Ryan Crocker
Assistant City Attorney at the Dallas City Attorney's Office
ISSUE 15 | SPRING 2024 | ELECTION LAW |
On February 8, 2024, the Supreme Court heard oral arguments in the case of Trump v. Anderson. The core issue before the Court was whether the state of Colorado had the authority to remove Donald Trump from the ballot for his activities leading up to and during the January 6th attack on the Capitol.¹ Less than a month after oral arguments, the Court ruled unanimously to reverse Colorado’s decision to exclude Trump from the presidential ballot.
Not since Bush v. Gore² has a Supreme Court decision had such a profound impact on a presidential election. The political consequences were stark. Had the Court affirmed Colorado’s decision to disqualify Trump, it could have ended his bid for the White House because other states would have likely followed Colorado’s lead, making it almost impossible for Trump to garner the required electoral votes to win the presidency. Instead, the Court held that states do not have the authority to enforce the Insurrection Clause under the Fourteenth Amendment.³ The decision effectively reinstated Trump on the ballot for the duration of the campaign because there is no clear process in place (aside from a criminal conviction for insurrection under 18 U.S.C. § 2383)⁴ for Trump to be disqualified before the election in November.
In addition to the political consequences of the decision, this case raised thorny issues of federalism, constitutional construction, and due process, and represented the first time the Supreme Court squarely addressed the applicability and enforcement of the Fourteenth Amendment’s Insurrection Clause. This article will focus on the content of the oral arguments made by both sides, how those arguments were received, and finally, the future impact of the Court’s recent ruling.
Background:
The Insurrection Clause is found in Section 3 of the Fourteenth Amendment and was adopted in the aftermath of the Civil War to prevent former Confederates from holding state or federal office if they had previously taken an oath “to support the Constitution of the United States.”⁵
The full text of Section 3 provides:
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.⁶
In a nutshell, the provision disqualifies oath-breaking insurrectionists from holding a wide range of positions of political power, both at the state and federal level. But determining the application and enforcement of Section 3 is a major point of contention, and most of the arguments in this case focused on the meaning of the key phrases highlighted above and discussed below.
1. "hold any office . . . under the United States”
Is the presidency an office under the United States?
If a person is disqualified from “holding” office under Section 3, can a state prevent them from “running” for office?
During oral arguments, Trump’s attorney, Jonathan Mitchell, made two points here. First, he made a textualist⁷ argument that the Insurrection Clause does not apply to presidential candidates because the presidency is not an “office under the United States,” within the meaning of Section 3. Second, Mitchell argued that even if Section 3 applied to presidential candidates, it only disqualifies a person from “holding” office, not “running” for office. Citing the holding in U.S. Term Limits, Inc. v. Thornton, Mitchell argued that by preventing Trump from running, Colorado altered a qualification for holding office, in violation of the Supreme Court’s decision in Term Limits.
A. Trump’s attorney refused to concede that the presidency is an “office under the United States.”
In colloquy with Justice Kagan, Trump’s lawyer acknowledged the weakness of his textualist argument that the phrase “office under” does not encompass the presidency, agreeing with Justice Kagan that it would be an odd policy stance to assume that the framers intended to exclude oath-breakers from virtually every governmental office except the presidency. Despite this, he refused to concede the point that the Insurrection Clause could be applied to a presidential candidate.
A later line of questions from Justice Jackson further explored the framers’ intended meaning of the “office under” language. Based on the historical record indicating that the framers of Section 3 were primarily concerned about the South rising again through state elections for lower-level political offices, Jackson questioned why the framers would smuggle such an important office as the presidency into Section 3 by using the catch-all phrase “office under the United States.” She pointed out that senators, house representatives, and electors are all specifically enumerated in Section 3, while president is conspicuously absent from the list.
In response to Justice Jackson, Mitchell noted that unlike the presidency, neither seats in Congress nor elector positions are considered “offices,” which could explain why the framers specifically enumerated those positions and not “president.” He also noted that the historical record reflected a concern among some framers that former president of the Confederacy, Jefferson Davis, could be elected president of the United States. For these reasons, Mitchell emphasized that the strongest textualist argument that Section 3 does not apply to Trump is that the president is not an officer rather than that the presidency is not an office, again without conceding his “office under” argument.
