If my blogging on this topic has a sense of déjà vu, my apologies. But we are in an intractable cycle of litigation on Section 3 that has a low likelihood of going anyplace. I think some cases will get there, eventually, later, with careful and targeted suits.
The latest effort, Anderson v. Griswold, has the backing of Citizens for Responsibility and Ethics in Washington, so it attracts different attention than the pro se claims filed so far. But it suffers many of the same defects.
(1) To open, I do not believe “standing” will be an issue in Colorado state court. Colorado courts have been fairly generous (but not always, admittedly) with elector (or “voter”) standing, including specific statutory authorization to bring challenges to candidates’ eligibility.
(2) But, I think ripeness will be a major issue. The complaint purports to bring an action under Colo. Rev. Stat. § 1-4-1204(4). That permits a challenge “to the listing of any candidate on the presidential primary election ballot.” The Secretary of State has not listed any candidates, as no candidates have filed, and “no candidates have qualified for the presidential primary ballot in Colorado.” It is entirely possible candidates drop out or die before the ballots are finalized. I find it difficult to think that a court would find this claim ripe for review.
The complaint near the very end claims, “Such a challenge is ripe for adjudication as soon as a person qualifies as a ‘candidate’ for a presidential primary election. Trump is presently a ‘candidate’ under Colorado and federal law for the 2024 Republican presidential primary election.” It seems that the plaintiffs here are using “candidate” in a general sense rather than in the specific statutory sense of § 1-4-1204(4)–and the Secretary of State has admitted candidly that there are “no candidates.” (To me, this is fatal to the claims.) It is also not accurate, I think, to claim that the claim is “ripe” when you are a “candidate” for “election”; the statute makes clear that the candidacy timing arises when you are listed as eligible to appear on the ballot.
I understand the desire to hear Section 3 claims earlier than later and to allow ample opportunity to consider legal and factual development. But Colorado, like most (if not all) states, does not appear to permit claims like this to be brought so far in advance.
(3) Setting aside the procedural hurdle here, there is a question of whether the Secretary of State has any power to review the qualifications of presidential candidates. The Secretary’s office believes, “Colorado law is unclear on how to consider the requirements of the United States Constitution in determining whether a candidate is eligible for office . . . .” (This press release came from the Secretary’s office, not the Attorney General, or at least, the Attorney General’s name does not appear on the press release, and the Attorney General will formally represent the Secretary in the legal proceeding.)
(a) Colorado, I assume, has been a tempting target because of the decision in Hassan v. Colorado, an unpublished Tenth Circuit opinion by then-Judge Neil Gorsuch (in a correct opinion, I think). The complaint summarizes Hassan as follows: “(upholding the Secretary’s exclusion of a constitutionally ineligible presidential candidate from the ballot).”
That is not accurate of the posture of the case, because the Secretary did not “exclude” anyone. Hassan was a naturalized citizen and believed the natural born citizenship requirement had been repealed by passage of the Fourteenth Amendment. But Colorado had a law on the books (now repealed, for what it’s worth) that required presidential candidates to certify, under penalty of perjury, that they would be at least 35 years old, 14 years a resident of the United States. and a natural born citizen.
Hassan recognized he could not file that paperwork without committing perjury. Hassan then asked the Colorado Secretary of State what would happen if he didn’t fill out the paperwork. The Secretary answered, as shared in the complaint of Hassan’s lawsuit, “Any individual who submits a candidate statement of intent for President and fails to check the boxes affirming his or her eligibility, or who affirmatively discloses that he or she does not meet the constitutional qualifications for the office, will not be placed on the ballot in Colorado.”
As I’ve written, I think this was entirely within Colorado’s authority. But it’s worth parsing what actually happened in Hassan. The Secretary didn’t exclude anyone–it informed a candidate that if he failed to file the required paperwork, or admitted the paperwork he filed was a lie, he would excluded from the ballot. Hassan never filed–as his complaint notes, “Because Plaintiff is not a natural born citizen, he cannot sign the required statement of intent under oath as required by Defendants because to do so would constitute a crime and would be false. . . . Plaintiff has been prevented from filing his Candidate Statement of Intent for President.”
That’s something of a different posture from this case. Colorado has no self-certification that a candidate complies with Section 3, for one thing (and perhaps a reason why the Secretary has conceded that matters are “unclear” as to how her office enforces constitutional provisions). And I don’t think the failure of Trump here relates to his failure to file paperwork.
