Trump v. Anderson

LII note: The U.S. Supreme Court has now decided Trump v. Anderson .


Was the Colorado Supreme Court justified in excluding former President Donald Trump from Colorado’s 2024 presidential primary ballot on the basis of Section Three of the Fourteenth Amendment, a trial court’s finding that President Trump engaged in insurrection, and the Colorado Election Code?

Oral argument: 
February 8, 2024
Court below: 

This case asks the Supreme Court to clarify the ambit and enforceability of Section Three of the Fourteenth Amendment to the Constitution, also known as the Disqualification Clause, which states that “[n]o person shall. . . hold any office, civil or military, under the United States, who, having previously taken an oath. . . as an officer of the United States . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” Former President Donald Trump contends that he is not subject to Section Three disqualification because he has not served as a qualifying oath–taking “officer of the United States”; because his actions on January 6th, 2021 were protected speech, not insurrection; and because the Colorado Supreme Court's interpretation of Section Three was legally incorrect. A group of Colorado electors and Colorado Secretary of State Jena Griswold respond that the President is an “officer of the United States” such that Section Three applies to Trump; that Trump engaged in insurrection on January 6th, 2021 and does not qualify for First Amendment protection in that regard; and that the Colorado Supreme Court properly applied Section Three. This case has significant implications for democratic norms and institutions, parties’ and voters’ interests in elections, and the bounds of political activity.

Questions as Framed for the Court by the Parties 

Whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot.


On the morning of January 6th, 2021, the day that the United States Congress was scheduled to certify Joseph Biden’s election as the forty-sixth President of the United States, Petitioner Donald Trump held a rally at the Ellipse in Washington D.C. Anderson v. Griswold at 9. Trump, the forty-fifth President of the United States, made several statements to the crowd disputing the results of the 2020 presidential election. Id. at 9–10. While Congress was in session, “a large group of people forcibly entered the Capitol [and] the law enforcement officers on site could not control it.” Id. at 100.

On September 6th, 2023, Respondents, a group of Colorado voters (including Norma Anderson) who were eligible to vote in Colorado’s Republican presidential primary, filed a petition against Colorado Secretary of State Jena Griswold in the District Court for the City and County of Denver. Id. at 6, 10. Respondents asserted that, per the Colorado Election Code that forbids Colorado election officials from “commit[ing] . . . a breach or neglect of duty or other wrongful act,” Griswold should not include Trump on the 2024 Republican presidential primary election ballot, because he was disqualified from public office under Section Three of the Fourteenth Amendment. Id. at 10, 26.

Trump intervened in the suit. Id. at 11. Trump sought removal to federal court, which remanded the matter to state court because Griswold “did not join or consent to removal.” Id. at 11; Remand Order at 4. The state case was reopened and the Colorado Republican State Central Committee (“CRSCC”) also intervened. Anderson v. Griswold at 11. The Denver District Court ruled that the case would proceed with a five-day trial. Id. at 13.

After trial, the Denver District Court found by clear and convincing evidence that Trump had engaged in an insurrection. Id. at 14. However, the court declined to exclude Trump from the ballot, reasoning that the Disqualification Clause of Section Three of the Fourteenth Amendment, which disqualifies individuals from office who have previously “engaged in insurrection,” only applies to a candidate for an “office . . . under the United States” who has previously served as “an officer of the United States.” Id. The court ruled that the Presidency is not such an “office.” Id.

Trump and the electors sought review of the district court opinion in the Supreme Court of the State of Colorado. Id. at 7. The Colorado Supreme Court upheld the district court’s finding that Trump engaged in insurrection but overruled the district court’s interpretation of the Fourteenth Amendment. Id. at 84; 116. The Colorado Supreme Court found that Trump was disqualified from the Presidency under Section Three of the Fourteenth Amendment. Id. at 132. Accordingly, the Colorado Supreme Court ruled that Trump should be excluded from Colorado’s 2024 presidential primary ballot because listing a disqualified candidate on the ballot would be a “wrongful act” under Section 1-1-113(1) of the Colorado Election Code. Id. at 35, 132.

