treatment with respect to the un-American conduct of Eastman, Clark, and Trump.
Why should he?
The lawsuit isn’t going away, might as well talk about what he, and we, think will happen.
“The limited sweep and ineffectual force of false analogies”: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4564998
read pp 56-57 of their paper, where they dismiss due process out of hand
They most certainly do not. Did you think nobody else had read the paper?
They say that it’s not clear whether the due process clause applies, but that (a) if there’s a conflict, the disqualification clause would supersede it; and (b) there’s no conflict, because anyone who feels aggrieved by application of the disqualification clause can litigate it, satisfying due process.
There’s your problem right there: Randos are entitled to enforce it on a whim, and THEN you get to appeal their decisions, assuming they didn’t wait until there wouldn’t be enough time to.
“Due” process, David, not “whatever process we deign to permit”.
Not “randos,” but rather people designated by state law to make decisions about candidate qualifications. Exactly like every other decision about every other candidate who wishes to appear on the ballot.
We covered this already; administrators making decisions, and then aggrieved parties appealing those decisions if desired, is the norm.
Yeah, we covered it: He’s accused of deeds that are crimes, and we have a procedure for determining if people are guilty of crimes.
It’s not administrative.
False. It’s administrative. He cannot be sent to jail or even fined. It’s only about ballot access and/or eligibility for office.
That it can also be a crime doesn’t make it a criminal prosecution any more than the survivors’ lawsuit against OJ was a criminal prosecution because they were accusing him of deeds that were crimes.
Perhaps they dismiss the need for due process to the extent that it is required when life, liberty or property is at stake. But, they say that even when none of those are at stake, fair notice and the opportunity to be heard is required.
Fair notice is covered by the text of 14/3 and the opportunity to be heard is covered by “administrative hearings, quo warranto suits, state and federal judicial review, [and] congressional adjudications.”
Trump supporters tend to be disaffected, delusional, disingenuous, and mostly just dumb.
They also are the core fans of this blog.
As a general principle, later amendments take priority over earlier ones. If 14AS3 does deny due process – arguable (i.e., not arguable, as it doesn’t) – then that’s the way it goes.
There are different flavors of due process, I’m guessing Baude thinks someone can contest their disqualification in court after they have been disqualified,
But he doesn’t think Trump (because this is all about Trump) should have a due process right before the removal.
Plus the 14th amendment imposed a due process right on the states, I don’t think section 3 of the 14th can override that, but according to Baude’s theory it can override the federal due process right in the 5th amendment.
Sorry, but your paper is one long straw man, mischaracterizing Baude & Paulsen’s arguments right down the line.
Gentlemen, thank you for reading my reply to Baude & Paulsen. Pray tell, however, who my stawmen are? I read their 126-paper and was underwhelmed. in the meantime, here are some additional questions I have posed to Baude and Paulsen: https://priorprobability.com/2023/09/11/questions-for-baude-and-paulsen/
Feel free to answer my questions…
What shows how well thought out Baude’s concept of a self executing section 3 is, by Baude’s interpretation Mike Pence became President of the United States sometime in the afternoon of Jan. 6th.
But I can’t seem to find any references to Pence as the 46th president of the United States.
Baude argues it is self-executing, not self-enforcing. How does one enforce 14/3 against a sitting president? I can only think of impeachment/removal or the 25th Amendment. So no, Baude doesn’t argue that Pence became president on Jan 6.
You continually mischaracterize Baude and Paulsen’s concept of self executing, and then argue against your own mischaracterization. Classic straw man.
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.
Couy Griffin was a county commissioner , not seeking to be elected to the US congress , thus no federal issue.
The federal issue is that the exclusive basis for his disqualification would be the ban imposed by federal law.
Well we found out this week the state of the US Constitution in New Mexico.
If i understand the governor properly, it’s optional. Ironically she seems to think her oath to the constitution doesn’t apply, but commissioner Griffin’s does.
The lawsuits should be dealt with exactly as previous lawsuits seeking to disqualify a Presidential Candidate were.
