Opinions of the Colorado Supreme Court are available to the

public and can be accessed through the Judicial Branch's

homepage at http://www.courts.state.co.us. Opinions are also
posted on the Colorado Bar Association's homepage at
http://www.cobar.org

ADVANCE SHEET HEADNOTE

December 19, 2023

2023CO 63

No.23SA300, Anderson v . Griswold Election Law Fourteenth Amendment—

First Amendment Political Questions Hearsay

In this appeal from a district court proceeding under the Colorado Election
Code, the supreme court considers whether former President Donald J. Trump
may appear on the Colorado Republican presidential primary ballot in 2024. A
majority of the court holds that President Trump is disqualified from holding the
office of President under Section Three of the Fourteenth Amendment to the

United States Constitution . Because he is disqualified, it would be a wrongful act

under the Election Code for the Colorado Secretary of State to list him as a
candidate on the presidential primary ballot. The court stays its ruling until
January 4,2024, subject to any further appellate proceedings .
 The Supreme Court of the State of Colorado
2 East 14th Avenue Denver, Colorado 80203

2023 CO 63

Supreme Court Case No. 23SA300

Appeal Pursuant to 1-1-113(3) , C.R.S. (2023)
District Court, City and County of Denver, Case No. 23CV32577
Honorable Sarah B. Wallace, Judge

Petitioners- Appellants/ Cross- Appellees:

NormaAnderson, Michelle Priola, ClaudineCmarada, Krista Kafer, Kathi

Wright, and Christopher Castilian,

V.

Respondent- Appellee :

Jena Griswold , in her official capacity as Colorado Secretary of State,

and

Intervenor- Appellee :

Colorado Republican State Central Committee , an unincorporated association,

Intervenor-Appellee /Cross -Appellant :

Donald J. Trump.

Order Affirmed in Part and Reversed in Part

en banc
December 19, 2023
Attorneysfor Petitioners- Appellants/ Cross- Appellees:
KBN Law, LLC
MarioNicolais

Lakewood, Colorado

Tierney Lawrence Stiles LLC

Martha M.Tierney
Denver, Colorado

OlsonGrimsleyKawanabeHinchcliff& MurrayLLC
Eric Olson

Sean Grimsley
Jason Murray

Denver , Colorado

DonaldSherman

Nikhel

JonathanMaier
Washington, Districtof Columbia

Attorneys for Respondent - Appellee:

PhilipJ. Weiser, Attorney General
Michael Kotlarczyk , Senior Assistant Attorney General

Jennifer L.Sullivan, Deputy Attorney General

Denver, Colorado

Attorneysfor Intervenor-Appellee ColoradoRepublicanState Central

Committee:
Melito Law LLC

MichaelMelito

Denver , Colorado

Podoll & Podoll, P.C.

Robert A. Kitsmiller

GreenwoodVillage, Colorado

Attorneys for Intervenor- Appellee/ Cross- Appellant Donald J. Trump:

Gessler Blue LLC

ScottE. Gessler

GeoffreyN.Blue
Greenwood Village, Colorado

2
Attorneysfor AmiciCuriaeFloydAbrams, BruceAckerman, Maryam
Ahranjani, Lee C. Bollinger, Erwin Chemerinsky, Alan Chen, Kent Greenfield,
Martha Minow, and Geoffrey R. Stone:
Keker Van Nest & Peters LLP

Steven A. Hirsch

San Francisco, California

RathodMohamedbhai
LLC

EdwardC. HopkinsJr.
Denver, Colorado

Attorneys for Amici Curiae Professors Carol Anderson and Ian Farrell:

Ballard Spahr LLP

Matthew A. Morr

Denver, Colorado

Ballard Spahr LLP

Burt M. Rublin

Philadelphia, Pennsylvania

Attorneys for Amici Curiae Colorado Common Cause and Mary Estill
Buchanan :

Rosenblatt
, Gosch& Reinken
, PLLC

William R. Reinken

GreenwoodVillage, Colorado

Attorneysfor Amicus Curiae ConstitutionalAccountabilityCenter:

ErnstLegalGroup, LLC
Dan Ernst

Denver , Colorado

Amicus Curiae Treniss Jewell Evans III, pro se

Forney, Texas

Attorneysfor Amicus Curiae Free Speechfor People:

MartinezLaw Colorado, LLC
Anna N. Martinez

Denver, Colorado

3
Martinez Law, LLC

EstebanA. Martinez

Longmont , Colorado

Attorneys for Amicus Curiae Professor Mark A. Graber:

The Paul Wilkinson Law Firm LLC
NelsonBoyle
Denver, Colorado

Attorneys for Amici Curiae Kansas Republican Party, Delaware Republican

Party, Michigan Republican Party, North Dakota Republican Party, Oklahoma
Republican Party, West Virginia Republican Party, Wisconsin Republican
Party, Wyoming Republican Party, Delaware Republican Party, Georgia
Republican Party, Nebraska Republican Party, Maine Republican Party, Idaho
Republican Party, and Rhode Island Republican Party :
McGowneLaw Offices, P.A.

ChristopherJ. McGowne
Hays Kansas

Attorneys for Amicus Curiae Professor Kurt T. Lash:

Illingworth Law, LLC
David Illingworth II
Woodland Park, Colorado

Attorneys for Amicus Curiae Professor Derek T. Muller:

Covenant Law PLLC
IanSpeir
Colorado Springs, Colorado

Attorneys for Amici Curiae Republican National Committee, National

Republican Senatorial Committee, and National Republican Congressional
Committee:
Brownstein Hyatt Farber Schreck, LLP
Christopher O. Murray
Julian R. Ellis, Jr.
Denver, Colorado

Attorneys for Amici Curiae States of Indiana, West Virginia, Alabama, Alaska,
, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North

4
Dakota, Oklahoma , South Carolina, South Dakota, Tennessee, Texas , Utah,
and Wyoming:
Office of the Attorney General
James A. Barta, Solicitor General
Indianapolis , Indiana

Office of the Attorney General

MichaelR. Williams, PrincipalDeputySolicitorGeneral

Charleston , West Virginia

Nussbaum Gleason

Andrew Nussbaum

Colorado Springs, Colorado

Attorneysfor Amicus Curiae Professor Seth BarrettTillman:

The ReischLaw Firm, LLC
R. Scott Reisch

Jessica L. Hays
Denver, Colorado

Josh Blackman LLC

Josh Blackman
Houston , Texas

Attorneys for Amici Curiae Wyoming Secretary of State Chuck Gray, Missouri
Secretary of State Jay Ashcroft, and Ohio Secretary of State Frank LaRose:
West Group Law & Policy
SuzanneM.Taheri

Denver, Colorado

PER CURIAM .

CHIEF JUSTICE BOATRIGHT dissented .

JUSTICE SAMOUR dissented.

JUSTICE BERKENKOTTER dissented .

5
PER

Morethan three months ago,a group of Colorado electors eligible to vote in

the Republicanpresidential primary both registered Republican and unaffiliated
voters ( the Electors ) filed a lengthy petition in the District Court for the City
and County of Denver ( Denver District Court or the district court ), asking the
court to rule that former President Donald J. Trump ( President Trump ) may not
appear on the Colorado Republicanpresidential primary ballot.
Invoking provisions of Colorado's Uniform Election Code of 1992,
1-1-101 to 1-13-804, C.R.S. (2023) (the "Election Code"), the Electors requested
that the district court prohibit Jena Griswold, in her official capacity as Colorado's
Secretary of State ( the Secretary ), from placing President Trump's name on the
presidential primary ballot. They claimed that Section Three of the Fourteenth
Amendment to the U.S. Constitution ( Section Three ") disqualified President
Trump from seeking the presidency . More specifically , they asserted that he was
ineligible under Section Three because he engaged in insurrection on January 6,
2021, after swearing an oath as President to support the U.S. Constitution .

1 Consistent with past practice inelection-related cases with accelerated timelines,

we issue this opinion per curiam. E.g., Kuhn v. Williams, 2018 30M, 418 P.3d
478; In re Colo. Gen. Assemb., 332 P.3d 108 (Colo. 2011) ; In re Reapportionment ofColo.
Gen. Assemb. , 647 P.2d 191( Colo. 1982) .
6
 After permitting President Trump and the Colorado Republican State
Central Committee ( CRSCC ; collectively , Intervenors ) to intervene in the
action below ,the district court conducted a five-day trial . The court found by clear
and convincing evidence that President Trump engaged in insurrection as those
terms are used in Section Three . Anderson v. Griswold , No. 23CV32577 , ¶¶ 241, 298

(Dist. Ct.,City & Cnty .of Denver , Nov. 17, 2023). But,the district court concluded ,
Section Three does not apply to the President . Id. at 313. Therefore , the court
denied the petition to keep President Trump off the presidential primary ballot .
at Part VI Conclusion .

The Electors and President Trump sought this court's review of various

rulings by the district court . We affirm in part and reverse in part . We hold as

follows :

The Election Code allows the Electors to challenge President Trump's

status as a qualified candidate based on Section Three. Indeed, the
ElectionCode providesthe Electorstheir only viable means of litigating
whether President Trump is disqualified from holding office under
SectionThree.

Congress does not need to pass implementing legislation for Section

Three's disqualification provision to attach, and Section Three is, in that
sense, self-executing .

Judicial review of President Trump's eligibility for office under Section

Three is not precluded by the political question doctrine.

7
 Section Three encompasses the office of the Presidency and someone
who has taken an oath as President. On this point, the district court
committed reversibleerror.

The district court did not abuse its discretion in admitting portions of
Congress's January 6 Report into evidence at trial .

The district court did not err in concluding that the events at the U.S.
CapitolonJanuary 6, 2021, constituted an" insurrection."

The district court did not err in concluding that President Trump
engaged in that insurrection through his personal actions .

President Trump's speech inciting the crowd that breached the U.S.
Capitol on January 6, 2021, was not protectedby the First Amendment.

The sum ofthese parts is this :President Trump is disqualified from holding
the office of President under Section Three; because he is disqualified, it would be
a wrongful act under the Election Code for the Secretary to list him as a candidate
on the presidential primary ballot.
We do not reach these conclusions lightly . We are mindful of the magnitude
and weight of the questions now before us. We are likewise mindful of our solemn
duty to apply the law , without fear or favor , and without being swayed by public

reaction to the decisions that the law mandates we reach

We are also cognizant that we travel in uncharted territory , and that this
case presents several issues of first impression . But for our resolution of the
Electors challenge under the Election Code, the Secretary would be required to
include President Trump's name on the 2024 presidential primary ballot.

8
Therefore , to maintain the status quo pending any review by the U.S. Supreme
Court, we stay our ruling until January 4 , 2024 (the day before the Secretary's

deadline to certify the content of the presidential primary ballot ) . If review is

sought in the Supreme Court before the stay expires on January 4 , 2024 , then the
stay shall remain in place , and the Secretary will continue to be required to include
President Trump's name on the 2024 presidential primary ballot, until the receipt
of any order or mandate from the Supreme Court .

I. Background

On November 8 , 2016, President Trump was elected as the forty- fifth

President of the United States . He served in that role for four

years .

November 7, 2020, Joseph R. Biden, Jr., was elected as the forty-sixth

President of the United States. President Trump refused to accept the results, but
President Biden now occupies the office of the President .
On December 14, 2020 , the Electoral College officially confirmed theresults :

306 electoral votes for President Biden;232 for President Trump . President Trump
continued to challenge the outcome, both in the courts and in the media .
¶11 January 6, 2021, pursuant to the Twelfth Amendment , U.S. Const .
amend . XII, and the Electoral Count Act, 3 U.S.C. § 15, Congress convened a joint
session to certify the Electoral College votes . President Trump held a rally that
morning at the Ellipse in Washington , D.C. at which he, along with several others ,

9
spoke to the attendees . In his speech, which began around noon,President Trump

persisted in rejecting the election results , telling his supporters that [w ]e won in
a landslide and we will never concede ." He urged his supporters to confront
this egregious assault on our democracy ; walk down to the Capitol [and]

show strength ;and that if they did not fight like hell, [they would ] not have
a country anymore." Before his speech ended , portions of the crowd began

moving toward the Capitol . Below , we discuss additional facts regarding the
events of January 6,as relevant to the legal issues before us.
Just before 4 a.m. the next morning, January 7, 2021, Vice President Michael

R. Pence certified the electoral votes, officially confirming President Biden as

President- elect of the United States .

President Trump now seeks the Colorado Republican Party's 2024

presidential nomination.

Procedural History

On September 6, 2023, the Electors initiated these proceedings against the

Secretary in Denver District Court under sections 1-4-1204(4), 1-1-113 (1),
13-51-105, C.R.S. (2023) , and C.R.C.P. 57(a). In their Verified Petition,the Electors
challenged the Secretary's authority to list President Trump "as a candidate on the

2024 Republicanpresidential primary election ballot and any future election ballot,
based on his disqualification from public office under Section [ Three].

10
 President Trump intervened and almost immediately filed a Notice of
Removal to federal court, asserting federal question jurisdiction. See 28 U.S.C.

noval, the Denver District Court closed the

§§ 1331,1441(a),1446. In light of the remo

case on September 8. On September 12, the federal district court remanded the
case back to state court, concluding that it lacked jurisdiction because the Electors
had no Article IIIstanding and the Secretary had neither joined nor consented to
the removal.

Once the Electors filed proof with the Denver District Court that all parties
had been served, the court reopened the case on September 14. At a status
conference four days later , on September 18, the Secretary emphasized that she
must certify the candidates for the 2024 presidential primary ballot by January 5.
See 1-4-1204 (1). The court set the matter for a five -day trial , beginning on October

30. September 22, with the parties input , the court issued expedited case
management deadlines for a host of matters , including the disclosure of expert
reports ,witness lists and exhibits ,as well as for briefing and argument on several
motions . The court also granted CRSCC's motion to intervene on October 5.

OnOctober 11, the Secretary's office received (1) President Trump's signed
and notarized statement of intent to run as a candidate for a major political party
in the presidential primary; (2) the approval form for him to do so, signed by the
chair of the Colorado Republican Party, asserting that President Trump was bona

11
fide and affiliated with the [Republican] party";and (3) the requisite filing fee. See
1-4-1204(1)(c).
October 20,the district court issued an Omnibus Order addressing many

outstanding motions. Regarding President Trump's motions, the court reached

three conclusions that are relevant now: (1) the Electors petition involved
constitutional questions , but remained a challenge against an election official
based on her alleged duties under the Election Code," and such a claim [was]
proper under [section] 1-1-113 as a matter of procedure "; (2) [section ] 1-4-1204
expressly incorporates [section] 1-1-113, and [section ] 1-1-113 does not limit
challenges to acts that have already occur
curred, but rather provides for relief when
the Secretary is about to take an improper or wrongful act thus , because the
Electors had alleged such an act, the matter was ripe for decision ; and (3) it could
not conclude, as a matter of law , that the Fourteenth Amendment excludes a

candidate from the presidential primary ballot or that the Secretary has the
authority to determine candidate qualifications , so those issues would be
determinedat the trial.

Regarding CRSCC's motions, the court, in relevant part, concluded that the

state does not violate a political party's First Amendment associational rights by
excluding constitutionally ineligible candidates from the presidential primary
ballot, but also rejected CRSCC's argument to the extent it purported to raise an

12
independent constitutional claim beyond the proper scope of a section 1-1-113

proceeding

October 23, President Trump filed a petition for review in this court,
asking us to exercise original jurisdiction to halt the scheduled trial. Four days
later, we denied the petition without passing judgment on the merits of any of
President Trump's contentions .

October 25, the district court denied President Trump's Fourteenth

Amendment-based motion to dismiss . As relevant now, the court concluded that

(1) it would not dismiss the case under the political question doctrine, but it
reserved the right to revisit the doctrine to the extent that there is any evidence
or argument at trial that provides the Court with additional guidance on whether
the issue of presidential eligibility has been delegated to the United States
Congress (2) whether Section Three is self -executing is irrelevant because section

1-4-1204 allows the Secretary to exclude constitutionally disqualified candidates ,

and states can, and have, applied Section [Three ] pursuant to state statutes
without federal enforcement legislation ; and (3) it would reserve for trial the
issues of whether Section Three applies to a President and whether President
Trump had engaged in insurrection.

The trial began, as scheduled , on October 30. The evidentiary portion lasted

five days , with closing arguments almost two weeks later, on November 15.

13
During those two weeks ,the Electors,the Secretary , President Trump , and CRSCC
submitted proposed findings of fact and conclusions of law . The court issued its
written final order on November 17, finding, by clear and convincing evidence ,
that the events of January 6 constituted an insurrection and President Trump

engaged in that insurrection . The court further concluded , however , that Section
Three does not apply to a President because ,as the terms are used in Section Three ,
the Presidency is not an office ... under the United States nor is the President
"an officer of the United States who had previously taken an oath to support
the Constitution of the United States . U.S. Const . amend . XIV , § 3; see Anderson ,
. Accordingly , the Secretary could not exclude President Trump's

name from the presidential primary ballot . Anderson , Part VI . Conclusion .

On November 20, both the Electors and President Trump sought this court's
review of the district court's rulings under section 1-1-113 (3) . We accepted

jurisdiction of the parties ' cross-petitions . Following extensive briefing from the
parties and over a dozen amici ,we held oral argument on December 6 and now
issue this ruling.

III. Analysis

We begin with an overview of Section Three . We then address threshold

questions regarding (1) whether the Election Code provides a basis for review of
the Electors claim, (2) whether Section Three requires implementing legislation

14
beforeits disqualificationprovisionattaches, and ( 3 ) whetherSection Three poses

a nonjusticiable political question . After concluding that these threshold issues do

not prevent us from reaching the merits, we consider whether Section Three
applies to a President . Concluding that it does ,we address the admissibility of
Congress's January 6 Report (the "Report") before reviewing , and ultimately

upholding , the district court's findings of fact and conclusions of law in support
of its determination that President Trump engaged in insurrection . Lastly , we

consider and reject President Trump's argument that his speech on January 6 was
protected by the First Amendment.²

A. Section Three of the Fourteenth Amendment and

Principles of Constitutional Interpretation

The end of the Civil War brought what one author has termed a second
founding of the United States of America . See Eric Foner, The Second Founding:
How the Civil War and Reconstruction Remade the Constitution (2019 ) . Reconstruction
ushered in the Fourteenth Amendment , which includes Section Three ,a provision

2 PresidentTrump also listed a challenge to the traditional evidentiarystandard of

prooffor issuesarising under the ElectionCode as a potentialquestion on appeal,
claiming that w hen particularly important individual interests such as a
constitutionalright [is] at issue, the proper standard of proof requires more than a
preponderanceof the evidence. As noted above, the district court held that the
Electors proved their challenge by clear and convincing evidence. And because
President Trump chose not to brief this issue, he has abandoned it. See People v.
Eckley, 775 P.2d566, 570 (Colo . 1989) .

15
addressing what to do with those individuals who held positions of political
power before the war ,fought on the side of the Confederacy , and then sought to
return to those positions . See National Archives , 14th Amendment to the U.S.
Constitution : Civil Rights (1868), https://www.archives.gov/milestone

documents / 14th-amendment # text Passed % 20by % 20Congress % 20June %

2013 ,Rights 20to %20formerly % 20enslaved % 20people [https://perma.cc/5EZU
ABV3 (explaining that the Fourteenth Amendment was passed by Congress on
June 13, 1866, and officially ratified on July 9 , 1868);see also Gerard N. Magliocca ,
Amnesty and Section Three of the Fourteenth Amendment , 36 Const . Comment . 87,

91-92 ( 2021)

Section Threeprovides:

Nopersonshall be a Senator or RepresentativeinCongress, 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 Constitutionof 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.

U.S. Const . amend . XIV , 3.

Ininterpreting a constitutional provision , our goal is to prevent the evasion

of the provision's legitimate operation and to effectuate the drafters intent.

People v. Smith , 2023 CO 40, ¶ 20, 531 P.3d 1051, 1055. To do so, we begin with

16
Section Three's plain language , giving its terms their ordinary and popular

meanings . Id. To discern such meanings , we may consult dictionary definitions .

Id.

Ifthe language is clear and unambiguous , then we enforce it as written, and

we need not turn to other tools of construction . Id. at 21, 531 P.3d at 1055 .

However, if the provision's language is reasonably susceptible of multiple

interpretations ,then it is ambiguous ,and we may consider the textual,structural,
and historical evidence put forward by the parties, Zivotofsky ex rel . Zivotofsky v.
Clinton , 566 U.S. 189, 201 (2012), and we will construe the provision in light of the

objective sought to be achieved and the mischief to be avoided , Smith, 20,

531P.3d at 1055 (quoting Colo . Ethics Watch . Senate Majority Fund, LLC, 2012 CO
12, 20,269 P.3d 1248, 1254).

These principles of constitutional interpretation apply to all sections of this

opinion in which we address the meaning of any constitutional provision.

B. The State Court Has the Authority to Adjudicate a

Challenge to Presidential Candidate Qualifications
Under the Election Code

The Electors claim is grounded in sections 1-4-1204 and 1-1-113 of the

Election Code. They argue that it would be a breach of duty or other wrongful act
under the Election Code for the Secretary to place President Trump on the
presidential primary ballot because he is not a qualified candidate based on

17
Section Three's disqualification. 1-4-1203(2)(a), C.R.S. (2023) . The Electors
therefore seek an order pursuant to section 1-1-113 directing the Secretary not to
list President Trump on the presidential primary ballot for the election to be held
on March 5,2024 (or any future ballot) .
President Trump and CRSCC contend that Colorado courts lack jurisdiction
over the Electors claim and that the Electors cannot state a proper section 1-1-113
claim , in part because the Electors claim is a constitutional claim that cannot be
raised in a section 1-1-113 action under this court's decisions in Frazier v . Williams ,

2017 85, 401 P.3d 541, and Kuhn v. Williams , 2018 CO 30M, 418 P.3d 478 (per
curiam) CRSCC also argues that the Secretary lacks authority to interfere with a
political party's decision-making process or to interfere with the party's First
Amendment right of association to select its own candidates . Lastly , President

Trump argues that the expedited procedures under section 1-1-113 are insufficient
to evaluate the Electors' claim .

Before considering each of these arguments in turn, we first explain the

standard of review for statutory interpretation and then provide an overview of
the Election Code provisions at issue. Turning to Intervenors contentions ,we first
conclude that the district court had jurisdiction to adjudicate the Electors claim
under section 1-1-113. But, recognizing that the ability to exercise jurisdiction here
does not mean the Electors can state a proper claim under section 1-1-113, we

18
explore whether states have the constitutional power to assess presidential

qualifications We conclude that they do, provided their legislatures have

established such authority by statute . Analyzing the relevant provisions of the
Election Code, we then conclude that the General Assembly has given Colorado
courts the authority to assess presidential qualifications and, therefore , that the
Electors have stated a proper claim under sections 1-4-1204 and . We next
address Intervenors related arguments and conclude that limiting the presidential

primary ballot to constitutionally qualified candidates does not interfere with

CRSCC's associational rights under the First Amendment . Finally,we conclude
that section 1-1-113 provides sufficient due process for evaluating whether a
candidate satisfies the constitutional qualifications for the office he or she seeks .
1. Standard of Review

We review the district court's interpretation of the relevant statutes de novo.

Griswold v. Ferrigno Warren , 2020 CO 34 , ¶ 16, 462 P.3d 1081, 1084. In doing so,
o ur primary objective is to effectuate the intent of the General Assembly by

looking to the plain meaning of the language used, considered within the context
of the statute as a whole . Mook v. Bd. of Cnty . Comm'rs , 2020 12, ¶ 24 , 457 P.3d

568 ,574 (alteration in original ) (quoting Bly v. Story ,241 P.3d 529 , 533 (Colo .2010)) .
When a term is undefined , we construe a statutory term in accordance with its
ordinary or natural meaning. Id. (quoting Cowen v. People, 2018 CO 96, 14,

19
431 215,218) . Ifthe language is clear , we apply it as written . Ferrigno Warren ,
16,462 P.3d at 1084 .

If, however , the language is reasonably susceptible of multiple

interpretations , we may turn to other tools of construction to guide our
interpretation . Cowen , 12, 431 P.3d at 218. These may include consideration of

the purpose of the statute ,the circumstances under which the statute was enacted ,
the legislative history , and the consequences of a particular construction .
§ 2-4-203 (1), C.R.S. (2023 ) . We also avoid constructions that would yield illogical

or absurd results . Educhildren LLC v. Cnty of Douglas Bd. of Equalization , 2023 CO

29, 27,531 P.3d 986 , 993 .

2. Presidential
PrimariesUnderthe ElectionCode

Before addressing the merits ,we provide a brief overview of the Election
Code's provisions relating to presidential primary elections . Article VII,Section 11
of the Colorado Constitution commands the General Assembly to pass laws to
secure the purity of elections , and guard against abuses of the elective franchise .
Pursuant to this constitutional mandate , the Secretary's duties under the Election

Code include supervising the conduct of primary and general elections in the state
and enforcing the provisions of the Election Code . 1-1-107(1)(a) - (b) , (5), C.R.S.
( 2023) .

20
 Part 12 of article 4 of the Election Code governs presidential primary

elections . See generally §§ 1-4-1201 to -1207 , C.R.S. (2023) Section 1-4-1201 , C.R.S.
(2023 ), explains that it is the intent of the People of the State of Colorado that the

provisions of this part 12 conform to the requirements of federal law and national
political party rules governing presidential primary elections ." This reference
indicates that the legislature envisioned part 12 as operating in harmony with

Before 1990, Colorado's political parties used caucuses to nominate their

presidentialcandidates. That year, Colorado voters adopted a referred measure
establishing presidential primary elections See generally Ch. 42, sec. ,
§§ 1-4-1101 to -1104, 1990 Colo. Sess . Laws 311, 311-13. The legislature later
amended these statutes as part of a 1992 repeal and reenactment of the Election
Code. See Ch. 118, sec. 7, §§ 1-4-1201 to -1207, 1992 Colo. Sess. Laws 624, 696-99.
These amendments added the precursor to current section 1-4-1204(4) : they
permitted challenges concerning the right of any candidate's name to appear on
the ballot of the presidential primary election but directed the Secretary (not a
court) to hear and assess the validity of such challenges. . 118, sec. 7,
1-4-1203(4) , 1992 Colo. Sess. Laws at 697-98.

Colorado eliminated presidentialprimary elections in 2003. Ch. 24, sec. 6,

2003 Colo. Sess. Laws 495, 496. In2016, however, voters restored such elections
through Proposition 107, a citizen-initiated measure. Proposition 107, Ballot
Initiative No. 140, https://www.coloradosos.gov/pubs/elections/Initiatives/
titleBoard/ filings/ 2015-2016/ 140Final.pdf [https://perma.cc/7TX8-J59L.
Proposition107 largely preserved the pre-2003 versionof section 1-4-1204(4) that
vestedthe Secretary withthe powerto hear challengesto the listingof presidential
primary candidates. Id. at 61. In a 2017 clean-up bill, the General Assembly
adopted several amendments to the citizen- initiated measure to facilitate the
effective implementation of the state's election laws. S.B. 17-305, 71st Gen.
Assemb, Reg. Sess. ( Colo. 2017) . Relevanthere, the legislaturedirected challenges
undersection 1-4-1204(4) away from the Secretary and insteadto the districtcourt
throughsection 1-1-113proceedings. Id. at 4-5. Section 1-4-1204(4) has remained
otherwiseunchanged since its reenactment.

21
federal law , including requirements governing presidential primary elections . As
such, it is instructive when interpreting other provisions of part 12.

The Election Code limits participation in the presidential primary to

qualified candidates . § 1-4-1203 (2)(a) ( E ach political party that has a qualified
candidate is entitled to participate in the Colorado presidential primary

election. (emphasis added));see also §§ 1-4-1101(1), -1205, C.R.S. (2023 ) (allowing

a write-in candidate to participate in the presidential primary election if he or she

submits an affidavit stating he or she is qualified to assume the duties of the
office if elected). As a practical matter, the mechanism through which a
presidential primary hopeful attests that he or she is a qualified candidate isthe
statement of intent (or affidavit of intent ) filed with the Secretary.5 See
§ 1-4-1204(1)(c) (requiring candidates to submit to the Secretary a notarized
statement of intent ) ; § 1-4-1205 (requiring a write-in candidate to file a notarized

In full, the quoted language reads: " [ E ach political party that has a qualified
candidate entitled to participate in the presidential primary election pursuant to
this section is entitled to participateinthe Colorado presidentialprimary election.
§ 1-4-1203(2) (a ) .The phrase pursuant to this section sheds no light on the
meaning of qualified candidate. Section 1-4-1203 simply establishes the
mechanics of presidential primaries, such as the date of the primary, elector party
affiliationrules, and the content of primary ballots. § 1-4-1203(1), (2) (a ), ( 4) . Thus,
pursuant to this section modifies the presidential primary election in which
qualified candidates are entitled to participate: an election conducted in
accordance with section 1-4-1203.

5 In this context, the legislature appears to have used statement and affidavit
interchangeably .

22
 statement of intent inorder for votes to be counted for that candidate and stating
that such affidavit must be accompanied by the requisite filing fee).

The Secretary's statement -of-intent form for a major party presidential

primary candidate requires the candidate to affirm via checkboxes that he or she
meets the qualifications set forth in Article IIof the U.S. Constitution for the office
of President; specifically , that the candidate is at least -five years old, has
thirty

been a resident of the United States for at least fourteen years , and is a natural

born U.S. citizen . Colo . Sec'y of State , Major Party Candidate Statement of Intentfor
Presidential Primary , https://www.sos.state.co.us/pubs/elections/Candidates/
files / MajorPartyCandidateStatementOfIntentForPresidentialPrimary.pdf
[https://perma.cc/YA3X-3K9T ] ( Intent Form ) ; see also U.S. Const. art . II, § 1,
cl. 5. The form further requires the candidate to sign an affirmation that states , I
intend to run for the office stated above and solemnly affirm that I meet all
qualifications for the office prescribed by law." Intent Form, supra (emphasis added).
No party has challenged the Secretary's authority to require candidates to provide
this informationonthe statement
- of- intentform.

6 The Affidavit of Intentfor write-in candidates for the presidential primary has
the same requirements. Affidavit of Intent for Presidential Primary Write- In
Designation, Colo. Sec'y of State (last updated June 20, 2023) , https://
www.sos.state.co.us/pubs/elections/Candidates/files/PresidentialPrimaryWrit
e - In.pdf[ https://perma.cc/V83P-HLAD.

23
 Section 1-4-1204(1) requires the Secretary to certify the names and party
affiliations of the candidates to be placed on any presidential primary election
ballots not later than sixty days before the presidential primary election. For the
2024 election cycle, that deadline is January 5,2024.
Section 1-4-1204( 1) further states:

The only candidateswhose names shall be placed on ballots for the

electionshall be those candidates who:

(b) Are seekingthe nominationfor president of a political party as a

bona fide candidate for president of the United States pursuant to
politicalparty rules and are affiliated with a major politicalparty that
received at least twenty percent of the votes cast by eligible electors
inColorado at the last presidentialelection; and

(c) Have submitted to the secretary not later than eighty- five days
before the date of the presidential primary election, a notarized
candidate's statement of intenttogether with either a nonrefundable
filingfee offive hundred dollars or a petition signed by at least five
thousand eligible electors . .

For the 2024 electioncycle, the deadline to submit these items was December11,

2023.

¶41 Section 1-4-1204 (4) allows for challenge [s] to the listing of any candidate
on the presidential primary election ballot ." Any such challenge must be brought
no later than five days after the filing deadline for candidates and “ must provide
notice of the alleged impropriety that gives rise to the complaint ." Id. The
district court must hold a hearing no later than five days after the challenge is filed

24
to assess the validity of all allegedimproprieties
. Id. The statute does not limit

the length or content of the hearing; it does, however, require the district court to
issue findings of fact and conclusions of law no later than forty -eight hours after
the hearing concludes . Id. "The party filing the challenge has the burden to sustain
the challenge by a preponderance of the evidence." .
Challenges under section 1-4-1204 (4) must be brought through the special
statutory procedure found in section 1-1-113 for adjudicating controversies that
arise under the Election Code . 1-4-1204 (4 ) (providing that any challenge to the

listing of a candidate on the presidential primary ballot must be made in writing

and filed with the district court in accordance with section 1-1-113 (1) and any
order entered by the district court may be reviewed [by the supreme court] in
accordance with section 1-1-113(3) ).
Section 1-1-113 has deep roots in Colorado election law . It originated in an
1894 amendment to Colorado's Australian Ballot Law,first adopted by the Eighth
General Assembly in 1891. Ch . 7,sec. 5, § 26, 1894 Colo. Sess . Laws 59, 65. Much
like its present-day counterpart, the original provision established procedures for
adjudicating controversies between election officials and any candidate, political

party officers or representatives,or persons making nominations.7 Id.

