No.

23-719

IN THE
Supreme Court of the United States
_________
DONALD J. TRUMP,
Petitioner,
v.
NORMA ANDERSON, ET AL.
Respondents.
_________
On Writ of Certiorari to the Supreme Court of
Colorado
_________
BRIEF OF U.S. SENATOR TED CRUZ,
MAJORITY LEADER STEVE SCALISE, AND 177
OTHER MEMBERS OF CONGRESS AS AMICI
CURIAE IN SUPPORT OF
PETITIONER DONALD J. TRUMP
_________
GENE P. HAMILTON R. TRENT MCCOTTER
AMERICA FIRST LEGAL Counsel of Record
FOUNDATION JAMES R. CONDE
611 Pennsylvania Ave. BOYDEN GRAY PLLC
S.E., No. 231 801 17th St. NW,
Washington, DC 20003 Suite 350
(202) 964-3721 Washington, DC 20006
[email protected] (202) 706-5488
[email protected]
 i

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................... ii
INTEREST OF THE AMICI CURIAE ..........................1
SUMMARY OF THE ARGUMENT ...............................5
ARGUMENT ..................................................................5
I. The Colorado Supreme Court’s Decision
Encroaches on Congress’s Express Powers .. 5
A. Federal Implementing Legislation Is
Required to Enforce Section 3 ................. 6
B. De-Balloting a Candidate Effectively
Denies Congress Its Power to Remove a
Section 3 Disability .................................. 9
C. Section 3 Determinations Fall Within
the Political Question Doctrine Because
They Are Reserved for Congress ............12
II. Section 3 Does Not Apply to Former
President Trump ......................................... 13
III. The Colorado Supreme Court’s Decision
Lacks Neutral Principles and Will Lead to
Widespread De-Balloting of Political
Opponents .................................................... 15
A. The Decision Below Failed to
Meaningfully Confine “Engaging in
Insurrection” .......................................... 16
B. A Lengthy List of Partisan Grievances
Could Be Labeled As “Engaging in
Insurrection” .......................................... 22
CONCLUSION ....................................................... 29
 ii

TABLE OF AUTHORITIES
Page(s)

Cases

Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800) ...................... 21

Cawthorn v. Amalfi,
35 F.4th 245 (4th Cir. 2022) .................................. 12

Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477 (2010) ....................... 14

In re Griffin,
11 F. Cas. 7 (C.C.D. Va. 1869) ............................. 6, 7

Jones v. Montague, 194 U.S. 147 (1904) ..................... 12

Ex Parte Quirin, 317 U.S. 1 (1942) ............................. 21

Rogers v. Grewal, 140 S. Ct. 1865 (2020) ................... 16

Wrenn v. District of Columbia,

864 F.3d 650 (D.C. Cir. 2017) ................................ 16

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012) ...........................................12, 13

Constitution & Statutes

U.S. CONST. art I, § 5 ................................................... 12

U.S. CONST. art. II, § 1 ................................................ 15

U.S. CONST. art. II, § 2, cl. 2 ........................................ 14

 iii

U.S. CONST. art. III, § 3 ............................................... 21

U.S. CONST. art. VI, cl. 3 ............................................. 14

U.S. CONST. amend. XIV, § 3 .......................9, 10, 13, 14

U.S. CONST. amend. XIV, § 5 ........................................ 6

U.S. CONST. amend. XX, § 3 .....................................9, 10

18 U.S.C. § 2383 ........................................................ 7, 8

15 Stat. 435 (1868) .................................................10–11

Act of May 31, 1870, 16 Stat. 140 ................................. 7

17 Stat. 142 (1872) ...................................................... 21

Act of June 25, 1948, 62 Stat. 869 ................................ 7

Other Authorities

CONG. GLOBE, 40th Cong., 3d Sess. (1868) ................. 11

11 CONG. REC. H31 (daily ed. Jan. 6,

2001) ....................................................................... 23

11 CONG. REC. S41–56 (daily ed. Jan. 6,

2005) ....................................................................... 23

3 C.F.R. Part 100 (Dec. 19, 1974) ............................... 14

Jay Ashcroft (@JayAshcroftMO), X (Jan.

5, 2024, 5:13 PM),
https://perma.cc/NL5L-94CK ................................. 25
 iv

William Baude & Michael Stokes

Paulsen, The Sweep and Force of
Section 3, 172 U. PA. L. REV.
(forthcoming 2024) ........................................8, 19, 20

Jennifer Bendery, Progressives Storm

Senators’ Offices To Confront Them
On Votes for Trump’s Judges,
HUFFINGTON POST (Sept. 11, 2019),
https://perma.cc/A4BV-QEJN ................................ 27

Josh Blackman & Seth Barrett Tillman,

Sweeping and Forcing the President
into Section 3, 28 TEX. REV. L. & POL.
350 (forthcoming 2024) ............................................ 6

Jason Breslow, The Resistance at the

Kavanaugh Hearings: More Than 200
Arrests, NAT’L PUB. RADIO (Sept. 8,
2018), https://perma.cc/G76W-3W9M ................... 27

Doina Chiacu & Susan Cornwell, U.S.