(b) So, plaintiffs cite a different provision of Colorado law, Colo. Rev. Stat. § 1-4-501. Para. 437 of the complaint alleges, “Under Colorado law, ‘[n]o person is eligible to be a designee or candidate for
office unless that person fully meets the qualifications of that office as stated in the constitution
and statutes of this state on or before the date the term of that office begins.’ C.R.S. § 1-4-501.” (The Secretary’s press release also cites this provision.)
But her office cites it in full, and there are material issues that arise when one reads the statute in context:
No person except an eligible elector who is at least eighteen years of age, unless another age is required by law, is eligible to hold any office in this state. No person is eligible to be a designee or candidate for office unless that person fully meets the qualifications of that office as stated in the constitution and statutes of this state on or before the date the term of that office begins. The designated election official shall not certify the name of any designee or candidate who fails to swear or affirm under oath that he or she will fully meet the qualifications of the office if elected; or who is unable to provide proof that he or she meets any requirements of the office relating to registration, residence, or property ownership; or who the designated election official determines is not qualified to hold the office that he or she seeks based on residency requirements. The information found on the person’s voter registration record is admissible as prima facie evidence of compliance with this section.
Under plaintiffs’ view, this section makes Donald Trump ineligible. It would also make Joe Biden ineligible. That’s because the first sentence provides, “No person except an eligible elector . . . is eligible to hold any office in this state.” Neither Trump nor Biden are eligible electors (in context, this means, electors in Colorado). Therefore, they are not eligible.
Of course, one could respond that the office of the presidency is not an “office in this state.” True! It appears the statute is focusing on state office, not federal office.
I’ve seen this time and again in many such qualifications disputes over the last decade or so–the statutes are often designed for state offices (but you will find some that expressly refer to federal office). So the question is whether the second sentence (quoted in the complaint) switches to state and federal offices, after the first sentence is speaking only to state offices. That seems unlikely. It seems less likely when one sees the phrase “the constitution and statutes of this state.” No mention of the federal constitution.
(c) So the plaintiffs moved to another tack, Para. 439 & 446 of the complaint:
Both the Secretary and this Court are required by law to take an oath to support the U.S. Constitution, including Section 3 of the Fourteenth Amendment. See U.S. Const. art. VI cl. 3 (“[A]ll executive and judicial Officers … of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”); Colo. Const. art. XII, § 8 (“Every civil officer … shall, before he enters upon the duties of his office, take and subscribe an oath or affirmation to support the constitution of the United States … and to faithfully perform the duties of the office upon which he shall be about to enter.”); id. art. IV, § 1 (“The executive department shall include the … secretary of state,” who “shall perform such duties as are prescribed … by law.”); C.R.S. § 24-12-101 (specifying form and requirements of the oath). . . . Based on historical practice, the Secretary will not independently investigate Trump’s constitutional eligibility under Section 3 and exclude him from the ballot on that basis absent a judicial order to that effect.
As I’ve written, this is a theory that has only been articulated, to my knowledge, in an opinion by Justice Roy Moore on the Alabama Supreme Court. And as I’ve written, I think that view is wrong–a Secretary of State has no independent obligation to investigate the qualifications of presidential candidates. The Constitution places in the legislature the responsibility for determining the manner of appointing presidential electors. It may be that the legislature wants the Secretary of State to exclude ineligible candidates, and it may develop a mechanism to do so. But the notion that there is a unilateral authority to do so is not sound–and a likely losing strategy in a mandamus action, as we’ve seen in other recent cases.
I do not doubt the pressing importance of resolving these cases expeditiously and to provide clarity on a nationwide basis. But I have pretty significant doubts that Colorado will be the place–at this time, or even at a later time. I could, of course, be wrong–sometimes, these statutes have been interpreted in ways that are not the most natural to me, but state courts do construe statutes in different ways, and it’s possible that Colorado courts (at the right time) construe the statute differently.
But it’s worth emphasizing how messy and decentralized these processes are. Each state has its own quirks and idiosyncrasies in how it proceeds. We’ll see how this one plays out. But I am skeptical it will reach the merits. UPDATE: To that end, a reader alerted me that perhaps ripeness may be averted under a provision that an official “is about to” violate state law. Perhaps, but that seems more for the gap between a candidate filing and a candidate being listed as qualified, and still does not address the underlying state authorization. Nevertheless, it’s worth emphasizing that there are other paths not explored in this blog post that are potential avenues for the litigation to navigate procedural hurdles.