7 Over time, the legislature amended the law to strengthen the courts power to
resolve election disputes. For example, in 1910, the General Assembly passed

25
 The current version of section 1-1-113 establishes (with exceptions not

relevant here) the exclusive method for the adjudication of controversies arising

from a breach or neglect of duty or other wrongful act that occurs prior to the day
of an election. § 1-1-113(4) (emphasis added) . It provides :

Whenany controversy arises between any official charged with any

duty orfunction underthis code and any candidate, or any officersor
representatives of a political party, or any persons who have made
nominationsor when any eligible elector files a verified petitionin a
districtcourtof competentjurisdiction allegingthat a person charged
witha duty under this code has committedor is about to commit a breach
or neglectofduty or other wrongfulact, after notice to the officialwhich
includesan opportunity to be heard, upon a finding of good cause,
the districtcourt shallissueanorder requiringsubstantial compliance
with the provisions of this code. The order shall require the person
charged to forthwithperform the duty or to desist from the wrongful act

primary election legislation (not then applicable to presidential elections)

authorizing district courts to accept verified petitions alleging, among other
things that the name of any person has been or is about to be wrongfully placed
upon primary ballots and to order the Secretary (among other election officials)
to correct such errors. Ch. 4, § 25, 1910 Colo. Sess. Laws. 15, 33. The 1910 law also
gave this court the power to review the district court's decision. Id. at 34; see also
Peoplev. Republican State Cent. Comm., 226 P. 656, 657 (Colo. 1924) (confirmingthat
if a proper entity has violated a duty with which it is charged under the act, the
court has power to direct it to correct the wrong ) .

In1963, the General Assembly repealed and reenacted Colorado's Election

Code. Seegenerally Ch. 118, 1963 Colo. Sess. Laws 360. The 1963 code allowed for
" any elector" to show by verified petitionthat any neglect of duty or wrongful
act by any person charged with a duty under this act has occurred or is about to
occur mirroring the language in today's section 1-1-113. Ch. 118, § 203, 1963
Colo. Sess. Laws at 457. The legislature´s next reenactment of the code in 1992
codified this procedure at section 1-1-113. Ch. 118, sec. 1 , § 1-1-113, 1992 Colo.
Sess. Laws 624, 635.

26
 or to forthwith show cause why the order should not be obeyed. The
burden of proof is on the petitioner.

§ 1-1-113( 1) ( emphases added ) .

Section 1-1-113 proceedings also provide for expedited , albeit discretionary ,

appellate review in this court. § 1-1-113(3) . Either party may seek review from
this court within three days after the district court proceedings conclude . Id. If
this court declines jurisdiction of the case, the district court's decision is final and
is not subject to further appellate review . Id.
Although Colorado's expedited statutory procedure for litigating election
disputes may be unfamiliar nationally ,our courts ,particularly the Denver District
Court (the proper venue when the Secretary is the named respondent ) , are
accustomed to section 1-1-113 litigation . Such cases arise during virtually every
election cycle , and this court has exercised jurisdiction many times to review these

disputes . E.g., Kuhn , ¶ 1, 418 P.3d at 480 ; Frazier , ¶ 1, 401 P.3d at 542; Carson v.
Reiner , 2016 CO 38 , ¶ 1, 370 P.3d 1137 , 1138 ; Hanlen v. Gessler , 2014 CO 24 , 3 ,

333 P.3d 41,42. Moreover , it is not uncommon for section 1-1-113 cases to require
courts to take evidence and grapple with complex legal issues . E.g., Ferrigno

Warren , 9-13 ,462 P.3d at 1083-84 (describing a district court hearing , held one
month after the petitioner filed her verified petition and after the parties filed

briefing, to determine whether substantial compliance was the appropriate

standard for a minimum signature requirement , how to apply that standard , and
27
whether , based on a four-factor test ,a prospective U.S. Senate candidate satisfied
that standard ) ; Kuhn, ¶¶ 4, 15–18, 418 P.3d at 480–82 ( describing a district court
hearing to assess evidence and testimony concerning the residency of seven
circulators of a petition to reelect a congressional representative ); Meyer v. Lamm,
846 P.2d 862 ,867 (Colo . 1993) (requiring an evidentiary hearing in district court
that involved, among other things , the content of ballots cast for a write -in
candidate ). Even early cases recognized that the original 1894 provision

contemplate [d] the taking of evidence where the issues require [ d] it. Leighton v.

Bates , 50 P. 856 ,858 (Colo . 1897).

3. The DistrictCourt HadJurisdictionto Adjudicatethe

Electors Claim Underthe ElectionCode

President Trump argues that the district court lacked jurisdiction over the
Electors section 1-1-113 action because the Secretary has no duty under the
Election Code to investigate a candidate's qualifications . A district court has
jurisdiction pursuant to section 1-1-113 (1) when : (1) an eligible elector ; (2) files a
verified petition in a district court of competent jurisdiction ; (3 ) alleging that a
person charged with a duty under the Election Code; (4 ) has committed , or is
about to commit ,a breach of duty or other wrongful act .

The district court plainly had jurisdiction under section 1-1-113 to hear the
Electors claim. First, the Electors are eligible elector [s] within the meaning of
the Election Code because, as Republican and unaffiliated voters, they are
"person [s] who meet the specific requirements for voting at a specific election ;
namely ,the Republican presidential primary election . 1-1-104 (16) , C.R.S. (2023);
see also § 1-4-1203 (2)(b) (providing that unaffiliated voters may vote in presidential
primary elections ) ; § 1-7-201 (1) , C.R.S. (2023 ) (identifying eligible electors for the
purpose of primary elections ). Second , the Electors timely filed their verified
petition under sections 1-1-113 and 1-4-1204 (4) in the proper district court . Third,
their petition was filed against the Secretary , an election official charged with
duties under the Election Code . See § 1-1-107 (prescribing the powers and duties
of the Secretary ); 1-4-1204 (1) ( [T he secretary of state shall certify the names and
party affiliations of the candidates to be placed on any presidential primary

election ballots . ). And fourth, the petition alleged that the Secretary was about to
commit a breach of duty or other wrongful act under the Election Code by placing
President Trump on the presidential primary ballot because he is not
constitutionally qualified to hold office .

Though it does not affect the district court's jurisdiction , President Trump's
assertion that the Secretary does not have a duty under the Election Code to
determine a candidate's constitutional qualification raises the question of whether
the Electors presented a proper claim . To answer that question, we must first
determine whether , generally, states have the authority to determine presidential
qualifications .

29
 4. States Havethe Authorityto Assess Presidential
Candidates Qualifications

" Commonsense, as well as constitutionallaw, compels the conclusionthat

government must play an active role in structuring elections ... Burdick v .

Takushi,504 U.S. 428,433 (1992) . The Constitution delegates to states the authority
to prescribe the Times , Places and Manner of holding congressional elections,
U.S. Const art I, § 4, cl. 1, and states retain the power to regulate their own
.

elections , Burdick, 504 U.S. at 433. States exercise these powers through
comprehensive and sometimes complex election codes, regulating the
registration and qualifications of voters, the selection and eligibility of candidates,

and the voting process itself. Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)
( Celebrezze );see also,e.g., 1-4-501(1),C.R.S. (2023)(setting qualifications for state
office candidates). These powers are uncontroversial and well -explored in U.S.
Supreme Court case law .

But does the U.S. Constitutionauthorizestates to assess the constitutional

qualifications of presidential candidates? We conclude that it does .

Under Article II, Section 1, each state is authorized to appoint presidential

electors in such Manner as the Legislature thereof may direct. U.S. Const . art II,
.

§ 1, cl. 2. So long as a state's exercise of its appointment power does not run afoul
of another constitutional constraint, that power is plenary . Chiafalo v. Washington ,
140 S. Ct. 2316,2324 (2020); McPherson v. Blacker, 146 U.S. 1, 25 ( 1892).

30
 But voters no longer choose between slates of electors on Election Day.
Chiafalo , 140 S. Ct. at 2321. Instead,they vote for presidential candidates who serve

as proxies for their pledged electors . Id. Accordingly , states exercise their plenary
appointment power not only to regulate the electors themselves, but also to

regulate candidate access to presidential ballots . Absent a separate constitutional

constraint, then, states may exercise their plenary appointment power to limit
presidential ballot access to those candidates who are constitutionally qualified to

hold the office of President . And nothing in the U.S. Constitution expressly
precludes states from limiting access to the presidential ballot to such candidates .
See Lindsay v. Bowen, 750 F.3d 1061, 1065 (9th Cir. 2014 ).
No party in this case has challenged the Secretary's authority to require a
presidential primary candidate to confirm on the required statement -of-intent
form that he or she meets the Article II requirements of age, residency , and
citizenship , and to further attest that he or she meet[s] all qualifications for the
office prescribed by law. Moreover, several courts have expressly upheld states
ability to exclude constitutionally ineligible candidates from their presidential

ballots See id. (upholding California's refusal to place a twenty-seven-year-old

candidate on the presidential ballot) ; Hassan v. Colorado , 495 F. App'x 947, 948-49
(10th Cir .2012) (affirming the Secretary's decision to exclude a naturalized citizen

from the presidential ballot); Socialist Workers Party of .v . Ogilvie, 357 F. Supp.

31
 ,
109 113 (N.D. . 1972) (per curiam) (affirming Illinois's exclusion of a thirty -one
year-old candidate from the presidential ballot ) .

As then-Judge Gorsuch recognized in Hassan, it is a state's legitimate

interest in protecting the integrity and practical functioning of the political

process that permits it to exclude from the ballot candidates who are
constitutionally prohibited from assuming office." 495 F. App'x at 948.
The question then becomes whether Colorado has exercised this power
through the Election Code . We conclude that it has . Section 1-4-1204 (4) is

Colorado's vehicle for advancing these state interests . When eligible electors
challenge the Secretary's listing on the presidential primary ballot of a candidate

who is not constitutionally qualified to assume office , section 1-4-1204 (4 ) , as

exercised through a proceeding under section 1-1-113 , offers an exclusive remedy

under the Election Code . See 1-1-113 ( )

5. The ElectorsHave Stated a Proper Claim That Is Not

Precludedby Frazierand Kuhn

President Trump argues that the Electors claim cannot be properly litigated
in a section 1-1-113 action because the Secretary has no duty under the Election
Code to investigate a candidate's qualifications and because this court's precedent

bars the litigation of constitutional claims in a section 1-1-113 action. Although we

agree that the Secretary has no duty to independently investigate the qualifications
of a presidential primary candidate , we conclude that the Electors may

32
nevertheless challenge a candidate's qualifications under section 1-4-1204 (4), and
that the Electors claim here is not a constitutional claim precluded by our
decisions in Frazier and Kuhn.

In presidential primary elections , the Secretary's duty is to certify the

names and party affiliations of the candidates to be placed on any presidential
primary election ballots . § 1-4-1204 (1) . The conditions that must be satisfied
before she can exercise this duty are limited to timely receiving (1) confirmation

that the prospective candidate is a bona fide candidate under the party's rules,
(2) a notarized statement of intent from the candidate , and (3) the requisite filing
fee or a petition signed by at least 5,000 eligible electors affiliated with the
candidate's political party who reside in Colorado . § 1-4-1204 (1)(b) (c).
Where a candidate does not submit (or cannot comply with) the required
attestations on the statement of intent form , the Secretary cannot list the candidate
on the ballot . See Hassan v. Colorado , 870 F. Supp . 2d 1192 , 1195 (D. Colo . 2012),
aff'd 495 F. App'x at 948. But if the contents of a signed and notarized statement of
intent appear facially complete (i.e., the candidate has filled out the Secretary's
form confirming that he or she meets the Article IIrequirements of age,residency,
and citizenship , and further attesting that he or she meet [s] all qualifications for
the office prescribed by law ),the Secretary has no duty to further investigate the

33
accuracy or validity of the information the prospective candidate has supplied.8

To that extent, we agree with President Trump that the Secretary has no duty to
determine, beyond what is apparent on the face of the required documents,
whether a presidential candidate is qualified .
The fact that the Secretary has complied with her section 1-4-1204(1) duties
does not, however, foreclose a challenge under section 1-4-1204(4) . As discussed
above,section 1-4-1204(4) permits [a ny challenge to the listing of any candidate

on the presidential primary election ballot, using section 1-1-113 ( 1) as a

procedural vehicle . Section 1-1-113(1), in turn, creates acause of action for electors
alleging a breach of duty or other wrongful act under the code. See Frazier, ,
401 P.3d at 542 (construing wrongful act in section 1-1-113 as limited to a
wrongful act under the Election Code). Section 1-1-113 then requires the district
court not the election official to adjudicate an eligible elector's challenge to a
candidate's eligibility . Carson , 8, 370 P.3d at 1139 (observing that the Election
Code reflects an intent for challenges to the qualifications of a candidate to be

8 In contrast, with respect to elections for state office, section 1-4-501( 1) , C.R.S.
(2023) , provides that " [ t he designated election official shall not certify the name
of any designee or candidate . . . who the designated election official determines is not
qualified to hold the office that he or she seeks based on residency requirements.
(Emphasis added.) This provision for state office expressly charges the Secretary
with a duty to investigate whether a candidate meets any requirements of the
office relating to registration, residence, or property ownership, among others.
Id.

34
resolvedby the courts) ; Hanlen, , 333 P.3d at 50 ( [ T he electioncode requires

a court, not an election official , to determine the issue of [candidate ] eligibility . ) .

As we have explained , the Secretary has complied with her limited duty to
accept President Trump's properly completed paperwork . But the Electors have

alleged an impending wrongful act, which is more expansive than a breach

or neglect of duty . Frazier , ¶ 16, 401 P.3d at 545 (quoting § 1-1-113( 1)) . Indeed,
section 1-1-113 clearly comprehends challenges to a broad range of wrongful acts
committed by officials charged with duties under the code , Carson , 17,370 P.3d
at 1141, including any act that is inconsistent with the Election Code , Frazier,
16, 401 P.3d at 545

conclude that certifying an unqualified candidate to the presidential

primary ballot constitutes a wrongful act that runs afoul of section 1-4-1203(2)(a)
and undermines the purposes of the Election Code. Nothing in section 1-4-1204(4)
limits challenges under that provision to those based ona breach of the Secretary's
duties under section 1-4-1204 . And section 1-4-1203(2)(a) clearly limits
participation in the presidential primary to political parties fielding qualified

candidates . Although section 1-4-1203 (2)(a) does not define qualified, nearby

provisions regarding write-in candidates indicate that qualified refers to a

candidate's qualifications for office. As with bona fide major party candidates
under section 1-4-1204(1), write -in candidates for the presidential primary must

35
file a notarized candidate statement of intent . § 1-4-1205 . Under the Election
Code, such statements for all write -in candidates (regardless of the type of
election ) must indicate that the candidate desires the office and is qualified to
assume its duties if elected . § 1-4-1101(1) (emphasis added ). The Election Code's
explicit requirement that a write -in candidate be qualified to assume the duties
of their intended office logically implies that major party candidates under
1-4-1204(1)(b) must be qualified in the same manner.9
Reading the Election Code as a whole, then,we conclude that qualified in
section 1-4-1203 (2)(a) must mean, at minimum, that a candidate is qualified under
the U.S. Constitution to assume the duties of the office of President . It has to , as
section 1-4-1203 (2)(a) supplies the only textual basis in the Election Code for the
Secretary's authority to require a presidential primary candidate to attest to his or
her qualifications for office in the candidate statement (or affidavit ) of intent .
Moreover , to read qualified not to encompass federal constitutional
qualifications would undermine the purpose of the Election Code to secure the

This interpretation is further supported by the Election Code's treatment of

uncontestedprimaries. The ElectionCode allows the Secretaryto cancel a primary
whenevery politicalparty has no more than one affiliated candidate, whether that
candidate is certified to the presidential primary ballot pursuant to section
1-4-1204(1) or is a write-in candidate entering under section 1-4-1205.
1-4-1203(5) . Because the General Assembly plainly treats such candidates as
equivalent for purposes of 1-4-1203(5) , we conclude that the legislature also
viewedthe qualified requirementin both provisionsas equivalent.

36
purity of elections while compromising the Secretary's ability to advance that

purpose. Colo. Const. art. VII, § 11; § 1-1-107(1), (5).

We therefore reject such an interpretation as contrary to the purpose of the
Election Code. Instead , we conclude that , under the Election Code , qualified

candidates for the presidential primary are those who , at a minimum ,are qualified
to hold office under the provisions of the U.S. Constitution .
We recognize that the Supreme Court has twice declined to address whether

Section Three which disqualifies an oath- breaking insurrectionist from holding

office amounts to a qualification for office . Powell v. McCormack , 395 U.S. 486 ,
520 n.41 (1969) (describing Section Three and similar disqualification provisions in
the federal constitution but declining to address whether such provisions

constitute qualification [s ] for office because both sides agree [d] that [the
candidate ] was not ineligible under Section Three or any other , similar
provision ); U.S. Term Limits , Inc. v. Thornton , 514 U.S. 779 , 787 n.2 (1995) (seeing
no need to resolve the same question regarding Section Three in a case
concerning the propriety of additional qualifications for office). But lower courts ,
when presented squarely with the question , have all but concluded that Section
Three is the functional equivalent of a qualification for office . See , e.g., Greene v.
Raffensperger , 599 F. Supp . 3d 1283, 1316 (N.D. Ga . 2022 ) ( Section [Three ] is an
existing constitutional disqualification adopted in 1868 similar to but distinct

37
from the Article I , Section2 requirementsthat congressionalcandidatesbe at least

25 years of age, have been citizens of the United States for 7 years , and reside in
the states in which they seek to be elected . ) ; State Griffin,

No. D-101-CV-2022-00473 , 2022 WL 4295619 , at *24 (N.M. Dist. Ct . Sept. 6, 2022)

( Section Three imposes a qualification for public office , much like an age or
residency requirement ).

We perceive no logical distinction between a disqualification from office and

a qualification to assume office , at least for the purposes of the section 1-1-113 claim
here . Either way , it would be a wrongful act for the Secretary to list a candidate
on the presidential primary ballot who is not qualified to assume the duties of
the office . Moreover , because Section Three is a part of the text of the

Constitution , assessing a candidate's compliance with it for purposes of

determining their eligibility for office does not improperly add qualifications to
those that appear in the Constitution . U.S. Term Limits, 514 U.S. at 787 n.2. Doing
so merely renders the list of constitutional qualifications more complete .
Nor are we persuaded by President Trump's assertion that Section Three
does not bar him from running for or being elected to office because Section Three
bars individuals only from holding office . Hassan specifically rejected any such
distinction . 495 Fed . App'x at 948. There , the candidate argued that even if Article
properly holds him ineligible to assume the office of president," Colorado could

38
not deny him a place on the ballot." Id. The Hassan panel concluded otherwise. Id.
In any event, the provisions in the Election Code governing presidential primary
elections do not recognize such a distinction. Rather, as discussed above, those
provisions require all presidential primary candidates to be constitutionally

"qualified" before their names are added to the presidential primary ballot
pursuant to section 1-4-1204(1).

Were we 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. See

U.S. Const . art. II, § 1, cl. 5 (setting forth the qualifications to be eligible to the Office
ofPresident (emphasis added)) . It would mean that the state would be powerless
to exclude a twenty -eight -year -old,a non-resident of the United States, or even a
foreign national from the presidential primary ballot in Colorado . Yet ,as noted,
several courts have upheld states exclusion from ballots of presidential candidates
who fail to meet the qualifications for office under Article II. See Lindsay , 750 F.3d
at 1065; Hassan,495 F. App'x at 948; Ogilvie, 357 F. Supp . at 113.
Lastly, we reject President Trump and CRSCC's argument that state courts
may not hear the Electors claim because this court's precedent bars the litigation
of constitutional claims in a section 1-1-113 action. See Frazier , ¶ 3,401 P.3d at 542;

39
Kuhn, 55,418 P.3d at 489. The Electors have not asserted a constitutional claim,

so Frazierand Kuhn do notcontrolhere.

Both Frazier and Kuhn addressed whether a petitioner could shoehorn a

claim challenging the constitutionality of the Election Code into a section 1-1-113
proceeding. Frazier, ¶ 6, 401 P.3d at 543; Kuhn , ¶ 55, 418 P.3d at 489. In Frazier,we
concluded that section 1-1-113 is not a proper vehicle to resolve claims under
42 U.S.C. § 1983 because they do not arise under the Election Code and because
the sole remedy available under section 1-1-113 is a court order directing

compliance with the Election Code. Frazier, 17-18, 401 P.3d at 545. Similarly,

in Kuhn, we held that to the extent the candidate sought to challenge the
constitutionality of the petition circulator residency requirement under the
Election Code,the court lacked jurisdiction to address such arguments in a section
1-1-113 proceeding. 55, 418 P.3d at 489
Here, however , the Electors do not challenge the constitutionality of the
Election Code . Nor do they allege a violation of the Constitution . Instead , they
allege a wrongful act under section 1-1-113 . That the Electors' claim has
constitutional implications or requires interpretation of a constitutional provision
does not make it a separate constitutional claim of the sort prohibited by Frazier
and Kuhn . And neither President Trump nor CRSCC suggests that a section
1-1-113 claim cannot have constitutional implications . Indeed , as the Secretary

40
notes in her brief, there is nothing particularly unusual about a section 1-1-113

proceeding raising constitutional issues .

As discussed above , the Electors claim is that the Secretary will commit a
wrongful act under the Election Code if she lists a candidate on the presidential
primary ballot who is not qualified for office . While this claim requires resolving

constitutional questions , it remains a challenge brought by eligible electors against

an election official regarding an alleged wrongful act under the Election Code .
Section 1-1-113 is the exclusive vehicle for litigating such challenges prior to an
election ;the Electors have no other viable option . 1-1-113 (4 ).

6. LimitingPresidential Primary BallotAccess to

Constitutionally Qualified Candidates Does Not
Interferewith CRSCC's First Amendment Rights

173 CRSCC argues that section 1-4-1204 (1) (b) vests it with the sole authority to

determine who the Republican nominees will be on a ballot a reflection, CRSCC

contends, of its constitutional right to freely associate and exercise its political

decisions . See U.S. Const . amend . I; see also Timmons v. Twin Cities Area New Party,
520 U.S. 351, 357 ( 1997) ( The First Amendment protects the right of citizens to
associate and to form political parties for the advancement of common political
goals and ideas."). Taken to its logical end, CRSCC's position is that it has a First
Amendment right to deem any person to be a bona fide candidate pursuant to
their party rules, § 1-4-1204 (1)(b), and subsequently mandate that individual's

41
placement on the presidential ballot , without regard to that candidate's age,
residency , citizenship , see U.S. Const . art . II, § 1, cl. 5 , or even whether the
candidate has already served two terms as President , see id. at amend . XXII ( No
person shall be elected to the office of the President more than twice ). We
disagree with this position
As a threshold matter , we acknowledge that the district court dismissed
CRSCC's argument on this issue, ruling that it raised a separate constitutional
claim improperly litigated in a section 1-1-113 action . Anderson , 12. We agree
that a claim challenging the constitutionality of the Election Code cannot be
reviewed under section 1-1-113 . See Kuhn, 55, 418 P.3d at 489 ; Frazier , ¶ 3,
401 P.3d at 542. But to the extent that CRSCC argues in its Answer Brief that the
Secretary lacks authority to interfere with CRSCC's associational rights , we
respond briefly to those concerns.
175 We distinguish between (1) CRSCC's right to decide the candidates with
whom it affiliates and recognizes as bona fide , and (2) CRSCC's ability to place
candidates on the presidential primary ballot. CRSCC's claim that it has a right
to select its own candidate is uncontroversial ,so far as it goes . Timmons ,520 U.S.
at 359. Partisan political organizations enjoy freedom of association protected by
the First and Fourteenth Amendments , Tashjian v. Republican Party of Conn .,
479 U.S. 208 ,214 (1986) , and "[a]s a result , political parties government ,structure ,

42
and activities enjoy constitutional protection, Timmons , 520 U.S. at 358. In other
words , CRSCC is well within its rights to choose with whom it affiliates and to
decide which candidates it recognizes as bona fide. It does not follow , though,
that a party is absolutely entitled to have its nominee appear on the ballot as that
party's candidate. Id. at 359 (noting that a particular candidate might be
ineligible for office, for example).
As a practical matter , any state election law governing the selection and
eligibility of candidates affects , to some degree , the fundamental right to associate

with others for political ends . Celebrezze , 460 U.S. at 788. Even so, there must be
a substantial regulation of elections if they are to be fair and honest and if some
sort of order, rather than chaos , is to accompany the democratic processes .
Burdick,504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724 , 730 (1974)).
Accordingly , to determine if a state election law impermissibly burdens a
party's associational rights , courts must weigh the character and magnitude of
the burden imposed by the rule against the interests the State contends justify
that burden, and then consider whether the state's interests make the burden

necessary . Timmons , 520 U.S. at 358 (quoting Burdick , 504 U.S. at 434) . Limiting
ballot access to those who have complied with state election law requirements is
the prototypical example of a regulation that, while it affects the right to vote, is
eminently reasonable." Burdick, 504 U.S. at 440 n.10.

43
 Here, the Election Code limits presidential primary ballot access to only
qualified candidates . Such a restriction is an eminently reasonable regulation

that does not severely burden CRSCC's associational rights . To hold otherwise
would permit political parties to disregard the requirements of the law and the
Constitution whenever they decide , as a matter of political expression or
"political choice," that those requirements do not apply . That cannot be. The

Constitution not any political party rule is the supreme law of the land . U.S.
Const . art. cl. 2.

7. Section 1-1-113 Proceedings Provide Adequate Due

Process for Litigants

Lastly, President Trump asserts that section 1-1-113 is not a valid way to
litigate complex constitutional legal and factual issues. He complains of
unfairness inherent in the expedited procedures that section 1-1-113 demands . But
President Trump's argument disregards how the Electors' claim proceeded here.
Initially,we note that to the extent President Trump purports to challenge
the constitutionality of section 1-1-113 under the Fourteenth Amendment's Due
Process clause as a defense to the Electors' claim, he raises precisely the type of

independent constitutional claim he recognizes is barred by Kuhn . See Kuhn, ¶ 55,

418 P.3d at 489. As discussed above, constitutional challenges to provisions of the
Election Code fall outside the scope of a proper section 1-1-113 challenge because
these expedited statutory proceedings entertain only one type of claim election

44
officials violations of the Election Code- and one type of injunctive relief- an
order compelling substantial compliance with the Election Code. See Kuhn, 55,
418 P.3d at 489 ; § 1-1-113(1); accord Frazier, 17–18, 401 P.3d at 545 .
Furthermore , because section 1-1-113 proceedings are designed to address
election -related ,
disputes they move quickly out of necessity . Frazier, 11,
401 P.3d at 544 ("Given the tight deadlines for conducting elections , section 1-1-113
is a summary proceeding designed to quickly resolve challenges brought by

electors , candidates , and other designated plaintiffs against state election officials
prior to election day . ) . Lawyers who practice in this area are well-aware of this.
Looming elections trigger a cascade of deadlines under both state and federal law
that cannot accommodate protracted litigation schedules , particularly when the
dispute concerns a candidate's access to the ballot . And a state's interest in

protecting the integrity of the election process and avoiding voter confusion ,
Lindsay , 750 F.3d at 1063 (citing Timmons , 520 U.S. at 364-65 ) , allows a state to
expedite the process by which a candidate's qualifications ,once challenged , are
subsequently determined . That the form of section 1-1-113 proceedings reflects

their function to expeditiously resolve pre-election disputes over an election

official's wrongful act does not mean these proceedings lack due process .
Nor doesthe needfor expeditedproceedingsin electiondisputes preclude

a district court from using traditional means of case managementin a section

45
1-1-113 proceeding to construct a schedule that accommodates legally or factually

complex issues . See Ferrigno Warren , ¶¶ 8–13 , 462 P.3d at 1083 (explaining that the
district court ordered briefing and held a hearing one month after the candidate
filed a section 1-1-113 petition ) . President Trump contends that the expedited
nature of section 1-1-113 proceedings do not provide time for the kinds of
procedures he believes the complexities of this case require for example , filing
C.R.C.P. 12 motions testing the legal sufficiency of the Electors' claims before the
litigation proceeds , allowing for extended discovery and disclosure procedures ,

and providing the opportunity to depose expert witnesses . But he has never
specifically articulated how the district court's approach lacked due process . He
certainly does not contend that he was prejudiced because the district court moved
too slowly or failed to resolve the case in a week . He made no specific offer of proof
regarding other discovery he would have conducted or other evidence he would
have tendered . Moreover , his arguments throughout this case have focused
predominantly on questions of law and not on disputed issues of material fact.
In addition, the district court took many steps to address the complexities
of the case. For example , the first hearing in this case was a status conference on
September 18 four days after the case was reopened after being remanded from
federal court . In recognition of the complexity of the case,the district court with

the parties input - adopted a civil-case-management approach to the litigation

46
that afforded the parties the opportunity to be heard on a wide range of

substantiveissues.

The district court's case-management approach worked . After permitting

multiple intervenors to participate, the district court allowed sufficient time for
extensive prehearing motions in which all parties vigorously engaged . It then
issued three substantive rulings on these motions, including an omnibus ruling

addressing four of Intervenors motions, all in advance of the trial. The trial took

place over five days and included opening and closing statements, the direct- and
cross-examination of fifteen witnesses ,and the presentation of ninety -six exhibits
Moreover,the legal and factual complexity of this case did not prevent the district
court from issuing a comprehensive , 102-page order within the forty - eight-hour
window section 1-4-1204(4) requires.
In short,the district court admirably- and swiftly discharged its duty to
adjudicate this complex section 1-1-113 action , substantially complying with
statutory deadlines while demonstrating the flexibility inherent in such a
proceeding to address the various issues raised by Intervenors . And nothing

about the district court's process suggests that President Trump was deprived of
notice or opportunity to fully respond to the claim against him or to mount a
vigorous defense . If any case suggests that it is not impossible to fully litigate a

47
complex constitutionalissue within days or weeks, this is it. Frazier, 18 n.3,

401 P.3d at 545 n.3.

For these reasons, we conclude that the Election Code allows Colorado's
courts, through challenges brought under sections 1-4-1204 (4) and 1-1-113, to
assess the constitutional qualifications of a candidate and to order the Secretary
to exclude from the ballot candidates who are not qualified . These provisions
advance Colorado's legitimate interest in protecting the integrity and practical
functioning of the political process" by allowing the Secretary to exclude from
the ballot [presidential candidates who are constitutionally prohibited from
assuming office." Hassan, 495 F. App'x at 948. Moreover,these provisions neither
infringe on a political party's associational rights nor compromise the validity of a

court's rulings on complex factual and legal issues. Rather, they provide a robust
vehicle through which to protect the purity of Colorado's elections See Colo
Const. art. VII, 11.

10 note that Colorado's Election Code differs from other states election laws.
Michigan's election law, for example, does not include the term " qualified
candidate, does not establish a role for Michigan courts in assessing the
qualificationsof a presidential primary candidate, and strictly limits the Michigan
Secretary of State's responsibilities in the context of presidentialprimary elections.
See Mich. Comp. Laws 168.613, 168.620a (governing presidential primary
elections in Michigan) . The Michigan code also excludes presidential and vice
presidentialcandidates from the requirement to submit the affidavit of identity
that other candidates must submit to indicate that they meet[] the constitutional
and statutory qualifications for the officesought. See Davisv . Wayne Cnty. Election

48
 Because the Electors have properly invoked Colorado's section 1-1-113
process to challenge the listing of President Trump on the presidential primary
ballot as a wrongful act, we proceed to the other threshold questions raised by
Intervenors

C. The DisqualificationProvisionof SectionThree Attaches

WithoutCongressionalAction

The Electors challenge to the Secretary's ability to certify President Trump

as a qualified candidate presumes that Section Three is self -executing in the
sense that it is enforceable as a constitutional disqualification without

implementing legislation from Congress . Because Congress has not authorized

state courts to enforce Section Three , Intervenors argue that this court may not
consider President Trump's alleged disqualification under Section Three in this
section 1-1-113 proceeding.11 We disagree .

Comm'n, No. 368615 , 2023 WL 8656163 , at *14 (Mich. Ct. App . Dec. 14, 2023)
(unpublished order ) (quoting Mich. Comp . Laws 168.558(1) ( 2)) . Given these
statutory constraints , it is unsurprising that the Michigan Court of Appeals
recently concluded that the Michigan Secretary of State had no discretion to refrain
from placing President Trump on the presidential primary ballot once his party
identified him as a candidate . Id. at *16.

11 Intervenors and their supporting amici occasionally assert that the Electors
claim is brought pursuant to Section Three and that the Section is not self
executinginthe sense that it does not create an independent private right of action.
Butas mentioned above, the Electorsdo not bring any claim directly underSection
Three. Their claim is brought under Colorado's Election Code, and resolution of
that claim requires an examination of President Trump's qualifications in light of

49
 The only mention of congressional power in Section Three is that Congress

may by a vote of two-thirds of each House, remove the disqualification of a

former officer who had engaged in insurrection. U.S. Const. amend . XIV , § 3 .
Section Three does not determine who decides whether the disqualification has
attached in the first place.
Intervenors, however , look to Section Five of the Fourteenth Amendment,

which provides that t he Congress shall have power to enforce, by appropriate

legislation,the provisions of this article," to argue that congressional authorization
is necessary for any enforcement of Section Three . Id. at § 5. This argument does
not withstand scrutiny.
The Supreme Court has said that the Fourteenth Amendment is
undoubtedly self-executing without any ancillary legislation,so far as its terms are

applicable to any existing state of circumstances ." The Civil Rights Cases , 109 U.S.
3,20 (1883). To be sure, inthe Civil Rights Cases , the Court was directly focused on

the Thirteenth Amendment ,so this statement could be described as dicta . But an

examination of the Thirteenth , Fourteenth, and Fifteenth Amendments

Section Three. The question of self-execution that we confront here is not

whether Section Three creates a cause of action or a remedy, but whether the
disqualification from office defined in Section Three can be evaluated by a state
court when presented with a proper vehicle (like section 1-1-113), without prior
congressional authorization.