Congress Certified Trump’s Electoral
College Victory, REUTERS (Jan. 6,
2017) ....................................................................... 23

Draft Letter from Jeffrey Bossert Clark,

Acting Assistant Att’y Gen. of Ga., et
al. to Brian P. Kemp, Governor of Ga.,
et al. (Dec. 28, 2020),
https://www.documentcloud.org/docum
ents/21087991-jeffrey-clark-draft-
letter ....................................................................... 19
 v

Dep’t of Homeland Sec., Portland Riots

Read-Out (July 21, 2020),
https://perma.cc/GK9L-73C9 ................................. 26

Lia Eustachewich, Portland Protesters

Barricade Courthouse with Federal
Officers Inside, Then Try to Set It on
Fire, N.Y. POST (July 22, 2020),
https://perma.cc/N3L2-ZF3H ................................. 26

Melanie Eversley et al., Anti-Trump

Protests, Some Violent, Erupt for 3rd
Night Nationwide, USA TODAY (Nov.
11, 2016), https://perma.cc/T5FQ-9995 ................. 23

Colby Itkowitz, Hillary Clinton: Trump Is

an ‘Illegitimate President’, WASH. POST
(Sept. 26, 2019), https://perma.cc/
7RNG-9HC2 ........................................................... 22

Kimberlee Kruesi & Jonathan Mattise,

GOP Silences ‘Tennessee Three’
Democrat on House Floor for Day on
‘Out of Order’ Rule; Crowd Erupts,
ASSOCIATED PRESS (Aug. 28, 2023),
https://perma.cc/P6T7-DTTY ................................. 27

Jonathan Lemire & Zeke Miller, Trump

Took Shelter in White House Bunker
As Protests Raged, ASSOCIATED PRESS
(May 31, 2020),
https://perma.cc/DZ8A-GVAG ............................... 25

Ted Lieu (@tedlieu), X (June 8, 2020, 3:03

PM), https://perma.cc/NB47-DZ8B ........................ 25
 vi

David Marchese, Why Stacey Abrams Is

Still Saying She Won, N.Y. TIMES
MAG. (Apr. 28, 2019), https://perma.cc/
M33R-F9XS ............................................................ 22

James McPherson, Battle Cry of Freedom

(1988) ...................................................................... 20

Tyler Olson, Biden Says ‘MAGA

Republicans’ Threaten Democracy As
He and Dems Crank Up Anti-Trump
Rhetoric Ahead of Midterms, FOX
NEWS (Sept. 1, 2022), https://perma.cc/
2PPQ-LWS9 ........................................................... 23

Jacob Taylor, Rep. Waters Calls for

Harassing Admin Officials in Public,
Trump Calls Her ‘Low IQ,’ NBC NEWS
(June 25, 2018), https://perma.cc/
CK85-U5QU ........................................................... 26

The Editors, Terry McAuliffe’s Election

Trutherism Shouldn’t Be Excused,
NAT’L REV. (Oct. 14, 2021), https://
perma.cc/GAF3-K3EV ............................................ 23

Maxine Waters, (@RepMaxineWaters), X

(May 30, 2020, 3:21 PM),
https://perma.cc/37E6-PWGM ............................... 25

Noah Webster, An American Dictionary of

the English Language (Chauncey A.
Goodrich ed., rev. 1860) ......................................... 19
 vii

Joanna Weiss, What Happened to the

Democrats Who Never Accepted Bush’s
Election, POLITICO MAG. (Dec. 19,
2020), https://perma.cc/G4CH-GABZ .................... 23
 1

INTEREST OF THE AMICI CURIAE1

Amici curiae are United States Senator Ted Cruz,
House Majority Leader Steve Scalise, and 177 other
members of Congress. The full list of amici appears on
the following pages.
As members of Congress, amici have a strong
interest in vindicating and protecting the role of
Congress in the context of Section 3 of the Fourteenth
Amendment. First, enforcing Section 3 requires
implementing legislation from Congress, thereby
protecting candidates from abuse by state officials;
and second, Congress, by a two-thirds vote of both
Houses, has the power to remove a Section 3
“disability” and thereby authorize an otherwise-
disqualified individual to “hold” office any time it
wants, including during a campaign or after an
election. However, the decision by the Colorado
Supreme Court short-circuited both of those
congressional roles, as explained in detail below.
Further, as elected officials, amici have a strong
interest in ensuring that the rules for eligibility for
federal office are clear, objective, and neutral, rather
than malleable and conveniently applied to ensnare
political opponents.

1
No counsel for any party has authored this brief in whole or in
part, and no entity or person, aside from amici curiae, and their
counsel, made any monetary contribution intended to fund the
preparation or submission of this brief.
 2

The following is the full list of amici:

United States Senate
Ted Cruz
Leader Mitch McConnell John Kennedy
John Barrasso James Lankford
Marsha Blackburn Michael S. Lee
John Boozman Cynthia M. Lummis
Mike Braun Roger Marshall
Katie Boyd Britt Jerry Moran
Ted Budd Markwayne Mullin
Shelley Moore Capito Pete Ricketts
John Cornyn James Risch
Tom Cotton Mike Rounds
Kevin Cramer Marco Rubio
Mike Crapo Eric Schmitt
Joni Ernst Rick Scott
Deb Fischer Tim Scott
Lindsey O. Graham Dan Sullivan
Charles E. Grassley John Thune
Bill Hagerty Thom Tillis
Josh Hawley Tommy Tuberville
John Hoeven J.D. Vance
Cindy Hyde-Smith Roger Wicker
Ron Johnson

United States House of Representatives

Majority Leader Steve Scalise
Speaker Mike Johnson Lisa McClain
Majority Whip Tom Emmer Guy Reschenthaler
Elise M. Stefanik Jodey C. Arrington
Gary J. Palmer Mike Bost
Richard Hudson Tom Cole
 3

James Comer Eric Burlison

Virginia Foxx Ken Calvert
Kay Granger Kat Cammack
Sam Graves Jerry Carl
Mark E. Green, M.D. Earl L. “Buddy” Carter
Michael Guest Judge John Carter
Jim Jordan Ben Cline
Cathy McMorris Andrew S. Clyde
Rodgers Mike Collins
Mike Rogers Eric A. “Rick” Crawford
Jason Smith Dan Crenshaw
Bryan Steil John R. Curtis
Glenn “GT” Thompson Warren Davidson
Michael Turner Jeff Duncan
Bruce Westerman Neal P. Dunn, M.D.
Roger Williams Chuck Edwards
Robert B. Aderholt Jake Ellzey
Mark Alford Ron Estes
Rick W. Allen Mike Ezell
Mark E. Amodei Pat Fallon
Kelly Armstrong Randy Feenstra
Brian Babin, D.D.S. Brad Finstad
Jim Banks Michelle Fischbach
Andy Barr Scott Fitzgerald
Aaron Bean Chuck Fleischmann
Cliff Bentz Mike Flood
Jack Bergman C. Scott Franklin
Stephanie Bice Russell Fry
Andy Biggs Carlos A. Gimenez
Gus M. Bilirakis Bob Good
Dan Bishop Lance Gooden
Josh Brecheen Paul A. Gosar, D.D.S.
Tim Burchett Garret Graves
Michael C. Burgess, M.D. H. Morgan Griffith
 4