Trump appealed to the United States Supreme Court on January 3rd, 2024. Petition for a Writ of Certiorari. On January 5th, 2024, the Supreme Court granted certiorari and set oral argument for February 8th, 2024.



Trump argues that the President is not an “officer” within the meaning of Section Three of the Fourteenth Amendment. Brief for Petitioner, Trump at 20. Trump asserts that the phrase “officers of the United States,” as used in other constitutional clauses such as the Appointments Clause, Commissions Clause, and Impeachment Clause, establishes that the President is not an “officer” because each of these clauses lists the Presidency and “officers of the United States” as separate categories. Id. at 20–22. Trump further argues that the Supreme Court’s precedent in Free Enterprise Fund v. Public Company Accounting Oversight Board established that “officers of the United States” are only appointed, never elected. Id. at 22. Additionally, Trump contends that Section Three only applies to those who have violated an oath to “support” the Constitution, as required for members of Congress under Article VI; because the President only swears to “preserve, protect, and defend the Constitution,” Trump reasons that the President is exempt. Id. at 23. Trump contends that even if the Presidency is an “office” as the term is colloquially understood, that does not necessarily mean that the President is an “officer of the United States.” Id. at 25–26.

Anderson counters that the Presidency is an “office” under the United States. Brief for Respondent, Anderson, at 33–34. Anderson asserts that the Constitution explicitly refers to the Presidency as an “office” and that, because the President is both the head of the Executive Branch and the Commander-in-Chief, the Presidency qualifies as both a “civil” and “military” office. Id. at 34. Further, Anderson argues that the phrase “under the United States” is used to distinguish between State and federal offices in the Constitution. Id. Anderson posits that her interpretation accords with the original public meaning of Section Three as reflected in contemporaneous congressional debates and executive and judicial opinions. Id. at 34, 36, 38. Anderson further contends that the President is an “officer of the United States” because any federal officeholder is an “officer of the United States” and that the Appointments, Commissions, and Impeachment Clauses were never meant to define “officer.” Id. at 36, 42. Anderson also argues that Section Three provides a parallel structure between barred individuals and the offices they cannot occupy which implies that, if the Presidency is an office, then the President is an officer. Id. at 36–37. Finally, Anderson argues that the difference between the Congressional and Presidential oaths of office is of no consequence because to “defend” the Constitution is to “support” it as well. Id. at 43.


Trump argues that he did not “engage” in insurrection on January 6th, 2021. Brief for Petitioner, Trump at 33. Trump emphasizes that he never explicitly told his supporters to enter the Capitol Building and, in fact, only encouragedpeaceful[] and patriotic[]” protest during his Ellipse speech. Id. at 34. Trump contends that “engagement” requires active participation, rather than a failure to act to prevent the crowd’s unlawful actions. Id. at 34–35. Trump further asserts that the January 6th Capitol attack was not caused or furthered by him, his words, or his actions. Id. at 35–36. Additionally, Trump maintains that his statements were protected political speech under the First Amendment and do not satisfy the “incitement” requirement the Supreme Court set out in Brandenburg v. Ohio, which states that statements are not unconstitutional incitement unless they are both directed and likely to produce imminent lawless action. Id. at 37. Trump urges that, even if his statements contributed to the attack, he lacked the intent necessary to make the statements constitutionally unprotected because his words were not “directed” or “likely” to incite the attack. Id. at 37–38. The Colorado Republican State Central Committee (“CRSCC”) adds that the First Amendment protects its right to select a nominee through the electoral process. Brief for Respondent, Colorado Republican State Central Committee, at 28. The CRSCC argues that the Colorado decision deprives Colorado voters of the right to associate with the political party and nominee of their choosing. Id. at 29.