50
( Reconstruction Amendments" ) and interpretation of them supports the

accuracy and broader significance of the statement .

Section Three is one of four substantive sections of the Fourteenth

Amendment :

SectionOne: NoState shallmake or enforce any lawwhichshallabridge

the privilegesor immunitiesof citizens of the UnitedStates; nor shall any
State depriveany personof life, liberty, or property, withoutdue process
oflaw

Section Two: Representatives shall be apportioned among the several

States according to their respective numbers , counting the whole number
of persons in each State .

Section Three: No person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or hold any office
under the United States who, having previously taken an oath ...
to support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same . .

Section Four: The validity of the public debt of the United States . . . shall
not be questioned .

U.S. Const. amend . XIV , §§ (emphases added) . Section Five is then an

enforcement provision that applies to each of these substantive provisions . Id. at

5. And yet,the Supreme Court has held that Section One is self-executing. E.g.,

City of Boerne v . Flores, 521 U.S. 507, 524 (1997) ( As enacted , the Fourteenth
Amendment confers substantive rights against the States which, like the
provisions of the Bill of Rights,are self-executing. ), superseded by statute, Religious

Land Use and Institutionalized Persons Act of 2000, 114 Stat. 803,on other grounds

51
as recognized in Ramirez v . Collier , 595 U.S. 411, 424 (2022). Thus , while Congress

may enact enforcement legislation pursuant to Section Five, congressional action

is not required to give effect to the constitutional provision . See Katzenbach v.
Morgan , 384 U.S. 641, 651 ( 1966 ) (holding that Section Five gives Congress

authority to "determin [e] whether and what legislation is needed to secure the
guarantees of the Fourteenth Amendment , but not disputing that the Fourteenth
Amendment is self-executing ) .

Section Two, moreover, was enacted to eliminate the constitutional

compromise by which an enslaved person was counted as only three-fifths of a

person for purposes of legislative apportionment . William Baude & Michael
Stokes Paulsen,The Sweep and Force of Section Three , 172 U. Pa. L. Rev. (forthcoming

2024) (manuscript at 51-52) , https://ssrn.com/abstract=4532751 . The self

executing nature of that section has never been called into question, and in the

reapportionment following passage of the Fourteenth Amendment , Congress

simply treated the change as having occurred . See The Apportionment Act of 1872,

17 Stat. 28 (42nd Congress ) (apportioning Representatives to the various states

based on Section Two's command without mentioning, or purporting to enforce ,
the Fourteenth Amendment). Similarly, Congress never passed enabling
legislation to effectuate Section Four.

52
 The same is true for the Thirteenth Amendment , which abolished slavery
and involuntary servitude . Section One provides the substantive provision:

Neither slavery nor involuntary servitude shall exist within the United
States U.S. Const . amend .XIII, 1 (emphasis added) . Section Two provides
the enforcement provision : Congress shall have power to enforce this article by
appropriate legislation. Id. at 2. Discussing this Amendment , the Supreme
Court recognized that legislation may be necessary and proper to meet all the
various cases and circumstances to be affected by it, but that [b y its own
unaided force it abolished slavery" and was "undoubtedly self-executing without
any ancillary legislation." The Civil Rights Cases , 109 U.S. at 20.
Like the other Reconstruction Amendments , the Fifteenth Amendment ,

which established universal male suffrage , contains a substantive provision

t he right of citizens of the United States to vote shall not be denied or

abridged on account of race, color , or previous condition of servitude
followed by an enforcement provision [t]he Congress shall have power to
enforce this article by appropriate legislation . U.S. Const . amend . XV , §§
(emphasis added ) . As with Section One of both the Thirteenth and Fourteenth

Amendments , the Supreme Court has explicitly confirmed that the Fifteenth
Amendment is self -executing . E.g., South Carolina v. Katzenbach , 383 U.S. 301, 325
(1966) (holding that Section One of the Fifteenth Amendment has always been

53
treated as self-executing and has repeatedly been construed, without further
legislative specification, to invalidate state voting qualifications or procedures
which are discriminatory on their face or in practice ).
There is no textual evidence that Congress intended Section Three to be any
Furthermore , we agree with the Electors that interpreting any of the

Reconstruction Amendments , given their identical structure ,as not self -executing
would lead to absurd results . If these Amendments required legislation to make
them operative ,then Congress could nullify them by simply not passing enacting
legislation . The result of such inaction would mean that slavery remains legal;

Black citizens would be counted as less than full citizens for reapportionment ;non
white male voters could be disenfranchised ; and any individual who engaged in
insurrection against the government would nonetheless be able to serve in the

12 It would also be anomalous to say this disqualification for office- holding

requires enablinglegislationwhen the other qualifications for office-holdingdo
not. See U.S.Const. art. I , § 2, cl. 2 ( NoPersonshall be a Representativewho shall
not have attainedto the Age of twenty five Years, and been sevenYears a Citizen
ofthe UnitedStates, and who shallnot, whenelected, be an Inhabitantof that State
in which he shall be chosen. ) ; id. at § 3, cl. 3 ( No Person shall be a Senatorwho
shall not have attained to the Age of thirty Years, andbeen nine Years a Citizenof
the UnitedStates, and who shall not, when elected, be an Inhabitant of that State
for whichheshall be chosen. ) ; id. at art. II, § 1, cl. 5 ( No Personexcept a natural
born Citizen, or a Citizenof the United States, at the time of the Adoption of this
Constitution, shall be eligible to the Office of President; neither shall any Person
be eligibleto that Officewho shall not have attainedto the Age of thirty five Years,
and beenfourteen Years a Residentwithinthe UnitedStates. ) .

54
government , regardless of whether two-thirds of Congress had lifted the
disqualification . Surely that was not the drafters intent .
Intervenors argue that certain historical evidence requires a different

conclusion as to Section Three . We generally turn to historical and other extrinsic

evidence only when the text is ambiguous , which it is not here . Nonetheless ,we

will consider these historical claims in the interest of providing a thorough review .
Intervenors first highlight a statement Representative Thaddeus Stevens
made during the Congressional framing debates : [Section Three] will not execute
itself, but as soon as it becomes a law , Congress at the next session will legislate to
carry it out both in reference to the presidential and all other elections as we have
the right to do. Cong. Globe , 39th Cong., 1st Sess . 2544 (1866); see also Kurt T.
Lash,The Meaning and Ambiguity of Section Three of the Fourteenth Amendment
42 (Oct. 3, 2023) (unpublished manuscript ), https://ssrn.com/abstract=4591838

But as one of the amici points out , this statement referenced a deleted portion of

Section Three that disenfranchised all former Confederates until 1870. In any

event, given the complex patchwork of perspectives and intentions expressed

when drafting these constitutional provisions ,we refuse to cherry -pick individual
statements from extensive debates to ground our analysis . See generally Baude &
Paulsen, supra (manuscript at 39-53).

55
 Intervenors next direct us to the non- binding opinion written by Chief
Justice Salmon Chase while he was riding circuit: In re Griffin, 11F. Cas. 7 (C.C.D.
Va. 1869) (No. 5,815) ( Griffin's Case . There, Caesar Griffin challenged his
criminal conviction as null and void because under Section Three, the judge who
had entered his conviction was disqualified from holding judicial office, having

formerly sworn a relevant oath as a state legislator and then engaged in

insurrection by continuing to serve as a legislator in Virginia's Confederate
government. Id. at 22-23. It was undisputed that the judge fell within Section
Three's scope,but the question Chief Justice Chase sought to answer was whether
Section Three operat [ed ] directly, without any intermediate proceeding
whatever, upon all persons within the category of prohibition, and as depriving
them at once, and absolutely , of all official authority and power. Id. at 23.
In interpreting the scope of the provision , Chief Justice Chase observed that
after the end of the Civil War but before the Fourteenth Amendment was ratified,

many southern states had established , with the approval of the federal

government , provisional governments to keep society functioning . Id. at 25; see

13 Between1789 and 1911, U.S. Supreme Courtjustices traveled across the country
and, together with district court judges, sat on circuit courts to decide cases. See
generally Joshua Glick, On the Road: The Supreme Court and the History of Circuit
Riding, 24 Cardozo L. Rev. 1753 (2003) . Decisionswrittenby thejustices whilethey
were riding circuit were not decisions of the Supreme Court.

56
also Baude & Paulsen , supra (manuscript at 36 ) . And , within these provisional

governments ,many offices were filled with citizens who would fall within Section
Three's scope . Griffin's Case , 11 F. Cas . at 25. Chief Justice Chase observed that
giving Section Three a literal construction ,as Griffin advocated , would annul all

official acts performed by these officers . No sentence ,no judgment ,no decree,
no official act [would be] of the least validity . Id. He reasoned that it would be
impossible to measure the evils which such a construction would add to the

calamities which have already fallen upon the people of these states . Id.
And so, Chief Justice Chase turned to what he termed the argument from
inconveniences and the interpretive canon that, when faced with two or more
reasonable interpretations , the interpretation is to be preferred which best
harmonizes the amendment with the general terms and spirit of the act amended .
. He then explained that, while it was not "improbable that one of the objects of
this section was to provide for the security of the nation and of individuals , by the
exclusion of a class of citizens from office , it could also hardly be doubted that

the main purpose was to inflict upon the leading and most influential characters
who had been engaged in the Rebellion, exclusion from office as a punishment for
the offense ." at 25-26 . To find the provision self-executing under the
circumstances , he argued , would be contrary to due process because it would , at

57
oncewithouttrial, deprive[ ] a whole class of personsof offices held by them. Id.

at26.

102 Chief Justice Chase therefore concluded that the object of the Amendment
to exclude from certain offices a certain class of persons was impossible to do
by a simple declaration , whether in the constitution or in an act of congress .
For,in the very nature of things,it must be ascertained what particular individuals
are embraced by the definition , before any sentence of exclusion can be made to
operate. . To accomplish this ascertainment and ensure effective results,
proceedings , evidence , decisions, and enforcements of decisions are
indispensable ; and can only be provided for by congress ." . Thus , Chief
Justice Chase concluded that Section Three was not self - executing . Id.
103 Griffin's Case concludes that congressional action is needed before Section
Three disqualification attaches , but this one case does not persuade us of that
point . Intervenors and amici assert that Griffin's Case remains good law and has
been repeatedly relied on. Because the case is not binding on us, the fact that it
has not been reversed is of no particular significance . And the cases that cite it do
so either with no analysis e.g., State v. Buckley , 54 Ala . 599 (1875) , and Rothermel v.
Meyerle, 136 Pa. 250 (1890) or for the inapposite proposition that Section Three
does not create a self -executing cause of action - e.g., Cale v. City of Covington ,
586 F.2d 311, 316 (4th Cir . 1978), and Hansen v. Finchem, CV 2022-004321 (Sup. Ct.

58
of Ariz , Maricopa Cnty . Apr. 22 , 2022 ), on other grounds, 2022 WL 1468157
(May 9,2022). Moreover, Griffin's Case has been the subject of persuasive criticism .
See, e.g., Magliocca , Amnesty and Section Three, supra, at (critiquing the case

because the other provisions of the Fourteenth Amendment were understood as

self-executing and the notion that Section Three was not self-executing was
inconsistent with congressional behavior at the time ) ; Baude & Paulsen, supra
(manuscript at 37-49) (criticizing Chief Justice Chase's interpretation as wrong and

constituting a strained interpretation based on policy and circumstances rather

than established canons of construction ).

104 Although we do not find Griffin's Case compelling, we agree with Chief
Justice Chase that it must be ascertained what particular individuals are
embraced by the definition. 11 F. Cas. at 26. While the disqualification of Section
Three attaches automatically , the determination that such an attachment has
occurred must be made before the disqualification holds meaning. And Congress
has the power under Section Five to establish a process for making that
determination. But the fact that Congress may establish such a process does not
mean that disqualification pursuant to Section Three can be determined only

through a process established by Congress . Here, the Colorado legislature has

established a process- a court proceeding pursuant to section 1-1-113 to make
the determination whether a candidate is qualified to be placed on the presidential

59
primary ballot. And, for the reasons we have already explained , that process is
sufficient to permit a judicial determination of whether Section Three
disqualification has attached to a particular individual.

105 We are similarly unpersuaded by Intervenors assertions that Congress

created the only currently available mechanism for determining whether a person
is disqualified pursuant to Section Three with the 1994 passage of 18 U.S.C. § 2383 .
That statute makes it a crime to assist [] or engage [] in any rebellion or insurrection

against the authority of the United States . True, with that enactment, Congress
criminalized the same conduct that is disqualifying under Section Three . All that
means, however , is that a person charged and convicted under 18 U.S.C. § 2383
would also be disqualified under Section Three . It cannot be read to mean that only
those charged and convicted of violating that law are constitutionally disqualified
from holding future office without assuming a great deal of meaning not present
in the text of the law .

¶106 In summary , based on Section Three's plain language; Supreme Court

decisions declaring its neighboring, parallel Reconstruction Amendments self
executing;and the absurd results that would flow from Intervenors reading,we

conclude that Section Three is self -executing in the sense that its disqualification
provision attaches without congressional action. Intervenors contrary arguments

do not persuade us otherwise.

60
 That said, our conclusion that implementing legislation from Congress is
unnecessary for us to proceed under section 1-1-113 does not resolve the question
of whether doing so would violate the separation of powers among the three
branches of government . We turn to this justiciability question next .

D. Section Three Is Justiciable

¶108 President Trump next asserts that presidential disqualification under
Section Three presents a nonjusticiable political question . Again,we disagree .
In general , the Judiciary has a responsibility to decide cases properly before
it, even those it would gladly avoid Zivotofsky , 566 U.S. at 194 (quoting

Cohens v. Virginia , 19 U.S. 264 , 404 (1821)) . The political question doctrine is a

narrow exception to this rule,and a court may not avoid its responsibility to decide
a case merely because it may have political implications ." Id. at 195-96 (quoting
Immigr . & Naturalization Serv . v. Chadha , 462 U.S. 919 , 943 (1983)).

A controversy involves a nonjusticiable political question when,as relevant

here , 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. Id. at 195 (quoting Nixon v. United States,

506 U.S. 224 , 228 (1993)); see also Baker v . Carr , 369 U.S. 186, 210, 217 ( 1962) (noting
that [t he nonjusticiability of a political question is primarily a function of the
separation of powers " and identifying the above -described instances , and four

61
others notrelevant here, as examples of politicalquestions) . The requisite textual

commitment must be [p]rominent on the surface of any case. Baker, 369 U.S. at

217.

Here,President Trump argues that this case is nonjusticiable because , in his

view , the Constitution and federal law commit the question of the qualifications

of a presidential candidate to Congress . The Electors point out that President

Trump did not argue before us that the questions presented in this appeal are also
nonjusticiable based on a lack of judicially discoverable and manageable

standards , and therefore , he arguably waived any such argument . We

nevertheless address that issue , again in the interest of providing a thorough

review.

1. No Textually Demonstrable Constitutional Commitment

to Congress of Section Three Disqualification

Contrary to President Trump's assertions, we perceive no constitutional

provision that reflects a textually demonstrable commitment to Congress of the
authority to assess presidential candidate qualifications . Conversely, the

Constitution commits certain authority concerning presidential elections to the

states and in no way precludes the states from exercising authority to assess the
qualifications of presidential candidates .

As discussed in Part B.4 above, Article II, Section 1, Clause 2 of the

Constitution empowers state legislatures to direct how presidential electors are

62
appointed , and the Supreme Court has recognized that this provision affords the
states far-reaching authority over presidential electors , absent some other
constitutional constraint . Chiafalo , 140 S. Ct . at 2324. In furtherance of this
delegation of authority , the States have evolved comprehensive , and in many
respects complex , election codes regulating in most substantial ways ,with respect

to both federal and state elections , the selection and qualification of candidates ,
among other things . Storer , 415 U.S. at 730. The Election Code is an example of
such a comprehensive code to regulate state and federal elections . And the fact
that Article II, Section 1, Clause 4 authorizes Congress to determine the time for
choosing the electors and the date on which they vote does not undermine the
substantial authority provided to the states to regulate state and federal elections .
¶114 Inour view ,Section Three's text is fully consistent with our conclusion that
the Constitution has not committed the matter of presidential candidate
qualifications to Congress . As we have noted , although Section Three requires a
vote of two-thirds of each House to remove the disqualification set forth in
Section Three, it says nothing about who or which branch should determine
disqualification in the first place . See U.S. Const . amend . XIV , § 3. Moreover , if

Congress were authorized to decide by a simple majority that a candidate is

qualified under Section Three,as President Trump asserts , then this would nullify

Section Three's supermajority requirement .

63
 President Trump's reliance on Article II, Section 1, Clause 5 of the
Constitution and on the Twelfth , Fourteenth , and Twentieth Amendments is

misplaced . We address each of these provisions , in turn.

Article II, Section 1, Clause 5 provides that no person shall be eligible to

serve as President unless that person is a natural born Citizen who is at least

thirty -five years of age and who has resided in the United States for at least
fourteen years . This provision, however , says nothing about who or which branch
should determine whether a candidate satisfies the qualification criteria either in
the first instance or when a candidate's qualifications are challenged . See id.
The Twelfth Amendment charges the Electoral College with the task of
selecting a candidate for President and then transmitting the electors votes to the
"seat of the government of the United States , and it provides the procedure by

which the electoral votes are to be counted . U.S. Const . amend . XII. Nothing in
the Twelfth Amendment , however , vests the Electoral College with the power to
determine the eligibility of a presidential candidate . See Elliott v. Cruz , 137 A.3d
646,650-51 (Pa. Commw . Ct . 2016 ), , 134 A.3d 51 (Pa . 2016 ) (mem.) . Nor does
the Twelfth Amendment give Congress control over the process by which the
President and Vice President are normally chosen, other than the very limited one
of determining the day on which the electors were their votes . Id. at 651
(citing U.S. Const . amend . XII). And although the Twelfth Amendment provides

64
for the scenario in which no President is selected by March 4 and specifies that no
person constitutionally ineligible to serve as President shall be eligible to serve as
Vice President, the Amendment does not assign to Congress (nor to any other
branch) the task of determining whether a candidate is qualified in the first place.
Section Five of the Fourteenth Amendment authorizes Congress to pass
legislation to enforce the provisions of the Fourteenth Amendment , but as
discussed above,the Fourteenth Amendment is self-executing, and congressional
action under Section Five is not required to animate Section Three's
disqualification of insurrectionist oath-breakers . Nor does Section Five delegate
to Congress the authority to determine the qualifications of presidential
candidates to hold office . U.S. Const . amend . XIV ,§ 5.

Finally ,the Twentieth Amendment , in relevant part, empowers Congress to

enact procedures to address the scenario in which neither the President nor the
Vice President qualifies for office before the time fixed for the beginning of their
terms . U.S. Const . amend . XX , § 3. By its express language , however , this
Amendment applies post-election . Id. (referring to the President elect and Vice
President elect ). Moreover , the Amendment says nothing about who determines

in the first instance whether the President and Vice President are qualified to hold
office .

65
 For these reasons, we perceiveno textually demonstrable constitutional
commitment to Congress of the authority to assess presidential candidate
qualifications , and neither President nor his amici identify any
Trump

constitutional provision making such a commitment . In reaching this conclusion ,

we are unpersuaded by the cases on which President Trump and his amici rely,
which are predicated on inferences they assert can be drawn from one or more of
the foregoing constitutional provisions or on the fact that the cases had political
implications . See , e.g., Taitz v. Democrat Party of Miss.,No. 3:12-CV -280 -HTW - LRA,

2015 WL 11017373 , at *12-16 (S.D. Miss . Mar. 31, 2015 ); Grinols v. Electoral Coll.,
No. 2:12-cv-02997-MCE-DAD, 2013 WL 2294885 , at * (E.D. Cal. May 23 ,2013),

aff'd, 622 F. App'x 624 (9th Cir . 2015); Kerchner v. Obama, 669 F. Supp . 2d 477 , 483
n.5 (D.N.J. 2009), , 612 F.3d 204 (3d Cir . 2010); Robinson v. Bowen,
567 F. Supp .2d 1144, 1146-47 (N.D. Cal . 2008) ; Keyes v. Bowen , 117 Cal. Rptr.3d
207, 216 (Cal. Ct .App . 2010 ); Strunk v. N.Y. State Bd . of Elections , No. 6500/11,2012
WL 1205117,at *11-12 (N.Y. Sup . Ct . Apr. 11, 2012 ) , aff'd in part , dismissed in part,
5 N.Y.S.3d 483 (N.Y. App . Div . 2015). As noted above , such inferences are
insufficient to establish the requisite clear textual commitment to a coordinate
branch of government ,see Baker , 369 U.S. at 217 , and we may not avoid our duty
to decide a case merely because it may have political implications , Zivotofsky ,

566 U.S. at 195-96.

66
 Moreover ,we may not conflate actions that are textually committed " to a
coordinate political branch with actions that are textually authorized . Stillman v.
Dep't of Defense , 209 F. Supp . 2d 185, 202 (D.D.C. 2002 ), on other grounds sub
nom., Stillman v. C.I.A. , 319 F.3d 546 (D.C. Cir . 2003) . The Supreme Court has
prohibited courts from adjudicating only the former . Zivotofsky , 566 U.S. at 195

Absent an affirmative constitutional commitment , we cannot abdicate our

responsibility to decide a case that is properly before us. Id. at 194 .
2. Section Three Involves Judicially Discoverable and
Manageable Standards

The question of whether there are judicially discoverable and manageable

standards for determining a case is not wholly separate from the question of

whether the matter has been textually committed to a coordinate political

department . Nixon, 506 U.S. at 228. T he lack of judicially manageable standards

may strengthen the conclusion that there is a textually demonstrable commitment
to a coordinate branch. Id. at 228–29 .

As we have said, President Trump has not argued before us that Section
Three lacks judicially discoverable and manageable standards , and we believe for
good reason. Section Three disqualifies from certain delineated offices persons
who have taken an oath to support the Constitution of the United States as
an officer of the United States and who have thereafter engaged in insurrection

or rebellion. U.S. Const . amend XIV , § 3. Although , as we discuss below, the

67
meanings of some of these terms may not necessarily be precise,we can discern
their meanings using familiar principles of constitutional interpretation such as
careful examination of the textual, structural, and historical evidence put forward
by the parties . Zivotofsky, 566 U.S. at 201.
¶124 Indeed, in this and other contexts , courts have readily interpreted the terms
that weare being asked to construe and havereached the substantive merits of the
cases before them . See, e.g. , United States v. Powell, 27 F. Cas . 605, 607 (C.C.D.N.C.

1871) (No. 16,079) (defining engage as that term is used in Section Three); United
States v. Rhine, No. 210687 (RC), 2023 WL 2072450, at *8 (D.D.C. Feb. 17, 2023)
(defining insurrection in the context of ruling on a motion in limine in a criminal
prosecution arising out of the events of January 6); Holiday Inns Inc. v. Aetna Ins.

Co., 571 F. Supp . 1460, 1487 (S.D.N.Y. 1983) (defining insurrection in the context
of an insurance policy exclusion); Gitlow v. Kiely, 44 F.2d 227, 233 (S.D.N.Y. 1930)
(defining insurrection as that term is used in a section of the U.S. Code), ,
49 F.2d 1077 (2d Cir . 1931); Hearon v. Calus, 183 S.E. 13, 20 (S.C. 1935) (defining
"insurrection as that term is used in a provision of the South Carolina
constitution).
Accordingly , we conclude that interpreting Section Three does not turn on
standards that defy judicial application. Zivotofsky ,566 U.S. at 201 (quoting Baker,
369 U.S. at 211). In so concluding, we respectfully disagree with the Michigan

68
Court of Claims finding that the interpretation of the terms now before us
constitutes a nonjusticiable political question merely because there are many

answers and gradations of answers. Trump v. Benson, No. 23000151-MZ, slip op .

at 24 (Mich . Ct. Cl. Nov. 14, 2023 ) , aff'd sub nom. Davis v. Wayne Cnty . Election
Comm'n ,No. 368615 ,2023 WL 8656163 (Mich. Ct. App . Dec. 14, 2023 ) . Inour view ,

declining to decide an issue simply because it requires us to address difficult and

weighty questions of constitutional interpretation would create a slippery slope
that could lead to a prohibited dereliction of our constitutional duty to adjudicate
cases that are properly before us.
For these reasons,we conclude that the issues presented here do not,either
alone or together , constitute a nonjusticiable political question . We thus proceed
to the question of whether Section Three applies to the President.
E. SectionThree Applies to the President

The parties debate the scope of Section Three. The Electors claim that this
potential source of disqualification encompasses the President. President Trump
argues that it does not, and the district court agreed . On this issue, we reverse the
districtcourt.

Section Three prohibits a personfrom holding any office,civil or military,

under the United States if that person, as an officer of the United States, took
an oath to support the Constitution of the United States and subsequently

69
engaged in insurrection . U.S. Const . amend . XIV, 3. Accordingly , Section Three
applies to President Trump only if ( 1) the Presidency is an office ,civil or military ,
under the United States ; (2) the President is an officer of the United States ; and
(3) the presidential oath set forth in Article II constitutes an oath to support the
Constitution of the United States . Id. We address each point in turn .
1. The Presidency Is an Office Under the United States
The district court concluded that the Presidency is not an office, civil or
military, under the United States for two reasons. Anderson , ¶¶ 303–04 ; see U.S.
Const amend XIV, 3. First,the court noted that the Presidency is not specifically
mentioned in Section Three , though senators , representatives , and presidential
electors are. The court found it unlikely that the Presidency would be included in
a catch-all of any office, civil or military. Anderson, 304; see U.S. Const. amend.
XIV, 3. Second, the court found it compelling that an earlier draft of the Section
specifically included the Presidency, suggesting that the drafters intended to omit
the Presidency in the version that passed . See Anderson , 303. We disagree with
the district court's conclusion,as our reading of both the constitutional text and
the historical record counsel that the Presidency is an office ... under the United
States within the meaning of Section Three .

When interpreting the Constitution , we prefer a phrase's normal and

ordinary usage over secret or technical meanings that would not have been

70
known to ordinary citizens in the founding generation." District of Columbia v.
Heller, 554 U.S. 570, 577 (2008) . Dictionaries from the time of the Fourteenth
Amendment's ratification define office as a particular duty , charge or trust
conferred by public authority, and for a public purpose, that is undertaken by
authority from government or those who administer it. Noah Webster , An
American Dictionary of the English Language 689 (Chauncey A. Goodrich ed.,
1853) see also 5 Johnson's English Dictionary 646 (J.E. Worcester ed., 1859)
(defining "office " as a publick charge or employment; magistracy ); United
States v. Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va . 1823) (No. 15,747) ( An office is
defined to be a public charge or employment , ) The Presidency falls
comfortably within these definitions .

¶131 We do not place the same weight the district court did on the fact that the
Presidency is not specifically mentioned in Section Three . It seems most likely that
the Presidency is not specifically included because it is so evidently an office ." In
fact,no specific office is listed in Section Three ; instead, the Section refers to any
office, civil or military . U.S. Const amend . XIV , § 3. True , senators,

representatives , and presidential electors are listed, but none of these positions is
considered an office " in the Constitution . Instead, senators and representatives
are referred to as members of their respective bodies . See U.S. Const art . I, § 5,
.

cl. 1( Each House shall be the Judge of the Elections, Returns and Qualifications

71
of its own Members .... ); id. at § 6 , cl . 2 ( [N]o Person holding any Office under
the United States , shall be a Member of either House during his Continuance in
Office . ); id. at art. II, § 1, cl. 2 ( [N]o Senator or Representative ,or Person holding
an Office of Trust or Profit under the United States , shall be appointed an
Elector . ).

Indeed, even Intervenors do not deny that the Presidency is an office.

Instead,they assert that it is not an office under the United States. Their claim
is that the President and elected members of Congress are the government of the
United States, and cannot , therefore, be serving under the United States. Id. at
amend . XIV , § 3. We cannot accept this interpretation. A conclusion that the
Presidency is something other than an office under the United States is
fundamentally at odds with the idea that all government officials, including the
President,serve "we the people." Id. at pmbl. A more plausible reading of the
phrase under the United States is that the drafters meant simply to distinguish
those holding federal office from those held under any State. Id. at amend .XIV ,
§3 .
This reading of the language of Section Three is,moreover, most consistent
with the Constitution as a whole . The Constitution refers to the Presidency as an
Office" twenty-five times . E.g.,id. at art. I, § 3,cl. 5 The Senate shall chuse [sic]
their other Officers, and also a President pro tempore,in the Absence of the Vice

72
President , or when he shall exercise the Office of President of the United States .

(emphasis added )) ; id. at art. II, § 1, cl. 5 (providing that [n]o Person except a
natural born Citizen shall be eligible to the Office of President and [t ]he
executive Power shall be vested in a President of the United States of America

who] shallhold his Office during the Term offour Years" (emphases added)) . And
it refers to an office under the United States in several contexts that clearly

support the conclusion that the Presidency is such an office.

Consider,for example, the Impeachment Clause,which reads that Congress

can impose, as a consequence of impeachment, a disqualification to hold and
enjoy any Office of honor, Trust or Profit under the United States . Id. at art. I, § 3,

. 7. Ifthe Presidency is not an office . under the United States, then anyone

impeached -including a President could nonetheless go on to serve as President.

See id. This reading is nonsensical, as recent impeachments demonstrate. The
Articles of Impeachment brought against both President Clinton and President
Trump asked for each man's removal from office[] and disqualification to hold
and enjoy any office of honor, trust,or profit under the United States ." Articles of
Impeachment Against William Jefferson Clinton , H. Res . 611, 105th Cong (Dec.
19, 1998); see also Articles of Impeachment Against Donald J. Trump, H. Res . 755,
116th Cong. (Dec. 8, 2019) ; Articles of Impeachment Against Donald J. Trump, H.
Res 24, 117th Cong. (Jan 13, 2021). Surely the impeaching members of Congress

73
correctly understood that either man, if convicted and subsequently disqualified

from future federal office by the Senate, would be unable to hold the Presidency

in the future .

Similarly , the Incompatibility Clause states that no Person holding any

Office under the United States , shall be a Member of either House during his
Continuance in Office ." U.S. Const . art . I, § 6, cl. 2. To read office under the
United States to exclude the Presidency would mean that a sitting President could

also constitutionally occupy a seat in Congress , a result foreclosed by basic

principles of the separation of powers . See Buckley v . Valeo , 424 U.S. 1, 124 (1976)

The principle of separation of powers ...was woven into the [Constitution ]

The further concern of the Framers of the Constitution with maintenance of the

separation of powers is found in the so-called Ineligibility and Incompatibility

Clauses contained in Art . I, s 6 . . . ), superseded by statute on other grounds,

Bipartisan Campaign Reform Act of 2002 , 116 Stat . 81,as recognized in McConnell v.

Fed. Election Comm'n , 540 U.S. 93 (2003) , overruled on other grounds by Citizens
United v. Fed. Election Comm'n , 558 U.S. 310 (2010) .
Finally, the Emoluments Clause provides that no Person holding any
Office ofProfit or Trust under [the United States] shall, without the Consent of the
Congress,accept of any present,Emolument,Office,or Title, of any kindwhatever,

from any King, Prince,or foreign State." U.S. Const. art. I, § 9, cl.8. To read the

74
Presidency as something other than an office under the United States would
exempt the nation's chief diplomat from these protections against foreign

influence . But Presidents have long sought dispensation from Congress to retain
gifts from foreign leaders, understanding that the Emoluments Clause required
them to do

The district court found it compelling that an earlier draft of the proposed
Section listed the Presidency , but the version ultimately passed did not. Anderson ,
303. As a starting point, however ,we are mindful that it is always perilous to
derive the meaning of an adopted provision from another provision deleted in the
drafting process . Heller ,554 U.S. at 590. And the specifics of the change from the

14 See, e.g., H. Rep. No. 23-302, at (Mar. 4 , 1834) ( discussingthe receipt of gifts
from the Emperor of Morocco and notingthat the President's surrender of the
articles to the Government satisfied the constitutional provision in relation to
their acceptance" ) ; 14 Abridgementof the Debates of Congress from 1789 to 1856,
140-41(Thomas HartBentoned., 6 1860) (displaying(1) a letterfrom the Secretary
of State to the Imaum of Muscat indicating that the President directed the
Secretary to refuse the Imaum's gifts under existing constitutional provisions
and (2) a letter from the President requesting that Congress allow him to accept
the gifts) ; An Actto authorizethe sale oftwo Arabian horses, received as a present
by the Consulofthe UnitedStates at Zanzibar, from the Imaumof Muscat, Mar. 1,
1845, 5 Stat. 730 (providingthat the Presidentis authorized to sell some of the
Imaum's gifts and place the proceeds in the U.S. Treasury) ; Joint Resolution
No.20, A Resolution providingfor the Custody of the Letter and Gifts from the
Kingof Siam, Mar. 15, 1862, 12 Stat. 616 (directing the Kingof Siam's gifts and
letters to be placed in the collection of curiosities at the Department of the
Interior" )

75
earlier draft to what was ultimately passed do not demonstrate an intent to

exclude the Presidency from the covered offices.