Brett Guthrie Troy E. Nehls

Harriet M. Hageman Ralph Norman
Andy Harris, M.D. Jay Obernolte
Diana Harshbarger Burgess Owens
Kevin Hern August Pfluger
Clay Higgins Bill Posey
Ashley Hinson John Rose
Erin Houchin David Rouzer
Bill Huizenga John H. Rutherford
Ronny L. Jackson Austin Scott
John James Adrian Smith
Dusty Johnson Pete Stauber
Trent Kelly Dale W. Strong
Mike Kelly Claudia Tenney
Doug Lamborn Thomas P. Tiffany
Nicholas A. Langworthy William R. Timmons, IV
Debbie Lesko Jefferson Van Drew
Blaine Luetkemeyer Beth Van Duyne
Anna Paulina Luna Derrick Van Orden
Morgan Luttrell Ann Wagner
Tracey Mann Tim Walberg
Brian Mast Michael Waltz
Tom McClintock Randy K. Weber, Sr.
Rich McCormick, M.D. Daniel Webster
Dan Meuser Brad R. Wenstrup, D.P.M.
Carol Miller Rob Wittman
Max L. Miller Steve Womack
Cory Mills Rudy Yakym, III
John Moolenaar Ryan Zinke
Alex X. Mooney
 5

SUMMARY OF THE ARGUMENT

The Colorado Supreme Court ordered Donald
Trump removed from the State’s presidential primary
ballot, even though he is the current frontrunner for
the Republican primary and favored by many polls to
win the next presidential election.
Amici, comprising numerous U.S. Senators and
Representatives, focus on how the Colorado Supreme
Court’s opinion tramples the prerogatives of members
of Congress. The court below raced past numerous
textual and structural limitations on Section 3, which
are primarily designed to ensure that Congress
controls the enforcement and (if necessary) removal of
Section 3’s “disability” on holding office. See Parts I &
II, infra. And then the court adopted a malleable and
expansive view of “engage in insurrection,” which will
easily lead to widespread abuse of Section 3 against
political opponents. See Part III, infra.
This Court should reverse the decision below.
ARGUMENT
I. The Colorado Supreme Court’s Decision
Encroaches on Congress’s Express
Powers.
Congress—not any state court—plays a vital role
in regard to Section 3. It is Congress that must pass
implementing legislation authorizing enforcement of
Section 3. See Part I.A, infra. And it is Congress that
has the express power to remove a Section 3
“disability,” even after an election occurs. See Part I.B,
infra.
 6

The Colorado Supreme Court’s decision severely

intrudes on those congressional powers first by
allowing enforcement of Section 3 without
congressional authorization, and then by concluding
that Section 3 authorizes a state to de-ballot a
candidate. As explained next, both of those holdings
are wrong. For similar reasons, this Court should
conclude that Section 3 determinations fall within the
“political question” doctrine because they are so
clearly committed by constitutional text to another
political branch, i.e., Congress. See Part I.C, infra.
A. Federal Implementing Legislation
Is Required to Enforce Section 3.
Congress must pass authorizing legislation to
enforce Section 3. The Fourteenth Amendment
expressly gives Congress the “power to enforce, by
appropriate legislation, the provisions of this article.”
U.S. CONST. amend. XIV, § 5; see also Josh Blackman
& Seth Barrett Tillman, Sweeping and Forcing the
President into Section 3, 28 TEX. REV. L. & POL. 350,
362 (forthcoming 2024) (explaining that requiring
congressional legislation to enforce the Fourteenth
Amendment is distinct from relying on the
Amendment as a shield or defense).
Longstanding precedent written by Chief Justice
Chase, albeit not directly binding, holds that
implementing legislation is required for Section 3
specifically. See In re Griffin, 11 F. Cas. 7, 26 (C.C.D.
Va. 1869) (No. 5815) (Chase, C.J.). In Griffin, Chief
Justice Chase concluded that, among the provisions of
the Fourteenth Amendment, “there is no one which
more clearly requires legislation in order to give effect
 7

to it” than Section 3. Id. In particular, he relied on the

unusually fact-specific nature of a Section 3
determination: “in the very nature of things, it must
be ascertained what particular individuals are
embraced by the definition” of engaging in
insurrection, and to make “this ascertainment and
ensure effective results, proceedings, evidence,
decisions, and enforcements of decisions … are
indispensable; and … can only be provided for by
congress.” Id.
In other words, Section 3 enforcement mechanisms
are left to Congress, not to a patchwork of state
officials and courts. Congress implemented Section 3
in the Enforcement Act of 1870, which provided that
when an individual was holding office in violation of
Section 3, the local “district attorney of the United
States” must seek a “writ of quo warranto” and
“prosecute the same to the removal of such person
from office.” Act of May 31, 1870, ch. 114, § 14, 16 Stat.
140, 143; see also id. § 15. But Congress rescinded that
act nearly eighty years ago, in 1948. Act of June 25,
1948, ch. 646, § 39, 62 Stat. 869, 992.
Under current law, Congress has implemented
Section 3 only in the narrow context of requiring a
criminal conviction for “rebellion or insurrection,” and
provided that those found guilty “shall be incapable of
holding any office under the United States.” 18 U.S.C.
§ 2383. Just as Chief Justice Chase anticipated in
Griffin, § 2383 requires compliance with procedural
and factfinding requirements dictated by the Fifth
and Sixth Amendments. But Congress has otherwise
not seen fit to implement Section 3 enforcement under
 8