Aside from Justice Jackson, the justices seemed inclined to apply the same approach as the Colorado Supreme Court on this issue, preferring to interpret the phrase “office under” according to its normal and ordinary usage, rather than its “secret or technical meanings that would not have been known to ordinary citizens in the founding generation.”⁸ Such a construction also avoids the absurd result that a candidate disqualified under Section 3 is barred from holding practically every office except the presidency.
B. Trump’s attorney challenged the Colorado decision under the Supreme Court’s holding in Term Limits.
In support of his second point, Mitchell distinguished the disqualification under Section 3, which is defeasible by a two-thirds vote of Congress, from the categorical presidential qualifications found in Article II of the Constitution, such as age and citizenship.⁹ He argued that because a supermajority in Congress can waive a Section 3 disqualification, an insurrectionist oath-breaker is not categorically barred from holding office, unlike an underage candidate or a non-citizen. Accordingly, Mitchell argued states cannot use Section 3 to exclude a presidential candidate from the ballot without express authorization from Congress in the form of enabling legislation. According to Mitchell, such action by a state runs afoul of the holding in U.S. Term Limits, Inc. v. Thornton,¹⁰ which stands for the proposition that a state cannot alter the Constitution’s qualifications for federal office. Mitchell asserted that by pulling Trump from the ballot before Congress decided whether to waive the disqualification, Colorado precluded such a waiver and effectively changed a qualification for the presidency.
Even if Congress enacted legislation to enforce Section 3, Justices Barrett and Alito questioned how Congress could authorize the states to use the Insurrection Clause to prevent a disqualified candidate from running for office, when Section 3 only disqualifies a person from holding office. In response, Trump’s attorney noted that Congress is not bound by the holding in Term Limits, which only applies to the states, and therefore, so long as the legislation was “congruent and proportional”¹¹ to the purpose of Section 3, the enabling legislation would be constitutional, pursuant to Section 5 of the Fourteenth Amendment, which gives Congress the power to enact legislation to enforce its provisions.¹² Here, Mitchell reiterated that without such enabling legislation, the states cannot use Section 3 to remove a candidate from the ballot.
Colorado’s attorneys countered this position by arguing that states have broad powers under the Tenth Amendment and Article II of the Constitution to run elections, which includes the power to exclude unqualified presidential candidates from the ballot.¹³ They further contended that disqualification under Section 3 is no different than disqualification for age or citizenship, for which candidates are routinely pulled from the presidential ballot. Justice Kagan challenged Colorado’s position that a Section 3 disqualification should be treated the same as a disqualification for age or citizenship. She stated that unlike the Article II presidential qualifications of minimum age and natural born citizenship, which are absolute, a disqualification under Section 3 can be waived by a two-thirds vote of Congress, such that it is not an absolute bar on holding the office of the presidency. Kagan also pointed out the relative difficulty in adjudicating whether a candidate has “engaged in insurrection,” compared to a determination of a candidate’s age or citizenship status.
The argument that Colorado’s removal of Trump from the ballot violated the Supreme Court’s holding in Term Limits may be the strongest legal basis for a reversal of the Colorado Supreme Court’s decision. Although Term Limits was decided in the context of congressional rather than presidential qualifications, it is difficult to distinguish the facts of this case from other cases where federal courts have followed Term Limits and held that a state cannot add to or alter a constitutionally imposed qualification for an elected office.¹⁴
2. “an oath . . . to support the Constitution”
Does the President swear an oath to support the Constitution?
If you have ever watched a presidential inauguration, you would be forgiven for assuming that the answer is yes. But even this issue was contested by Trump’s legal team. The presidential oath is phrased slightly differently than the language found in Section 3 and does not include the magic words “to support the Constitution”. Instead, it arguably goes even further by including a commitment to “preserve, protect, and defend the Constitution”—a phrase which is at the very least consistent with the plain meaning of the word “support.”¹⁵
In their appellant briefs, Trump’s team argued that an “oath to support the Constitution” is a term of art referring only to the oaths taken by lower-level officers, but it was not pressed in oral arguments, probably because it is one of Trump’s weaker arguments. Standing alone, it would seem unavailing to argue that Section 3 does not apply to the president merely because his oath doesn’t track the language of the Insurrection Clause verbatim.