The draft proposal provided that insurrectionist oath-breakers could not

hold the office of President or Vice President of the United States, Senator or

Representative in the national Congress ,or any office now held under appointment
from the President of the United States , and requiring the confirmation of the Senate ."
Cong. Globe ., 39th Cong., 1st Sess . 919 ( 1866 ) (emphasis added ) . Later versions of

the Section including the enacted draft removed specific reference to the
President and Vice President and expanded the category of office -holder to
include any office , civil or military rather than only those offices requiring

presidential appointment and Senate confirmation . See U.S. Const . amend . XIV ,

It is hard to glean from the limited available evidence what the changes

across proposals meant. But we find persuasive amici's suggestion that

Representative McKee , who drafted these proposals , most likely took for granted

that his second proposal included the President . While nothing in Representative
McKee's speeches mentions why his express reference to the Presidency was
removed , his public pronouncements leave no doubt that his subsequent draft
proposal still sought to ensure that rebels had absolutely no access to political
power . Representative McKee explained that , under the proposed amendment ,

76
 the loyal alone shall rule the country and that traitors would be cut[] off
from all political power in the nation. Cong. Globe, 39th Cong., 1st Sess. 2505
(1866); see also Mark Graber, Section Three of the Fourteenth Amendment : Our
Questions, TheirAnswers , 22-23 (Univ . of Md. Legal Stud . Rsch. Paper No. 2023-16),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4591133 ( Our Questions,

Their Answers ); Mark A. Graber , Punish Treason, Reward Loyalty: The Forgotten

Goals of Constitutional Reform After the Civil War 106, 114 (2023) (indicating that
Representative McKee desired to exclude all oath-breaking insurrectionists from
all federal offices, including the Presidency) . When considered in light of these
pronouncements, the shift from specifically naming the President and Vice
President in addition to officers appointed and confirmed to the broadly inclusive
any officer, civil or military cannot be read to mean that the two highest offices
in the government are excluded from the mandate of Section Three.

The importance of the inclusive language- any officer , civil or military

was the subject of a colloquy in the debates around adopting the Fourteenth
Amendment . Senator Reverdy Johnson worried that the final version of Section

Three did not include the office of the Presidency . He stated , [T ]his amendment
does not go far enough because past rebels may be elected President or Vice
President of the United States . Cong. Globe , 39th Cong ., 1st Sess . 2899 (1866) . So,

he asked , why did you omit to exclude them? I do not understand them to be

77
excluded from the privilege of holding the two highest offices in the gift of the
nation. Id. Senator Lot Morrill fielded this objection . He replied , Let me call the
Senator's attention to the words or hold any office , civil or military , under the
United States . Id. This answer satisfied Senator Johnson, who stated , Perhaps

I am wrong as to the exclusion from the Presidency; no doubt I am; but I was
misled by noticing the specific exclusion in the case of Senators and
Representatives . Id. This colloquy further supports the view that the drafters of
this Amendment intended the phrase any office to be broadly inclusive , and
certainly to include the Presidency .

Moreover , Reconstruction-Era citizens supporters and opponents of

Section Three alike understood that Section Three disqualified oath-breaking
insurrectionists from holding the office of the President. See Montpelier Daily

Journal, Oct. 19, 1868 (writing that Section Three excludes leading rebels from
holding offices from the Presidency downward"). Many supporters of Section
Three defended the Amendment on the ground that it would exclude Jefferson
Davis from the Presidency . See John Vlahoplus , Insurrection, Disqualification, and
the Presidency ,13 Brit. J. Am. Legal Stud . (forthcoming 2023) (manuscript at 7–10),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4440157 ; see also, e.g.,
Rebels andFederal Officers , Gallipolis J., Feb. 21, 1867,at 2 (arguing that foregoing

78
Section Three would "render Jefferson Davis eligible to the Presidency of the
United States, and " [t here is something revolting inthe very thought ).

Post-ratification history includes more of the same. For example, Congress

floated the idea of blanket amnesty to shield rebels from Section Three . See
Vlahoplus ,supra, (manuscript at 7-9) . In response , both supporters and dissenters
acknowledged that doing so would allow the likes of Jefferson Davis access to the
Presidency . See id.; see also, e.g., The Pulaski Citizen, The New Reconstruction Bill,

Apr. 13,1871,at 4 (acknowledging as a supporter of amnesty that it would make

even Jeff. Davis eligible again to the Presidency"); The Chicago Tribune , May 24,
1872 (asserting that amnesty would make rebels eligible to the Presidency of the
United States ); Indiana Progress , Aug. 24 , 1871 (similar ).
We conclude, therefore, that the plain language of Section Three, which
provides that no disqualified person shall hold any office , civil or military, under
the United States , includes the office of the Presidency. This textual

interpretation is bolstered by constitutional context and by history surrounding

the enactmentof the FourteenthAmendment

.

2. The PresidentIs an Officerof the UnitedStates

144 We next considerwhether a Presidentis an officer of the UnitedStates.

U.S. Const., amend . XIV , § 3. The district court found that the drafters of Section

Three did not intend to include the President within the catch-all phrase officer

79
of the United States, and, accordingly , that a current or former President can
engage in insurrection and then run for and hold any office. Anderson, 312;see
U.S. Const., amend. XIV, § 3. We disagree for four reasons.
First, the normal and ordinary usage of the term officer of the United
States includes the President. As we have explained, the plain meaning of
office under the United States includes the Presidency; it follows then that
the President is an officer of the United States . See Motions Sys . Corp. v. Bush,
437 F.3d 1356, 1372 (Fed. Cir . 2006) (Gajarsa, J., concurring in part) ( An
interpretation of the Constitution in which the holder of an office is not an
officer' seems, at best, strained. ) . Indeed, Americans have referred to the
President as an officer from the days of the founding. See, e.g., The Federalist
No. 69 (Alexander Hamilton) ( The President of the United States would be an
officer elected by the people ). And many nineteenth-century presidents
were described as, or called themselves , chief executive officer of the United

States See Vlahoplus,supra (manuscript at 17-18) (listing presidents).

146 Second , Section Three's drafters and their contemporaries understood the
President as an officer of the United States . See Graber , Our Questions , Their

Answers , supra, at 18-19 (listing instances ); see also Cong . Globe , 39th Cong 1st
Sess .915 (1866) (referring to the chief executive officer of the country "); The Floyd
Acceptances , 74 U.S. 666 , 676-77 (1868) ( We have no officers in this government ,

80
from the President down to the most subordinate agent , who does not hold office
under the law , with prescribed duties and limited authority . (emphases added )).
President Trump concedes as much on appeal , stating that [t ]o be sure,the
President is an officer . He argues , however , that the President is an officer of the
Constitution , not an officer of the United States , which , he posits , is a
constitutional term of art . Further , at least one amicus contends that the above

referenced historical uses referred to the President as an officer only in a

colloquial sense, and thus have no bearing on the term's use in Section Three .
We disagree.

The informality of these uses is exactly the point : If members of the Thirty
Ninth Congress and their contemporaries all used the term officer according to

its ordinary meaning to refer to the President, we presume this is the same
meaning the drafters intended it to have in Section Three . We perceive no
persuasive contemporary evidence demonstrating some other ,technical term -of
art meaning . And in the absence of a clear intent to employ a technical definition
for a common word , we will not do so . See Heller , 554 U.S. at 576 (explaining that
the normal and ordinary as distinguished from technical meaning should be
favored (quoting United States v . Sprague ,282 U.S. 716, 731 (1931))) .
We also find Attorney General Stanbery's opinions on the meaning of

Section Three significant . In one opinion on the subject , Stanbery explained that

81
the term officer of the United States , within [Section Three] is used in its most
general sense, and without any qualification , as legislative, or executive , or
judicial . The Reconstruction Acts , 12 Op. Att'y . Gen. 141, 158 (1867) ( Stanbery
). And in a second opinion on the topic , he observed that the term Officers of
the United States " includes without limitation " any person who has at any time
prior to the rebellion held any office, civil or military , under the United States, and

has taken an official oath to support the Constitution of the United States . The
Reconstruction Acts , 12 Op. Att'y . Gen. 182, 203 (1867) ( Stanbery II).
Third, the structure of Section Three persuades us that the President is an

officer of the United States . The first half of Section Three describes the offices

protected and the second half addresses the parties barred from holding those

protected offices . There is a parallel structure between the two halves:“Senator or

Representative in Congress " (protected office ) corresponds to member of
Congress (barred party ); any office under the United States (protected

office) corresponds to officer of the United States (barred party); and any

office under any State" (protected office ) also has a corresponding barred party
in member of any State legislature , or as an executive or judicial officer of any
State. U.S. Const. amend . XIV , 3. The only term in the first half of Section Three

that has no corresponding officer or party in the second half is elector of President
and Vice President," which makes sense because electors do not take

82
constitutionally mandated oaths so they have no corresponding barred party . Id.;
see also id. at art . II, § 1 (discussing a presidential elector's duties without reference
to an oath) ; id. at art . VI (excluding presidential electors from the list of positions
constitutionally obligated to take an oath to support the Constitution ) . Save

electors ,there is a perfect parallel structure in Section Three . See Baude & Paulsen,

supra (manuscript at 106).

Fourth,the clear purpose of Section Three to ensure that disloyal officers
could never again play a role in governing the country leaves no room to
conclude that officer of the United States " was used as a term of art . Id. The

drafters of Section Three were motivated by a sense of betrayal; that is, by the
existence of a broken oath, not by the type of officer who broke it: [A] of us
understand the meaning of the third section, Senator John Sherman stated, [it
includes] those men who have once taken an oath of office to support the

Constitution ofthe United States and have violated that oath in spirit by taking up
arms against the Government of the United States are to be deprived for a time at
least of holding office Cong. Globe, 39th Cong., 1st Sess. 2899 (1866); see also

id. at 2898 (Senator Thomas Hendricks of Indiana, who opposed the Fourteenth
Amendment , agreeing that the theory of Section Three was that persons who
have violated the oath to support the Constitution of the United States ought not
to be allowed to hold any office. ) ; id. at 3035-36 (Senator John B. Henderson

83
explaining that [t] he language of this section is so framed as to disfranchise from
office .. the leaders of any rebellion hereafter to come. ); Powell, 27 F. Cas. at 607
(summarizing the purpose of Section Three : [T hose who had been once trusted
to support the power of the United States , and proved false to the trust reposed,
ought not,as a class, to be entrusted with power again until congress saw fit to
relieve them from disability . ). A construction of Section Three that would
nevertheless allow a former President who broke his oath, not only to participate

in the government again but to run for and hold the highest office in the land, is
flatly unfaithful to the Section's purpose.

152 Wethereforeconcludethat officerof the UnitedStates, as usedin Section

Three, includes the President.

3. The Presidential Oath Is an Oath to Support the

Constitution

Finally,we consider whether the oath taken by the President to “ preserve,

protect and defend the Constitution, U.S. Const . art. II, § 1, cl. 8, is an oath to
support the Constitution of the United States, id. at amend . XIV , § 3. The district

court found that,because the presidential oath's language is more particular than
the oath referenced in Section Three , the drafters did not intend to include former

Presidents . Anderson , 313. disagree .

Article VI of the Constitution provides that all executive and judicial

Officers of the United States . . . shall be bound by Oath or Affirmation, to

84
support this Constitution . 15 U.S. Const . art . VI, cl. 3. Article II specifies that the
President shall swear an oath to preserve , protect and defend the Constitution .
Id. at art .II, § 1, cl . 8. Intervenors contend that because the Article II oath does not

include a pledge to support the Constitution ,an insurrectionist President cannot

be disqualified from holding future office under Section Three on the basis of that
oath

This argument fails because the President is an executive Officer [ of

the United States under Article VI, albeit one for whom a more specific oath is
prescribed. . at art . VI, cl. 3 ( The Senators and Representatives before
mentioned, and the Members of the several State Legislatures, and all executive

and judicial Officers, both of the United States and of the several States, shall be
bound by Oath or Affirmation,to support this Constitution ). This conclusion

follows logically from the accepted fact that the Vice President is also an executive
officer . True,the Vice President takes the more general oath prescribed by federal
law, see 5 U.S.C. § 3331 (noting that anyone except the President, elected or
appointed to an office of honor or profit in the civil service or uniformed services,
shall take an oath including a pledge to support and defend the Constitution ),

15 Article VI, however, does not provide any specific form of oath or affirmation .

85
but it makesno sense to concludethat the Vice Presidentis an executiveofficer

underArticle VI butthe Presidentis not.

The languageof the presidentialoath a commitmentto preserve, protect,

and defend the Constitution is consistent with the plain meaning of the word
support. U.S. Const. art. II, § 1, cl. 8. Modern dictionaries define support to
include defend and vice versa. See, e.g. , Support, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/support https://perma.cc/

WGH6-D8KU] ( defining support as to uphold or defend as valid or right ) ; see

also Defend, at id https://www.merriam-webster.com/dictionary/defend

https://perma.cc/QXQ7-LRKX] (defining defend as to maintain or support

in the face of argument or hostile criticism ). So did dictionaries from the time of
Section Three's drafting. See, e.g. , Samuel Johnson, A Dictionary of the English
Language (5th ed . 1773) ("defend":"to stand in defense of;to protect;to support );

Noah Webster, An American Dictionary of the English Language 271 (Chauncey

A. Goodrich,ed., 1857) ("defend":"to support or maintain ).
The specific language of the presidential oath does not make it anything
other than an oath to support the Constitution . Indeed,as one Senator explained
just a few years before Section Three's ratification, the language in [the
presidential ] oath of office , that he shall protect, support [sic ], and defend the
Constitution , makes his obligation more emphatic and more obligatory , if possible ,

86
than ours, which is simply to support the Constitution ." Cong . Globe , 37th Cong .,

3d Sess . 89 (1862) . And , in fact, several nineteenth -century Presidents referred to

the presidential oath as an oath to support the Constitution . See James D.
Richardson , A Compilation of the Messages and Papers of the Presidents ,
1789-1897, Vol. 1 at 232 , 467 (Adams , Madison), Vol . 2 at 625 (Jackson ) , Vol. 8 at

381 ( Cleveland) .

In sum, t he simplest and most obvious interpretation of a Constitution ,if

in itself sensible , is the most likely to be that meant by the people in its adoption .
Lake County v . Rollins , 130 U.S. 662 , 671 (1889) . The most obvious and sensible
reading of Section Three , supported by text and history ,leads us to conclude that
(1) the Presidency is an office under the United States, (2) the President is an
officer of the United States, and (3) the presidential oath under Article II is
an oath to support " the Constitution .

159 President Trump asks us to hold that Section Three disqualifies every oath
breaking insurrectionist except the most powerfulone and that it bars oath-breakers
from virtually every office, both state and federal, except the highest one in the land.
Both results are inconsistent with the plain language and history of Section Three .
160 We therefore reverse the district court's finding that Section Three does not
apply to a President and conclude that Section Three bars President Trump from

87
holding the office of the President if its other provisions are met; namely , if
President Trump engaged in insurrection . U.S. Const . amend . XIV, § 3.
Before addressing the district court's findings that President Trump

engaged in insurrection , however ,we consider President Trump's challenge to the

admissibility of a congressional report on which the district court premised some
of its findings .

F. The District Court Did Not Err in Admitting Portions of

the January 6 Report

¶162 President Trump asserts that the district court wrongly admitted into
evidence thirty-one findings from a congressional report drafted by the Select

Committee to Investigate the January 6th Attack on the U.S. Capitol ( the

Committee ), which recounted the Committee's investigation of the facts,

circumstances , and causes of the attack on the Capitol. See H.R. Rep . No. 117-663
(Dec. 22, 2022) ( the Report"). In President Trump's view , the Report is an
untrustworthy partisan political document and therefore constituted

inadmissible hearsay under Rule 803(8)(C) of the Colorado Rules of Evidence . We

are unpersuaded. Under the deferential standard of review that governs , we
perceive no error by the district court in admitting portions of the Report into
evidenceat trial.

We review a district court's evidentiary rulings for an abuse of discretion.

Zapata v. People, 2018 82, 25, 428 P.3d 517, 524. A court abuses its discretion

88
only if its decision is manifestly arbitrary , unreasonable ,or unfair. Churchill v.
Univ . of Colo . at Boulder ,2012 54, 74 , 285 P.3d 986 , 1008 (quoting Freedom Colo .
Info., Inc. v. El Paso Cnty . Sheriff's Dep't, 196 P.3d 892, 899 (Colo . 2008 )) . We may
not consider whether we would have reached a different result, but only

whether the trial court's decision fell within a range of reasonable options . Id.

(quoting E-470 Pub. Highway Auth. v . Revenig , 140 P.3d 227, 230-31 (Colo . App .
2006)).
Hearsay statements are out-of- court statements offered in court for the truth
of the matter asserted . CRE 801(c). Such statements are generally inadmissible,
CRE 802, but CRE 803(8) creates an exception for reports of public offices or
agencies, setting forth factual findings resulting from an investigation made
pursuant to authority granted by law. This exception, however, applies only if
the report is trustworthy .
The Federal Rules of Evidence (on which our evidentiary rules were
modeled ) contain a near-identical exception to Colorado Rule 803 (8) ,see Fed . R.
Evid.803 (8),so we may look to federal case law interpreting the federal rule for
guidance on how to assess trustworthiness , see Garcia v . Schneider Energy Servs.,
Inc., 2012 CO 62, 10, 287 P.3d 112, 115 (noting that , although we are not bound
to interpret our rules the same way the United States Supreme Court has

interpreted its rules , we do look to the federal rules and federal decisions

89
interpreting those rules for guidance") ; Harding Glass Co. v . Jones 640 P.2d 1123,
1125 n.3 (Colo . 1982) ( C ase law interpreting the federal rule is persuasive in
analysis of the Colorado rule. ). Under federal law, courts are instructed to
"assume[ admissibility in the first instance. Beech Aircraft Corp. v. Rainey,

488 U.S. 153, 167 (1988) . Thus, the party challenging the admissibility of a public
or agency report bears the burden of demonstrating that the report is not
trustworthy . Barry v. Trs. ofInt'lAss'n,467 F. Supp. 2d 91, 96 (D.D.C. 2006). The
federal courts have also identified four non-exclusive factors to help courts
determine trustworthiness :"(1) the timeliness of the investigation; (2) the special
skill or expertise of the investigating official; (3) whether a hearing was held and
the level at which it was conducted; and (4) possible motivation problems. Id. at
97 see Beech Aircraft,488 U.S. at 167 n.11.
The district court employed the foregoing presumption and four factors to

analyze the Report.16 The court determinedthat the first three Barry factors weigh

16 We also review a district court's trustworthiness analysis for an abuse of

discretion. See United States v . Versaint, 849 F.2d 827, 831-32 (3d Cir. 1988) ( Under
[Fed. R. Evid. 803(8) ], this Court must decide whether the district court abused its
discretion by [g iving undue weight to trustworthiness factors of slight relevance
while disregarding factors more significant. (quoting In re Japanese Elec. Prods.
Antitrust Litig., 723 F.2d 238, 266 (3d Cir. 1983)) ); Bright v . Firestone Tire & Rubber
Co., 756 F.2d19, 22 (6th Cir. 1984) ( Rule803(8) (C) also requiresthat the reportnot
be subject to circumstances indicating a lack of trustworthiness. This
determination is within the discretion of the trial court. ) ; Denny v. Hutchinson
Sales Corp., 649 F.2d 816, 821–22 (10th Cir. 1981) ( We believe that the trial court

90
strongly in favor of reliability Anderson , 24. President Trump focuses his

admissibility challenge on the fourth factor : possible motivation problems .

Barry,467 F. Supp . 2d at 97 .
167 First,President Trump claims the Report was biased against him because all
nine Committee members voted in favor of impeaching him before their
investigation began . Timothy Heaphy, Chief Investigative Counsel for the
Committee, testified at trial, however, that although members certainly had

hypotheses that were a starting point, such hypotheses did not impair the
members ability to be fair and impartial . Anderson, 26. The district court found
Mr. Heaphy's testimony on this subject to be credible and h[eld] that any
perceived animus of the committee members towards [President] Trump did not
taint the conclusions of the January 6th Report in such a way that would render
them unreliable . Id. We see no abuse of discretion . See People v. Pitts, 13 P.3d

1218, 1221 (Colo. 2000) ( It is the function of the trial court, and not the reviewing
court,to weigh evidence and determine the credibility of the witnesses . ).
168 Second, President Trump believes that the political backdrop against which

the Report was created makes it unreliable. This argument proves too much. All

is the first and best judge of whether tendered evidence meets th[at] standard of
trustworthiness and reliability and [w ] e cannot say the trial court abused its
discretion by refusing to admit the report. (quoting Franklin v . Skelly Oil Co.,
141F.2d 568, 572 ( 10th Cir. 1944))) .

91
congressional reports contain some level of political motivation, yet neither
CRE 803(8) nor the corresponding federal rule declares such reports per se
inadmissible; instead,as the district court explained ,a court is at liberty to admit
what it deems trustworthy . See Anderson , 28; see, e.g., Barry, 467 F. Supp . 2d at
101 (admitting report from a Senate investigation ); Mariani v. United States,

80 F. .2d 352 , 361 (M.D. Pa . 1999) (admitting minority report from a

Congressional investigation ) ; Hobson v. Wilson , 556 F. Supp . 1157, 1183 (D.D.C.
1982) (admitting Congressional Committee report) , aff'd in part, in part,
737 F.2d 1(D.C. Cir . 1984).

Third, President Trump asserts that because Democrats outnumbered

Republicans seven to two on the Committee, the Report's findings are necessarily
biased . The district court determined that although the Report would have
further reliability had there been greater Republican participation, that deficit did
not demonstrate motivation problems . Anderson , 29-30. The district court
observed that House Republicans opted to boycott the Committee after then
Speaker of the House Nancy Pelosi agreed to seat only three of the five
Republicans recommended to her. Id. at 30. Despite then-Speaker Pelosi's
unprecedented move,id.,the district court noted that the two Republicans who
did sit were both duly elected Republicans, id. at ¶ 31; [t ]he investigative staff
included many Republican [ lawyers, id. at 32; the staffing decisions did

92
not include any inquiry into political affiliation," id.; and " t he overwhelming
majority of witnesses were [President ] Trump administration officials and
Republicans , id. at ¶ 33. The court reasoned that [t ]hese facts all cut against

Intervenors argument that lack of participation of the minority party resulted

in unreliable conclusions ." Id. at ¶ 34 .

Again , we perceive no abuse of discretion . CRE 803 (8) assumes

admissibility , Barry , 467 F. Supp . 2d at 96 , and President Trump has not met his
burden of demonstrating that , contrary to the evidence the district court
highlighted , the Report suffered from motivation problems . See id. Moreover ,we
remain mindful that this is a four -factor inquiry . No single factor is dispositive .
Instead , any perceived shortcomings as to one must be weighed against the

strengths of the others . Whatever the possible motivation problems , the weight
of the other three factors remains . As the district court explained , (1) passage of
time does not impugn the Report,as the investigation began six months after the
attack and was completed in under two years ; (2) the investigative staff consisted

of highly skilled lawyers , including two former U.S. Attorneys ; and (3) there was
a formal ten -day hearing in which seventy witnesses testified under oath .

Anderson , 24. So ,not only was the court's analysis of the fourth factor reasonable ,
but it also did not abuse its discretion in reaching its broader conclusion that the
Report was trustworthy .

93
 President Trump nonetheless argues that , even if the Report is generally
admissible under the CRE 803(8) exception , there were eleven admitted findings
within the Report that remained independently inadmissible . Even if the general
admissibility of the Report does not necessarily give a green light to multiple
layers of hearsay, we conclude that only two of the eleven challenged findings

constituted hearsay within hearsay.¹7 And even if there was error in admitting
those findings , neither is of sufficient consequence to warrant reversal. See

Liggett v. People, 135 P.3d 725, 733 (Colo . 2006 ) (explaining that , under harmless
error review,we will reverse only if, viewing the evidence as a whole , the error
substantially influenced the outcome or impaired the fairness of the trial and that ,

17 The nine remaining statements fall into three categories: statements made (1) by
PresidentTrump, (2) to PresidentTrump, and (3) by his supporters duringchants.
First, President Trump's own statements are not hearsay under the party
opponent rule. See CRE 801(d )(2)(A ) . Second, various statements made to
PresidentTrump on January 6 are not hearsay because they were offered to show
the statements´effect on the listener (i.e., that President Trump had knowledge of
certain issues) . See CRE 801(c); People v. Vanderpauye, 2023 CO 42 ¶ 21n.4, 530 P.3d
1214, 1221n.4 (accepting that a statement was not hearsay because it was offered
for its effect on the listener not for the truth of the matter asserted ) . Third,
chants by President Trump's supporters were not offered to prove the truth of the
chants, butsimply to establish that the statements were made. That is not hearsay.
801(c) ; see People v . Dominguez, 2019 COA 78 20, 454 P.3d 364, 369 (stating
that verbal acts aren't hearsay because such a statement is offered not for its
truth, but to show that it was made ). Thus, none of the findings in these three
classes constitutes hearsay within the Report.

94
 n the context of a bench trial, the prejudicial effect of improperly admitted
evidence is generally presumed innocuous ).
First,the Report cited a newspaper article stating that the election was called
for President Biden. Although this is hearsay, the district court did not rely on the
statement in its analysis ,so President Trump was not prejudiced by any error in
admitting this statement . See Raile v. People, 148 P.3d 126, 136 (Colo. 2006) ( [ T]here

is no reasonable probability that Raile was prejudiced by the admission of the

statements; thus , the trial court's error was harmless . ).

173 Second, the Report explained that Chief of Staff Mark Meadows told White
House Counsel Pat Cipollone that President Trump doesn't want to do anything
to stop the violence . H.R. Rep . No. 117 663, at 110. The fact that this statement is
hearsay is irrelevant:The district court expressly noted that it has only considered
those portions of the January 6th Report which are referenced in this Order and
has considered no other portions in reaching its decision," Anderson, 38, and it
did not mention this statement in its order , nor did it rely on it to reach any
conclusions . Thus, President Trump's embedded hearsay argument is unavailing.
For these reasons, we conclude that the district court did not abuse its

discretion by admitting portions of the Report into evidence.

We now consider the district court's findings that President Trump

" engaged in an insurrection within the meaning of Section Three.

95
 G. PresidentTrump EngagedinInsurrection

¶176 President Trump challenges the district court's findings that he engaged

in an insurrection." The Constitution leaves these terms undefined. Therefore,

we must make a legal determination regarding what the drafters and ratifiers
meant when they chose to deploy these words in Section Three . Mindful of the
deferential standard of review afforded a district court's factual findings , we

conclude that the district court did not clearly err in concluding that the events of
January 6 constituted an insurrection and that President Trump engaged in that
insurrection .

1. Standardof Review

As a general matter,we review findings of fact under either a clear error or

abuse of discretion standard, and we review legal conclusions de novo. E-470 Pub.
Highway Auth.v. 455 Co. , 3 P.3d 18, 22 (Colo. 2000) ; accord State ex rel. Weiser v. Ctr .

for Excellence in Higher Educ., Inc., 2023 CO 23 , 33, 529 P.3d 599, 607. When,
however,the issue before an appellate court presents a mixed question of law and
fact, Colorado courts have taken different approaches , depending on the
circumstances . 455 Co. , 3 P.3d at 22. For example, courts have sometimes treated
the ultimate conclusion as one of fact and applied the clear error standard . Id. In
other cases,courts have concluded that a mixed question of law and fact mandates
de novo review. Id. And when a trial court made evidentiary findings of fact in

96
support of its application of a legal principle from another jurisdiction , we have

found it appropriate to conduct an abuse of discretion review of the evidentiary

factual findings supporting the legal conclusion and a de novo review of the legal
conclusionitself. Id. at 23.

For our purposes here, where we are called on to review the district court's

construction of certain terms used in Section Three to the facts established by the

evidence ,we will review the district court's factual findings for clear error and its
legal conclusions de novo.
2. Insurrection

Dictionaries (both old and new ), the district court's order, and the briefing

by the parties and the amici curiae suggest several definitions of the word

" insurrection .

For example, Noah Webster's dictionary from 1860 defined insurrection

as:

A rising against civil or political authority; the open and active

opposition of a number of persons to the execution of law in a city or
state. It is equivalent to SEDITION, except that sedition expresses a
less extensive rising of citizens. It differs from REBELLION, for the
latter expresses a revolt, or an attempt to overthrow the government,
to establish a different one, or to place the country under another
jurisdiction

NoahWebster, An AmericanDictionaryof the EnglishLanguage613 ( 1860) ;

accord John Bouvier , A Law Dictionary Adapted to the Constitution and Laws of

97
the United States of America and of the Several States to the American Union

( 6thed. 1856) , availableat https://wzukusers.storage.googleapis.com/user

32960741/ documents/ 5ad525c314331myoR8FY / 1856_bouvier_6.pdf [https://

perma.cc/PXK4-M75N] (defining insurrection as [a] rebellion of citizens or
subjects of a country against its government )

Webster's Third New International Dictionary defines insurrection as “an

act or instance of revolting against civil or political authority or against an
established government" or "an act or instance of rising up physically."

Insurrection, Webster's Third New International Dictionary (2002).

Inlight of these and other proffered definitions , the district court concluded
that an insurrection as used in Section Three is (1) a public use of force or threat
of force (2) by a group of people (3) to hinder or prevent execution of the
Constitution of the United States . Anderson , ¶ 240 .

Finally,we note that at oral argument ,President Trump's counsel ,while not
providing a specific definition , argued that an insurrection is more than a riot but
less than a rebellion . We agree that an insurrection falls along a spectrum of
related conduct . See The Brig Amy Warwick (The Prize Cases) , 67 U.S. (2 Black) 635,

666 (1862) Insurrection against a government may or may not culminate in an

organized rebellion , but a civil war always begins by insurrection against the
lawful authority of the Government .") ; Case of Davis , 7 F. Cas . 63 , 96 ( C.C.D. Va .

98
1871) (No. 3,621a ) ( Although treason by levying war, in a case of civil war, may
involve insurrection or rebellion , and they are usually its first stages , they do not
necessarily reach to the actual levying of war. ) ; 77 C.J.S. Riot; Insurrection § 36,
Westlaw (database updated August 2023 ) ( Insurrection is distinguished from
rout, riot , and offenses connected with mob violence by the fact that , in

insurrection , there is an organized and armed uprising against authority or

operations of government , while crimes growing out of mob violence , however

serious they may be and however numerous the participants ,are simply unlawful
acts in disturbance of the peace which do not threaten the stability of the
government or the existence of political society .") . But we part company with him
when he goes one step further . No authority supports the position taken by

President Trump's counsel at oral argument that insurrectionary conduct must

involve a particular length of time or geographic location.

184 Although we acknowledge that these definitions vary and some are
arguably broader than others , for purposes of deciding this case, we need not
adopt a single, all-encompassing definition of the word insurrection . Rather, it
suffices for us to conclude that any definition of insurrection for purposes of

Section Three would encompass a 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 accomplish a peaceful transfer of power in this country .

99
The requiredforce or threat of force need not involve bloodshed, nor must the

dimensions of the effort be so substantial as to ensure probable success . In re

Charge to Grand Jury , 62 F. 828, 830 (N.D. Ill. 1894) . Moreover , although those
involved must act in a concerted way, they need not be highly organized at the
insurrection's inception. See Home Ins. Co. ofN.Y. v. Davila, 212 F.2d 731, 736 (1st
Cir. 1954) ( [A]t its inception an insurrection may be a pretty loosely organized
affair It may start as a sudden surprise attack upon the civil authorities of a
community with incidental destruction of property by fire or pillage,even before
the military forces of the constituted government have beenalerted and mobilized
into action to suppress the insurrection . ).
The question thus becomes whether the evidence before the district court
sufficiently established that the events of January 6 constituted a 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 accomplish the peaceful
transfer of power in this country . We have little difficulty concluding that
substantial evidence in the record supported each of these elements and that , as
the district court found , the events of January 6 constituted an insurrection.
It is undisputed that a large group of people forcibly entered the Capitol and
that this action was so formidable that the law enforcement officers onsite could

notcontrolit. Moreover, contrary to PresidentTrump'sassertionthat noevidence

100
in the record showed that the mob was armed with deadly weapons or that it
attacked law enforcement officers in a manner consistent with a violent

insurrection , the district court found and millions of people saw on live
television , recordings of which were introduced into evidence in this case that

the mob was armed with a wide array of weapons . See Anderson , 155. The court
also found that many in the mob stole objects from the Capitol's premises or from
law enforcement officers to use as weapons , including metal bars from the police
barricades and officers batons and riot shields and that throughout the day , the
mob repeatedly and violently assaulted police officers who were trying to defend
the Capitol . Id. at ¶¶ 156-57 . The fact that actual and threatened force was used

that day cannot reasonably be denied .

187 Substantialevidencein the recordfurther establishedthat this use of force

was concerted and public . As the district court found ,with ample record support ,
The mob was coordinated and demonstrated a unity of purpose They

marched through the [Capitol ] building chanting in a manner that made clear they
were seeking to inflict violence against members of Congress and Vice President
Pence. . at 243. And upon breaching the Capitol , the mob immediately
pursued its intended target the certification of the presidential election and
reached the House and Senate chambers within minutes of entering the building .
. at 153.