current law, even though Congress is certainly aware

of its authority to do so, as demonstrated above.
The Baude and Paulsen law review article cited by
the court below acknowledges the existence of § 2383
but says in a footnote, without any explanation, that
it is not “preclusive of the self-executing application of
Section Three.” William Baude & Michael Stokes
Paulsen, The Sweep and Force of Section 3, 172 U. PA.
L. REV. (forthcoming 2024) (manuscript at 82 n.288).
The court below reached the same conclusion.
Pet.App.54a. But if Section 3’s disqualification were
fully self-enforcing, there would have been no reason
for Congress to state expressly in § 2383 that a
conviction for insurrection would result in
disqualification from holding certain offices. Under
Baude and Paulsen’s view, Section 3 would already
have automatically barred such individuals from
office even before conviction, and certainly would have
done so after a conviction.
Enforcement legislation is not an empty formality.
Disqualification under Section 3 is an extraordinarily
harsh result, and the Fourteenth Amendment’s own
text confirms that Congress, representing the
Nation’s various interests and constituencies, is the
best judge of when to authorize Section 3’s affirmative
enforcement. Moreover, if Congress did choose to
authorize enforcement legislation outside of the
criminal context, it could cabin the scope by defining
more specifically terms like “engaging in” and
“insurrection.” Congress could even require a
factfinding process and standards of proof that accord
with the gravity of the consequence.
 9

B. De-Balloting a Candidate
Effectively Denies Congress Its
Power to Remove a Section 3
Disability.
The Colorado Supreme Court held that Section 3
authorizes a state to de-ballot a candidate.
Pet.App.36a–37a. That is not only wrong but directly
interferes with Congress’s express authority to
remove a Section 3 “disability” during the election
season or even after an election has occurred. U.S.
CONST. amend. XIV, § 3.
Section 3 states that “[n]o person” disqualified
under its provisions shall “hold any” of the specified
offices. U.S. CONST. amend. XIV, § 3. That language
bars presently holding the office, not merely running
for it. Thus, assuming Section 3 applies to a given
individual, he is barred only from actually holding one
of the listed positions, not from seeking election to
that position.
Even assuming that Section 3 applies to the
presidency, see Part II, infra, the Twentieth
Amendment confirms that a candidate may be elected
President even if he is not qualified to hold the office.
That amendment addresses what happens if someone
is elected President but “shall have failed to qualify.”
U.S. CONST. amend. XX, § 3. In that circumstance, the
“Vice President elect shall act as President” unless
 10

and until Congress removes the disability on the

President-elect. Id.2
The Colorado Supreme Court refused to adopt this
obvious textual distinction. Pet.App.36a. The court
insisted that if it were “to adopt President Trump’s
view, Colorado could not exclude from the ballot even
candidates who plainly do not satisfy the age,
residency, and citizenship requirements of the
Presidential Qualifications Clause of Article II.”
Pet.App.36a–37a.
But far from supporting the court’s decision,
Article II demonstrates why it was wrong. Excluding
a candidate who fails to satisfy Article II’s
requirements does not in any way affect Congress’s
authority because Congress has no power to remove
an Article-II-based disqualification. By contrast,
Congress can remove the Section 3 bar by a two-thirds
vote of the House and Senate. See U.S. CONST. amend.
XIV, § 3. Thus, someone covered by Section 3 could
win election to one of the listed positions but still take
office if Congress removes the disability in the
interim. The two types of qualifications do not sit on
equal footing.
In fact, there are historical examples of Congress
removing a Section 3 disability after otherwise-
unqualified individuals had won elections. Congress
did so in 1868 for Franklin J. Moses, who had been
elected as the Chief Justice of South Carolina. See 15

2
If both the President and Vice President fail to qualify, it is
again Congress that is given express authority to make
provisions for who shall be acting President. U.S. CONST. amend.
XX, § 3.
 11

Stat. 435 (1868). The floor debate shows the bill was
passed to allow Moses to assume the office to which he
had been elected. CONG. GLOBE, 40th Cong., 3d Sess.
29–30 (1868) (explaining the time by which Moses had
to qualify to hold office “will expire on the 29th day of
this month, so that this bill, in order to be of any avail
to him and the State of South Carolina, must be
passed at once”).
Congress did this again later that same year for a
slate of individuals, 15 Stat. 435–36 (1868),
recognizing that “[i]t is necessary that the disabilities
should be removed from these persons before the
recess, in order to enable them to qualify for offices to
which they have been elected before the 1st of
January.” CONG. GLOBE, 40th Cong., 3d Sess. 120
(1868); see also id. at 121, 154.
By de-balloting anyone it deems covered by Section
3, the Colorado Supreme Court effectively precludes
Congress from exercising its Section 3 power to
remove the disability during the election season or
even after the election takes place, thus imposing a
temporal limitation on Congress’s Section 3 power.
That limitation appears nowhere in the text of the
provision and would force Congress to make a decision
that may ultimately be unnecessary and would also
require Congress to act pursuant to a state’s
particular timeline for primaries. Congress could
reasonably conclude that it is necessary to address the
removal-of-disability issue only after waiting to see
whether a candidate prevailed.
This error alone justifies reversing the decision
below.
 12

C. Section 3 Determinations Fall

Within the Political Question
Doctrine Because They Are
Reserved for Congress.
A “controversy involves a political question where
there is a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and
manageable standards for resolving it.” Zivotofsky ex
rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012)
(cleaned up). The Colorado Supreme Court declined to
find that this dispute fits under the “political
question” doctrine because there was no textual
commitment to another branch and because there
were judicially manageable standards in defining and
applying “insurrection” and “engage in.” Pet.App.55a–
61a. That latter point is certainly debatable, if the
lower court’s freewheeling view of those terms is any
indication, as demonstrated in Part III below.
In any event, the Colorado Supreme Court was
wrong that there is no textual commitment to
Congress. As explained above, it is Congress that is
given the power under Section 5 of the Fourteenth
Amendment to issue legislation to enforce Section 3.
See Part II.A, supra. And it is Congress that is given
the power to remove the Section 3 disability upon a
vote of two-thirds of both Houses. See Part II.B, supra.
Moreover, each House shall be the sole judge of the
qualifications of its members. U.S. CONST. art I, § 5;
Jones v. Montague, 194 U.S. 147, 153 (1904);
Cawthorn v. Amalfi, 35 F.4th 245, 267 (4th Cir. 2022)
(Richardson, J., concurring in the judgment).
 13