3. “as an officer of the United States”
Is the president an officer of the United States?
The president is commonly referred to as the chief executive officer of the United States and is the Commander in Chief of the armed forces. Despite this commonsense understanding, a large portion of oral arguments was devoted to discussing the issue of whether the president is an officer of the United States. Here, Trump’s team argued that “officer of the United States” is a specific term of art within the meaning of the Constitution, which does not encompass the president because it refers only to appointed officials, not elected officials. This interpretation takes cues from the text of other constitutional provisions, such as the Commissions Clause, Appointments Clause, and the Impeachment Clause, all of which use the phrase “officer of the United States” to refer only to appointed federal officials, not the president.
For instance, the Commissions Clause of Article II, § 3 states that the president “shall commission all the Officers of the United States,” and obviously the president cannot commission himself, so it follows that the president must not be an Officer of the United States, as that term is used in the Commissions Clause.¹⁶
Likewise, the Appointments Clause of Article II, § 2 provides that the president “shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States . . .”¹⁷ Trump’s attorneys used this to argue that Officers of the United States only refers to appointed, not elected officials.
Finally, the Impeachment Clause, found in Article II, § 4, states that “the President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”¹⁸ In colloquy with Justice Gorsuch, Mitchell argued that by referring to the president and vice president separately from Officers of the United States, the Impeachment Clause reinforces the position that Officer of the United States has a consistent meaning throughout the Constitution and does not include the president. Based on these provisions, Trump’s attorney emphasized that the “officer of” argument is the stronger of their two textualist arguments that Section 3 does not apply to Donald Trump (the other being the “office under” argument discussed above).
The counter argument offered by Colorado’s lawyers was that a narrow construction of “officer” is non-sensical in the context of Section 3 because it means that a person who held the most powerful position in our government could engage in insurrection and then hold office, while no other government officer could. They also made the point that when read in the context of Section 3’s deliberately broad, inclusive language, the phrases “office under” and “officer of” are best read as two sides of the same coin, referring to any federal office or to anyone who holds one. On that basis, Colorado argued that Section 3 covers all positions of federal power requiring an oath to the Constitution.
The justices responded with some ambivalence to Trump’s argument that the president is not an officer of the United States. On one hand, they seemed to take the point that the term “officer of the United States” has a precise meaning elsewhere in the Constitution. However, Justices Kagan and Sotomayor noted that such a close reading leads to the absurd result that a former president who engaged in insurrection would be exempt from Section 3’s disqualification, while all other officers would not. Justice Sotomayor also noted that this argument was particularly convenient for Trump, because he is one of only three former presidents (including Washington and Adams) who never took an oath as a United States congressman or state governor.
The argument also presupposes that the framers of the Fourteenth Amendment intentionally excluded former presidents from the insurrectionist disqualification; an assumption that strains credulity.
4. “engaged in insurrection”
Did Donald Trump engage in insurrection on January 6th?
At first blush, determining whether Donald Trump engaged in insurrection against the United States might seem to be the most important issue of this case. However, the Court’s questions during oral arguments did not focus much on whether Trump actually engaged in insurrection on January 6th, 2021. Rather, the Court probed procedural and evidentiary issues, such as whether the factual record in the courts below contained inadmissible evidence, specifically the January 6th House Select Committee report and certain expert testimony; whether the Colorado trial court’s factual findings should be given deference by the Court; and whether, if affirmed, the Colorado ruling would have preclusive effect on the courts of other states. Justice Alito also voiced the concern that affirming Colorado’s decision would have the likely consequence of creating a patchwork of inconsistent factual findings by state courts across the country.