101
 Finally , substantial evidence in the record showed that the unified
purpose was to hinder or prevent Congress from counting the electoral votes as
required by the Twelfth Amendment and from certifying the 2020 presidential

election ; that is, to preclude Congress from taking the actions necessary to
accomplish a peaceful transfer of power . As noted above,soon after breaching the
Capitol ,the mob reached the House and Senate chambers , where the certification
process was ongoing . Id. This breach caused both the House and the Senate to
adjourn , halting the electoral certification process . In addition , much of the mob's
ire which included threats of physical violence was directed at Vice President
Pence,who ,in his role as President of the Senate ,was constitutionally tasked with
carrying out the electoral count . Id. at ¶¶ 163, 179-80 ; see U.S. Const . art . I, § 3,
cl. 4 ; id. at art . II, § 1, cl. 3. As discussed more fully below , these actions were the
product of President Trump's conduct in singling out Vice President Pence for
refusing President Trump's demand that the Vice President decline to carry out
his constitutional duties . Anderson , ¶¶ 148, 170, 172–73.
In short, the record amply established that the events of January 6
constituted a 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 accomplish the peaceful transfer of power in this country . Under any viable

102
definition, this constitutedan insurrection
, and thus we will proceed to consider

whether President Trump engaged in this insurrection.

3. Engaged

Dictionaries ,historical evidence, and case law all shed light on the meaning

of engaged in, as that phrase is used in Section Three .

Noah Webster's dictionary from 1860 defined engage as to embark in an
affair Noah Webster , An American Dictionary of the English Language 696

(1860). Similarly ,Webster's Third New International Dictionary defines "engage

as to begin and carry on an enterprise or to take part or participate . Engage,

Webster's Third New International Dictionary (2002). And Merriam -Webster

defines "engage " as including both to induce to participate " and to do or take
part in something ." Engage Merriam-Webster Dictionary , https ://

www.merriam-webster.com/dictionary/engage https://perma.cc/7JDM

4XSB .

Attorney General Stanbery's opinions on the meaning of engage, which

he issued at the time the Fourteenth Amendment was being debated,are in accord
with these historical and modern definitions . Attorney General Stanbery opined
that a person may engage in insurrection or rebellion without having actually
levied war or taken arms. Stanbery I, 12 Op . Att'y Gen. at 161. Thus, in Attorney
General Stanbery's view ,when individuals acting in their official capacities act in

103
the furtherance of the common unlawful purpose or do any overt act for the
purpose of promoting the rebellion, they have engaged in insurrection or
rebellion for Section Three disqualification purposes . Id. at ; see also

Stanbery II, 12 Op . Att'y . Gen. at 204 (defining engaging in rebellion to require

an overt and voluntary act , done with the intent of aiding or furthering the
common unlawful purpose") . Accordingly , "[d isloyal sentiments , opinions ,or
sympathies would not disqualify ; but when a person has, by speech or by writing,
incited others to engage in rebellion , [h]e must come under the disqualification .
Stanbery 12 Op . Att'y . Gen. at 205; accord Stanbery ,12 Op . Att'y Gen. at 164.
193 Turning to case law construing the meaning of "engaged in for purposes
of Section Three ,although we have found little precedent directly on point,cases
concerning treason that had been decided by the time the Fourteenth Amendment
was ratified provide some insight into how the drafters of the Fourteenth
Amendment would have understood the term engaged in. For example , in Ex
parte Bollman ,8 U.S. 75 , 126 (1807), Chief Justice Marshall explained that if a body
of men be actually assembled for the purpose of effecting by force a treasonable
purpose , all those who perform any part, however minute, or however remote
from the scene of action , and who are actually leagued in the general conspiracy ,
are to be considered as traitors . In other words ,an individual need not directly

104
participate in the overt act of levying war or insurrection for the law to hold him

accountableas if hehad:

] t is not necessary to prove that the individualaccused, was a direct,

personalactor in the violence. If he was present, directing, aiding,
abetting, counselling, or countenancing it, he is in law guilty of the
forcibleact. Nor is even his personalpresence indispensable. Though
he be absent at the time of its actual perpetration, yet if he directed
the act, devised or knowinglyfurnished the means, for carrying it into
effect, instigating others to performit, he shares their guilt. In treason
there are no accessories.

In reCharge to Grand Jury- Treason , 30 F. Cas . 1047, 1048 ( C.C.E.D. . 1851) .

We find the foregoing definitions and authorities to be generally consistent ,

and we believe that the definition adopted and applied by the district court is
supported by the plain meaning of the term engaged in, as well as by the

historical authorities discussed above . Accordingly , like the district court , we

conclude that “engaged in requires an overt and voluntary act, done with the
intent of aiding or furthering the common unlawful purpose ." Anderson , 254 .
In so concluding , we hasten to add that we do not read engaged in so
broadly as to subsume mere silence in the face of insurrection or mere
acquiescence therein ,at least absent an affirmative duty to act . Rather ,as Attorney
General Stanbery observed , The force of the term to engage carries the idea of
active rather than passive conduct , and of voluntary rather than compulsory

action . Stanbery I, 12 Op . Att'y Gen. at 161; see also Baude & Paulsen , supra
(manuscript at 67 ) (noting that passive acquiescence , resigned acceptance ,

105
silence, or inaction is not typically enough to have engaged in' insurrection or
rebellion [unless ] a person possesses an affirmative duty to speak or act ).
The question remains whether the record supported the district court's
finding that President Trump engaged in the January 6 insurrection by acting
overtly and voluntarily with the intent of aiding or furthering the insurrectionists
common unlawful purpose . Again,mindful of our applicable standard of review ,
we conclude that it did, and we proceed to a necessarily detailed discussion of the
evidence to show why this is so.
197 Substantialevidencein the recordshowedthat evenbeforethe November

2020 general election, President Trump was laying the groundwork for a claim
that the election was rigged . For example, at an August 17, 2020 campaign rally,
he said that the only way we're going to lose this election is if the election is
rigged. Anderson , 88. Moreover, when asked at a September 23 , 2020 press
briefing whether he would commit to a peaceful transfer of power after the
election, President Trump refused to do so. Id. at ¶ 90 .
President Trump then lost the election, and despite the facts that his
advisors repeatedly advised him that there was no evidence of widespread voter
fraud and that no evidence showed that he himself believed the election was

wrought with fraud, President Trump ramped up his claims that the election was

stolen from him and undertook efforts to prevent the certification of the election

106
results . For example , in a December 13, 2020 tweet, he stated, Swing States that

have found massive VOTER FRAUD , which is all of them, CANNOT LEGALLY

CERTIFY these votes as complete & correct without committing a severely

punishable crime . Id. at ¶ 101. And President Trump sought to overturn the
election results by directly exerting pressure on Republican officeholders in
various states . Id. at ¶ 103 .

On this point,and relevant to President Trump's intent in this case,many of

the state officials targeted by President Trump's efforts were subjected to a barrage
of harassment and violent threats by his supporters . Id. at ¶ 104. President Trump
was well aware of these threats, particularly after Georgia election official Gabriel
Sterling issued a public warning to President Trump to stop inspiring people to

commit potential acts of violence or [s omeone's going to get killed . Id.

President Trump responded by retweeting a video of Sterling's press conference
with a message repeating the very rhetoric that Sterling warned would result in
violence . Id. at 105.

And President Trump continued to fan the flames of his supporters ire,
which he had ignited , with ongoing false assertions of election fraud , propelling
the Stop the Steal movement and cross-country rallies leading up to January 6.
Id. at 106. Specifically , between Election Day 2020 and January 6, Stop the Steal
organizers held dozens of rallies around the country , proliferating President

107
Trump's election disinformation and recruiting attendees, including members of

violent extremist groups like the Proud Boys , the Oath Keepers, and the Three
Percenters, QAnon conspiracy theorists, and white nationalists, to travel to
Washington, D.C. on January 6. Id. at ¶ 107.
Stop the Steal leaders also joined two Million MAGA Marches in
Washington , D.C. on November 14, 2020 , and December 12, 2020. Id. at 108.
Again , as relevant to President Trump's intent here , after the November rally

turned violent , President Trump acknowledged the violence but justified it as self
defense against ANTIFA SCUM . Id.at 109.

With full knowledge of these sometimes -violent events, President Trump

sent the following tweet on December 19, 2020 , urging his supporters to travel to
Washington , D.C. on January 6 : Statistically impossible to have lost the 2020
Election . Big protest in D.C. on January 6. Be there, will be wild ! Id. at ¶ 112 .
At this point,the record established that President Trump's plan was that
when Congress met to certify the election results on January 6, Vice President
Pence could reject the true electors who voted for President Biden and certify a
slate of fake electors supporting President Trump or he could return the slates to
the states for further proceedings . Id. at ¶ 113.
Far rightextremistsand militiassuchas the Proud Boys, the Oath Keepers,

and the Three Percenters viewed President Trump's December 19, 2020 tweet as a

108
 call to arms, and they began to plot activities to disrupt the January 6 joint
session of Congress . Id. at ¶ 117. In the meantime, President Trump repeated his
invitation to come to Washington, D.C. on January 6 at least twelve times. Id. at
118.

On December 26 , 2020 , President Trump tweeted :

If a Democrat Presidential Candidate had an Election Rigged &

Stolen, with proof of such acts at a level never seen before, the
Democrat Senators would consider it an act of war, and fight to the
death Mitch McConnell] & the Republicans do NOTHING, just
want to let it pass. NOFIGHT!

Id. at 121.

And on January 1,2021, President Trump retweeted a post from Kylie Jane
Kremer,an organizer of the scheduled January 6 March for Trump , that stated,
The calvary sic] is coming, Mr. President! JANUARY 6 | Washington , D.C.
President Trump added to his retweet, A great honor! Id. at 119.
The foregoing evidence established that President Trump's messages were
a call to his supporters to fight and that his supporters responded to that call.
Further supporting such a conclusion was the fact that multiple federal agencies ,
including the Secret Service , identified significant threats of violence in the days

leading up to January 6. Id. at ¶ 123. These threats were made openly online ,and

they were widely reported in the press . Id. Agency threat assessments thus stated

109
that domestic violent extremists planned for violence on January 6,with weapons

including firearms and enough ammunition to win a small war. Id.

Alongthe same lines, the FederalBureauof Investigationreceived many

tips regardingthe potentialfor violenceon January 6. Id. at ¶ 124. One tip said:

They think they will have a large enough group to march into DC
armed and will outnumber the police so they can't be stopped
They believe that since the election was stolen it's their
constitutional right to overtake the government and duringthis coup
no U.S. laws apply. Their plan is to literally kill. Please, please take
this tip seriously and investigatefurther

The record reflects that President Trump had reason to know of the potential
for violence on January 6. As President, he oversaw the agencies reporting the

foregoing threats . Id. at 123. In addition , Katrina Pierson,a senior advisor to

both of President Trump's presidential campaigns , testified,on behalf of President
Trump ,that at a January 5, 2021 meeting, President Trump chose the speakers for
the January 6 event at which he, too , would speak (avoiding at least some
extremist speakers ) and that he knew that radical political extremists were going
to be in Washington , D.C. on January 6 and would likely attend his speech . Id. at
,126.
January 6 arrived, and in the early morning, President Trump tweeted , If
Vice President @Mike_Pence comes through for us, we will win the Presidency.
Many States want to decertify the mistake they made in certifying incorrect & even

110
fraudulent numbers in a process NOT approved by their State Legislatures (which
it must be). Mike can send it back ! Id. at ¶ 127. He followed this tweet later that
morning with another that said, All Mike Pence has to do is send them back to
the States,AND WE WIN . Do it Mike, this is a time for extreme courage ! Id.
¶211 These tweets had the obvious effect of putting a significant target on Vice

President Pence's back, focusing President Trump's supporters on the Vice

President's role in overseeing the counting of the electoral votes and certifying the
2020 presidential election to ensure the peaceful transfer of power . Id. at ¶¶ 128,
291.

At about this same time,tens of thousands of President Trump's supporters

began gathering around the Ellipse for his speech . Id. at 129. To enter the Ellipse
itself, attendees were required to pass through magnetometers . . at ¶ 130.
Notably, from the approximately 28,000 attendees who passed through these
security checkpoints , the Secret Service confiscated hundreds of weapons and

other prohibited items, including knives or blades, pepper spray, brass knuckles ,
tasers, body armor, gas masks, and batons or blunt instruments . Id. at 130-31.
Approximately 25,000 additional attendees remained outside the Secret Service

perimeter,thus avoiding the magnetometers . Id.at 132

President Trump then gave a speech in which he literally exhorted his

supporters to fight at the Capitol . Among other things ,he told the crowd:
 We'regatheredtogether inthe heartof our nation'scapitalfor one very,
very basicreason: to save our democracy." Id. at 135.

" Republicans are constantly fighting like a boxer with his hands tied
behind his back. It's like a boxer. And we want to be so nice. We want
to be so respectful of everybody , including bad people. And we're going
to have to fight much harder. Id.

Now , it is up to Congress to confront this egregious assault on our

democracy . And after this, we're going to walk down, and I'll be there
with you Id.

e're going to walk down to the Capitol, and we're going to cheer on
our brave senators and congressmen and women, and we're probably
not going to be cheering so much for some of them . Because you'll never
take back our country with weakness . You have to show strength and
you have to be strong. Id.

When you catch somebody in a fraud, you're allowed to go by very

different rules. Id.

This the most corrupt election in the history, maybe of the world. .
This is notjust a matter of domestic politics this is a matter of national
security. Id.

" And we fight. We fight like hell. And ifyou don't fight likehell, you're
not going to have a countryanymore. Id.

Unsurprisingly, the crowd at the Ellipse reacted to President Trump's words

with calls for violence . Indeed, after President Trump instructed his supporters to
march to the Capitol, members of the crowd shouted, [S]torm the capitol! ;
nvade the Capitol Building!"; and "[T ake the Capitol!" Id at 141. And
before he had even concluded his speech,President Trump's supporters followed
his instructions. Id. at 146. The crowd marched to the Capitol, many carrying

112
Revolutionary War flags and Confederate battle flags ; quickly breached the
building; and immediately advanced to the House and Senate chambers to carry
out their mission of blocking the certification of the 2020 presidential election. Id.
at 146-53

By 1:21 p.m., President Trump was informed that the Capitol was under
attack . . at 169. Rather than taking action to end the siege , however ,
approximately one hour later , at 2:24 p.m., he tweeted , Mike Pence didn't have
the courage to do what should have been done to protect our Country and our
Constitution , giving States a chance to certify a corrected set of facts , not the
fraudulent or inaccurate ones which they were asked to previously certify . USA
demands the truth ! Id. at 170.

This tweet was read over a bullhorn to the crowd at the Capitol, and
produced further violence, necessitating the evacuation of Vice President Pence
from his Senate office to a more secure location to ensure his physical safety. Id.
at 171-75.
President Trump's next public communications were two tweets sent at 2:38
p.m. and 3:13 p.m. , encouraging the mob to remain peaceful and to [s]tay
peaceful (obviously , the mob was not at all peaceful ) , but neither tweet
condemned the violence nor asked the mob to disperse . Id. at ¶ 178 (alteration in
original).

113
 Throughout these several hours, President Trump ignored pleas to
intervene and instead called on Senators , urging them to help delay the electoral
count, which is what the mob, upon President Trump's exhortations, was also
trying to achieve . Id. at ¶ 180. And President Trump took no action to put an end
to the violence . To the contrary,as mentioned above, when told that the mob was
chanting, Hang Mike Pence," President Trump responded that perhaps the Vice

President deserved to be hanged . Id. President Trump also rejected pleas from
House Republican Leader Kevin McCarthy , imploring him to tell his supporters
to leave the Capitol, stating, "Well, Kevin, I guess these people are more upset
about the election than you are. Id.
Finally,at 4:17 p.m., President Trump released a video urging the mob to
go home now. Id. at 186. Even then,he did not condemn the mob's actions . Id.

. Instead , he sympathized with those who had violently overtaken the

Capitol,telling them that he knew their pain . Id. at ¶¶ 186–87 . He told them that
he loved them and that they were very special . Id. at 186. And he repeated
his false claim that the election had been stolen notwithstanding his landslide
victory , thereby further endorsing the effort to try to stop the peaceful

transfer of power . Id. at 186-87.

A short while later, President Trump reiterated this supportive message to

the mob by justifyingits actions, tweetingat 6:01 p.m., These are the things and

114
events that happen when a sacred landslide election victory is
unceremoniously & viciously stripped away from great patriots who have been

badly & unfairly treated for so long. Go home with love & in peace . Id. at ¶ 189 .
President Trump concluded by encouraging the country to [r]emember this day
forever ! Id.

We conclude that the foregoing evidence , the great bulk of which was
undisputed at trial, established that President Trump engaged in insurrection.
President Trump's direct and express efforts ,over several months , exhorting his
supporters to march to the Capitol to prevent what he falsely characterized as an
alleged fraud on the people of this country were indisputably overt and voluntary .

Moreover , the evidence amply showed that President Trump undertook all these
actions to aid and further a common unlawful purpose that he himself conceived
and set in motion: prevent Congress from certifying the 2020 presidential election
and stop the peaceful transfer of power.
We disagree with President Trump's contentions that the record does not

support a finding that he engaged in an insurrection because (1) “ engage does

not include incite , and (2) he did not have the requisite intent to aid or further
the insurrectionists common unlawful purpose .
As our detailed recitation of the evidence shows, President Trump did not

merely incite the insurrection. Even when the siege on the Capitol was fully

115
underway, he continued to support it by repeatedly demanding that Vice
President Pence refuse to perform his constitutional duty and by calling Senators
to persuade them to stop the counting of electoral votes. These actions constituted
overt,voluntary, and direct participation in the insurrection.
Moreover, the record amply demonstrates that President Trump fully

intended to and did aid or further the insurrectionists common unlawful

purpose of preventing the peaceful transfer ofpower in this country . He exhorted
them to fight to prevent the certification of the 2020 presidential election . He
personally took action to try to stop the certification. And for many hours,heand
his supporters succeeded in halting that process.
For these reasons, we conclude that the record fully supports the district

court's finding that President Trump engaged in insurrection within the meaning
of SectionThree.

H. PresidentTrump's Speech on January 6 Was Not

Protected by the FirstAmendment Right to Freedom of
Speech

President Trump contends that his speech on January 6 was protected by

the First Amendment and, therefore, cannot be used to justify his disqualification
from office under Section Three . The district court concluded that this speech was
unprotected by the FirstAmendment . Anderson , ¶ 298. We agree with the district
court.

116
 1. Standard of Review

In considering President Trump's First Amendment challenge , we

undertake an independent review of the record to be sure that the speech in
question actually falls within [an] unprotected category of communication . Bose
Corp. v.Consumers Union of U.S., Inc., 466 U.S. 485 ,505 (1984 ) . We have interpreted
this independent review as being akin to de novo review . See Air Wis. Airlines
Corp. v.Hoeper ,2012 CO 19, ¶ 46 , 320 P.3d 830 , 841, on other grounds , 571 U.S.
237 (2014); Lewis v. Colo . Rockies Baseball Club, Ltd. , 941 P.2d 266 , 271 (Colo . 1997).
Bose recognizes ,however ,that we may give some presumption of correctness to
factual findings , 466 U.S. at 500 , especially those that do not involve the application

of standards of law , id. at 500 n.16 ,or those that arise from complex cases such as
this one, where the district judge has lived with the controversy id. at 500 .
Focusing on the findings by the district court ,we therefore examine for ourselves
the statements in issue and the circumstances under which they were made to
see whether they are of a character which the principles of the First
Amendment protect." . at 508 (first alteration in original ) (quoting
Pennekamp v. Florida , 328 U.S. 331,335 (1946)).
2. FirstAmendmentProtectionsand Incitement

The FirstAmendmentto the U.S.Constitutionprovides that Congress shall

make nolaw . abridging the freedom of speech . U.S. Const. amend. I. This

117
robust protection for speech functions to invite dispute, Terminiello v . Chicago,
337 U.S. 1, 4 (1949), and was fashioned to assure unfettered interchange of ideas
for the bringing about of political and social changes desired by the people,

Roth v . United States , 354 U.S. 476 , 484 ( 1957) ; see also N.Y. Times Co. v . Sullivan,
376 U.S. 254 ,269 (1964) .
Even so, the right of free speech is not absolute at all times and under all
circumstances . Chaplinsky v. New Hampshire , 315 U.S. 568 , 571 (1942 ) . The First
Amendment does not protect , for example , true threats , Watts v. United States ,
394 U.S. 705, 708 (1969); speech essential to criminal conduct , Packingham v . North
Carolina , 582 U.S. 98 , 107 (2017); or speech that incites lawless action ,
Brandenburg v. Ohio , 395 U.S. 444 , 447 (1969) . It is this last strand of First
Amendment jurisprudence that the parties debate here .

As the Supreme Court explained in Brandenburg , the First Amendment's

constitutional guarantees of free speech do not permit a State to forbid or
proscribe advocacy of the use of force or of law violation except where such

advocacy is directed to inciting or producing imminent lawless action and is likely

to incite or produce such action . 395 U.S. at 447. Under Brandenburg and its
progeny , the modern test to determine whether speech is unprotected under the
First Amendment because it incited lawless action is whether (1) the speech

explicitly or implicitly encouraged the use of violence or lawless action ; (2) the

118
speaker intended that the speech would result in the use of violence or lawless
action; and (3) the imminent use of violence or lawless action was the likely result
of the speech. Nwanguma v. Trump ,903 F.3d 604,609 (6th Cir.2018); accord Bible

Believers v. Wayne Cnty.,805 F.3d 228,246 (6th Cir.2015).18

3. Applying the Brandenburg Test

a Context

President Trump contends that the district court erred by examining the
broader context in which President Trump's speech was made, thereby

"expand [ing] the context relevant to a Brandenburg analysis beyond anything

recognized in precedent ." He asserts that we should examine his speech only in
the narrow context in which it was made . We disagree .
In Schenck v . United States, 249 U.S. 47, 52 (1919), the Supreme Court

addressed, for the first time, advocacy of illegal conduct , and it recognized the

18 This tripartite formulation incorporates the holdings from Brandenburgand its

progeny. SeeBrandenburg, 395 U.S. at 447( T he constitutionalguaranteesoffree
speech do not permit a State to forbid or proscribeadvocacy of the useof force
or oflaw violationexceptwhere suchadvocacyis directed to incitingor producing
imminentlawless action and is likely to incite or produce such action. ); Hess v.
Indiana, 414 U.S. 105, 108–09 (1973) (holding there was no evidence or rational
inference from the import of the language that the defendant's words were
intended to produce imminent disorder and thereby indicating that although
illegal action must be imminent, advocacy of lawless action could be implicit
(emphasesadded) ); NAACPv . Claiborne Hardware, 458 U.S. 886, 928 (1982) ( When
such [emotional] appeals [for unity and action in a common cause] do not incite
lawlessaction, they mustbe regarded as protected speech. ) .

119
importance of context in holding that "the character of every act depends upon the
circumstances in which it is done." Although the Supreme Court has said little
about how to analyze incitement since Brandenburg , it offered some guidance

regarding a court's use of other statements for context in NAACP v . Claiborne

Hardware Co., 458 U.S. 886 ( 1982).
In Claiborne Hardware , the Court considered speeches given by Charles
Evers , the field secretary of the Mississippi NAACP, in connection with the

NAACP's boycott of white merchants in Claiborne County from 1966 to 1969.

458 U.S. at 890. Evers declared to Black residents of Claiborne County that blacks

who traded with white merchants would be answerable to him, and that any
uncle toms ' who broke the boycott would have their necks broken' by their own
people . Id. at 900 n.28 . Evers's statements also included that boycott violators
would be disciplined ' by their own people," and he warned that the Sheriff could
not sleep with boycott violators at night. Id. at 902. The Court held that Evers’s
speeches were protected by the First Amendment but said that [i] f there [was ]
other evidence of [ Evers's ] authorization of wrongful conduct , the references to
discipline in the speeches could be used to corroborate that evidence . Id. at 929 .
By considering and placing value in the absence of corroborating evidence of
Evers's violent intentions ,the Court implied that courts may look to circumstances

beyond the speech itself to determine intent . See United States v. White , 610 F.3d

120
956, 961-62 (7th Cir. 2010) (relying on Claiborne Hardware in denying a motion to

dismiss in a solicitation case based on the existence of further evidence of the

relationship between [the defendant ] and his followers which will show the

posting was a specific request to [the defendant's ] followers ) .

While incitement precedent is sparse, the case law on true threats is

instructive regarding the importance of context . True threats and incitement are
doctrinally distinct , but true threats are the closest cousin to incitement under
the First Amendment . Counterman v. Colorado , 600 U.S. 66, 97 (2023) (Sotomayor,
J., concurring in part) ; accord United States v. Howell, 719 F.2d 1258, 1260 (5th Cir.
1983) ( The line between the two forms of speech [incitement and true threats ]
may be difficult to draw in some instances ); see also G. Robert Blakey & Brian

J. Murray, Threats , Free Speech, and the Jurisprudence of the Federal Criminal Law,
2002 B.Y.U. L. Rev. 829, 1069 (2002) (explaining that both exceptions involve
exhortations regarding violence that derive from Schenck's clear and present
danger test)

19 Compare Brandenburg, 395 U.S. at 447 (defining unprotected incitement as that

directed to incitingor producingimminent lawless action and likely to incite
or produce such action ) , with Virginia v . Black, 538 U.S. 343, 359 (2003) ( defining
true threats as those statements where the speaker means to communicate a
serious expressionof anintent to commit an act of unlawfulviolence to a particular
individualor group of individuals ) .

121
 And multiple federal circuit courts conducting a true-threat analysis

confirm what common sense suggests : When assessing whether someone means
to threaten another with unlawful violence ,we sometimes need to consider more

than the behavior exhibited on one occasion . See , e.g., Planned Parenthood of the
Columbia Willamette , Inc. v . Am . Coal . of Life Activists , 290 F.3d 1058 , 1078 (9th Cir.

2002) (rejecting an argument that context means the direct circumstances

surrounding delivery of the threat , and instead concluding that [w ]e, and so far
as we can tell , other circuits as well, consider the whole factual context and all of

the circumstances in order to determinewhether a statement is a true threat

(internal citation omitted) (quoting United States v. Merrill,746 F.2d 458,462 (9th
Cir.1984), overruled on other grounds by Planned Parenthood,290 F.3d at 1066-77, and
United States v. Hanna,293 F.3d 1080,1088n.5 (9th Cir.2002))); United States v. Hart,
212 F.3d 1067, 1071 (8th Cir.2000) (considering "whether the maker of the threat
had made similar statements to the victim on other occasions " and " whether the

victim had reason to believe that the maker of the threat had a propensity to

engage inviolence when determining whether a true threat exists ) . So too with

incitement . Context matters .

This is not to say, as President Trump contends the district court found ,that

we may consider any speech ever uttered by [President Trump ] in evaluating

incitement . Of course , there are limits . But we need not define those outer limits

122
now. Instead,we simply conclude that it was appropriate for the district court to
consider President Trump's history of courting extremists and endorsing political
violence as legitimate and proper, as well as his efforts to undermine the
legitimacy of the 2020 election results and hinder the certification of the Electoral
College results in Congress ." Anderson , 289 .
With this in mind, we review the district court's application of Brandenburg's

three- pronged test.

b . Encouragingthe Use of Violence or Lawless Action

¶238 Again , the first prong of the test for incitement is that the speech explicitly

or implicitly encouraged the use of violence or lawless action." Nwanguma ,

903 F.3d at 609.

The district court made dozens of findings regarding the general

atmosphere of political violence that President Trump created before January 6,
many of which we have already outlined in discussing why the district court
concluded that President Trump engaged in insurrection. We incorporate those
observations here by reference and supplement them with other illuminating

evidence from the record below. For example , the district court found that [a]t
[a] February 2016 rally, [President] Trump told his supporters that in the old
days , a protester would be carried out on a stretcher and that he would like to
punch him in the face. Anderson , 68. In March 2016, President Trump

123
responded to questions about his supporters' violence by saying it was "very, very

appropriate and we need a little bit more of it. Id. at 69. And during the 2020
election cycle, President Trump threatened to deploy the Military to
Minneapolis to shoot looters amid protests over the police killing of George
Floyd, id. at 76, and told the Proud Boys to stand back and stand by during a

debate for the 2020 presidential election. id. at 77.

The district court also credited the testimony of Professor Peter Simi , a

professor of sociology at Chapman University , whom it had qualified . as an

expert in political extremism , including how extremists communicate , and how
the events leading up to and including the January 6 attack relate to longstanding
patterns of behavior and communication by political extremists . Id. at ¶ 42. He
testified , according to the court's summary , that (1) violent far -right extremists
understood that [President ] Trump's calls to fight , which most politicians would
mean only symbolically ,were,when spoken by [President ] Trump , literal calls to
violence by these groups , while [President ] Trump's statements negating that
sentiment were insincere and existed to obfuscate and create plausible
deniability , id. at ¶ 84 ; and that (2) [President ] Trump's speech took place in the
context of a pattern of [President ] Trump's knowing encouragement and

promotion of violence to develop and deploy a shared coded language with his
violent supporters , id. at ¶ 142.

124
 As we described in the foregoing section , the district court further found
that President Trump encouraged and supported violence before and after the
2020 election by telling his supporters that the only way we're going to lose this
election is if the election is rigged . Remember that , id. at ¶ 88 ; that the election
was a fraud on the American public , id. at 92 ; see also id. at 101 ( Swing States

that have found massive VOTER FRAUD , which is all of them , CANNOT

LEGALLY CERTIFY these votes as complete & correct without committing a

severely punishable crime ) ; and that the Democrats had stolen an election that
rightfully belonged to President Trump and his supporters , id. at 93 , 96. The
district court also found that [m any of the state officials targeted by [President ]

Trump's campaign of intimidation were subject to a barrage of harassment and

violent threats by [his] supporters prompting Georgia election official Gabriel
Sterling to issue a public warning to [President ] Trump to stop inspiring people
to commit potential acts of violence or s omeone's going to get killed . . at
(last alteration in original); see also id . at 105 (finding that [f ar-right

extremists understood [President] Trump's refusal to condemn the violence

Sterling condemned ] as an endorsement of the use of violence to prevent the

transfer of presidential power").
The district court then identified specific incendiary language in President

Trump's speech at the Ellipse on January 6,some of which we alluded to earlier in

125
this opinion. To reiterate : President Trump announced , we're going to walk
down, and I'llbe with you, we're going to walk down to the Capitol Id.
at 135. He used the word fight or variations of it [twenty] times during his
Ellipse speech. Id. at 137; see also, e.g., id. at ¶ 135 ( And we fight . We fight like
hell. And if you don't fight like hell, you're not going to have a country

anymore. ). He declared , [w]hen you catch somebody in a fraud, a sentiment

he had repeatedly said had occurred with the 2020 election, you're allowed to go

by very different rules. Id. at 135; see also id. at 138 ( You don'tconcede when
there's theft involved. ) . And he claimed that our election victory [was] stolen
by emboldened radical-left Democrats ... . at 135.

Inshort,the district court found that President Trump's speech at the Ellipse
was understood by a portion of the crowd as,a call to arms. Id. at 145. And
the district court here is not the first or only court to reach this conclusion . In
Thompson v . Trump , 590 F. Supp . 3d 46 , 118 (D.D.C. 2022), the U.S. District Court
for the District of Columbia found that President Trump

invited his supporters to Washington, D.C., after telling them for

months that corrupt and spineless politicians were to blame for
stealingan election from them; retold that narrative when thousands
of them assembled on the Ellipse; and directed them to march on the
Capitol building where those very politicians were at work to
certify an electionthat he had lost.

126
The court concluded that President Trump's speech was, therefore plausibly

a positive instigation of a mischievous act. 20 Id. (quoting John Stuart Mill, On

Liberty 100 (London, John W. Parker & Son, 2d ed. 1859)) . Our independent

review ofthe record in this case brings us to the same conclusion : President Trump
incited and encouraged the use of violence and lawless action to disrupt the
peaceful transfer of power . The tenor of President Trump's messages to his
supporters in exhorting them to travel to Washington , D.C. on January 6 was
obvious and unmistakable : the allegedly rigged election was an act of war and
those victimized by it had an obligation to fight back and to fight aggressively
And President Trump's supporters did not miss or misunderstand the message:
the cavalry was coming to fight .
The fact that , at one point during his speech , President Trump said that
"everyone here will soon be marching to the Capitol building to peacefully and
patriotically make your voices heard does not persuade us that the district court
erred in finding that the first prong of the Brandenberg test was met . See Thompson ,
590 F. Supp . 3d at 113-14 . This isolated reference cannot inoculate [President

20 Thompsoninvolved a motion to dismiss. As a result, the court determinedonly

that President Trump's speech plausibly [involved] words of incitement not
protected by the First Amendment." Thompson, 590 F. Supp. 3d at 115; see Bell
Atlantic Corp.v . Twombly, 550 U.S.544, 553 (2007) (requiringplaintiffs to show that
their complaintsare plausible to survive a motionto dismiss for failure to state a
claim) .