Although not directly relevant to President Trump,

the Colorado Supreme Court would give itself the
power to judge the qualifications of those who would
be elected to the House or Senate.
Finally, as President Trump’s certiorari petition
explains, federal courts routinely invoke the political
question doctrine for disputes over other qualification
requirements. See Pet.20–22 (collecting cases). It is
hard to believe that a state court could nonetheless
make such disqualification determinations, let alone
in the particular context of Section 3, with its
numerous and express commitments of power to
Congress. Under that precedent, this is an easy case
for finding that the Section 3 determination here is a
matter textually committed to the political branches.
See Zivotofsky, 566 U.S. at 195.
II. Section 3 Does Not Apply to Former
President Trump.
The Colorado Supreme Court also erred by
rejecting the argument that Section 3 is inapplicable
to former President Trump, as he was never
previously “an officer of the United States.” U.S.
CONST. amend. XIV, § 3; Pet.App.70a–73a.
Section 3 applies only to individuals who
“previously” took “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.” U.S. CONST. amend. XIV, § 3.
The only potentially relevant position here is “an
officer of the United States,” but for constitutional
purposes, the President is never considered “an officer
 14

of the United States.” Other provisions in the

Constitution uniformly distinguish between officers of
the United States and the President. The
Appointments Clause authorizes the President to
appoint ambassadors, ministers, judges, and “all
other Officers of the United States,” U.S. CONST. art.
II, § 2, cl. 2, and the related Commissions Clause
authorizes the President to “Commission all the
Officers of the United States.” Id. § 3. Needless to say,
the President does not “appoint” or “commission”
himself. The Impeachment Clause also textually
distinguishes the “President [and] Vice President”
from “all civil Officers of the United States.” Id. § 4.
This Court has further held that “[t]he people do
not vote for the ‘Officers of the United States.’” Free
Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S.
477, 497–98 (2010). And Antonin Scalia, when he
headed the Office of Legal Counsel, aptly explained
that “when the word ‘officer’ is used in the
Constitution, it invariably refers to someone other
than the President or Vice President.” Memorandum
from Antonin Scalia, Assistant Att’y Gen., Off. of
Legal Couns., to Kenneth A. Lazarus, Associate
Couns. to the President, Re: Applicability of 3 C.F.R.
Part 100, at 2 (Dec. 19, 1974).
This reading of “officer of the United States” is
reinforced by Section 3’s reference to a prior oath “to
support the Constitution of the United States.” U.S.
CONST. amend. XIV, § 3. Article VI of the Constitution
requires “[o]fficers” to take an oath to “support this
Constitution,” U.S. CONST. art. VI, cl. 3, but the
President’s oath is different and conspicuously does
 15

not reference “supporting” the Constitution, see U.S.

CONST. art. II, § 1.
Both of these textual indicators confirm that
Section 3 simply does not apply to someone whose only
former governmental position was President of the
United States. This makes sense in historical context.
When the Fourteenth Amendment was enacted, the
only former President who had joined the confederacy,
John Tyler, was dead. The framers of the Fourteenth
Amendment had little reason to worry about a former
President being elected, so they did not include it in
Section 3.
Accordingly, for purposes of this suit, the Court
need not decide whether the presidency is an “[o]ffice
under the United States” for purposes of Section 3.
The Court need only conclude that the President is not
an “officer of the United States.” This provides yet
another straightforward and clean basis for reversing
the decision below.
III. The Colorado Supreme Court’s Decision
Lacks Neutral Principles and Will Lead to
Widespread De-Balloting of Political
Opponents.
Although this Court need not reach the questions
of what qualifies as “insurrection” or what it means to
“engage in” it, it is worth explaining why the decision
below presents such a serious risk to the democratic
process.
The Colorado Supreme Court’s opinion on these
issues proceeded by first offering various competing
and high-level definitions of the phrase “engage in
insurrection,” as used in Section 3. The court declined
 16

to pick one specific definition, then recounted the facts

surrounding January 6, 2021, and concluded by
stating that those facts satisfied any definition. As
demonstrated next, that approach not only expanded
“insurrection” and “engaged in” past their breaking
points, see Part III.A, infra, but it also provides a
green light for partisan state officials to disqualify
their opponents, see Part III.B, infra.
A. The Decision Below Failed to
Meaningfully Confine “Engage in
Insurrection.”
Insurrection. The Supreme Court of Colorado
refused to adopt “a single, all-encompassing definition
of the word ‘insurrection.’” Pet.App.86a. The strategic
decision to avoid defining the core inquiry was a
serious mistake. “[C]ourts ‘must fully understand the
historical scope’” of a constitutional provision “before
they can determine whether and to what extent the
challenged” action falls within that provision. Rogers
v. Grewal, 140 S. Ct. 1865, 1868 n.2 (2020) (Thomas,
J., dissenting from denial of certiorari) (cleaned up)
(quoting Peruta v. Cnty. of San Diego, 742 F.3d 1144,
1166 (9th Cir. 2014)). The court “ultimately
weakened” its case by “excus[ing]” itself from the
difficult work of cabining the scope of Section 3. Wrenn
v. District of Columbia, 864 F.3d 650, 663 (D.C. Cir.
2017).
The court below concluded that “insurrection”
includes—but is not necessarily limited to—any
“concerted and public use of force or threat of force by
a group of people to hinder or prevent the U.S.
government from taking the actions necessary to
 17