Anderson argues that Trump’s actions on January 6th sufficiently prove that he “engaged” in “insurrection.” Brief for Respondent, Anderson, at 15. Anderson contends that the plain meaning of “insurrection” includes the “concerted and public use of force . . . to hinder or prevent . . . a peaceful transfer of power.” Id. at 15–16. Anderson emphasizes that the trial court’s findings of fact, such as its finding that Trump engaged in and incited insurrection, are entitled to deference because they are not clearly erroneous and are supported by substantial evidence. Id. at 19–20. Anderson contends that Trump’s words and tweets before and during the attack stoked the crowd’s anger and encouraged imminent violence, satisfying the Brandenburg test. Id. 31–32. Anderson submits that Trump can still have engaged in insurrection without having personally participated in the violence. Id. at 30. Anderson points out that even Reconstruction-era opponents of the Fourteenth Amendment recognized that engaging in insurrection did not require overt acts. Id. Jena Griswold adds that the First Amendment does not entitle the CRSCC to include Trump on Colorado’s primary ballot. Brief for Respondent Jena Griswold, Secretary of State of Colorado, at 40. Griswold asserts that Colorado has an important interest in maintaining ballot integrity, and that the Colorado Election Code vindicates this interest in a non-discriminatory way. Id. at 43–44. Griswold emphasizes that Colorado’s regulation applies equally to all candidates and parties. Id. at 44–45.


Trump argues that, under Section Five of the Fourteenth Amendment, only Congress can enforce the Disqualification Clause. Brief for Petitioner, Trump at 39. Trump asserts that his view is supported by Chief Justice Chase’s circuit court decision in In re Griffin, and Congress’ subsequent passage of the Enforcement Act of 1870. Id. at 39–40. Trump maintains that, in the absence of easily discernible standards for states to determine whether a potential candidate has “engaged in insurrection,” disqualification by a state court is inappropriate. Id. at 40. Trump also posits that Section Three cannot be used to remove him from the ballot because its text only forbids insurrectionists from holding office, not from running for office and being elected. Id. at 41. Trump submits that the Colorado Supreme Court’s construction of the Colorado Election Code violates federal Supreme Court precedent by impermissibly modifying the Constitution’s eligibility requirements for the Presidency. Id. at 43–44. Trump also claims that the Constitution bars the Colorado Supreme Court from deciding his case because the Electors Clause of the Constitution limits the ability of state courts to review election claims. Id. at 46. Trump asserts that the Colorado Election Code only allows the state judiciary to decide election claims when an official is at risk of committing a “wrongful act.” Id. at 46. Trump argues that the Colorado Supreme Court misinterpreted the Colorado Election Code, which only requires a political party to advance at least one qualified candidate, and thus that the court exceeded its authority. Id. at 47. Trump maintains that he did not forfeit this argument in the lower court proceedings because he could not have foreseen how the Colorado Supreme Court would interpret the Electors Clause. Id. at 48–49. Trump suggests that, when a state law issue is closely related to a question of federal constitutional law, the Supreme Court may overturn otherwise-binding state judicial interpretations of state law. Id. at 49.

Anderson argues that state courts may enforce their ballot access laws even if doing so requires interpreting Section Three. Brief for Respondent, Anderson, at 45. Anderson maintains that the Electors Clause allows states to condition an elector’s appointment on compliance with the constitutional requirements of the office. Id. at 46–47. Anderson contends that, because states may bar candidates on the basis of disqualifying provisions, Colorado may bar Trump from the ballot. Id. at 49. Anderson also argues that whether Section Three must be enforced by federal legislation is irrelevant because this case is about Colorado state law. Id. at 52–53. Griswold adds that Trump forfeited the Electors Clause argument by failing to raise it in the lower court proceedings. Brief for Respondent Jena Griswold, Secretary of State of Colorado, at 33. Griswold urges that, even if Trump did not forfeit the argument, the Colorado Supreme Court’s decision did not violate the Electors Clause because Colorado’s legislature properly delegated authority to resolve election controversies to its courts. Id. at 34–35. Griswold contends that Colorado did not attempt to avoid federal law and instead enforced the text of Section Three, as it was required to under the Colorado Election Code. Id. at 36. Griswold emphasizes that the Colorado Supreme Court’s interpretation was “well within the bounds of ‘ordinary judicial review,’” since it relied on standard modes of statutory interpretation when analyzing the Constitution and Colorado’s statutes. Id. at 36–37. Griswold asserts that a contrary decision would curtail Colorado’s sovereignty. Id. at 37.