They should be dismissed for lack of standing.
There is a long history of lawsuits of this sort, most specifically dealing with the Obama birth certificate issues. They were nearly all simply dismissed, either for lack of standing or lack of jurisdiction.
https://en.wikipedia.org/wiki/Barack_Obama_presidential_eligibility_litigation
A court which took it upon itself to break precedence and give standing to one of these third parties in the Trump case would be an activist court.
The wise decision is simply to dismiss for lack of standing.
The previous cases presumably were not brought in Colorado courts and so are not binding precedents for this case. States are under no obligation to follow federal standing rules in state courts. Specifically, states do not have the “cases or controversies” restriction that’s in Article III (unless it’s in their state’s constitution, of course.)
This is true.
States did reserve the authority to judge the qualifications of its own officials, subject to federal constitutional constraints. A state can properly judge if a candidate for the state legislature is old enough. Similarly, if a candidate for state or local office, or a state or local official, is alleged to have aided or comforted the Taliban by playing a role in the outcome of the withdrawal from Afghanistan, state courts can judge whether or not the candidate or official in question is qualified, and because this involves a federal constitutional issue, the U.S. Supreme Court may review the state courts’ judgment.
it does not seem, however, that states ever had the power to review the qualifications of federal officials.
So your position is that if a 16 year old wishes to appear on the ballot for President or Congressman, the state has no choice but to allow it?
Colorado would do well to look to their neighbor Arizona and rule that section 5 gives Congress sole authority to act in the area. Somewhat like the commerce clause, if congress doesn’t act then perhaps the states may have some latitude, but once Congress has acted then there is no room for the states to set their own standards.
Congress has acted and passed an insurrection statute that disqualifies someone convicted of insurrection of federal office.
That should settle the matter.
Armchair Lawyer, what are Colorado’s standing requirements, and how are they not met here? (I am not asking to be argumentative; I have not looked up the requirements.)
Likewise, I have not looked up Colorado’s specific standing requirements. However, I imagine them to be similar to that of other states, as well as the federal courts. I have not heard anything about Colorado’s standing requirements being so substantially different.
But since you’ve repeatedly remarked on how you’re a real attorney, perhaps you can look into any substantiative differences.
You’re the one who made the bold assertion, with no hedging, that this case should be dismissed for lack of standing.
The legal niceties really don’t matter because removing Trump from one ballot or convicting him of one trumped-up charge will eliminate the American legal system outright.
The American legal system but not a full civil war? Is this managing expectations, or just saving future developments for season two of the Edpocalypse? Or is it just a nod to Henry VI, Part 2?
Dr. Ed has predicted 10 of the last 0 civil wars.
“Trumped-up charges” = “things I think he’s guilty of but don’t think he should be punished for because I agree with him”.
If state courts have original jurisdiction, but federal courts do not, do federal courts have appellate jurisdiction to hear federal questions after the state-court proceedings (original and appellate) are complete?
“If state courts have original jurisdiction, but federal courts do not, do federal courts have appellate jurisdiction to hear federal questions after the state-court proceedings (original and appellate) are complete?”
No, unless the case involves a federal question, in which case SCOTUS may grant discretionary review. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
So in the end, it doesn’t matter whether jurisdiction is removed because SCOTUS is going to hear the case anyway (no way they are denying cert on this one)?
Possibly, but if the matter is heard in the first instance on the merits by the state court, by the time that the state district court conducts a trial (or grants summary judgment following an opportunity for discovery), appellate court proceedings in Colorado are exhausted, and briefing and argument before SCOTUS takes place, the lawsuit may have become moot as to Donald Trump.
If there is an adverse decision against Trump it is exceedingly unlikely the SCOTUS will fail to take the case in a timely manner.
I had originally thought that if the matter is initially litigated in the state courts, that may take a significant amount of time before the case can be presented to SCOTUS. I now see that Colorado law provides for expedited consideration.