accomplish a peaceful transfer of power in this

country.” Pet.App.86a. But none of the sources
canvassed by the court limit insurrection to opposing
the execution of election laws or the “transfer of
power.”
One prominently cited definition of “insurrection”
includes any “open and active opposition ... to the
execution of law.” Pet.App.84a (quoting Noah
Webster, An American Dictionary of the English
Language (1828)); see also Pet.App.252a. Although
Section 3 is specifically limited to an insurrection
“against the [Constitution of the United States],”
some officials could argue this includes any opposition
to the authority of Congress or the Executive in any
area. Under that view, a group hindering
congressional or executive authority is equally
covered as “insurrection ... against the [Constitution
of the United States].” Under this theory, a group
invoking principles of justice to hinder any federal
laws could be deemed insurrectionists. Such action
may be illegal, but that is a far cry from insurrection.
The court’s view of the level of force needed to make
an insurrection was also vague. According to the
court, force is not required, although a “threat of force”
may be, but even then, it “need not involve bloodshed,
nor must the dimensions of the effort be so substantial
as to ensure probable success.” Pet.App.86a. Also, the
effort need not “be highly organized at the
insurrection’s inception.” Pet.App.87a. In large part,
the court vaguely defined “insurrection” by what it
isn’t.
 18

Engaged In. Critically, by focusing on insurrection

in the context of the “peaceful transfer of power,” the
court swept under the rug the dramatic consequences
of its exceedingly broad reading of the accompanying
phrasal verb “engaged in.”
The court defined “engaged in” to include any act
“done with the intent of aiding or furthering the”
insurrection. Pet.App.91a. But the court’s notion of
“furthering” an insurrection bears little resemblance
to ordinary concepts of accessory liability. Indeed, the
court’s test largely amounts to a moral complicity
standard.
According to the court, “engaged in” is more than
“mere acquiescence.” Pet.App.91a. But a person “need
not [have] directly participate[d]” in any of the “overt
act[s]” at issue. Pet.App.90a. The court said the
phrase covers incitement to insurrection, but it may
not be limited to that. Id. Anyone who sends a
“supportive message,” or an inflammatory one, may be
deemed to have intended to further or cause an
insurrection—even if he also urged the crowd to act
“‘peaceful[ly]’” and respect law enforcement.
Pet.App.98a–99a.
Under the lower court’s view, an individual also
“engages” in insurrection when his statements made
months earlier can be causally tied to later political
violence, unless he immediately “condemn[s] the
violence” or “ask[s] the mob to disperse.” Pet.App.98a,
99a. Events at a political rally, even years earlier, can
be used to identify a “‘call-and-response’” pattern that
shows an intent to incite an insurrection.
 19

Pet.App.113. Anyone viewed as morally complicit

could be swept within this vague definition.
An example shows the putative breadth of the
term. The Colorado Supreme Court extensively cited
an article arguing that “Assistant Attorney General
Jeffrey Clark sought to use the power and authority
of the Department of Justice to fraudulently upend
state election results,” and therefore arguably could
have “engaged in” a “rebellion.” See Baude & Paulsen,
supra (manuscript at 123). Clark’s supposed
“engagement” in insurrection consisted of preparing a
draft letter to the Georgia Secretary of State making
legal arguments and questioning the integrity of the
election.3 The letter did not threaten the use of force,
and it was never sent to Georgia. If preparing a letter
that was never sent arguably constitutes engaging in
a broader insurrection or rebellion, then “engage in”
has no limiting principle.
This expansive view of “engage in” contradicts the
historical understanding. “Engage in” requires more
than encouraging or inflammatory messages of moral
support or organizing a political rally that ultimately
results in political violence. To engage in means to
actually “embark in any business,” to “undertake” an
act. Noah Webster, An American Dictionary of the
English Language 396 (Chauncey A. Goodrich ed.,
rev. 1860). Encouraging or instigating a business is
not the same as embarking or undertaking one.

3
Draft Letter from Jeffrey Bossert Clark, Acting Assistant Att’y
Gen. of Ga., et al. to Brian P. Kemp, Governor of Ga., et al. (Dec.
28, 2020), https://www.documentcloud.org/documents/21087991-
jeffrey-clark-draft-letter.
 20

Individuals do not “engage in commerce” by

encouraging or even inciting it. Instead, engaging in
an act requires taking part in the proscribed act; here,
it means participating in the overt act of insurrection,
either by directing the use of force or using force to
carry out an insurrection. Incitement is not enough.
For example, northern Copperheads opposing
Union war efforts were not “engaged in” insurrection
against the United States, even though their political
rhetoric was heated, and even though their words no
doubt encouraged the Confederacy in a real sense. For
example, in 1863, “[a] mass meeting of New York
Democrats resolved that the war ‘against the South is
illegal, being unconstitutional, and should not be
sustained.’” James McPherson, Battle Cry of Freedom
592 (1988). State legislatures enacted resolutions
decrying the war. Id. at 595. Some legislatures even
drafted “bills to take control of state troops away from
the Republican governors.” Id. In a loose sense, the
rhetoric, acts, and rallies organized by Copperheads
“furthered” rebellion in the South, perhaps even
incited it.
In one paradigmatic case, Clement Vallandigham,
a former member of the House, was accused of making
“‘disloyal’” speeches decrying the war, which allegedly
encouraged desertion. Id. at 596–97. The scholars on
whom the Colorado Supreme Court relied upon have
said it is “conceivable” that Vallandigham’s “disloyal”
speeches would be covered by Section 3. Baude &
Paulsen, supra (manuscript at 60). By that standard,
many or most of the “Peace Democrats” during the
Civil War conceivably engaged in insurrection against
the United States, too. Yet when the Fourteenth
 21