Justice Alito questioned the lower Colorado court’s evidentiary ruling to admit the House January 6th Committee report as evidence during the initial trial. Because the testimony before the House committee was not subject to the rules of evidence, Alito opined that the Committee’s report contained hearsay and other inadmissible testimony, which other courts would have likely excluded from trial. Alito also challenged the Colorado district court’s qualification of an expert witness to interpret the meaning of certain statements made by Trump leading up to the Jan. 6th attack, noting that other courts may have disallowed such expert testimony, under the Daubert standard for the admissibility of scientific evidence, which requires such evidence to be testable, peer-reviewed, and generally accepted within the relevant scientific community.¹⁹
Due in part to these discrepancies, several justices expressed reservations regarding how much deference to give the factual findings of the Colorado court below. However, given that the Supreme Court does not typically resolve questions of fact, a de novo²⁰ review of the factual record is also unlikely. During Colorado’s oral arguments, Justice Barrett asked Colorado Solicitor General, Shannon Stevenson, how the Court should decide the fact issue of whether Trump engaged in insurrection. Stevenson replied that the Court has broad discretion to decide how much deference to give to Colorado’s factual findings on the issue but suggested that the Court could adopt a Bose Corp independent review of the factual record if necessary.
Here, Stevenson was referring to the case of Bose Corp. v. Consumers Union of U.S., Inc., where the Supreme Court held that an appellate court’s independent review of the factual record is entirely compatible with the clear error standard of review applied to the factual findings of lower courts.²¹ Under Federal Rule of Civil Procedure 52(a), “findings of fact shall not be set aside unless clearly erroneous,” however this deferential standard of review does not foreclose the reviewing court from conducting a full and independent examination of the factual record to evaluate the lower court’s conclusions of fact.²² Despite the holding in Bose Corp, the Court seemed disinclined to wade into the mire of such a fact review in this case.
Justice Alito also questioned whether, if affirmed, the Colorado decision could have a preclusive effect on other courts, under the doctrine of issue preclusion (i.e., non-mutual collateral estoppel).²³ Alito expressed the concern that if other courts were precluded from deciding for themselves whether Trump is disqualified under Section 3, then an elected judge in Colorado’s state district court would effectively decide this issue for the entire country. In response to these concerns, Trump’s lawyer, Jonathan Mitchell, pointed out that in this particular case, that could not happen because the preclusive effect of Colorado’s decision is determined by Colorado state law, which does not recognize non-mutual collateral estoppel. In other words, the Colorado court’s factual finding will not have a cascade effect that prevents other states from deciding the issue for themselves. However, Alito’s concern on this point is still valid because many other states do recognize non-mutual collateral estoppel, and if one of those states decided the issue of Trump’s disqualification, it would preclude other states from deciding the issue.
Based on the Court’s limited focus on the issue in oral arguments, it was not surprising that the Court sidestepped the political landmine of Trump’s involvement in the events of January 6th and decided this case on other grounds.
5. “But Congress may . . . remove such disability”
Does the fact that Congress may remove a Section 3 disqualification imply that only Congress can enforce Section 3?
Or is Section 3 self-executing, like other provisions of the Fourteenth Amendment?
Right out of the gate in oral arguments, Justice Thomas asked Trump’s attorney directly whether Section 3 was self-executing and thus enforceable by the states. Mitchell replied by citing a circuit court case styled In re Griffin, which was decided in 1869, just one year after the Fourteenth Amendment was adopted. In Griffin’s Case, a petitioner for habeas relief sought to have his criminal sentence vacated on the ground that the trial judge presiding over his case was disqualified as an insurrectionist under Section 3 of the newly ratified Fourteenth Amendment.²⁴ Griffin was successful in the district court in Virginia, obtaining an order of discharge from imprisonment.