It appears that the lawsuit will be remanded to the district court in Colorado. The state court plaintiffs have filed a motion to remand to state court. The motion recites that “Trump removed the case to this Court, but after conferring with Petitioners’ counsel he has now indicated that he does not oppose this motion to remand. https://storage.courtlistener.com/recap/gov.uscourts.cod.227367/gov.uscourts.cod.227367.15.0.pdf The motion notes that the state court plaintiffs lack Article III standing, such that the matter could not have filed in federal court originally. Where the district courts of the United States lack original jurisdiction, the suit is not removable under 28 U.S.C. § 1441(a).
Colorado Revised Statutes § 1-4-1204(4) states:
Section 1-1-113(3) states:
If the state supreme court accepts jurisdiction, I don’t know what timetable would govern proceedings in that court.
Yes
The most comical result of this incessant lawfare would be for the Supreme Court to ultimately accept Baude’s ludicrously broad interpretation of Section 3, yet also conclude that it excludes the Presidency. Then Republicans can start the wholesale disqualification of Democrats from office, starting with those that attempted to decertify elections in 2000, 2004, and 2016. Then perhaps on to those who perpetrated the Russia hoax.
Twisting the paper to be authoritarian, and then endorsing that authoritarianism?
You are not fooling anyone.
The paper is in fact authoritarian.
No, you don’t like it so you, clearly without reading any of it, have decided it says something way broader than it does.
In what way is the paper authoritarian? Please be specific.
Baude’s broad definition of insurrection (my emphasis):
How are any of the certifications in 2000, 2004, 2016 or the accusations of collusion with Russia forcible?
‘starting with those that attempted to decertify elections in 2000, 2004, and 2016. Then perhaps on to those who perpetrated the Russia hoax.’
Breaking out the threats and intimidation.
If there’s a need for uniformity across states anywhere, and a need to avoid 50-state race to the bottom bullshit over avant-garde legal theories, it’s who gets to determine what constitutes a “proper” candidate for federal elections.
Change my mind.
Since courts exist to give orders and not opinions, a “federal question” is not enough to grant jurisdiction; there must be something to actually compel. In this case, what would grant federal jurisdiction?
A state can conduct the selection of electors as it sees fit. If a state legislature can directly choose a candidate and have him appoint favorable electors, why could they not have the people do so by ballot, but stipulate that only individuals over 40 (or 50, or 100) are eligible? Likewise if they exclude individuals who – in their interpretation – are guilty of rebellion or insurrection, how can Uncle Sam compel their inclusion on the ballot?
Furthermore, as Brett Bellmore has done a great job of demonstrating, there is no prohibition against appearing on the ballot in the text; people have only ever been denied office after election, but there is no precedent for ballot exclusion, and the Australian (pre-printed) ballot was unknown until decades after ratification.
In my opinion, in a presidential election, states can handle this as they see fit, with no federal jurisdiction on the matter. Unless putative electors are themselves disbarred from being such, Article III courts should have nothing to do with this at all, before, between, or after the two (popular+EC) elections. It would be for Congress to judge the matter (They’ll need better security than last time!)
Your position is that a state can add qualifications for Presidential office over and above what the constitution requires, and then use those qualifications to deny a candidate access to appear on the ballot? Sounds iffy.
There’s no requirement that a state have a ballot. The legislature could just appoint electors. Or they could have an orangutan shuffle cards with pictures of Ohio State football players and appoint the top 17 as electors.
Absolutely true. But if they decide to have an election to determine Presidential electors, I don’t think their hand remains quite so free.
Why not? What prevents a state (not Congress) from adding qualifications if it sees fit? How is that not an intrastate affair?
You might want to review the court cases surrounding California’s “SB 27, requiring Presidential candidates to release their income tax returns in order to be eligible to appear on the ballot. For instance, this from ballotpedia:
“On September 19, 2019, Judge Morrison England , of the U.S. District Court of the Eastern District of Californiaia, issued a preliminary injunction barring enforcement of SB 27. In his opinion, dated October 1, 2019, England wrote, “[The] Court finds that Plaintiffs are likely to prevail on the merits of their arguments that the Act 1) violates the Presidential Qualifications Clause contained in Article II of the United States Constitution; 2) deprives Plaintiffs of their rights to associate and/or to access the ballot, as guaranteed by the First Amendment of the Constitution; 3) further violates the Constitution’s Equal Protection Clause as set forth in the Fourteenth Amendment; and 5) is preempted by the provisions of [the Ethics in Government Act of 1978] in any event.”
