It’s hard not to read the brief in Colorado and wonder how in the world these claims are going to proceed in a state trial court.
Here’s one statement that’s contrary to a hundred years of state practice, and offered without citation: “Just as a thirty-year-old should not be listed on a ballot for president because that would violate Section 1 of Article II, neither should a candidate who is determined to have violated Section 3 of the Fourteenth Amendment if that section applies to the candidate’s request for ballot access.” (Emphasis added.) Apparently, states across the country have been “violating” the Constitution for decades in their ballot access rules.
There’s of course no citation to this claim, because it doesn’t exist. The closest support one could find is from Chief Justice Roy Moore’s dissenting opinion in McInnish v. Bennett (Ala. 2014): “the qualifications clause prohibits anyone from being eligible for the office of President who does not meet the three qualifications stated therein. . . . As the gatekeeper for presidential-ballot access in Alabama, the Secretary of State is the official upon whom rests the duty to enforce the qualifications clause. . . . The statement of the Deputy Secretary of State in an agency capacity that the Secretary of State’s ‘office would not investigate the legitimacy of any candidate’ is legally untenable, as is the statement of the Secretary of State in her motion to dismiss that she ‘has no legal duty to investigate the qualifications of a candidate.’ Under both the Supremacy Clause and the oath she took to support the United States Constitution, the Secretary of State has a legal duty to observe the presidential-eligibility requirements of Article II, § 1, clause 4 of the United States Constitution. She may not refuse to recognize this duty without violating her oath of office or offending the Supremacy Clause.” But one could understand why Colorado opted not to cite Chief Justice Moore’s views here.
The brief also adds to the Oath Clause of Article VI of the Constitution: “But the Secretary has sworn a solemn oath to uphold the U.S. Constitution and to effectuate its requirements.” (Emphasis added.) Colorado has added that all officials take an oath to “effectuate” the “requirements” of the Constitution.
The brief includes curious interpretations of Prop 107, which was passed in 2016 by Colorado voters to create a semi-closed primary system in presidential elections. The brief imports the notion that the language of “qualified candidates” extends beyond just those who qualify by party rules but must also qualify under the United States Constitution; and that the intent to comport with “federal law” apparently means excluding ineligible candidates from the ballot, rather than comport with ordinary timing and associational requirements.
That’s just some of the issues. What a mess. The point of the brief is quite obviously to pass responsibility to a court while recognizing that if the court advises the Secretary of State to remove the candidate from the ballot, the Secretary will do so. But it’s not a great path forward.