Recognizing the potential disruption that such a ruling would cause, future Chief Justice of the Supreme Court, Salmon P. Chase, acting as a circuit court justice at the time, authored an opinion that reversed the district court’s ruling and placed the enforcement of Section 3 exclusively within the purview of Congress, stripping the states of any role unless expressly authorized under Congressional enabling legislation.²⁵
Mitchell argued that although Griffin’s Case was not a precedential Supreme Court decision, it was nevertheless highly persuasive authority because the case established the prevailing interpretation regarding enforcement of Section 3. In support, Mitchell noted that a year after the decision in Griffin’s Case, Congress enacted the Enforcement Act of 1870, which provided a mechanism for federal prosecutors to bring a writ of quo warranto²⁶ against an incumbent official, seeking his ouster from office under Section 3. Finally, Mitchell argued that under the holding in Griffin’s Case, congressionally established remedies such as the writ of quo warranto were understood to be exclusive of state court remedies.
Justice Sotomayor pushed back here and questioned the persuasive authority of Griffin’s Case, noting that it was not a binding precedent on the Court, and pointing out that Justice Chase himself contradicted his holding in Griffin’s Case a few years later in The Case of Davis, involving the punishment of Jefferson Davis for treason. In that case, Chief Justice Chase referred to Section 3 as self-executing, writing, “it executes itself, . . . and needs no legislative action to give it effect or force . . .”²⁷
Justice Kagan also clarified that Mr. Mitchell was relying on Griffin’s Case and the Enforcement Act of 1870 to argue that states are preempted from enforcing Section 3. However, the federal statutory basis for that preemption argument, the Enforcement Act of 1870, was repealed in 1948 and has not since been replaced. Despite this, Mitchell contended that the action of Congress in the aftermath of Griffin’s Case provides a strong indication that Section 3 should be enforced exclusively by Congress.
In response, Colorado asserted that Trump’s position ignored the role of the states in running presidential elections under Article II and the Tenth Amendment and argued that states have the power to ensure that their citizens’ votes are not wasted on a candidate that is constitutionally barred from holding office. On the specific question of whether states can enforce Section 3 without enabling legislation from Congress, Colorado’s position echoed the reasoning of the Colorado Supreme Court, which declined to follow Griffin’s Case and held that Section 3 was self-executing. The Colorado court reasoned that “while Congress may enact enforcement legislation pursuant to Section 5, congressional action is not required to give effect to the constitutional provision.”²⁸
Colorado’s decision noted that all other provisions of the Fourteenth Amendment are self-executing and “there is no textual evidence to suggest that the framers intended Section 3 to be any different.”²⁹ The Colorado court also held that a contrary interpretation would lead to absurd results: “if Section 3 required legislation to make it operative, then Congress could nullify it by simply not passing enacting legislation. The result of such inaction would mean that . . . any individual who engaged in insurrection against the government would nonetheless be able to serve in the government, regardless of whether two-thirds of Congress had lifted the disqualification. Surely that was not the drafters’ intent.”³⁰
Several justices criticized Colorado’s position that the Electors Clause of Article II grants states the implied authority to disqualify presidential candidates under Section 3. Justice Thomas questioned why, in the aftermath of the adoption of the Fourteenth Amendment, there are no other examples where a state disqualified a national candidate under Section 3. Justice Roberts followed up by pointing out that the main thrust of the Fourteenth Amendment was to restrict state power and authorize Congress to enforce it, so it would be the last place to look for an implied state power to enforce the presidential election process.
The pointed questions from the justices on the issue of enforcement signaled that the Court may adopt the reasoning of Griffin’s Case, and the Court’s opinion ultimately did just that.
The Court’s Decision in Trump v. Anderson
The Supreme Court issued its opinion in Trump v. Anderson on March 4, 2024, less than a month after oral arguments. The central holding of the Court was decided unanimously in favor of Trump—states cannot use Section 3 to disqualify a presidential candidate from the ballot; but the broader question of how Section 3 should be enforced divided the Court.
Only five justices joined in the majority opinion, which followed the rationale of Griffin’s Case and held that enforcement of Section 3 requires Congressional enabling legislation, enacted pursuant to Congress’s Section 5 power.³¹ The remaining four justices wrote separate concurring opinions to distinguish their positions on this point.
