The Volokh Conspiracy
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Prof. Marty Lederman (Georgetown) on Trump v. Anderson: "Two Important Things All the Parties Get Wrong, …"
"and One Other Important Thing They Don’t Address."
The post (at Balkinization) is here; as I've mentioned before, I haven't studied the issues in this case closely enough to speak to this myself, but Prof. Lederman is a leading constitutional expert, and his thoughts struck me as much worth passing along:
1. Colorado Is Not "Enforcing" or "Implementing" Section 3.
The briefs of all four of the parties in the Supreme Court (and those of many amici, as well) proceed on the assumption, articulated repeatedly in their briefs, that if Colorado were to omit Donald Trump's name from its presidential primary ballot—something that, as I explain in this post, Colorado has not in fact done and is unlikely to do—the state would acting to "enforce" or "implement" Section 3 of the Fourteenth Amendment. Indeed, some of the parties' arguments take this as a jumping-off point, and depend upon it.
But it's wrong. Colorado isn't purporting to "enforce" Section 3, and states don't have any power to enforce its disqualification directive with respect to federal officers.
To be sure, a state has the power to enforce Section 3 with respect to state officers who are subject to Section 3's disqualification rule. Relevant state officials or courts with statutory or state constitutional authority, for example, can refuse to appoint a Section-3-disqualified person, or remove such a person from office. And, if state law prescribes it, a state legislature might be able to remove state legislators, as well as other state officers by way of impeachment, etc.
But a state does not have any legal authority—nor, to my knowledge, has any state ever claimed such power—to enjoin a disqualified federal official from holding office, or to remove him or her from such office….
Once one understands that Colorado is simply enforcing its own state-law rule prescribing exclusion of ineligible candidates from primary election ballots for purposes of state election management—a rule not confined to presidential candidates—one can see that Trump's argument that Colorado is imposing an additional "qualification" for Trump to hold office (according to Trump, Colorado has effectively required a candidate not to be subject to Section 3 ineligibility at the time of the primary election rather than on January 20, 2025) rests upon a category error: By declaring that candidates for President may not appear on its presidential primary ballot unless they meet certain conditions (including apparent eligibility to hold the office), Colorado is no more imposing extraconstitutional "qualifications" on persons holding that national office than Virginia did in 2012 when it excluded Rick Perry from its presidential primary ballot because he failed to timely submit the necessary number of voter signatures. See Perry v. Judd, 471 F. App'x 219 (4th Cir. 2012). (I pulled that example from Derek Muller's excellent amicus brief.)
2. Colorado Also is Not (Yet) Exercising Its Authority Under Article I's "Electors" Clause
One of Trump's arguments (see Part V of his brief) is that the Colorado Supreme Court violated the Electors Clause of the U.S. Constitution, Art. I, § 1, cl. 2, which requires states to appoint presidential electors "in such Manner as the Legislature thereof may direct," by misreading Colorado law to require exclusion of Trump's name from the presidential primary ballot. Somewhat surprisingly, the Anderson plaintiffs appear to accept this framing, insisting (at page 46 of their brief) that the Electors Clause "gives the states 'far-reaching authority' to run presidential elections, 'absent some other constitutional constraint'" (quoting Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020)) (emphasis added). Secretary of Griswold likewise implies (Br. at 25) that Colorado is exercising its "far-reaching" Electors Clause authority here, and several amicus briefs do the same.
The Anderson plaintiffs have misquoted Chiafalo. The Chiafalo Court did not say that Article I, section 1, clause 2 gives the states "far-reaching authority" "to run presidential elections" such as the primary election currently ongoing in Colorado. The Court wrote, instead, that "Article II, § 1's appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint." 120 S. Ct. at 2324 (emphasis added). By replacing the words "over presidential electors" with "to run presidential elections," the plaintiffs' brief misleadingly implies that the U.S. Constitution empowers the states to run presidential primary elections. But it doesn't. And this case involves a primary election ballot….
3. Whether and How the Supreme Court's Decision Could Affect the Content of Colorado Ballots in 2024
In my first substantive post in this series, I suggested that the case might be moot unless the U.S. Supreme Court is persuaded that its decision could possibly affect the content of the primary election ballot in Colorado—or at least the state's general election ballot in November. As I read the state supreme court's judgment and the Colorado Election Code, it's not clear to me how the Supreme Court's decision could make any difference at all on any Colorado ballots, particularly because the statute upon which the state supreme court relied to establish a governmental authority to strike from the primary ballot the names of unqualified candidates for federal office does not, best I can tell, apply to the general election….
If you're at all interested in the subject, read the whole post.