127
Trump against the conclusion that his exhortation, made nearly an hour later, to
fight like hell immediately before sending rally-goers to the Capitol, within the
context ofthe larger Speech and circumstances,was not protected expression. Id.
at 117

c . Intentto ProduceViolentor LawlessAction

The second prong of the test for incitement is that the speaker intends that
his speech will result inthe use of violence or lawless action ." Nwanguma ,903 F.3d
at 609. The Supreme Court has interpreted this second prong of the Brandenburg
test to require specific intent Counterman , 600 U.S. at 79, 81 (establishing that
when incitement is at issue, we have spoken in terms of specific intent ,
presumably equivalent to purpose or knowledge , and defining acting purposely
as consciously desir[ing a result"). So ,we must consider whether President
Trump's exhortations at the Ellipse on January 6 to fight like hell, and his

21There is some uncertainty as to whether specific intentto incite imminentlawless

action is needed in civil cases such as the one before us now because most of the
modern incitement cases arose in a criminal context. See Counterman, 600 U.S. at
70; Hess, 414 U.S. at 105; Brandenburg, 395 U.S. at 444; but see Claiborne Hardware,
458 U.S. at 890 (adjudicating complainants request for injunctive relief and
damages). The Counterman Court's justification for the specific intent standard
wastherefore tied to criminal liability. Counterman, 600 U.S. at 81 ( A strongintent
requirement was a way to ensure that efforts to prosecuteincitementwouldnot
bleed over to dissenting political speech at the First Amendment's core.
(emphasis added)) . But we need not resolve the issue because, regardless of
whether it is required, we agree with the district court that President Trump acted
with specific intent.

128
urgings that his followers "go to the Capitol " and that they would get to "go by
very different rules , were intended to produce imminent lawless action .
The district court concluded that President Trump exhibited the requisite

intent here . Itfound that ,before the January 6 rally , [President ] Trump knew that
his supporters were angry and prepared to use violence to stop the steal
including physically preventing Vice President Pence from certifying the
election , Anderson , ¶ 128, and that President Trump's response to the events

following his speech support that [President ] Trump endorsed and intended
the actions of the mob on January 6, id . at ¶ 193 (second alteration in original ).
Based on these findings of fact , the court conclude [d] that [ President ] Trump
acted with the specific intent to incite political violence and direct it at the Capitol
with the purpose of disrupting the electoral certification . Id. at 293 .
The district court found that President Trump knew , before he gave his
speech, that there was the potential for violence on January 6. It found that
[President ] Trump himself agrees that his supporters listen to [him] like no one
else, id. at ¶ 63 (second alteration in original) , and that federal agencies that
President Trump oversaw identified threats of violence ahead of January 6,
including threats to storm the U.S. Capitol and kill elected officials , id. at
123–24 .

129
 The court also found that President Trump's conduct and tweets, which we
outlined above ,from the time he was told of the attack on the Capitol at 1:21 p.m.
until Congress reconvened later that night, indicated his intent to produce lawless
or violent conduct . See id. at 169–73, 178, 183, 186, 189 .
In conducting our independent review of the district court's factual
findings,we agree that President Trump intended that his speech would result in
the use of violence or lawless action on January 6 to prevent the peaceful transfer
of power. Despite his knowledge of the anger that he had instigated , his calls to
arms, his awareness of the threats of violence that had been made leading up to
January 6, and the obvious fact that many in the crowd were angry and armed,
President Trump told his riled-up supporters to walk down to the Capitol and
fight. He then stood back and let the fighting happen, despite having the ability
and authority to stop it (with his words or by calling in the military), thereby
confirming that this violence was what he intended .

We therefore conclude that the second prong of the Brandenburg test has also

beenmet.

d . Likely to Incite or Produce Imminent Lawless Action

Finally,for speech to be unprotected ,we must conclude that the imminent

use of violence or lawless action is the likely result of the speech . Nwanguma ,
903 F.3d at 609 .

130
 The district court found that:

Professor Simi reviewed [ President] Trump's relationship with his

supporters over the years, identified a pattern of calls for violence that
his supporters responded to, and explained how that long experience
allowed [President] Trump to know how his supporters respondedto
his calls for violence using a shared language that allowed him to
maintain plausible deniability with the wider public.

Id. at 62.

Professor Simi then testified about . examples of [these] patterns of call

and-response that [President ] Trump developed and used to incite violence by his
supporters . Id. at ¶ 64. In one such instance, a November 2015 political rally,
[President ] Trump t[old] his supporters to get [a protester ] the hell out of
here and the protester was then assaulted . When asked about the attack the next
,
day Trump said maybe [the protester] should have been roughed up .at 66
(third and fourth alterations in original).
¶254_Further ,the district court found that on January 1, 2021, [President ] Trump
retweeted a post from Kylie Jane Kremer , an organizer of March for Trump on
January 6, saying, The calvary [sic ] is coming , Mr. President ! Id. at 119. It
found that , according to Professor Simi , [President ] Trump's December 19 ,2020
will be wild ] tweet had an immediate effect on far -right extremists and
militias ... who viewed the tweet as a call to arms and began to plot activities

to disrupt the January 6, 2021 joint session ." Id. at ¶ 117.

131
 These findings support the conclusion that President Trump's calls for
imminent lawlessness and violence during his speech were likely to incite such
imminent lawlessness and violence . When President Trump told his supporters

that they were allowed to go by very different rules and that if they did not
fight like hell, they would not have a country anymore , it was likely that his

supporters would heed his encouragement and act violently . We therefore hold
that this final prong of the Brandenburg test has been met .
Insum, we conclude that President Trump's speech on January 6 was not

protected by the First Amendment .

IV. Conclusion

The district court erred by concluding that Section Three does not apply to
the President. We therefore reverse the district court's judgment . As stated above ,
however, we affirm much of the district court's reasoning on other issues.
Accordingly , we conclude that because President Trump is disqualified from
holding the office of President under Section Three , it would be a wrongful act
under the Election Code for the Secretary to list President Trump as a candidate
on the presidential primary ballot. Therefore,the Secretary may not list President
Trump's name on the 2024 presidential primary ballot, nor may she count any
write -in votes cast for him. See § 1-7-114(2) , C.R.S. (2023 ) ( A vote for a write -in
candidate shall not be counted unless that candidate is qualified to hold the office

132
for which the elector's vote was cast."). But we stay our ruling until January 4,
2024 (the day before the Secretary's deadline to certify the content of the
presidential primary ballot ) . If review is sought in the Supreme Court before the

stay expires , it shall remain in place, and the Secretary will continue to be required
to include President Trump's name on the 2024 presidential primary ballot until

the receipt of any order or mandate from the Supreme Court .

CHIEFJUSTICE BOATRIGHT dissented.

JUSTICE SAMOUR dissented .

JUSTICE BERKENKOTTER dissented .

133
CHIEFJUSTICEBOATRIGHTdissenting
.

agree with the majority that an action brought under section 1-1-113, C.R.S.
(2023 ) of Colorado's election code ( Election Code ) may examine whether a
candidate is qualified for office under the U.S. Constitution . But section 1-1-113

has a limited scope . Kuhn v. Williams , 2018 30M , 1n.1,418 P.3d 478 , 480 n.1

(per curiam , unanimous ) (emphasizing the narrow nature of our review under
section 1-1-113 ) . In my view , the claim at issue in this case exceeds that scope .
The voters (the Electors ) action to disqualify former President Donald J. Trump
under Section Three of the Fourteenth Amendment presents uniquely complex

questions that exceed the adjudicative competence of section 1-1-113's expedited

procedures . Simply put, section 1-1-113 was not enacted to decide whether a
candidate engaged in insurrection . In my view , this cause of action should have
been dismissed . Accordingly , I respectfully dissent .

The Electors Challenge Is Incompatible with a

Section 1-1-113 Proceeding

259 Section 1-1-113 provides for the resolution of potential election code
violations in a timely manner . In many scenarios , Colorado voters can challenge
the Secretary of State's (the Secretary ) certification of a candidate's
qualifications . Carson v. Reiner, 2016 CO 38, 17, 370 P.3d 1137, 1141

(acknowledging that section 1-1-113 clearly comprehends challenges to a broad

range of wrongful acts committed by Colorado's election ] officials charged with
1
duties under the code [and] comprehends a specific challenge to a designated
election official's certification of a candidate ) . While section 1-1-113 only offers
voters a narrow opportunity , Kuhn, ¶ 28, 418 P.3d at 484 , that opportunity has
proven effectiveas voters have compelled the Secretary to omit from the ballot
unqualified candidates whom they would have otherwise listed . E.g., id. at ¶ 57,

418 P.3d at 489 (barring a candidate from the ballot because his petition circulator
was not a Colorado resident ). Section 1-1-113's grant of discretionary review to

this court has also vindicated voters rights by preventing a decision that would
have compelled the Secretary to place an unqualified candidate on the ballot
Griswold v. Ferrigno Warren , 2020 CO 34 , ¶ 26, 462 P.3d 1081, 1087 (barring a
candidate from the ballot because she failed to gather sufficient signatures ) .
Further,our election code suggests that a petitioner may base a challenge to
the Secretary's certification of an aspiring presidential primary candidate on
federal law. Compare 1-4-1203 (2)(a), C.R.S. (2023 ) (stating that a candidate must
be , with §1-4-1201 , C.R.S. (2023 ) (declaring that the code conforms to
qualified )

federal law);see also Coats v.Dish Network , LLC,2015 CO 44 , ¶ 20 , 350 P.3d 849 , 853

(relying on federal law to interpret "lawful activity " in a Colorado statute). We

have previously held, however , that some federal law claims cannot be
adjudicated under section 1-1-113 . E.g., Frazier v. Williams , 2017 CO 85, 19,

2
401 P.3d 541, 545 (concluding that a 42 U.S.C. § 1983 claim cannot be the basis of,

or joined to, a section 1-1-113 action) .

But not all federal questions exceed the scope of section 1-1-113. A

qualification challenge under Article II, Section or the Twenty -Second

Amendment² lends itself to section 1-1-113's procedures . Although a claim that a

candidate is not thirty -five years old may be easier to resolve than a claim that a
candidate is not a natural born citizen , these presidential qualifications are
characteristically objective, discernible facts . Age , time previously served as
president,and place of birth all parallel core qualification issues under Colorado's
election Conversely , all these questions pale in comparison to the
complexity of an action to disqualify a candidate for engaging in insurrection .

U.S. Const . art. II, § 1, cl. 5 provides the presidential qualifications :

Person except a natural born Citizen, or a Citizen of the United

States, at the time of the Adoption of this Constitution, shall be
eligible to the Office of President; neither shall any Person be eligible
to that Office who shall not have attained to the Age of thirty five
Years , and been fourteen Years a Resident within the United States.

2 U.S. Const . amend . XXII, § 1 provides further presidential qualifications :

No person shall be elected to the office of the President more than
twice, and no person who has held the office of President , or acted as
President , for more than two years of a term to which some other
person was elected President shall be elected to the office of the
President more than once .

See also Colorado Secretary of State, Presidential Primary 2024 Candidate

Qualification Guide 3, https://www.coloradosos.gov/pubs/elections/

3
 Far from presenting a straightforward biographical question , Section Three

of the Fourteenth Amendment proscribes insurrectionist U.S. officers from again

holding office . U.S. Const . amend . XIV , § 3. Unlike qualifications such as age and
place of birth, an application of Section Three requires courts to define complex
terms , determine legislative intent from over 150 years ago , and make factual
findings foreign to our election code . The Electors contend that there is nothing
particularly unusual about a section 1-1-113 proceeding raising constitutional
issues . However , the framework that section 1-1-113 offers for identifying

qualified candidates is not commensurate with the extraordinary determination to

disqualify a candidate because they engaged in insurrection against the

Constitution . See Dis. op . 352 (Berkenkotter , J., dissenting ) (noting that the
historical application of section 1-1-113 . . has been limited to challenges

involving relatively straightforward issues , like whether a candidate meets a

residency requirement for a school board election."). Recognizing this limitation
of section 1-1-113 is not novel . See Kuhn, ¶ 1n.1, 418 P.3d at 480 n.1 (emphasizing
the narrow nature of our review under section 1-1-113 and declining to address

a First Amendment challenge to Colorado's residency requirement for petition

Candidates/ packets / 2024PresidentialPrimaryGuide.pdf [ https:// perma.cc/

KK3L-X8BM (listing the basic qualifications for the presidency including the
qualifications from Article II and the Twenty -Second Amendment but not
mentioning the Fourteenth Amendment's disqualification for insurrectionists) .

4
circulators because such claims exceed this court's jurisdiction ina section 1-1-113
action ) .

Dismissal is particularly appropriate here because the Electors brought their

challenge without a determination from a proceeding (e.g. ,a prosecution for an
insurrection -related offense ) with more rigorous procedures to ensure adequate
due process . Instead, the Electors relied on section 1-1-113 and its breakneck
pace to declare President Trump a disqualified insurrectionist . See Frazier , 11,
401 P.3d at 544 .

II. As Demonstratedby the ProceedingBelow, the Statutory

Timelinefor a Section1-1-113ProceedingDoesNot
Permita Claim as Complex as the Electors

¶264 In addition to qualitative incompatibilities , the complexity of the Electors

claims cannot be squared with section 1-1-113's truncated timeline for
adjudication . Section 1-1-113 actions for presidential primary ballots fulfill a need
for speed by requiring the district court to hold a hearing within five days and issue
its decision within forty -eight hours of the hearing:
Any such challenge must provide notice in a summary manner of an
alleged impropriety that gives rise to the complaint. No later than
five days after the challenge is filed, a hearing must be held at which
time the district court shallhear the challenge and assess the validity
of allalleged improprieties. The district court shall issue findings of
fact and conclusions of law no later than forty- eight hours after the
hearing. The party filing the challenge has the burden to sustain the
challenge by a preponderance of the evidence.

5
§ 1-4-1204, C.R.S. (2023) . This speed comes with consequences , namely , the
absence of procedures that courts , litigants , and the public would expect for
complex constitutional litigation . As President Trump , argues and the Electors do
not contest , section 1-1-113's procedures do not provide common tools for
complex fact-finding : preliminary evidentiary or pre-trial motions hearings ,

subpoena powers , basic discovery , depositions , and time for disclosure of

witnesses and exhibits . This same concern was raised in Frazier; the then-Secretary

argued that it is impossible to fully litigate a complex constitutional issue within

days or weeks ,as is typical of a section 1-1-113 proceeding ." 18 n.3, 401 P.3d at
545 n.3 . While we avoided deciding if a claim could be too complex for a section
1-1-113 proceeding in Frazier , that question is unavoidable here, and it demands
that we reconcile the complexity of this issue with the breakneck pace of a
section 1-1-113 procedure . In my view , the answer to this question is dispositive .
This case's procedural history proves my point . Despite clear requirements ,
the district court did not follow section 1-4-1204's statutory timeline for
section 1-1-113 claims . The proceeding below involved two delays that,
respectively , violated ( 1) the requirement that the merits hearing be held within
five days of the challenge being lodged , and (2) the requirement that the district
court issue its order within forty -eight hours of the merits hearing.

6
 The Electors filed their challenge on September 6, 2023. Although the
question of whether this action should be removed to federal court was resolved
by September 14, the district court did not hold an evidentiary hearing until
October 30. The majority appears to imply that a status conference on

September 18 fulfills the statutory requirement that the hearing be held within five
days of the Electors challenge . Maj . op . ¶83 . However , a status conference
plainly does not satisfy the requirement : No later than five days after the
challenge is filed ,a hearing must be held at which time the district court shall hear the
challenge and assess the validity of all alleged improprieties . §1-4-1204 (emphasis

added); see Carson , ¶ 21, 370 P.3d at 1142 (ruling that section 1-1-113 does not
permit a challenge to an election official's certification of a candidate to the ballot,
solely on the basis of the certified candidate's qualification ,once the period . for
challenging the qualification of the candidate directly has expired ). It is no
mystery why the statutory timeline could not be enforced : This claim was too
complex.4 The fact it took a week shy of two months to hold a hearing that “ must
take place within five days proves that section 1-1-113 is an incompatible vehicle

4 The intervals between the challenge and the hearing, and the hearing and the
order, should not cast aspersions on the district court, which made valiant efforts
to add some process above and beyond what the election code provides.
However, the Colorado General Assembly, not the district court, decides when
and how to change statutory requirements.

7
for this claim . The majority recognizes the five- day requirement, Maj. op . 38,

but it does not acknowledge the violation of section 1-4-1204's timeline or give
consequence to that violation .
Nonetheless , the majority touts the fact that a hearing was held and lauds
the district court's timely issuance of its decision as evidence that this matter was

not too complex for a section 1-1-113 proceeding . Maj. op . ¶¶ 84-85 . But was the
order timely issued ? Substantially , I think not. Compare Maj . op . ¶ 22 ( The trial
began, as scheduled , on October 30 [a Monday ] . The evidentiary portion lasted
five days [through Friday , November 3 , with closing arguments almost two
weeks later, on November 15 The court issued its written final order on
November .. ), with § 1-4-1204 ( The district court shall issue findings of fact
and conclusions of law no later than forty -eight hours after the hearing.").

Section 1-4-1204 only mandates two deadlines , and neither were honored . After
all the evidence had been presented at a week -long hearing , the court suspended
proceedings for two weeks . I find nothing in the record offering a reason
grounded in the election code for the interval between the five consecutive days

of the hearing and the solitary closing arguments . However , I understand the
necessity to postpone the closing arguments for one reason: The complexity of the
case required more time than no later than forty - eight hours after the hearing
for the court to draft its 102-page order . Thus , while the district court formally

8
issued its order within forty -eight hours of the closing arguments , the interval
between the evidentiary hearings and the closing arguments was not in
compliance with section 1-4-1204.

The majority condoned the district court's failure to observe the statutory
timeline by concluding that it substantially compl [ied]." See Maj. op. 85. This
renders the statute's five -day and forty -eight -hour requirements meaningless.

Contra Ferrigno Warren , 20, 462 P.3d at 1085 (holding that, under Colorado's
election code ,a specific statutory command could not be ignored in the name of
substantial compliance"); Gallegos Fam . Props., LLC v . Colo . Groundwater Comm'n ,
2017 73 25, 398 P.3d 599 , 608 ( Where the language is clear,we must apply
the language as written . ). Ifa court must contort a special proceeding's statutory
timeline to process a claim, then that claim is not proper for the special proceeding
From my perspective , just because a hearing was held and Intervenors
participated, it doesn't mean that due process was observed . Nor should it be
inferred that section 1-1-113's statutory procedures , which were not followed ,
were up to the task . I cannot agree with the majority that the district court's
extra-statutory delays and select procedure augmentations indicate that the
Electors claim was fit for adjudication under sections 1-4-1204 (4) and 1-1-113 .
Contra, Maj . op . ¶81 ( In short, the district court admirably and swiftly
discharged its duty to adjudicate this complex section 1-1-113 action . ). Dragging

9
someone through a makeshift proceeding is not an indication that it was an
appropriate process . See Dis . op . 274 (Samour, J., dissenting) . Importantly, the
Electors were not rushed into the process; they didn't have to file their challenge
until they were prepared . Only Intervenors arguably had inadequate time to
prepare.

Finally, only a two -thirds majority of both houses of Congress can overturn
a Section Three disqualification . U.S. Const . amend . XIV , § 3. This remedy is
extraordinary and speaks volumes about the gravity of the disqualification . Such
a high bar indicates that an expedited hearing absent any discovery procedures
and with a preponderance of the evidence standard is not the appropriate means
for adjudicating a matter of this magnitude.5 See Frazier, 17-18,401 P.3d at 545
(holding that “inconsistencies between the procedures of section 1-1-113 and a
claim under 42 U.S.C. § 1983 reinforce the conclusion that not all federal law
claims can be raised in section 1-1-113 proceedings) .

5 Although the district court made its findings using the clear and convincing
standard, the election code calls for a preponderance standard. § 1-4-1204 ( The
party filing the challenge has the burden to sustain the challenge by a
preponderance of the evidence." ) .

10
 III Conclusion

My opinion that this is an inadequate cause of action is dictated by the facts

of this case, particularly the absence of a criminal conviction for an insurrection

related offense .

The questions presented here simply reach a magnitude of complexity not

contemplated by the Colorado General Assembly for its election code enforcement

statute . The proceedings below ran counter to the letter and spirit of the statutory
timeframe because the Electors claim overwhelmed the process . In the absence of

an insurrection-related conviction , I would hold that a request to disqualify a

candidate under Section Three of the Fourteenth Amendment is not a proper cause
of action under Colorado's election code . Therefore , I would dismiss the claim at

issue here. Accordingly , I respectfully dissent .

11
JUSTICE SAMOUR dissenting .

Now it is undoubted that those provisions of the constitution which

deny to the legislature power to deprive any person of life, liberty, or
property, without due process of law, or to pass a bill of attainder or
an ex post facto, are inconsistent in their spirit and general purpose
with a provision which, at once without trial, deprives a whole class
of persons of offices for cause, however grave.

Inre Griffin, 11F. Cas . 7 , 26 ( C.C.D. Va . 1869) (No. 5,815) ( " Griffin's Case" ) .

These astute words , uttered by U.S. Supreme Court Chief Justice Salmon P.
Chase a century and a half ago , eloquently describe one of the bedrock principles
of American democracy : Our government cannot deprive someone of the right to
hold public office without due process of law . Even if we are convinced that a
candidate committed horrible acts in the past dare I say , engaged in
insurrection there must be procedural due process before we can declare that
individual disqualified from holding public office . Procedural due process is one
of the aspects of America's democracy that sets this country apart
The decision to bar former President Donald J. Trump ( President

Trump ) all accounts the current leading Republican presidential candidate

(and reportedly the current leading overall presidential candidate ) from
Colorado's presidential primary ballot flies in the face of the due process doctrine .

By concluding that Section Three of the Fourteenth Amendment is self-executing ,

the majority approves the enforcement of that federal constitutional provision by

our state courts through the truncated procedural mechanism that resides in our
1
state Election Thus , based on its interpretation of Section Three ,our court
sanctions these makeshift proceedings employed by the district court
below which lacked basic discovery , the ability to subpoena documents and
compel witnesses , workable timeframes to adequately investigate and develop
defenses , and the opportunity for a fair trial to adjudicate a federal constitutional
claim (a complicated one at that ) masquerading as a run-of-the-mill state Election
Code claim . And because most other states don't have the Election Code

provisions we do, they won't be able to enforce Section Three . That, in turn, will
inevitably lead to the disqualification of President Trump from the presidential
primary ballot in less than all fifty states, thereby risking chaos in our country .
This can't possibly be the outcome the framers intended.
I agree that Section Three bars from public office anyone who, having
previously taken an oath as an officer of the United States to support the federal
Constitution, engages in insurrection. But Section Three doesn't spell out the

1 As pertinent here, Section Three provides that:

No person shall be a Senator or Representative in Congress , or elector

of President and Vice President, or hold any office . . . under the
United States, or under any State, 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 .

U.S. Const . amend . XIV , § 3 .

2
procedures that must be followed to determine whether someone has engaged in
insurrection after taking the prerequisite oath. That is, it sheds no light on whether
a jury must be empaneled or a bench trial will suffice, the proper burdens of proof
and standards of review , the application of discovery and evidentiary rules, or
even whether civil or criminal proceedings are contemplated . This dearth of
procedural guidance is not surprising:Section Five of the Fourteenth Amendment

specifically gives Congress absolute power to enact legislation to enforce Section

Three. My colleagues in the majority concede that there is currently no legislation

enacted by Congress to enforce Section Three. This is of no moment to them,
however, because they conclude that Section Three is self-executing, and that the
states are free to apply their own procedures (including compressed ones in an
election code) to enforce That is hard for me to swallow .

The majority repeatedly uses self-executing" to describe Section Three, but then
reasons that this part of the Fourteenth Amendment is enforceable in Colorado
only because of the procedures our legislature has enacted as part of the state's
Election Code. This strikes me as an oxymoron. If a constitutional provision is
truly self- executing, it needs no legislation to be enforced. See Self-executing
Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/
self-executing https://perma.cc/4X7W-Y8AR] (defining self-executing as
taking effect immediately without implementing legislation"); see also Self
enforcing, Black's Law Dictionary (11th ed. 2019) ( self-enforcing" means" effective
and applicable without the need for any other action; self-executing ) Much like
.

Inigo Montoya advised Vizzini, I do not think [self-executing] means what [my
colleagues in the majority] think it means. The Princess Bride (20th Century Fox
1987) ( You keep using that word [inconceivable]. I do not think it means what
you think it means. ) .

3
 Significantly , there is a federal statute that specifically criminalizes
insurrection and requires that anyone convicted of engaging in such conduct be
fined or imprisoned andbe disqualifiedfrom holding public office. See 18 U.S.C. § 2383 .
If any federal legislation arguably enables the enforcement of Section Three, it's
section 2383. True, President Trump has not been charged under that statute,so
it is not before us . But the point is that this is the only federal legislation in
existence at this time to potentially enforce Section Three. Had President Trump
been charged under section 2383, he would have received the full panoply of

constitutional rights that all defendants are afforded in criminal cases. More to the
point for our purposes, had he been so charged , I wouldn't be writing separately

to call attention to the substandard due process of law he received in these

abbreviated Election Code proceedings.
277 I recognize the need to defend and protect our democracy against those who
seek to undermine the peaceful transfer of power . And I embrace the judiciary's
solemn role in upholding and applying the law . But that solemn role necessarily
includes ensuring our courts afford everyone who comes before them (in criminal
and civil proceedings alike ) due process of law . Otherwise ,as relevant here,how
can we ever be confident that someone who is declared ineligible to hold public
office pursuant to Section Three actually engaged in insurrection or rebellion after
taking the prerequisite oath?

4
 Inmy view , what transpired in this litigation fell woefully short of what due
process demands . Because I perceive the majority's ruling that Section Three is
self-executing to be the most concerning misstep in today's lengthy opinion, I
focus on that aspect of the legal analysis.
Context is key here. The Fourteenth Amendment was designed to address
a particular juncture in American history . William Baude & Michael Stokes
Paulsen,The Sweep and Force of Section Three , 172 U. Pa. L. Rev. (forthcoming 2024 )
(manuscript at 3), https://ssrn.com/abstract=4532751 . The postbellum framers
were confronted with the unprecedented nexus of historical events that gave rise
to and shaped secession ,the Civil War,and Reconstruction . Josh Blackman & Seth
Barrett Tillman , Sweeping and Forcing the President into Section 3, 28 (2) Tex . Rev. L.
& Pol. (forthcoming 2024 ) (manuscript at 214-15 ), https://ssrn.com/

abstract 4568771 . And their response , in some measure , sounded the clarion call
of a constitutional revolution . Id. at 99 .

Indeed, the Fourteenth Amendment ushered in an expansion of federal

power that undercut traditional state power . See United States v. Washington , 20 F.
630, 631 (C.C.W.D. Tex . 1883) ( The fourteenth amendment is a limitation upon
the powers of the state and an enlargement of the powers of congress . ); Adarand
Constructors , Inc. v . Peña, 515 U.S. 200, 255 (1995) (Stevens , J., dissenting ) ( The
Fourteenth Amendment directly empowers Congress at the same time it expressly

5
limits the States . ). Forefront in the minds of the framers was the evident concern
that the states would again seek to undermine the national government . In short,
the states state institutions , state officials , and state courts were not to be

trusted . Ex parte Virginia , 100 U.S. 339 , 346 (1879) ( The prohibitions of the
Fourteenth Amendment are directed to the States , and they are to a degree

restrictions of State power. ).

, the indelible trespass of the former confederate states was met
squarely by an overarching goal to render federal institutional authority

paramount . Such is the contextual framework informing my view of the instant

matter . To my mind,it compels the conclusion ,soundly supported by the framers

intent and the weight of the relevant authorities , that Section Three of the
Fourteenth Amendment is not self-executing , and that Congress alone is
empowered to pass any enabling legislation .
My colleagues in the majority turn Section Three on its head and hold that
it licenses states to supersede the federal government . Respectfully , they have it
backwards . Because no federal legislation currently exists to power Section Three
and propel it into action , because President Trump has not been charged under

section 2383 , and because there is absolutely no authority permitting Colorado

state courts to use Colorado's Election Code as an engine to provide the necessary

6
thrust to effectuate Section Three,I respectfully dissent.³ I would affirm the district
court's judgment in favor of President Trump , but I would do so on other
grounds.4

I. Analysis

A. Pertinent Procedural Posture

The district court gave short shrift to the question of whether Section Three
is self-executing . In its Omnibus Order, which denied President Trump's

September 29 motion to dismiss ,the court found the issue irrelevant. The court
ruled, in conclusory fashion , that states are empowered to execute Section Three
via their own enabling legislation and that Colorado's Election Code constitutes
such an enactment . This analytical shortcut , though convenient , is inconsistent
with both the text of the Fourteenth Amendment and persuasive authority

interpreting it.

Griffin'sCase is thejumping- off point for any SectionThree analysis.

3 There is a colorable argument that the majority incorrectly holds that Section
Three applies to the President of the United States. Other parts of the majority's
analysis, including the determinations that President Trump engaged in
insurrectionand that his remarks deserve no shelter under the First Amendment's
rather expansive protective canopy, are at least questionable. Because I conclude
that SectionThree is not self- executing, and because that conclusionis dispositive,
I don't address any other issue.

4 The districtcourt decided that SectionThree does not apply to the Presidentof
the UnitedStates.

7
 B. Griffin's Case : The Fountainhead
In 1869, less than a year after the ratification of the Fourteenth Amendment ,
U.S. Supreme Court Chief Justice Chase presided over Griffin's Case in the federal
circuit court for the district of Virginia.5 Griffin's Case is the wellspring of Section
Three jurisprudence . And , given the temporal proximity of Chief Justice Chase's

pronouncements on the topic of self-execution to the passage and ratification of

the Fourteenth Amendment ,I consider the holding in Griffin's Case compelling
Judge Hugh W. Sheffey presided over Caesar Griffin's criminal trial after
the Fourteenth Amendment went into effect . Griffin's Case ,11F. Cas . at 22. Before

the Civil War , Sheffey held a Section Three -triggering position ,and so, had taken
an oath to support the Constitution of the United States . Id. Subsequently ,Sheffey
served in Virginia's confederate legislature . Id. It was not until after the war that
Sheffey was appointed to a state court judgeship , the position he held at the time
of Griffin's trial. . at 16. Following the jury's guilty verdict on the charge of
assault with intent to kill, Judge Sheffey sentenced Griffin to two years
imprisonment . at 22-23
Griffin filed a collateral attack in federal district court. He argued that his

sentence was null because Section Three had instantly , on the day of its

5 At the time, SupremeCourt justices rode the circuit and sat in regionalfederal
courts.

8
promulgation, vacated all offices held by persons within the category of
prohibition, thereby rendering Judge Sheffey ineligible to be on the bench . Id. at

24. More specifically, Griffin claimed that Sheffey was disqualified from being a
judge because he had engaged in conduct prohibited by Section Three . Id. The
federal district court agreed and ordered Griffin's immediate discharge from
custody .
On appeal, Chief Justice Chase framed the issue in the following terms :
hether upon a sound construction of the amendment , it must be regarded as
operating directly , without any intermediate proceeding whatever , upon all persons
within the category of prohibition , and as depriving them at once, and absolutely,
of all official authority and power . Id. at 23 (emphasis added) . Chief Justice
Chase grounded his resolution of this self-execution inquiry in the character of
the third section of the amendment . Id. at 25. In other words , he focused on the

context in which the disqualification clause of the Fourteenth Amendment was

enacted . Of course, he recognized that the ultimate object of this part of the
Fourteenth Amendment was to exclude from certain offices a certain class of

persons. . at 26. But his prefatory statements echo the bugle blow of

constitutional revolution : The amendment itself was the first of the series of

measures proposed or adopted by congress with a view to the reorganization of

state governments acknowledging the constitutional supremacy of the national

9
government ,in those states which had attempted to establish an independent
Confederacy . Id.at 25.

Crucially, he observed that it is obviously impossible to [ disqualify certain

officers] by a simple declaration, whether in the constitution or in an act of
congress . Id. at 26. He added that to carry out Section Three's punitive mandate
and enforce any sentence of exclusion, it must first be ascertained what
particular individuals are embraced by the definition . Id. Chief Justice Chase
explained that t o accomplish this ascertainment and ensure effective results,
considerable procedural and normative mechanisms would need to be introduced;
certainly, proceedings , evidence , decisions, and enforcements of decisions ,more
or less formal,are indispensable. Id. And here's the kicker, the beating heart of
Griffin's Case: Chief Justice Chase declared that these indispensable mechanisms
"can only be provided for by congress ." Id. (emphasis added) .
Itwas the very language of the Fourteenth Amendment,Chief Justice Chase
continued, that put this proposition beyond doubt: Now, the necessity of this is
recognized by the amendment itself, in its fifth and final section, which declares
that congress shall have power to enforce, by appropriate legislation, the
provision[ ] of this article. Id. (emphasis added) (quoting U.S. Const amend
XIV, 3). Chief Justice Chase noted that Section Five qualifies [Section Three] to

the same extent as it would if the whole amendment consisted of these two

10
sections . Id. And pivoting back to Section Three, he pointed out that, consistent
with Section Five, its final clause gives to congress absolute control of the whole

operation of the amendment . Id.; see U.S. Const . amend . XIV, § 3 ( But Congress
may by a vote of two-thirds of each House,remove such disability . ) .
Chief Justice Chase, therefore, concluded :

Taking the third section then, in its completeness with this final
clause, itseems to put beyond reasonablequestion the conclusion that the
intentionof the people of the United States, inadoptingthe fourteenth
amendment, was to create a disability, to be removed in proper cases
by a two-thirds vote, and to be made operative in other cases by the
legislation ofcongress in its ordinary course.