It’s also likely a bill of attainder, since it was written to target one individual, Trump.
The matter was closed by the Supreme Court of California decision, which didn’t even mention federal law, but rested on the California Constitution. The people can circumscribe the exercise of the legislative power to determine the manner of selecting electors, which they did.
England’s opinion is unserious, and there was no time to correct it on appeal. Not everyone has access to every ballot, state or federal; the first amendment doesn’t mean anyone can run for anything. The 14th amendment doesn’t dictate that qualifications can’t be part of any office. 2) 3) and 4) are all essentially question-begging. If the manner of choosing electors is a choice of the people of California, and if we accept the basic republican truth that no office is property that someone has a right to, it does not violate a congressional ethics act for a state to say “If you don’t want to fulfill this condition, you don’t have to, but we aren’t choosing you.”
As for the Term Limits case, it was 1)wrong 2)inconsistent with the judicial role – judicial review is for right and wrong answers, if the constitution simply doesn’t tell us which answer is correct, courts are to apply the democratically adopted answer, not to impose their own guess. 3)Almost guaranteed to be overturned as soon as a challenge gets to the court, 4) not final- since Congress judges its own elections, and 5) Inapplicable – It would take an expansion, not mere continuation of the term limits case to reach presidential elections. The people have a right under Article I and the 17th amendment to vote for members of Congress. But in presidential elections, they needn’t be involved at all.
That said, a wise legislature will pay attention to what its people think, and a wise people will not let a legislature mess around. The people of California saw to that. In conclusion, because the state has the authority to appoint the electors it chooses, in the manner it chooses, and authority to appoint ones who say they will vote for a specific president, the state’s qualifications are simply part of making a choice. That’s not federally justiciable.
You characterizing Judge England’s decision as “unserious” doesn’t make it so. And I note that in your attempted rebuttal, you didn’t address the most important part of the decision, the part that backs up my assertion that states may NOT add qualifications for Presidential candidates. “…the act 1)…violates the Presidential Qualifications Clause contained in Article II of the United States Constitution.”
Relax. And I’ll try to be nicer. We’re both just random internet people to each other.
I thought I did address that part of the decision, since if Thornton was wrongly decided, Griffin was also wrongly decided.
I close – see “5)” and the last paragraph – by arguing that even if Thornton wasn’t wrongly decided, its logic doesn’t extend to Presidential elections, since there is no federal right for the people to elect anyone as president, unlike the case of Congress.
“What prevents a state (not Congress) from adding qualifications if it sees fit? How is that not an intrastate affair?”
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), invalidated state-imposed qualifications for prospective members of Congress over and above those specified in the Constitution, but there is no reason to think the same analysis would apply to prospective candidates for president.
Of course, disqualification under the Fourteenth Amendment, § 3 is specified in the Constitution.
Three replies in one. See above.
Your reply always seems to be that any decision that contradicts your position is wrong, because reasons.
“Always”? We’ve only just started talking to each other.
Do I hear an echo?
Aren’t ballot access requirements a state-imposed qualification to appear on the ballot? Seems that the courts are fine with those.
Donald Trump’s theory of removal appears to be that the meaning and applicability of § 3 of the Fourteenth Amendment presents a federal question. https://storage.courtlistener.com/recap/gov.uscourts.cod.227367/gov.uscourts.cod.227367.1.0.pdf
The state court plaintiffs have filed a motion to remand to state court. The motion recites that “Trump removed the case to this Court, but after conferring with Petitioners’ counsel he has now indicated that he does not oppose this motion to remand. https://storage.courtlistener.com/recap/gov.uscourts.cod.227367/gov.uscourts.cod.227367.15.0.pdf
The motion notes that the state court plaintiffs lack Article III standing, such that the matter could not have filed in federal court originally.