The concurring opinion of Justices Sotomayor, Kagan, and Jackson (the “Sotomayor Concurrence”) took issue with the Court’s departure from a vital principle of judicial restraint: “If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”³² The justices reasoned that the principles of federalism embedded in the structure of the Constitution provided an “independent and sufficient” basis to reverse the decision of the Colorado Supreme Court.³³ Citing Term Limits, they noted that “States cannot use their control over the ballot to ‘undermine the National Government,’”³⁴ and agreed with the majority that allowing Colorado to enforce Section 3 by pulling a presidential candidate from the ballot would “create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.”³⁵
Accordingly, the Sotomayor Concurrence opined that it was unnecessary for the Court to go further and render an opinion on other issues. On these grounds, the concurrence sharply criticized the majority’s holding that “Congress must enact legislation under Section 5 prescribing the procedures to ascertain what particular individuals should be disqualified” under Section 3.³⁶
The opinion further stated that the holding is unsupported by the Constitution, noting that “all the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ meaning that they do not depend on legislation,” and nothing in Section 3’s text supports the majority’s view that implementing legislation enacted under Section 5 is essential for the enforcement of Section 3.³⁷ Finally, the opinion challenged the majority’s reliance on Griffin’s Case, referring to the case as “a nonprecedential, lower court opinion by a single Justice in his capacity as a circuit judge.”³⁸
The Sotomayor Concurrence closed by stating “Section 3 serves an important, though rarely needed, role in our democracy . . . Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oath breaking insurrectionist from becoming President. Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision.”³⁹
Writing separately to “turn the national temperature down” and to emphasize that “our differences are far less important than our unanimity,” Justice Barrett authored a brief concurrence that largely echoed these points of disagreement with the rationale of the majority.⁴⁰ Justice Barrett opined that because “this suit was brought by Colorado voters under state law in state court, it does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”⁴¹
What Comes Next?
Based on the tenor of the oral arguments, the Supreme Court’s decision to reverse the Colorado high court was no surprise. However, it was less clear what the rationale for their decision would be, and the Court’s reasoning has profound implications for how the Insurrection Clause will be interpreted moving forward. For instance, the Court implicitly rejected Trump’s textualist arguments regarding the meaning of “office under” and “officer of” the United States. The opinion assumes that Section 3 does indeed apply to the office of the presidency and does indeed disqualify all former presidents who engage in insurrection from holding office. However, the Court also held that Colorado’s decision to exclude Trump from the ballot was not authorized by the Constitution. Citing its precedent in Term Limits, the Court too held that “the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates.”⁴²
Under this ruling, states have no authority to enforce Section 3 against presidential candidates and without enabling legislation from Congress, there is no clear path to enforce a Section 3 disqualification.
So, unless and until Congress passes legislation that provides a remedy, the Insurrection Clause has little utility. Hypothetically, an avowed insurrectionist could run for office, be elected to office, but could not hold office. Accordingly, we are left with a curious result: millions of American voters can be induced to essentially waste their votes on a candidate who is disqualified from holding the office for which he was elected. A functional democracy depends on voters having a meaningful choice, not the mere appearance of choice. At the very least, voters deserve to choose between presidential candidates who are qualified to hold the office of the presidency without a miracle vote of Congress. Hopefully, Trump v. Anderson serves as a clarion call for Congress to enact legislation that clearly defines a process for adjudicating whether a candidate is disqualified under Section 3. The country obviously needs it.
Suggested Citation: Ryan Crocker, Democracy in the Balance: A Discussion of the Supreme Court's Ruling in Trump v. Anderson, ACCESSIBLE LAW, Spring 2024, at 1.
Sources:
[1] Trump v. Anderson, 601 U.S. 100, 106 (2024).
[2] See Bush v. Gore, 531 U.S. 98, 103 (2000) (reversing the Florida Supreme Court’s decision to manually count the votes in Florida, which had the effect of certifying the election results for George W. Bush).
[3] Trump, 601 U.S. at 117.
[4] 18 U.S.C. § 2383 (federal penal statute that criminalizes “rebellion or insurrection against the United States” and disqualifies persons convicted under the statute from “holding any office under the United States.”).
[5] Jennifer K. Elsea, Cong. Rsch. Serv., LSB10569, The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment (2022).