Griffin'sCase, 11F. Cas. at 26 ( emphasesadded) .

I extract three seminal, and related , takeaways from this review of Griffin's
Case First,Section Three is not self-executing . Second , only Congress can pass the
"appropriate legislation needed to execute it. And third , this grant of power to
Congress was not merely formalistic ; it was also pragmatic . Indeed, it was
indicative of the complex nature of the disqualification function . Chief Justice
Chase perceived that Section Three would require an array of

mechanisms procedural , evidentiary , and definitional to ascertain who was

subject to disqualification and how they could be disqualified . More on this third
notion later.

For now , though , it is worth stressing that, despite detractors in some

quarters , the other premises have withstood the test of time: Section Three is not

11
self-executing, and Congress has the exclusive authority to enforce it. See Cale v.
City of Covington, 586 F.2d 311, 316 ( 4th Cir. 1978) (citing Griffin's Case for the
proposition that Section Three is not self-executing absent congressional action ) ;
State v. Buckley, 54 Ala . 599, 616–17 (1875) (same) ; Hansen v. Finchem , No. CV-22
0099-AP/EL, 2022 WL 1468157,*1(Ariz. May 9, 2022) (affirming the lower court's
rulingagainst disqualification on state law grounds but stating that Section 5 of
the Fourteenth Amendment appears to expressly delegate to Congress the

authority to devise the method to enforce the Disqualification Clause ); see also Va.
.
Op Att'y Gen. No. 21-003, at 3 (Jan. 22,2021) (citing Griffin's Case and stating that
the weight of authority appears to be that Section 3 of the FourteenthAmendment
is not self-executing ) .
I now address the criticisms launched by the Electors against the enduring
vintage of Griffin's Case . For the reasons I articulate , I am not persuaded by any of
the contentions advanced .

C. Harmonizing Griffin's Case and Case ofDavis

The Electors argue that Chief Justice Chase took the opposite tack on Section
Three a couple of years before deciding Griffin's Case . See Case of Davis, 7 F. Cas.
63 (C.C.D. Va .1871). But Griffin's Case was decided after Case ofDavis, and unlike

12
Griffin's Case, Case of Davis is a two -judicial-officer, unwritten , split decision.6
Hence, to put it mildly , Case of Davis is of questionable precedential value . Indeed,
the majority doesn't rely on Case of Davis in its attempt to undermine Griffin's Case.
In Case of Davis, Chief Justice Chase, again sitting as a circuit court judge ,
presided over the treason prosecution of former confederate president , Jefferson
Davis. Id. The question before the court was whether Section Three displaced the
federal criminal treason charges levied against Davis . Id. at 102. Defense counsel

asserted that Section Three provided the exclusive punishment for those within its
reach,thus foreclosing prosecution under the federal treason statute . Id. at .
Furthermore , defense counsel maintained that Section Three executes itself and

" needs no legislation on the part of congress to give it effect . Id. at 90.

Due to the structure of the federal judiciary at the time , the case was heard
by both a federal district court judge and Chief Justice Chase sitting together . See
Judiciary Act of 1802, 2 Stat . 156, 159, 6. The judicial officers , however , failed to
reach consensus on the defense's motion to quash the indictment. Case of Davis,

6
Althoughthe year in the citationfor Case ofDavis ( 1871) postdatesthe year in the
citation for Griffin's Case (1869) , it was in fact Case of Davis that came first. See
GerardN.Magliocca, Amnesty and Section Three of the FourteenthAmendment, 36
Const Comment. 87, 100 n.66 (2021) . Chief Justice Chase announced on
December5, 1868, that the court had failed to reach consensus in Case of Davis.
CaseofDavis, 7 F. Cas. at 102; Certificateof Division, CaseofJeffersonDavis, 7 F.Cas.
63 ( C.C.D. Va. 1867-1871) (No. 324) , https://joshblackman.com/wp-content/
uploads/ 2023/ 08/ 5220.pdf [https://perma.cc/K7QC-4YZJ
].

13
7 F. Cas . at 102. Accordingly , a certificate of disagreement was submitted for
review by the Supreme Court at its next session . Id. Notably , though, the case was
never heard by the Supreme Court because President Johnson issued a
proclamation of general amnesty in December 1868, effectively disposing of the

treason charges . Id.

Although the certificate of disagreement did not indicate the judicial

officers votes,the final sentence in the 1894 report of the case in the Federal Reports
states that Chief Justice Chase instructed the reporter to record him as having

been of opinion on the disagreement , that the indictment should be quashed , and
all further proceedings barred by the effect of the fourteenth amendment to the
constitution of the United States ." Id. Over the years ,some have clung to this
hearsay to posit that Chief Justice Chase was inconsistent in his application of
Section Three,waffling on the issue of self -execution .
Certain legal scholars have sought to explain this purported incongruence
by surmising that Chief Justice Chase's application of Section Three in Griffin's

Case was politically motivated . Consequently , they criticize Griffin's Case as

wrongly decided and the result of flawed logic . See Baude & Paulsen , supra
(manuscript at 35-49) . Other legal scholars , however , question whether the

statement quoted above from the Federal Reports accurately represented Chief
Justice Chase's views . They point out that the case reporter ,a former confederate

14
general, was the very attorney who represented Judge Sheffey in Griffin's
See Blackman & Tillman, supra (manuscript at 15) . Even assuming Case of Davis
warrants any consideration at all, there is no need to join this affray because these
cases can be reconciled in a principled manner by recognizing that there are two
distinct senses of self-execution. Id. at 19. I find this distinction both helpful and
borne out by the case law.
300 First, there is self-execution as a shield, allowing individuals to raise the

Constitution defensively , in response to an action brought by a third party .

Second , there is self -execution as a sword such as when individuals invoke the

Constitution in advancing a theory of liability or cause of action that supports

affirmative relief. When acting as a shield , the Fourteenth Amendment is

self -executing . Cale, 586 F.2d at 316. The Fourteenth Amendment , however ,
cannot act as a self-executing sword; rather ,an individual seeking affirmative relief
under the Amendment must rely on legislation from Congress . Id.
The Fourth Circuit aptly adopted this distinction in Cale, thereby reconciling

any apparent inconsistencies in Fourteenth Amendment jurisprudence . That case

7
Griffin's Case was decided in 1869 and the statement from the case reporter
regarding Case ofDavis appeared in the 1894 Federal Reports. Blackman & Tillman,
supra (manuscript at 140)

15
implicated a wrongful discharge action in which the plaintiff asked the court to
sanction an implied cause of action arising under the Fourteenth Amendment's
due process clause . Id. at 313. In examining whether an implied cause of action
exists under the due process clause of the Fourteenth Amendment , the court
turned to cases that have construed Section Five. It began by discussing Ex parte
Virginia , where the Supreme Court explained that the Fourteenth Amendment

derives much of its force from Section Five, which envisions enabling legislation

from Congress to effectuate the prohibitions of the amendment :

It is not said the judicial power of the general government shall extend
to enforcing the prohibitions and to protecting the rights and
immunities guaranteed. It is not said that branch of the government
shallbe authorized to declare void any action of a State in violation of
the prohibitions. It is the power of Congress which has been
enlarged Congress is authorized to enforce the prohibitions by
appropriate legislation. Some legislation is contemplated to make the
amendmentsfully effective.

Exparte Virginia, 100 U.S. at 345-46 ( first emphasis in original, second emphasis

added) .

But shortly after deciding Ex parte Virginia, the Supreme Court declaredthe
Fourteenth Amendment to be undoubtedly self-executing without any ancillary
legislation, while simultaneously making the seemingly inconsistent statement
that Section Five invests Congress with power to enforce" the Fourteenth
Amendment in order that the national will, thus declared, may not be a mere
brutum fulmen. The Civil Rights Cases, 109 U.S. 3, 11,20 (1883). Although at first

16
blush the opinion inthe Civil Rights Cases appears to be both internally inconsistent
and inconsistent with Ex parte Virginia , the Cale court did not so hold . Cale,
586 F.2d at 316. Instead , the Cale court resolved any apparent inconsistencies by

distinguishing between , on the one hand , the protection the Fourteenth

Amendment provide [s ] of its own force as a shield under the doctrine of judicial
review and on the other , affirmative relief sought under the amendment as a
sword ,which is unavailable without legislation from Congress . Id.
Insupporting this distinction, the Cale court found refuge in the Slaughter
House Cases . 83 U.S. 36 (1872). There , the defendants invoked the Fourteenth
Amendment as a shield by arguing that a local law restricting where animals could
be slaughtered deprived the city's butchers of their right to exercise their trade .
.at 60. The Supreme Court, however , held that given the history of the
Reconstruction Amendments and their purpose of preventing discrimination
against the newly liberated enslaved people,the butchers right to exercise their

trade was not a right that fell within the purview of the privileges-and
immunities provision of Section One of the Fourteenth Amendment . Id. at 81. Of
particular interest for our purposes is the fact that the Court did not reject the use
of the Fourteenth Amendment as a self-executing shield , but rather rejected the
argument that the particular right in question fit within the Fourteenth
Amendment's protection .

17
 304 Importantly , based on its examination of Ex parte Virginia , the Civil Rights
Cases, and the Slaughter -House Cases , the Cale court observed that the Congress
and Supreme Court of the time were in agreement that affirmative relief under the
amendment should come from Congress ." Cale , 586 F.2d at 316. The Cale court
added that it's only when state laws or proceedings are asserted in hostility to
rights and privileges " that the Fourteenth Amendment , and specifically Section
One, may be raised as a self-executing defense to those laws or proceedings . Id.
(discussing the Civil Rights Cases , 109 U.S. at 46 (Harlan,J. , dissenting )) ; see also The

Slaughter-House Cases , 83 U.S. at 81 (explaining that when it is a State that is to be

dealt with, and not alone the validity of its laws, the matter should be left in the
hands of Congress).
The defensive -offensive dynamic of the Fourteenth Amendment is best
exemplified by the interplay between 42 U.S.C. 1983 and Ex parte Young,209 U.S.
123 (1908). See Cale , 586 F.2d at 316-17. In Ex parte Young, multiple railroad
companies wielded the Fourteenth Amendment's due process clause as a shield to
request enjoinment of the future enforcement of Minnesota’s mandatory railroad

rates . 209 U.S. at 130. The Court ruled in their favor, holding that they could
prospectively bring suit against a state official to prevent the enforcement of an act

that violated the federal constitution . Id. at 167. But an Ex parte Young claim is not
so much an affirmative cause of action as it is a defense that may be asserted in

18
anticipation of the enforcement of state laws alleged to be unconstitutional. See
Mich. Corr. Org.v. Mich. Dep't of Corr., 774 F.3d 895, 906 (6th Cir. 2014) . Hence, Ex
parte Young provides a means of vindicating Fourteenth Amendment rights
without violating the grant of exclusive enforcement power to Congress . When a
party wishes to assert its Fourteenth Amendment rights offensively, however, it
must bring a cause of action under legislation enacted by Congress, such as section
1983.

Between affirmative relief provided by Congress and defensive Ex parte

Young claims,constitutional rights are "protected inall instances." Cale,586 F.2d
at 316-17. Not surprisingly, after declining to find an implied cause of action
permitting affirmative relief within the Fourteenth Amendment, the Fourth
Circuit in Cale remanded to the district court with instructions to determine

whether the plaintiff's wrongful discharge claim could be brought under

section 1983, the proper enforcement mechanism . Id. at 312.

The majority devotes all of one sentence to Cale and disregards most of the
Supreme Court jurisprudence to which that thoughtful opinion is moored. Maj.
op . at 103. It is true that Cale was a Section One, not a Section Three ,case. But

Cale cited to Griffin's Case (a Section Three case) in determining that the Fourteenth
Amendment cannot be used as a self -executing sword, thus tethering the
distinction to both Sections . Cale, 586 F.2d at 316. Accordingly , while courts have

19
seldom had occasion to interpret Section Three , the case law on Section One is

instructive on the issue of self- execution .

Critically,the Supreme Court has affirmed that the Fourteenth Amendment,

while offering protection under certain circumstances , does not provide a

self-executing cause of action. Ownbey v. Morgan, 256 U.S. 94, 112 (1921) ( [ ]t
cannot rightly be said that the Fourteenth Amendment furnishes a universal and
self-executing remedy. Its function is negative, [n ot affirmative,and it carries no
mandate for particular measures of reform. ). Moreover, as pertinent here, the
Supreme Court has retreated from recognizing implied causes of action, instead
holding that for a cause of action to exist, Congress must expressly authorize it.
Alexander v. Sandoval, 532 U.S. 275,276 (2001) (refusing to recognize a private right
of action because, [ ike substantive federal law itself, private rights of action to
enforce federal law must be created by Congress ).
The majority nevertheless protests that interpreting any section of the
Fourteenth Amendment as requiring legislation yields absurd results because the
rest of the Reconstruction Amendments are self-executing . Maj. op . ¶ 96. I do not
dispute that the Thirteenth and Fifteenth Amendments are self -executing . But I
disagree that Section Three must therefore be deemed self -executing as well. The
Thirteenth and Fifteenth Amendments , on the one hand, and the Fourteenth

Amendment, on the other, are different.

20
 The Thirteenth and Fifteenth Amendments speak in affirmative , universal
terms to abolish slavery ,create the right to vote , and restrain not only government
actors , but also private individuals . See George Rutherglen , State Action, Private
Action , and the Thirteenth Amendment , 94 Va . L. Rev. 1367 , 1367 (2008); Guinn v.
United States , 238 U.S. 347, 363 (1915) (recognizing the right of suffrage " created
by the Fifteenth Amendment's generic character ) . The Fourteenth Amendment ,
however , was born out of a deep suspicion of the states and acts as a negative
policing mechanism intended solely to curtail state power . Adarand , 515 U.S. at
255 (Stevens , J. dissenting ) ( The Fourteenth Amendment directly empowers

Congress at the same time it expressly limits the States . ); The Civil Rights Cases,
109 U.S. at 11 (holding that the Fourteenth Amendment applies to state action, not

private action ) . This curtailment applies both to state laws or actions abridging

rights and to a state's selection of government officials . To give effect to this

amendment while respecting our federalist system , courts have turned to the
sword -shield paradigm of self-execution , thereby striking a balance between

delegated federal power and reserved state power " without forsaking the
protection of constitutional rights in all instances ." Michigan Corr . Org.,774 F.3d
at 900 Cale ,586 F.2d at 317

To draw a yet deeper line in the sand, unlike the Thirteenth and Fifteenth

Amendments, Section Three does not indelibly ensure a right but instead allows

21
the federal government to act as a protective check against a state's selection of
government officials so as to preclude elected insurrectionists and safeguard

democracy. This shift in power between the authority of the states to choose their
own government officials and the authority of the federal government as a last
defense is all the more reason to require a congressionally created cause of action
to direct the execution of this federal oversight .
Insum,Chief Justice Chase's holding in Griffin's Case appears consistent and
in alignment with both his alleged vote in Case of Davis and our framework for
Fourteenth Amendment litigation . Griffin wielded Section Three as a self

,
executing sword invoking the provision as a cause of action to disqualify Judge
Sheffey Davis,on the other hand, took a defensive posture and invoked Section

Three as a self-executing shield , arguing that it provided the exclusive punishment

for insurrection , thus displacing the federal criminal treason charges brought
against him

Having said that , I do not rely solely on Griffin's Case. Congress's own

actions corroborate my understanding of Section Three .

D. ErstwhileEnabling Legislation

The majority's ruling that Section Three self-executes without the need for
any federal enforcement legislation is further undermined by Congress's

promulgation of just such legislation. One year after Griffin's Case was decided,

22
and perhaps in response to it, Congress enacted the Enforcement Act of 1870. The
Enforcement Act contained two provisions for the specific purpose of enforcing
Section Three . Enforcement Act of 1870, ch. 114 , 16 Stat . 140, 143–44. The first

provided a quo warranto mechanism whereby a federal district attorney could

bring a civil suit in federal court to remove from office a person who was
disqualified by Section Three. Id. at 143. The second permitted a criminal

prosecution for knowingly accepting or holding office in violation of Section

Three ,and included punishment by imprisonment of not more than a year ,a fine
of not more than $1,000 , or both . Id. at 143-44 .

The enforcement purpose behind the Act was evident in the congressional
debates held on these very two provisions. Speaking in support of their adoption,
Senator Lyman Trumbull, referring to Section Three, stated, But notwithstanding
that constitutional provision we know that hundreds of men are holding office
who are disqualified by the Constitution. The Constitution provides no means for
enforcing itself, and this is merely a bill to give effect to the fundamental law embraced in

the Constitution. Cong. Globe, 41st Cong., 1st Sess . 626 ( 1869) (emphasis added).
He later reiterated this as he explained that "[s ome statute is certainly
point

necessary to enforce the constitutional provision." Id. The debate on the floor
focused not on whether the provisions were necessary for enforcing Section
Three that seemed to be a foregone conclusion but instead on whether the

23
second provision and its attendant punishments were necessary . The need for the
first provision was so self-evident that it was not even debated . As Senator Garrett
Davis put it, the first provision simply provided an adequate remedy to prevent
any of the criminals under the fourteenth amendment of the Constitution from
holding office in defiance of its letter . Id. at 627.

While the quo warranto provision in the Enforcement Act would have
provided a civil cause of action to challenge President Trump's eligibility to appear
on Colorado's presidential primary ballot, Congress repealed it in 1948. See Myles

S. Lynch Disloyalty & Disqualification : Reconstructing Section 3 of the Fourteenth

Amendment , 30 Wm . & Mary Bill Rts. J. 153, 206 n.365 (2021) (citing Act of June 25,
1948, ch. 646 , § 39 , 62 Stat . 869 , 993 ); see also Act of June 25 , 1948, ch. 645 , § 2383,
62 Stat. 683 ,808. The Enforcement Act's criminal provision , however , appears to
have survived : As best I can tell , 18 U.S.C. 2383 is its descendant . Id.

Presumably recognizing the civil -action gap created by the 1948 repeal ,just
months after the January 6, 2021 incident , legislation was proposed to allow the
Attorney General of the United States to bring a civil action against any
Officeholder who engages in insurrection or rebellion, including any Officeholder
who, after becoming an Officeholder , engaged in insurrection or rebellion .
H.R. 1405, 117th Cong. (2021). H.R. 1405 would have disqualified such an
Officeholder from federal or state office . Id. Furthermore , it would have provided

24
what has been so apparently lacking from this state proceeding clear
designations of the appropriate procedures ,forum, and standard of evidence, as
well as the definition of insurrection or rebellion . Id.

H.R. 1405 made it no further than introduction in the House . But the

relevant point for our purposes remains : As recently as 2021,just months after the
January 6 incident , Congress considered legislation to enforce Section Three
through a civil proceeding. Why would Congress do so if,as the majority insists ,
Section Three is self-executing ? Along the same lines, if the majority is correct that
Section Three is self-executing , why did Congress pass the Enforcement Act to
begin with (on the heels of Griffin's Case) and then allow it to remain in effect in its
entirety until 1948? The majority offers no salient explanation .
Ifthere is any enforcing legislation for Section Three currently on the books,
it is arguably what remains from the Enforcement Act , 18 U.S.C. § 2383. Similar
to its ancestor , that statute states that :

Whoever incites, sets on foot, assists, or engages in any rebellion or

insurrection against the authority of the United States or the laws
thereof, or gives aid or comfort thereto, shall be fined under this title
or imprisonednot more than tenyears, or both; and shall be incapable
of holding any office under the United States.

While section 2383 might provide an enforcement mechanism for Section Three, it

is not presently before us . That's because President Trump has never been charged

25
with, let alone convicted of, violating it. The instant litigation feels to me like an

end run around section 2383 .

To the extent there is interest in seeking to disqualify President Trump from

holding public office (one of the mandatory punishments provided in section
2383) based on the allegation that he engaged in insurrection (one of the acts
prohibited by section 2383 ), why wasn't he charged under section 2383? And,
relatedly,why isn't he entitled to more due process than that which hereceived in

this constricted Election Code proceeding? To be sure,unlike section 2383, Section

Three prescribes neither a fine nor a term of imprisonment as a consequence for
engaging in an insurrection after taking the prerequisite oath . So, I'm not
suggesting that President Trump should have been afforded all the rights to which

a defendant would be entitled in a criminal case. But here,the district court found
that he engaged in insurrection after taking the prerequisite oath, despite affording
him subpar due process (even under civil-procedure standards).
Compellingly , although H.R. 1405 wouldn't have called for a criminal
proceeding , it would have provided more due process than that available in a civil
action . For example , H.R. 1405 would have required any action brought to be
heard and determined by a district court of three judges . H.R. 1405, § 1(d)( 1).
Additionally , any allegation of insurrection would have demanded proof by clear

and convincing evidence , and any final order or injunction would have been

26
reviewable by appeal directly to the U.S. Supreme Court. Id. at § (1)(d)( 1) (4) . I
infer from these provisions that at least some members of Congress acknowledged
the need to provide ample due process (more than is available in typical civil cases)
to anyone alleged to have violated Section Three.
My colleagues in the majority necessarily view as acceptable the diminished
due process afforded President Trump as a result of enforcing Section Three
through our Election Code. Instead, they prioritize their fear that a ruling

disallowing the disqualification of President Trump from the primary ballot

pursuant to Section Three would mean that 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.
Maj.op . 68. They see this as a more insidious evil. As I discuss in the following
section, however, my colleagues are mistaken in their understanding of the law,
and their worry is therefore unjustified .
E. Section Three of the FourteenthAmendmentIs Unlike
OtherConstitutionalQualificationClauses

The U.S. Supreme Court has acknowledged a non-exhaustive list of

constitutional Qualification Clauses . See U.S. Term Limits, Inc. v . Thornton ,514 U.S.

779, 787 n.2 (1995) (quoting Powell v. McCormack , 395 U.S. 486 , 520 n.41 (1969),
which lists qualifications " codified in the following provisions of the U.S.
Constitution : (1) Art . I, 2, cl. 2; (2) Art . I, 3, cl. 7; (3) Art . I, 6, cl. 2 ; (4) Art . IV,

27
 (5) Art . ,cl . 3 ; and (6) Amend . XIV , 3). This list can fairly be expanded to
include Article II, Section One , Clause Five, and perhaps also Section One of the
Twenty -Second Amendment . See U.S. Const . art . II, § 1, cl. 5 (laying out three
presidential eligibility requirements related to birth ( natural born Citizen ), age
( thirty five Years "), and residency ( fourteen Years a Resident ), which are
similar to those specified in Art . I, 2, cl. 2) ; U.S. Const. amend . XXII, 1(using
the same No person shall language found in Art . I, § 2, cl. 2 and specifying a
two -term limit for the presidency ) .
Although Section Three was included in Powell among the so-called
Qualification Clauses , closer scrutiny reveals that it is unique and deserving of
different treatment . That's because Section Three is the only one that is
"qualifie[d by the following language: C ongress shall have power to enforce,
by appropriate legislation ,the provision[s] of this article." Griffin's Case, 11F.Cas at
26 (emphasis added) (quoting U.S. Const. amend .XIV , 5 and stating that [t he
fifth section qualifies the third ). None of the other Qualification Clauses even
when viewed in the context of the original Articles in toto contains the
"appropriate legislation modifier. Indeed,that modifier only appears in certain
other Amendments,none of which are objectively relevant to the instant matter. I
need not contemplate what bearing,if any, this has on the self-executing nature of
constitutional provisions more generally . While that might be an open question,
see Blackman & Tillman, supra (manuscript at 23) (noting that there appears to be
no deep well of consensus that constitutional provisions are automatically self
executing or even presumptively self -executing ) , the demands of the instant

matter counsel in favor of limiting my exposition to the Constitution's presidential

qualifications, especially those found in Article II,Section One, Clause Five

¶325 Here, once again, the interplay between Sections Three and Five of the
Fourteenth Amendment is of great significance . See Griffin's Case, 11 F. Cas. at 26.
As mentioned, Article II, Section One, Clause Five contains nothing akin to the
"appropriate legislation language in Section Five of the Fourteenth Amendment.
Thus, unlike Section Three's disqualification clause , which is modified by Section

Five's appropriate legislation language, the Article IIpresidential qualifications

do not appear to have a constitutionally mandated reliance on congressional
enabling legislation.

We are not at liberty to ignore this blistering lacuna in Article language .

But that is exactly what my colleagues in the majority do . And in so doing, they

err . Even if the presidential qualifications contained in Article are self-executing

or allow for state enabling legislation thereby providing the Electors with acause

of action to enjoin the Secretary of State ( the Secretary ) from certifying a

candidate disqualified by birth, age , or residency , to the Colorado presidential

primary ballot,see, e.g. , Hassan v. Colorado , 870 F. Supp . 2d 1192, 1194–95 (D. Colo .

29
2012), , 495 F. App'x 947 (10th Cir . 2012); see also 1-4-1203 (2)(a) , C.R.S.
(2023) the same does not hold true for Section Three's disqualification clause.

Moreover , I detect a reason underlying this discrepancy in the

principled

language of Article and Section Three . It relates to what I previously identified

as my third takeaway from Griffin's Case . Recall that the Fourteenth Amendment's

grant of absolute power to Congress vis -à -vis Section Three's enforcement was

pragmatic , not merely formalistic . It was motivated by the complex nature of the
disqualification function . Chief Justice Chase presciently observed that to
"ascertain what particular individuals are embraced by Section Three's
disqualifying function , and to
ensure effective results in a disqualification case,
considerable proceedings ,evidence , decisions ,and enforcements of decisions ...
are indispensable ." Griffin's Case, 11 F. Cas . at 26. In my view , the unwieldy
experience of the instant litigation proves beyond any doubt the foresight of Chief
Justice Chase's pronouncements . It doesn't require much process, procedure ,or
legal acumen to determine whether a candidate is barred by the binary and clerical
requirements of birth, age , residency , and term limits . Typically , a notarized
statement of intent will do the trick . See § 1-4-1204 (1)(c) , C.R.S. (2023 ) . By contrast ,

Section Three disqualification necessarily requires substantial procedural and

normative mechanisms to ensure a fair and constitutionally compliant outcome .
These include, to name but a few , instruction on discovery and evidentiary rules;

30
guidance as to whether a jury must be empaneled or a bench trial will suffice ;
direction as to the proper standards of review and burdens of proof ; and
clarification about whether civil or criminal proceedings are contemplated .

Additionally , there's a vital need for definitional counsel on such questions as who
is an officer of the United States "? What is an insurrection "? What does it mean

to engage[ ] in the same? Does incitement count?

By no means do I intend to undermine the sacred role of the judiciary in

directing the course of similar issues through precedential pathways . Nor would

I have the third branch hamstrung in its task of setting the metes and bounds of
litigation practice . But when the enforcement power of a punitive constitutional
mandate is delegated to Congress in such unequivocal terms , it would appear
decidedly outside the judicial bailiwick to furnish the scaffolding that only

"appropriate legislation " can supply . Because the Constitution gives this job to
Congress , and only Congress , I consider it equally improper indeed ,

constitutionally impossible for state legislatures , in the absence of federal

legislation , to create pseudo causes of action pursuant to Section Three's

disqualification clause . This is precisely what the framers sought to prevent .
For this reason, the cases cited by the district court for the proposition that
states can, and have , applied Section [Three ] pursuant to state statute without
federal legislation " do not alter my analysis . See Worthy v. Barrett , 63 N.C. 199, 200

31
(1869), appeal dismissed sub no. Worthy v. Comm'rs, 76 U.S. 611 (1869); In re Tate,
63 N.C. 308,309 (1869); State ex rel. Sandlin v. Watkins , 21 La . Ann. 631, 631–34 (La.
1869);State v. Griffin,No. D-101-CV-2022-00473 , 2022 WL 4295619 ,at * (N.M.

Dist.Sept. 6,2022); Rowan v. Greene, No. 2222582-OSAH-SECSTATE -CE-57-Beaudrot, 1

(Ga. Off . Admin. Hearings May 6, 2022). To the extent other state courts have
concluded that their own state statutes allow them to adjudicate Section Three
claims, respectfully submit that they are flat out wrong. Unfortunately, the

majority joins company with these misguided decisions and holds that our
General Assembly not only can, but has, empowered Colorado's state courts to
adjudicate Section Three claims via our Election Code.8 Maj. op . 88 n.11. I turn
next to why Colorado's Election Code cannot rescue the majority.
F. Colorado's Election Code Cannot Supply What Congress
Has Withheld

There is zero authority permitting state legislatures to do that which, though

delegated to it, Congress has declined to do. The majority , however, holds that
the Electors Fourteenth Amendment claim can be brought under sections 1-1-113

Interestingly, the majority does not explainwhat should happenmovingforward

ifnobody challenges a candidatewhom theSecretary believes previouslyengaged
in insurrection after taking the prerequisite oath. Without the state courts
involvement, is the Secretary supposed to decide on her own whether the
candidate is disqualified from public office by Section Three? And if so, how
would the Secretary go about doingthat? Would the majority expect her to act as
investigator, prosecutor, and adjudicator in that type of situation?

32
and 1-4-1204(4), C.R.S. (2023) , of the Colorado Election Code because the
Secretary's listing of a constitutionally disqualified candidate on the presidential

primary ballot would be a wrongful act, as that term is used in section 1-1-113.
See § 1-1-113(1). Maj. op . ¶¶ . But the truncated procedures and limited due
process provided by sections 1-1-113 and 1-4-1204(4) are wholly insufficient to
address the constitutional issues currently at play.
Section 1-1-113 (1) provides that when any eligible elector files a verified
petition. . . alleging that a person charged with a duty under this code has
committed or is about to commit a breach or neglect of duty or other wrongful act ,
upon a finding of good cause, the district court shall issue an order requiring
substantial compliance with the provisions of this code. (Emphases added .)
Section 1-4-1204 (4 ) outlines the procedures to be followed when a section 1-1-113

challenge concerns the listing of a candidate on the presidential primary ballot. It

provides that the challenge must be made in writing and filed with the district
court no later than five days after the filing deadline for candidates .
§ 1-4-1204 (4). The written challenge must provide notice in a summary manner
of an alleged impropriety that gives rise to the complaint ." Id. Once the challenge

is filed ,the district court must hold a hearing within five days . Id. At that hearing,
the district court must hear the challenge and assess the validity of all alleged
improprieties . Id. The filing party has the burden of sustaining the challenge by

33
a preponderance of the evidence . Id. After the hearing, the district court must
issue its findings of fact and conclusions of law within forty -eight hours . Id. An
appeal from the district court's ruling must be brought before this court within
three days of the district court's order , and this court has discretion to accept or
decline jurisdiction over the case. 1-4-1204(4 ); § 1-1-113 (3).
As these statutory provisions make clear, a section 1-1-113 challenge to the
certification of a candidate to the presidential primary ballot is meant to be
handled on an expedited basis . See Frazier v. Williams , 2017 CO 85, ¶ 11,401 P.3d
541, 544 ( [ ection 1-1-113 is a summary proceeding designed to quickly resolve
challenges brought by electors ,candidates ,and other designated plaintiffs against

state election officials prior to election day. ). Indeed, such proceedings generally
move at a breakneck pace. Id. It's unsurprising, then , that this court has
previously limited the types of claims that can be brought under section 1-1-113 to

those alleging a breach or neglect of duty or other wrongful act underthe Colorado

Election Code ." . at 10, 401 P.3d at 543 (emphasis added ).

Because section 1-1-113 constitutes a modest grant of power, until today ,
this court has expressly declined to use that section's reference to other wrongful
act[s] to expand its scope to include constitutional claims and other claims that
do not arise specifically under the Election Code. Id. at 14, 401 P.3d at 544. The
accelerated nature of a section 1-1-113 proceeding and the limited remedy

34
available in such a proceeding (i.e., an order requiring "substantial compliance
with the provisions of [the Election Code ) render the statute incompatible with
complex constitutional claims such as the one involved here . See id. at ¶¶ 16–18,
401P.3dat 544-45.

An examination of the proceedings below highlights why a section 1-1-113

proceeding is a mismatch for a constitutional claim rooted in Section Three . The

Electors filed their verified petition on September 6, 2023. The verified petition,
far from being a summary notice of the alleged impropriety ,see § 1-4-1204 (4 ),
was 105 pages in length . The district court did not hold a hearing within five days
as required by section 1-4-1204 (4 ) . In fact , the court didn't hold its first status
conference until September 18, twelve days after the verified petition was filed.º
During that status conference , the court set deadlines for initial briefing . The
district court gave the parties just four days , or until September 22 , to file initial
motions to dismiss with briefing on those motions to be completed by October 6.
C.R.C.P. 12 (b) (allowing twenty -one days from service of the complaint in a

civil case to file motions to dismiss ). The court also scheduled a five - day hearing
to begin on October 30 ,or roughly eight weeks after the verified petition was filed .

9
I recognize that the case was removed to federal court on September 7 , the day
after it was filed . But the federal court returned the case to the state court on
September 12, six days before the first status conference was held.

35
That's fifty- four days , which is nearly ten times the amount of time permitted by

the Election Code. See 1-4-1204(4) ( Nolater than five days after the challenge is

filed, a hearing must be held ).