Amendment was enacted, no one imagined that

members of groups like the Copperheads would be
disqualified under Section 3 for those actions. In fact,
after the Fourteenth Amendment was ratified,
numerous Copperheads were reelected and seated in
Congress, apparently without issue.4
If Section 3 does cover incitement or other lesser
forms of encouragement, then it would only be
because it falls under the separate disability covering
the giving of “[a]id and [c]omfort” to the “[e]nemies” of
the U.S. Constitution. U.S. CONST. art. III, § 3. But
Colorado did not rely on that separate provision, and
for good reason: it covers only aid to “enemies,” which
historically meant those who owe their allegiance to a
belligerent government that is at war with or in
“hostilities” with the United States. Bas v. Tingy, 4
U.S. (4 Dall.) 37, 40 (1800); cf. Ex Parte Quirin, 317
U.S. 1, 37–38 (1942).
The Colorado Supreme Court’s broad
interpretation of “engage in” thus does harm to the
text and structure of Section 3 itself. By separately
listing “engag[ing] in insurrection” and “giv[ing] aid
and comfort to” the Nation’s enemies, Section 3 makes
clear that for insurrection, something more than mere
“aid and comfort” is required. But the court below
expressly found that “aid[ing]” an insurrection would
qualify, thereby reducing the actions needed to trigger

4
For example, George H. Pendleton and Benjamin Wood, among
others. Notably, they were not covered by the 1872 amnesty
removing the Section 3 disability for a wide swath of individuals,
as it expressly excluded members of the 36th and 37th
Congresses. 17 Stat. 142 (1872).
 22

the insurrection provision. Pet.App.100a; see also

Pet.App.233a.
The Colorado Supreme Court ostensibly believed it
was issuing a narrow decision about events
surrounding the transfer of power. But its rationale
and its failure to define the boundaries of “engaging
in insurrection” will make it that much easier for
enterprising state officials across the country to
cherry-pick parts of the opinion below, as well as its
cited sources, to come up with contrived definitions of
“engage” and “insurrection” to cover what they
perceive to be the most egregious actions of their
political opponents, to disqualify them from the
ballot—as explained next.
B. A Lengthy List of Partisan
Grievances Could Be Labeled As
“Engaging in Insurrection.”
There are frequent, even routine, disputes among
Americans about election outcomes. For example,
Stacey Abrams believes she “won” her 2018 election
for Governor of Georgia.5 Hillary Clinton believes
Donald Trump “stole” the 2016 election.6 Many
believe that “high-tech voting machines” fabricated
decisive votes for President Bush in 2004, and efforts
to challenge the Ohio slate of electors sought to

5
David Marchese, Why Stacey Abrams Is Still Saying She Won,
N.Y. TIMES MAG. (Apr. 28, 2019), https://perma.cc/M33R-F9XS.
6
Colby Itkowitz, Hillary Clinton: Trump Is an ‘Illegitimate
President’, WASH. POST (Sept. 26, 2019), https://perma.cc/7RNG-
9HC2.
 23

change the outcome of that election.7 Many politicians

still believe President Bush stole the 2000 election.8
Politicians from both parties have repeatedly voted
against certifying some states’ electoral votes in
presidential elections since 2000.9 At the time, some of
these disputes were accompanied by rioting.10
In polarized times, it is easy to cast an opponent’s
rhetoric about the outcome of elections as encouraging
others to obstruct the peaceful transfer of power.
According to President Biden, a sizable portion of the
Republican electorate, if not all of it, is determined to
destroy democracy.11 No doubt, state officials across

77
See Joanna Weiss, What Happened to the Democrats Who
Never Accepted Bush’s Election, POLITICO MAG. (Dec. 19, 2020),
https://perma.cc/G4CH-GABZ; Mark C. Miller, Fooled Again:
How the Right Stole the 2004 Election and Why They’ll the Next
One Too (Unless We Stop Them) (2005).
8
The Editors, Terry McAuliffe’s Election Trutherism Shouldn’t
Be Excused, NAT’L REV. (Oct. 14, 2021), https://perma.cc/GAF3-
K3EV.
9
See, e.g., 11 CONG. REC. H31 (daily ed. Jan. 6, 2001) (objecting
on the ground Florida elections “were marred by gross violations
of the Voting Rights Act”); 11 CONG. REC. S41–56 (daily ed. Jan.
6, 2005) (disputing Ohio electors because of voting
“irregularities”); Doina Chiacu & Susan Cornwell, U.S. Congress
Certified Trump’s Electoral College Victory, REUTERS (Jan. 6,
2017) (objecting because of “‘overwhelming evidence’” of Russian
interference), https://perma.cc/N6NS-GWKP.
10
Melanie Eversley et al., Anti-Trump Protests, Some Violent,
Erupt for 3rd Night Nationwide, USA TODAY (Nov. 11, 2016),
https://perma.cc/T5FQ-9995.
11
Tyler Olson, Biden Says ‘MAGA Republicans’ Threaten
Democracy As He and Dems Crank Up Anti-Trump Rhetoric
Ahead of Midterms, FOX NEWS (Sept. 1, 2022), https://perma.cc/
2PPQ-LWS9.
 24

the country have similar views, and many take

opposing views. When partisan state officials believe
so much is at stake, they may go to great lengths to
interfere with the ordinary democratic process.
That makes it all the more critical to minimize the
partisan incentive to boot opponents off the ballot
using the incredible sanction of Section 3. But the
decision below will only supercharge state officials to
conjure bases for labeling political opponents as
having engaged in insurrection.
The following examples demonstrate just how
easily partisan state officials across the country could
do so, using parts of the Colorado Supreme Court’s
decision and its cited sources. To be clear, amici are
not contending that these examples truly do qualify as
“engaging in insurrection,” but rather that
enterprising state officials could easily make such
contentions.
Recall that the decision below and the sources it
cited suggested “insurrection” may include “‘open and
active opposition … to the execution of law,’”
Pet.App.84a, and that “engage in” could include any
number of actions or inactions deemed sufficiently
complicit, under a totality of the circumstances.
Pet.App.90a–91a, 98a–99a.
In the context of the 2020 election, both sides could
attempt to label the other as having actively opposed
the peaceful transfer of power to the rightful winner,
or at least being morally complicit in those actions—
and thus both Trump and Biden partisans could try to
disqualify each other under Section 3, in tit-for-tat
 25