[6] U.S. Const. amend. XIV, § 3 (emphasis added).
[7] Textualism is “The doctrine that the words of a governing text are of paramount concern and that what they fairly convey in their context is what the text means.” Textualism, Black’s Law Dictionary (11th ed. 2019).
[8] Anderson v. Griswold, 543 P.3d 283, 320 (Colo., 2023) (quoting District of Columbia v. Heller, 554 U.S. 570, 577 (2008)), rev’d, 144 S.Ct. 622 (2024).
[9] U.S. Const. art. II, § 1, cl. 5.
[10] See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802 (1995) (holding that the power to add or alter “congressional qualifications is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States.”).
[11] See City of Boerne v. Flores, 521 U.S. 507, 508 (1997) (holding that when Congress enacts legislation to enforce the Fourteenth Amendment, pursuant to its Section 5 authority, “there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”).
[12] U.S. Const. amend. XIV, § 5.
[13] See U.S. Const. amend. X (reserving to the states all “powers not delegated to the United States by the Constitution”); U.S. Const. art. II, § 1, cl. 2 (granting the states exclusive power to appoint presidential Electors to the Electoral College, which confers broad power to the states to run presidential elections).
[14] See, e.g., Schaefer v. Townsend, 215 F.3d 1031, 1037 (9th Cir. 2000) (following Term Limits, the Ninth Circuit held that a provision of the California Election Code, requiring congressional candidates to reside in the state well in advance of the election, altered the residency requirement for Representatives in Article I § 2, thereby violating the Qualifications Clause).
[15] U.S. Const. art. II, § 1, cl. 8.
[16] U.S. Const. art. II, § 3.
[17] U.S. Const. art. II, § 2, cl. 2.
[18] U.S. Const. art. II, § 4.
[19] Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993).
[20] De novo means to review the case “anew” or as if for the first time. De novo, Black’s Law Dictionary (11th ed. 2019).
[21] Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984).
[22] Fed. R. Civ. P. 52.
[23] Collateral estoppel is “a doctrine barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one. — Also termed issue preclusion . . .”; “Nonmutual collateral estoppel is estoppel asserted either offensively or defensively by a nonparty to an earlier action to prevent a party to that earlier action from relitigating an issue determined against it.” Collateral Estoppel, Black's Law Dictionary (11th ed. 2019).
[24] In re Griffin, 11 F. Cas. 7, 22 (C.C.D. Va. 1869).
[25] Id. at 27.
[26] Quo warranto means “by what authority” in Latin. A writ quo warranto is a legal process “used to inquire into the authority by which a public office is held.” Quo warranto, Black’s Law Dictionary (11th ed. 2019).
[27] Case of Davis, 7 F. Cas. 63, 93 (C.C.D. Va. 1871).
[28] Anderson v. Griswold, 543 P.3d 283, 320 (Colo., 2023)(quoting District of Columbia v. Heller, 554 U.S. 570, 577 (2008)), rev’d, 144 S.Ct. 622 (2024); see also Katzenbach v. Morgan, 384 U.S. 641, 651 (1966) (holding that Section 5 gives Congress authority to “determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,” but not disputing that the Fourteenth Amendment is self-executing).
[29] Anderson, 543 P.3d at 314.
[30] Id.
[31] Trump v. Anderson, 601 U.S. 100, 109-10 (2024).
[32] Trump, 601 U.S. at 118 (2024) (Sotomayor, J., concurring in judgment) (quoting Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 348 (2022) (Roberts, C.J., concurring in judgment)).
[33] Id. at 119.
[34] Trump, 601 U.S. at 119 (Sotomayor, J., concurring in judgment) (quoting U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 810 (1995)).
[35] Trump, 601 U.S. at 119 (Sotomayor, J., concurring in judgment).
[36] Id. at 121.
[37] Id.
[38] Id. at 122.
[39] Id. at 123.
[40] Trump, 601 U.S. at 118-19 (Barrett, J., concurring in judgment).
[41] Id.
[42] Trump, 601 U.S. at 106.