Three former Attorneys General, two law professors, and Citizens United, in support of Trump, argue that upholding the Colorado Supreme Court would threaten “the Nation’s tradition of free and fair elections.” Brief of Former Attorneys General Edwin Meese III et al., in Support of Petitioner at 27. The Attorneys General, professors, and Citizens United predict that if state officials could unilaterally remove candidates from the ballot, then they would naturally do so against any political opponent, which would create chaos and accusations of “insurrection” in any contested election. Id. at 28–29. Landmark Legal, in support of Trump, adds that private actors could also sue under the Colorado Supreme Court’s standard and underscores that such a result would “undermine public trust in the electoral system.” Brief of Landmark Legal, in Support of Petitioner at 12.

Six constitutional law scholars, in support of Anderson, warn that the Supreme Court must “vigorously enforce” Section Three against Trump to avoid threats to democracy and maintain equal protection of the law, a free press, and fair elections. Brief of Professors David M. Driesen et al., in Support of Respondents at 21, 23–24. The constitutional law scholars note that other democracies have historically collapsed upon electing insurrectionists as heads of state. Id. at 17. Six democracy scholars, in support of Anderson, add that American democracy is in peril, and that other nations’ histories demonstrate that the judicial branch must assert its independence to prevent further democratic erosion. Brief of Experts in Democracy, in Support of Respondents at 25,33. Common Cause in support of Anderson, contends that Trump’s involvement with and continued support of the January 6th insurrection constitutes an “existential threat” to American democracy and to specific elected officials whom Trump has targeted. Brief of Common Cause, in Support of Respondents at 11, 17.


Former Congressman Peter Meijer, in support of Trump, contends that upholding the Colorado Supreme Court’s decision would exacerbate inconsistencies between states’ ballots because each state government would make its own decision about how to treat political candidates. Brief of the Honorable Peter Meijer, in Support of Petitioner at 16. Judicial Watch, in support of Trump, adds that a “piecemeal adjudication of candidate disqualification under Section [Three]” would violate due process because many states’ decisions would restrict large numbers of voters’ First Amendment rights to free association and to vote for their preferred candidate. Brief of Judicial Watch, in Support of Petitioner at 6, 11, 13.

Nine constitutional and First Amendment scholars and practitioners, in support of Anderson, contend that Section Three’s importance and the Supreme Court’s precedent establish that a state does not violate the right to free association when it prevents a particular candidate from appearing on the ballot based on the candidate’s ineligibility for office. Brief of Amici Floyd Abrams et al., Suggesting Affirmance, at 32–34. Seven former Republican Members of Congress, in support of Anderson, add that Trump “wrongfully conflates improper voter disenfranchisement with the enforcement of the Constitution” and that Section Three is an important democratic safeguard. Brief of Former Republican Members of Congress, in Support of Respondents at 18–19.


One hundred and seventy-nine Members of Congress, in support of Trump, contend that the Colorado Supreme Court’s definition of “insurrection” is so expansive that it encompasses many types of political activity that individuals of many different ideologies have engaged in. Brief of U.S. Senator Ted Cruz, Majority Leader Steve Scalise, and 177 Other Members of Congress, in Support of Petitioner at 24–26. The Members of Congress assert that upholding the Colorado Supreme Court’s definition of insurrection would expand Section Three’s prohibition to include many common types of political speech and protest. Id.

Professor Sherrilyn Ifill, in support of Anderson, argues that enforcing Section Three against Trump would not infringe on regular political participation because insurrections are attempted overthrows of the government, which courts have distinguished from protests. Brief of Professor Sherrilyn A. Ifill, in Support of Respondents at 22–23. Professor Mark Graber, in support of Anderson, adds that the Colorado Supreme Court’s definition of insurrection would not trigger a “parade of horribles” because the Colorado Supreme Court adopted a definition rooted in long-established constitutional principles. Brief of Law Professor Mark A. Graber, in Support of Respondents at 27–28.



The authors would like to thank Professor Sheri Lynn Johnson for her guidance and insights into this case.

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