retaliation that has already been threatened after the

decision below.12
Even if one concedes there must have been serious
political violence aimed at the government to qualify
as an insurrection, there are still plenty of examples
for state officials to choose from. Consider the
politicians across the country who supported protests
throughout the Summer of 2020, culminating in the
White House security fence being breached and
President Trump being taken to the White House
bunker, hindering the execution of the laws.13 “With
full knowledge of these sometimes-violent” riots
throughout the summer, Pet.App.93a, some
politicians still spoke out in favor of them, even telling
protestors to target President Trump,14 and some
politicians gloated afterward that the President had
been taken to the bunker as a result of the breach of
the White House grounds.15 Violence aimed towards
the sitting President was perhaps unsurprising given
the public calls by at least one Representative since

12
See Jay Ashcroft (@JayAshcroftMO), X (Jan. 5, 2024, 5:13 PM),
https://perma.cc/NL5L-94CK.
13
Jonathan Lemire & Zeke Miller, Trump Took Shelter in White
House Bunker As Protests Raged, ASSOCIATED PRESS (May 31,
2020), https://perma.cc/DZ8A-GVAG.
14
See Maxine Waters, (@RepMaxineWaters), X (May 30, 2020,
3:21 PM), https://perma.cc/37E6-PWGM.
15
Ted Lieu (@tedlieu), X (June 8, 2020, 3:03 PM), https://
perma.cc/NB47-DZ8B.
 26

2018 for members of the public to confront and harass

Trump officials.16
The Summer of 2020 also saw months of nightly
violent attempts by large crowds to breach and
destroy the Portland, Oregon, federal courthouse,
using Molotov cocktails, power saws, rifles, and other
weapons.17 Under the Colorado Supreme Court’s
expansive definition of “engage in,” any political
supporters who were never present in Portland could
nonetheless be deemed covered by Section 3 for
publicly calling for the protective agents to be stopped,
especially if they stood by those remarks even after
rioters “barricaded federal officers inside [the]
courthouse — and tried to set the building on fire.”18
Such conduct by politicians was distasteful but
scarcely would have been thought to qualify as
insurrection—until the Colorado Supreme Court got
involved, that is.
The Colorado Supreme Court also seemed to
believe that concerted actions to interfere with or
delay core functions of a legislature may qualify as
insurrection. Pet.App.88a, 100a. But actions
surrounding fierce legislative debate are ripe for
overly aggressive assertions of “insurrection.” It could

16
Jacob Taylor, Rep. Waters Calls for Harassing Admin Officials
in Public, Trump Calls Her ‘Low IQ,’ NBC NEWS (June 25, 2018),
https://perma.cc/CK85-U5QU.
17
Dep’t of Homeland Sec., Portland Riots Read-Out (July 21,
2020), https://perma.cc/GK9L-73C9.
18
Lia Eustachewich, Portland Protesters Barricade Courthouse
with Federal Officers Inside, Then Try to Set It on Fire, N.Y. POST
(July 22, 2020), https://perma.cc/N3L2-ZF3H.
 27

include legislators who encourage protests in the

chamber itself.19 And it could include any politician
who tweeted encouragement or incendiary messages
about the hundreds of demonstrators who were
arrested during the lengthy hearings on then-Judge
Kavanaugh’s nomination. These protestors
sometimes acted violently and were often coordinated
in advance.20 Supporters of this tactic even used the
language of “insurrection,” for example, claiming they
“stormed” Senate offices during the hearings for now-
Judge Steven Menashi.21 Politicians supporting them
could be deemed as advocating for the use of force to
disrupt one of the Senate’s most solemn duties. Again,
such conduct by politicians is distasteful, but had
never been viewed as a foray to invoking Section 3.
Nor could someone hope to escape by pointing to
evidence contradicting any insurrectionary intent.
Again, the Colorado Supreme Court’s opinion so
broadly interpreted “engage in” that it sailed right
past President Trump’s repeated statements to his
supporters—both before the breach of the Capitol and
after it was breached—telling them to act peacefully,

19
Kimberlee Kruesi & Jonathan Mattise, GOP Silences
‘Tennessee Three’ Democrat on House Floor for Day on ‘Out of
Order’ Rule; Crowd Erupts, ASSOCIATED PRESS (Aug. 28, 2023),
https://perma.cc/P6T7-DTTY.
20
Jason Breslow, The Resistance at the Kavanaugh Hearings:
More Than 200 Arrests, NAT’L PUB. RADIO (Sept. 8, 2018),
https://perma.cc/G76W-3W9M.
21
Jennifer Bendery, Progressives Storm Senators’ Offices To
Confront Them On Votes for Trump’s Judges, HUFFINGTON POST
(Sept. 11, 2019), https://perma.cc/A4BV-QEJN.
 28

and that he later told them via video to “‘go home

now.’” Pet.App.98a–99a, 238a.
It is hard to imagine an actual insurrectionist
quickly asking for peace and encouraging
disbandment. But once “engage in” is defined so
broadly, even significant countervailing evidence can
simply be labeled as a ruse, as insufficient, or even as
an implied recognition and praise of ongoing violence.
Enterprising state officials, in other words, may
conclude that “Peace means War.” Cf. George Orwell,
1984 (2004).
 29

CONCLUSION
The Court should reverse.
Respectfully submitted,

GENE P. HAMILTON R. TRENT MCCOTTER

AMERICA FIRST LEGAL Counsel of Record
FOUNDATION JAMES R. CONDE
611 Pennsylvania Ave. BOYDEN GRAY PLLC
S.E., No. 231 801 17th St. NW,
Washington, DC 20003 Suite 350
(202) 964-3721 Washington, DC 20006
[email protected] (202) 706-5488
[email protected]

January 18, 2024