This has been another episode of Trump Election Litigation: Elite Strike Force.
Maybe all of those Federalist Society CLEs should have focused on the law rather than on right-wing intolerance, Republican ignorance, and old-timey superstition.
I want him to run again, and to go down in flames like he, and far more importantly, the Republicans deserve.
I do not want America to turn into a nation we mock where politcal factions destroy their opposition using the power of government.
What a god damned, soul-sucking embarrassment for the leader of the free world. “Nobody is above the law”? You god damned political hacks. Nobody is above the law is a subset of everybody is equal before the law, which includes not directing the investigative power of government against political enemies.
All you fancy pants, who think yourselves great thinkers and statesmen, even get quoted in Supreme Court decisions, even argue cases, what contemporary embarrassments to the long, great history of freedom and taming abuses of government.
The world, and history are watching. You style you will be heroes instead of just another sad hack plaguing freedom through long, depressing human history.
To quote the bad guy, to Indiana Jones, “Go ahead, Dr. Jones. Blow it up!”
“We are just traveling through history. This…(the Arc, or in this case, the Constitutional design that forbids building tools of tyranny)…this is history.”
Jones stands down, and does not blow up the Arc. You happily pull the trigger.
Worthless hacks who will be an embarrassing moment in American history.
I submit this as my PhD thesis in iconoclasty and rhetoric.
All you fancy pants?
‘Nobody is above the law is a subset of everybody is equal before the law, which includes not directing the investigative power of government against political enemies.’
So he IS above the law because he’s someone’s political enemy.
I love this line:
“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.”
A good amount of litigation effort seems to be addressed to performing very nuanced analysis regarding whether a federal forum or a state forum is more appropriate. One may wonder whether we wouldn’t be better off with more clear rules in this area of law.
Democrats have known for most of 3 years that they were going to try to disqualify Trump for office. And they had 2 years where they controlled the White House and both chambers of Congress.
If they’d intended an orderly process with clear rules and adequate due process, they could have set that up. They didn’t do that, because they didn’t want that. They wanted an ad hoc mess, because they’ve been doing really well at Calvinball, and why abandon a good thing?
We don’t live in a political thriller. You don’t have telepathy. Will Baude is not a Democratic operative.
After the last decade? I think we DO live in a political thriller. It’s the only way to explain what’s been happening.
Written by a real hack, mind you.
Which should be a sign you need to pull up; your worldview has separated you from reality.
‘Written by a real hack,’
Complaining about the quality of your own conspiracy theory.
There doesn’t appear to be standing here.
The standing situation doesn’t appear to be different from the “birther” lawsuits regarding Obama which were dismissed for lack of standing.
The federal courts would have standing to address the question when a state agency or court takes action.
exactly.
I was wondering about this also, although standing is a pretty complex topic and I sure as hell don’t know it in detail.
I was thinking about some election judge in some county somewhere. All election judges in the US sign and/or recite a pledge to support and uphold the constitution. Would this lowly election judge have standing to challenge Trump’s appearance on the ballot, arguing that this would force her to violate her pledge?
Federal courts don’t have “standing”; they have (limited) jurisdiction. Among federal courts, only the Supreme Court has jurisdiction to review state court judicial proceedings in this matter. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983).
Why wouldn’t litigating lawfulness of candidate ballot access be political activity forbidden to tax-exempt organizations?
“Why wouldn’t litigating lawfulness of candidate ballot access be political activity forbidden to tax-exempt organizations?”
What regulation(s) do you contend pose any such restriction? Please be specific.
If and to the extent that any such prohibition exists, it is consitutionally suspect under the First and Fourteenth Amendments. See, NAACP v. Button, 371 U.S. 415 (1963).
I thought the price of tax-exemption was political neutering. Perhaps that is not correct.
But arguing that Person X cannot appear on a ballot strikes me as a highly political act.