At the next status conference ,on September 22 ,the court set more deadlines ,
this time related to exhibit lists , expert disclosures , and proposed findings of fact
and conclusions of law . With respect to expert disclosures , the court ordered the

Electors to provide expert reports by October 6, or twenty -four days before the
hearing . Cf. C.R.C.P. 26 (a)(2)( C) (I) (providing that in a civil case the claiming
party's expert disclosures are typically due at least 126 days (18 weeks ) before the
trial date ). It ordered President Trump to provide his expert reports no later than
October 27,three days before the hearing was to begin . Cf. C.R.C.P. 26 (a)(2)(C)(II)
(stating that a defending party in a civil case is generally not required to provide
expert reports until 98 days (14 weeks ) before the trial date "). And even though

it was apparent from very early on in these proceedings that the Electors would
rely heavily on expert testimony regarding both legal and factual matters to
attempt to prove their challenge , the district court did not allow experts to be
deposed . Cf. C.R.C.P. 26 (b)(4)(A) (setting forth the default rule on the deposition
of experts in civil cases: A party may depose any person who has been identified
as an expert disclosed pursuant to subsection 26 (a)(2) of this Rule whose opinions
may be presented at trial . ). Instead, the court ordered that expert reports must

36
be fulsome and that experts would not be allowed to testify to anything outside
their reports .
As planned , the hearing began on October 30 and concluded on November
3. The district court gave each side eighteen hours to present its case. The parties
presented closing arguments on November 15, and the court issued its final order
November 17, two weeks after the hearing concluded and seventy -two days
after the verified petition was filed.
This was a severe aberration from the deadlines set forth in the Election

Code,see 1-4-1204 (4 ), which require a district court to issue its ruling no more
than forty -eight hours after the hearing and roughly a week after the verified
petition is filed . Despite this clear record , my colleagues in the majority curiously
conclude that the district court substantially compl [ied ] with all the statutory
deadlines . Maj op . 85. That's simply inaccurate (unless the majority views
complete failure as substantial compliance ) . The majority's reading of the record,
while creative , doesn't hold water .

Given the complexity of the legal and factual issues presented in this case,
it's understandable why the district court may have felt that adhering to the
deadlines in section 1-4-1204 (4 ) wouldn't allow the parties to adequately litigate
the issues . But the district court didn't have the discretion to ignore those statutory

deadlines . Section 1-4-1204 (4) states that a hearing must be held no later than

37
five days after a challenge is filed and that the district court shall issue findings of
fact and conclusions of law no later than forty -eight hours after the hearing . See
Waddell v. People, 2020 CO 39 , ¶ 16, 462 P.3d 1100 , 1106 ( [T ]he use of the word
shall in a statute generally indicates [the legislature's ] intent for the term to be
mandatory (alteration in original ) (quoting People v. Hyde, 2017 CO 24, ¶ 28,
393 P.3d 962, 969)); Ryan Ranch Cmty . Ass'n v. Kelley, 2016 CO 65, 42 , 380 P.3d
137, 146 (noting that shall and "must " both connote a mandatory

requirement ).

Rather than recognize that the Section Three challenge brought by the
Electors was a square constitutional peg that could not be jammed into our
Election Code's round hole, the district court forged ahead and improvised as it
went along, changing the statutory deadlines on the fly as if they were mere
suggestions . If,as the majority liberally proclaims,sections 1-1-113 and 1-4-1204(4)

provide such a robust vehicle" for handling the constitutional claim brought here,
Maj. op. 86 , why didn't the district court just drive it? Why , instead, did the

district court feel compelled to rebuild such a robust vehicle by modifying the

procedural provisions of the Election Code? I submit that , in reality,while sections

1-1-113 and 1-4-1204(4) are plenty adequate to handle ordinary challenges arising
under the Election Code, they did not measure up to the task of addressing the
Electors Section Three claim. The result was a proceeding that was neither the

38
 summary proceeding envisioned by section 1-1-113 nor a full-blown trial;rather,
it was a procedural Frankenstein created by stitching together fragments from
sections 1-1-113 and 1-4-1204 (4) and remnants of traditional civil trial practice.
Even with the unauthorized statutory alterations made by the district court,
the aggressive deadlines and procedures used nevertheless stripped the
proceedings of many basic protections that normally accompany a civil trial,never
mind a criminal trial. There was no basic discovery, no ability to subpoena

documents and compel witnesses , no workable timeframes to adequately

investigate and develop defenses , and no final resolution of many legal issues
affecting the court's power to decide the Electors claim before the hearing on the
merits .

There was no fair trial either : President Trump was not offered the
opportunity to request a jury of his peers ; experts opined about some of the facts
surrounding the January 6 incident and theorized about the law, including as it
relates to the interpretation and application of the Fourteenth Amendment
generally and Section Three specifically ; and the court received and considered a
partial congressional report, the admissibility of which is not beyond reproach .
have been involved in the justice system for thirty -three years now, and
what took place here doesn't resemble anything I've seen in a courtroom . In my
experience , in our adversarial system of justice , parties are always allowed to

39
conduct discovery, subpoena documents and compel witnesses, and adequately
prepare for trial, and experts are never permitted to usurp the role ofthe judge by
opining on how the law should be interpreted and applied .

The majority tries to excuse the due process shortcomings I have discussed
by noting that section 1-1-113 proceedings "move quickly out of necessity "

because ooming elections trigger a cascade of deadlines that cannot

accommodate protracted litigation schedules , particularly when the dispute

concerns a candidate's access to the ballot. Maj . op . 81. But that's exactly my
point. The necessarily expedited nature of section 1-1-113 proceedings is precisely

why the Electors should not have been allowed to piggyback a Section Three
claim an admittedly complex constitutional claim on their Election Code claim
in the first place. In any event, the majority's acknowledgement that section
1-1-113 proceedings "cannot accommodate protracted litigation" seems to directly
contradict its determination that the Election Code endowed the district court with

the flexibility to adequately accommodate the needs of this complex litigation .

Id. at ¶¶ 81, 85 The majority can't have its cake and eat it too.

10 Even if the majority were correct about the district court's flexibility to
accommodate a constitutional claim, the limit[ed] appellate review available
under the letter of section 1-1-113 further demonstrates why the Election Code is
not an appropriate avenue for the prosecution of a Section Three claim. Frazier,
18, 401 P.3d at 545. This court has the sole discretion to review section 1-1-113
proceedings, 1-1-113(3) ; 1-4-1204(4) , so, whenever we decline such review, the

40
 The irregularity of these proceedings is particularly troubling given the
stakes. The Electors ask us to hold that President Trump engaged in insurrection
and is thus disqualified from being placed on the ballot for this upcoming

presidential

Today's decision will have sweeping consequences beyond just this

election . The majority's ruling that President Trump is disqualified under Section
Three means that he can never again run for a Senate or House of Representatives
position, or become an elector , or hold any office (civil or military) under the
United States or under any state . In other words , he will be barred from holding
any public office, state or federal, for the rest of time. His only possible out is if
Congress at some point decides to remove the disqualification through a two

thirds vote by each House (which is no small feat). A declaration that a person is
permanently barred from any future public office raises constitutional issues that

simple removal from office does not . . The serious nature of any such holding

decision of the district court shall be final and not subject to further appellate
review, Frazier, ¶ 18, 401 P.3d at 545 (quoting§ 1-1-113(3)) . Imagine, then, if we
had declined to review the instant matter. Alarmingly, the adjudicationof federal
constitutionalprovisions, disqualifyingPresidentTrump from office, would have
met its road's end in state district court. How can this court give its imprimatur
to such an invertedconception of the supremacy doctrine? I, for one, cannot.
11This same ask has been made of other courts based on their state election codes .
See, e.g., Trump v . Benson , No. 23-00151 -MZ (Mich. Ct. Cl. Nov. 14, 2023) ; Growe v .
Simon , 997 N.W.2d 81 (Minn. 2023 ) . Ours is the first to take the bait.

41
demands that the rules of procedural due process be complied with strictly .
Bohannan v. Arizona ex rel Smith,389 U.S. 1,4 (1967 ) (Douglas ,J., dissenting ).

There was no strict compliance with procedural due process here. How is

this result fair? And how can we expect Coloradans to embrace this outcome as
fair?

I cannot agree with the majority that the chimeric proceedings below gave
President Trump process commensurate to the interest of which he has been
deprived. Nor did the proceedings below protect the interest Coloradans have in
voting for a candidate of their choosing. Of course, if President Trump committed

a heinous act worthy of disqualification, he should be disqualified for the sake of

protecting our hallowed democratic system, regardless of whether citizens may
wish to vote for him in Colorado. But such a determinationmust follow the

appropriate procedural avenues . Absent adequate due process, it is improper for

our state to bar him from holding public office.

More broadly, I am disturbed about the potential chaos wrought by an

imprudent, unconstitutional, and standardless system in which each state gets to
adjudicate Section Three disqualification cases on an ad hoc basis. Surely,this

enlargement of state power is antithetical to the framers intent.

42
 . Conclusion

In the first American Declaration of Rights in 1776, George Mason wrote

that no free government, nor the blessings of liberty, can be preserved to any
people,but by the recognition by all citizens that they have rights, and that

such rights cannot be enjoyed save in a society where law is respected and due
process is observed. Va. Const . art. I, § 15. Some two and a half centuries later,
those words still ring true . In2023,just as in 1776, all, including those people who
may have committed horrendous acts,are entitled to procedural due process.
Because I cannot in good conscience join my colleagues in the majority in
ruling that Section Three is self-executing and that the expedited procedures in
our Election Code afforded President Trump adequate due process of law, I
respectfully dissent. Given the current absence of federal legislation to enforce
Section Three, and given that President Trump has not been charged pursuant to
section 2383, the district court should have granted his September 29 motion to
dismiss. Iterred in not doing so. I would therefore affirm its judgment on other
grounds.

43
JUSTICE BERKENKOTTERdissenting

Today, the majority holds that former President Donald J. Trump

President Trump ) cannot be certified to Colorado's presidential primary ballot.
Maj op . He is, the majority concludes , disqualified from being President of
the United States again because he,as an officer of the United States, took an oath
to support the Constitution and thereafter engaged in insurrection. See U.S. Const.
amend . XIV , § ; Maj. op . ¶¶4-5 . In reaching this conclusion, the majority

determines as an initial matter that a group of Colorado Republican and

unaffiliated electors eligible to vote in the Republican presidential primary ("the
Electors ) asserted a proper claim for relief under Colorado's Election Code
( Election Code ) . See §§ 1-1-101 to 1-13-804 , C.R.S. (2023 ); Maj. op . 57.

1 Section Three of the Fourteenth Amendment is a CivilWar era amendment to the

United States Constitution that was ratified in 1868. Its aim was to prohibit
loyalists to the confederacy who had taken an oath to support the Constitution
from taking various state and federal offices . Itprovides:
No personshallbe a Senator or RepresentativeinCongress, 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 Constitutionof 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.

1
 I write separately to dissent because I disagree with the majority's initial
conclusion that the Election Code as currently written authorizes Colorado
courts to decide whether a presidential primary candidate is disqualified under
Section Three of the Fourteenth Amendment to the U.S. Constitution

( Section Three ") from being listed on Colorado's presidential primary ballot.
Maj op . 62-63 , 66. In my view ,the majority construes the court's authority too

broadly . Its approach overlooks some of part 12 of the Election Code's plain

language and is at odds with the historical application of section 1-1-113 , C.R.S.
(2023), which up until now has been limited to challenges involving relatively

straightforward issues , like whether a candidate meets a residency requirement

for a school board election . Plus, the majority's approach seems to have no
discernible limits .

To explain why the majority to my mind is wrong, first , I explain the

process for challenging the listing of a candidate on the presidential primary ballot
in Colorado and describe sections 1-1-113 and 1-4-1204 (4 ) , C.R.S. (2023 ), since
those sections of the Election Code define the scope of the district court's authority

to hear the case below . Then, I lay out the procedural history of this case. After

that, I turn to the question of whether the district court erred in interpreting these
two statutes and consider the majority's analysis with respect to each . In doing so,
I conclude that the General Assembly has not granted courts the authority the

2
district court exercised in this case and that the court , accordingly , erred in

denying President Trump's motion to dismiss.

I. The Process for Challenging the Listing of a Candidate on

the Presidential Primary Ballot in Colorado

Part 12 of the Election Code charges Jena Griswold , in her official capacity
as Colorado's Secretary of State ( the Secretary ), with certifying the names and
party affiliations of the candidates to be placed on presidential primary ballots no

later than sixty days before the presidential primary election. See § 1-4-1204(1).
Section 1-4-1204(4) details the process through which an eligible petition
challenge a candidate's listing on the presidential primary ballot. It states:
Any challenge to the listing of any candidate on the presidential
primary election ballot must be made in writing and filed with the
district court in accordance with section 1-1-113( 1) no later than five
days after the filing deadline for candidates. Any such challenge
must provide notice ina summary manner of an alleged impropriety
that gives rise to the complaint. No later than five days after the
challenge is filed, a hearing must be held at which time the district
court shall hear the challenge and assess the validity of all alleged
improprieties. The district court shall issue findings of fact and
conclusionsof law no later than forty- eight hours after the hearing.
The party filingthe challengehas the burden to sustainthe challenge
by a preponderanceof the evidence. Any order entered by the district
courtmay be reviewedinaccordance with section1-1-113(3) .

1-4-1204
(4 )

Section 1-1-113 is Colorado's fast- track procedural process under the

Election Code that allows candidates ; political parties ; individuals who have made

nominations ; and, as pertinent here, eligible electors to file section 1-4-1204 (4) and

3
other challenges in court, alleging that the Secretaryor one of Colorado's sixty
four county clerks and recorders has committed or is about to commit a breach or
neglect of duty or other wrongful act . It provides :

When any controversy arises between any official charged with any
duty or function underthis code and any candidate, or any officersor
representatives of a political party, or any persons who have made
nominationsor when any eligibleelectorfiles a verifiedpetitionin a district
court ofcompetentjurisdiction alleging that a person charged with a duty
under this code has committed or is about to commit a breach or neglect of
duty or other wrongful act, after notice to the official whichincludes an
opportunity to be heard, upon a finding of good cause, the district
court shall issue an order requiringsubstantial compliancewith the
provisionsofthis code. The order shallrequirethe person chargedto
forthwith perform the duty or to desist from the wrongful act or to
forthwith show cause why the order should not be obeyed. The
burdenof proofis on the petitioner.

1-1-113( 1) (emphasis added) .

II
. Procedural History

A. The Electors Petition

On September 6, 2023 , the Electors sued the Secretary under sections 1-1-113
and 1-4-1204 (4) of the Election Code , alleging that the Secretary certifying

President Trump to the primary ballot would constitute an "impropriety " under
section 1-4-1204 (4 ), and thus a breach or neglect of duty or other wrongful act
under section 1-1-113(1) because Section Three which disqualifies

insurrectionists from holding office prohibits him from being listed . The

Secretary's breach or neglect of duty or other wrongful act," the Electors argued ,

4
authorized the district court to issue an order requiring the Secretary to
substantial[ly] compl[ with the Election Code by not certifying President
Trump to the ballot. See § 1-1-113(1) .

B. The Parties Argumentsin the DistrictCourt

Before trial, President Trump moved to dismiss the Electors complaint. He

argued that the court's authority to determine a claim under section 1-4-1204(4) is
limited to the three criteria explicitly identified in section 1-4-1204(1)(b) and (c),
which provide that the only candidates whose names shall be placed on the ballots
for election are those who :

(b ) Are seeking the nominationfor presidentof a political party as a

bona fide candidate for president of the United States pursuant to
politicalpartyrules and are affiliatedwith a major politicalpartythat
received at least twenty percent of the votes cast by eligible electors
inColorado at the last presidentialelection; and

( c) Havesubmitted to the secretary, not later than eighty-five days

before the date of the presidential primary election, a notarized
candidate'sstatement of intent together with either a nonrefundable
filing fee of five hundred dollars or a petition signed by at least five
thousand eligible electors affiliated with the candidate's political
party who reside in the state. Candidate petitions must meet the
requirementsof parts 8 and 9 of this article 4, as applicable.

President Trump acknowledged that the Secretary's Major Candidates

Statement of Intent form requires a candidate to affirm that they meet the three

5
 2
qualificationsset forth in Article IIof the U.S. Constitution
, but emphasizedthat

the form says nothing about Section Three. Thus, he urged the court to adopt a
very narrow reading of section 1-4-1204 (4) : So long as a party candidate (1) is a
bona fide presidential candidate; (2) timely submits a notarized statement of intent
affirming that they meet the three Article IIqualifications ; and (3) pays the $500
fee,the Secretary must certify thecandidate to the presidential primary ballot,thus
fulfilling her duty under the Election Code.
Challenges based on anything other than those three criteria , including but
not limited to a Section Three challenge, President Trump asserted in his motion,
fall outside the court's authority to decide and fail to state a proper claim for relief
under sections 1-4-1204 (4) and 1-1-113. Any such claim, he posited, must be
dismissed.

The Electors countered in their response to the motion to dismiss that

section 1-4-1204 (4) must be read in conjunction with the other provisions of the
Election Code, including, specifically , section 1-4-1201, C.R.S. (2023), which states

ArticleII
, Section1 , Clause5 of the U.S.Constitutionstates:

No Person except a natural born Citizen, or a Citizen of the United

States , at the time of the Adoption of this Constitution , shall be
eligible to the Office of President; neither shall any Person be eligible
to that Office who shall not have attained to the Age of thirty five
Years , and been fourteen Years a Resident within the United States .

6
that it is the intent of the Peopleof the State of Coloradothat the provisionsof

this part 12 conform to the requirements offederal law and national political party
rules governing presidential primary elections 1-4-1201 (emphasis added).
The Electors also pointed to section 1-4-1203(2)(a), C.R.S. (2023), which
states:

Except as provided for in subsection (5) of this section, each political

party that has a qualified candidate entitled to participate in the
presidential primary election pursuant to this section is entitled to
participate in the Colorado presidential primary election. At the
presidential primary election, an elector that is affiliated with a
politicalparty may vote only for a candidate ofthat politicalparty.

(Emphasis added.) And they leaned on section 1-4-1203(3) , which provides, in

part,that the Secretary and county clerk and recorders have the same powers and

shall perform the same duties for presidential primary elections as they provide
by law for other primary elections and general elections . Based on this section,
they argued that , in all other primary elections and general elections , only

candidates who meet all the qualifications to hold office may access the ballot.
Finally, the Electors emphasized the text of section 1-4-1204(4), which allows for
challenge to the listing of any candidate and directs the district court to assess
the validity of allalleged improprieties." (Emphases added .) In the Electors view
part 12 of the Election Code, when read as a whole , necessarily encompasses
challenges under Section Three.

7
 C. The District Court's Final Order

its final order ,the district court rejected President Trump's argument in
his motion to dismiss that the Electors failed to state a proper claim under
sections 1-4-1204 (4 ) and 1-1-113 . Anderson v. Griswold, No. 23CV32577 , ¶ 224 (Dist.
Ct., City & Cnty. of Denver ,Nov. 17, 2023 ). It concluded that the Secretary lacked
the authority under the Election Code to investigate and determine presidential

primary candidate qualifications . Id. at 216. It then turned to whether it had the
authority to adjudicate the Electors complaint . Id. at 217. The court considered
three cases in which this court concluded that the Election Code requires

courts not election officials to determine candidate eligibility . Id. at ¶¶ 219-21;

see Hanlen . Gessler , 2014 24, 40 , 333 P.3d 41, 50 (holding that the Secretary
exceeded his authority by passing a rule that permitted election officials to
determine whether a candidate appearing on the state ballot was not qualified for
office because the election code requires a court , not an election official , to

determine the issue of eligibility "); Carson v.Reiner,2016 CO 38, 8,370 P.3d 1137,
1139 ( [W hen read as a whole, the statutory scheme evidences an intent that
challenges to the qualifications of a candidate be resolved only by the courts );

Kuhn v. Williams , 2018 CO 30M , 40 , 418 P.3d 478 , 485 (per curiam) (a court may
review the validity of a challenged candidate -nomination petition and consider

extrinsic evidence in doing so ) . The district court found particularly instructive

8
this court's conclusion in Kuhn that a challenger could present evidence

demonstrating that a petition actually fails to comply with the Election Code, even

ifit'appear[ ed] to be sufficient ina paperreview." , 418 P.3dat485; Anderson,

219

The court then interpreted two provisions of the Election Code to implicitly
incorporate Section Three, which it concluded grants courts broad authority to
review, through section 1-1-113's expedited procedures, whether a candidate is
disqualified as an insurrectionist. Anderson, ¶¶ 222, 224. Specifically, the court
interpreted the language in section 1-4-1201 stating that the provisions of part 12

of the Election Code are intended to conform to the requirements of federal law
as incorporating the entire U.S. Constitution, including Section Three. Anderson,
. And the court noted that section 1-4-1203(2)(a) provides that only political
parties that have a "qualified candidate" are entitled to participate in the
presidential primary process . Anderson, 222. Relying on these provisions, the
court held that ,while the Secretary is not empowered to investigate and adjudicate
a candidate's potential disability under Section Three, courts are not so
constrained. Id. at 224.

D. The Majority's Opinion

The majority also appears to construe part 12 very broadly. Insum, its view

is that section 1-4-1201's reference to federal law speaks to the General

9
Assembly's intent , that section 1-4-1203 (2)(a) limits participation in the
presidential primary to qualified candidates , and that certification of a
candidate who is not qualified thus constitutes a wrongful act within the
scope of section 1-1-113 . Maj . op . ¶¶ 36-37, 62-64 . The majority draws on other
provisions of the Election Code to inform the meaning of the term qualified

candidate . . at 37, 62 (citing 1-4-1205 , C.R.S. (2023) (requiring presidential

primary write-in candidates to file a notarized statement of intent );
1-4-1101(1), C.R.S. (2023) (a write-in candidate's affidavit of intent must affirm
that the candidate desires the office and is qualified to assume its duties if
elected ); § 1-4-1203 (5) (when every party has no more than one certified
candidate , whether party -nominated or write-in, the Secretary may cancel the

presidential primary for all parties and declare the sole candidate the winner ))
According to the majority , these provisions suggest that major party

candidates who are also required to submit a statement of must also be

"qualified to assume [the office's ] duties if elected . Id. at 62 ; see § 1-4-1101(1).

Read as a whole, the majority thus interprets the Election Code to provide
that a major party candidate in a presidential primary must, at a minimum, be
qualified to hold the Office of President under the U.S. Constitution . Maj . op . ¶ 63 .
As such, it concludes that the General ,
Assembly through the Election Code,
granted courts broad authority to determine presidential primary candidates

10
constitutional eligibility, includingeligibility under Section Three. Id. at ¶¶ 60–62,
65–66 . In the majority's view ,a reading of the Election Code that constrains courts
from considering a candidate's constitutional qualifications would produce a
result contrary to the purpose of the Election Code . Id. at 64.
III
. The ElectorsFailedto State a CognizableClaim for Relief

Sections 1-4-1204 (4 ) and 1-1-113 frame the threshold question this court

must address before turning to the merits of the parties appeal : Did the General
Assembly intend to grant Colorado courts the authority to decide Section Three
challenges ? Based on my reading of sections 1-4-1204 (4 ), 1-4-1201, and
1-4-1203 (2)(a) , I conclude that the answer to this question is no. As a result , I
conclude that the Electors have not stated a cognizable claim for relief and their
complaint should have been dismissed .

A. Section 1-4-1204(4 ) Allows for a Broad, but Not

Unlimited, Range of Claims for Relief

As an initial matter , I acknowledge that the language in section 1-4-1204 (4)

is fairly broad insofar as it allows expedited challenges to the listing of any

candidate on the presidential primary election ballot based on alleged

improprieties . And I agree with the majority that "section 1-1-113 clearly

comprehends challenges to a broad range of wrongful acts committed by officials

charged with duties under the code Maj . op . 61 (quoting Carson , ¶ 17,370 P.3d
at 1141), including any act that is inconsistent with the Election Code, id .

11
( quotingFrazierv . Williams, 2017 CO 85, ¶ 16, 401 P.3d541, 545) . I also agree with

the majority that a wrongful act is more expansive than a breach or neglect

of duty. Id. (quoting Frazier, ¶ 16, 401 P.3d at 545) .

But this language can only do so much. As we also held in Frazier , other
wrongful act is limited to acts that are wrongful under the Election Code . 16,
401 P.3d at 545. We have also emphasized that section 1-1-113 is a summary

proceeding designed to quickly resolve challenges brought by designated

plaintiffs against state election officials prior to election day . Id. Indeed,past cases
decided by this court reflect the generally straightforward nature of the cases filed
under section 1-1-113 , the lion's share of which involved disputes over state or
local election residency or signature requirements . See, e.g., Griswold v. Ferrigno
Warren , 2020 CO 34 , ¶ 15, 462 P.3d 1081, 1084 ( deciding whether the Election
Code's minimum signature requirement mandates substantial compliance and
whether a U.S. Senate candidate satisfied that standard ); Kuhn, ,418 P.3d at
480-81 (deciding whether a non-resident signature circulator could legally collect
signatures for a candidate's petition); Frazier, ¶ 1, 401 P.3d at 542 (considering

whether the Secretary improperly invalidated signatures included on a U.S. Senate

candidate's petition to appear on the primary election ballot ); Carson , 21,

370 P.3d at 1142 (considering whether a challenge to a candidate's qualifications

12
based on their residency was permitted after the Secretary certified the candidate
to the ballot).

Don't get me wrong, the almost 450 entries in the district court register of
actions in the two months and eleven days between September 6,2023 , the date on
which the petition was filed, and November 17,2023 ,the date on which the district
court issued its 102-page final order , illustrate the extraordinary effort that the
attorneys and the district court dedicated to this case. But that effort also proves
too much. The deadlines under the statute were not met, nor could they have
been. Setting aside the factual questions ,an insurrection challenge is necessarily
going to involve complex legal questions of the type that no district court no
matter how hard working could resolve in a summary proceeding .
And that's to say nothing of the appellate deadline . Three days to appeal a

district court's order regarding a challenge to a candidate's age? Sure . But a

challenge to whether a former President engaged in insurrection by inciting a mob
to breach the Capitol and prevent the peaceful transfer of power ? am not
convinced this is what the General Assembly had in mind.

The various provisions of the Election Code on which the district court and

the majority rely to suggest otherwise do not persuade me either.

13
 B. The Term Federal LawDoes Not Support a Broad
Grant of Authority to Colorado Courts to Enforce
Section Three

The district court relied on the declaration of intent in part 12. Anderson,
222. It explains the intent of the People of the State of Colorado in the context of
presidential primary elections . It provides : In recreating and reenacting this
part 12, it is the intent of the People of the State of Colorado that the provisions of

this part 12 conform to the requirements of federal law and national political party
rules governing presidential primary elections 1-4-1201 (emphasis

added) In adopting a broad view of section 1-4-1204 (4) s reach, the court
assumed that the term federal law, as used in this section , refers to the entire
U.S.Constitution , including Section Three . Anderson , .
The majority also leans on this reference to federal law in section 1-4-1201,

though more obliquely, suggesting it means the General Assembly intended for
part 12 to operate in harmony with federal law . Maj. op . ¶36 . I am not
persuaded .

As Professor Muller notes in his amicus brief, A postpositive modifier like

governing presidential primary elections ] attaches to both federal law ' and
national political party rules. Brief for Professor Derek T. Muller as Amicus
Curiae Supporting Neither Party. Hence, the term “ federal law is properly
understood not as a standalone term but as only relating to presidential primary
elections .

14
 Inmyview, the term federallaw is ambiguousat best. A briefdive into

the history of part 12 explains why . See McCoy .People,2019 44 , 38 ,442 P.3d
379 ,389 ( If,however , the statute is ambiguous , then we may consider other aids
to statutory construction , including the consequences of a given construction , the
end to be achieved by the statute, and the statute's legislative history . ).
Part 12 was enacted as part of the return to a primary system in Colorado .
See § 1-4-1102 , C.R.S. (1990) (governing Colorado's presidential primary system in
the 1990s ) . From 2002 to 2016 , presidential candidates were selected through a
closed party caucus system . But in 2016 , after Colorado voters experienced

disenfranchisement and profound disappointment with the state's [caucus ]

system voters considered Proposition 107, which promised to restore
presidential primary elections in Colorado , with one significant change unlike
prior iterations of its primary system , beginning in 2020 , Colorado would host
open presidential primaries , allowing unaffiliated voters to participate in these
primary elections . See Proposition 107, 1, https://www.sos.state.co.us/pubs/
elections / Initiatives / titleBoard / filings / 2015-2016 / 140Final.pdf :
[https //

perma.cc/2GA9-ZY7U (noting that restor[ing [Colorado's ] presidential

primary to an open primary system would enable the 35 % of Colorado voters

who are independent of a party" to "participat [e] in the presidential nomination

15
process, and "encourage candidates who are responsive to the viewpoints of

more Coloradans ) .

376 When Proposition 107 passed, the General Assembly amended the Election
Code and adopted part 12 to formally re-introduce the presidential primary
process. Nothing in this history indicates that one of the concerns animating either
the proponents of Proposition 107 or the General Assembly was a need to
challenge, through the courts , issues concerning candidates constitutional
disqualifications . In fact , the language in the current version of section 1-4-1201
mostly mirrors the 1990 version of part 12 (then, part 11) : It is the intent of the
general assembly that the provisions of this part 11 conform to the requirements of
federal law and national political parties for presidential primary elections .
§ 1-4-1104(3), C.R.S. (1990) (emphasis added) .

There is some history surrounding Proposition 107 and part 12 which

suggests that proponents of this new open presidential primary system were
concerned about one specific constitutional issue : a potential First Amendment
challenge to the new law based on political parties private right of association .
See Independent Voters , Denver Metro Chamber of Com , https://

denverchamber.org/policy/policy-independent-voters-white-paper/ [https://

perma.cc/T2TT-A2UD ] (The Denver Chamber of Commerce , which launched

Proposition 107, noted that a semi -open primary system , because it would permit

16
unaffiliated voters to affiliate with the Republican or Democratic parties in a
presidential primary , could face legal challenges based on parties First
Amendment rights of association .); see also Christopher Jackson , Colorado Election
Law Update,46 -SEP Colo . Law .52 , 53 (2017) (noting that the law was likely crafted
in a manner designed to stave off a First Amendment challenge given the U.S.
Supreme Court's 2000 decision in California Democratic Party v. Jones , 530 U.S. 567

(2000), which struck down California's blanket primary law) .

Curiously,the earlier version of the statute required the Secretary to provide

a written report to the General Assembly concerning whether the provisions of

this part 11conform to the requirements of federal law and national political party
rules for presidential primary elections [ and provided that the general

assembly shall make such reasonable changes to this part 11 as are necessary to
conform to federal law and national political parties rules. 1-4-1104(3), C.R.S.
(1990) . It is unclear if those reports were intended to speak to potential First
Amendment concerns or some other issue, as any reports that may have been
submitted to the General Assembly appear to have been lost to the sands of time
(or, according to the State Archivist's Office,possibly a flood) .
At bottom, this legislative history does little to illuminate what the 2016
General Assembly meant by this language in section 1-4-1201. What this history
does show, however, is that the term federal law is most certainly not an

17
affirmativegrant of authorityto state courts to enforceSection Three in expedited

proceedings under the ElectionCode.

C. The Term Qualified Candidate Does Not Support a

Broad Grant of Authority to Colorado Courts

The other principalsupportfor the district court's broad interpretationof

section 1-4-1204 (4) rests on the term qualified candidate . The majority relies

heavily on this language as well . Maj . op . ¶¶ 37, 62–64.

To understand the meaning of this term, it is critical to consider it in its full

context. Recall, it states:

Except as provided for in subsection (5) of this section, each political

party that has a qualified candidate entitled to participate in the
presidential primary election pursuant to this section is entitled to
participate in the Colorado presidential primary election. At the
presidential primary election, an elector that is affiliated with a
political party may vote only for a candidate of that political party.

1-4-1203( 2 ) ( a ) ( emphases added) .

The district court construed this section expansively . It looked to the term
qualified candidate as evidence of the General Assembly's intent to grant the

court authority to determine if President Trump was disqualified under

Section Three . The district court , like the Electors , appears to have read

section 1-4-1203 (2)(a ) like a syllogism , such that if (1) participation in the
presidential primary is limited to qualified candidates , and if (2) Section Three
disqualifies insurrectionists , then (3) a court may appropriately consider a

18
Section Three challenge . But that is not what the statute says. Rather,it provides:
[E ach political party that has a qualified candidate entitled to participate in the
presidential primary election pursuant to this section is entitled to participate in the
Colorado presidential primary election. Id. (emphases added).
Section 1-4-1203 (2)(a) addresses when and how presidential primary

elections are conducted . It does not prescribe additional qualifications through its
use of the term qualified candidate ." See People ex rel. Rein v. Meagher, 2020
56, 22, 465 P.3d 554 , 560 ( [W e do not add words to or subtract words from a
statute. ). Nor can it be read, given the fact that the term is explicitly tethered to
subsection 1203, as expanding the criteria outlined in section 1-4-1204( 1) (b) and
(c): A candidate is eligible to be certified to the ballot by (1) being a bona fide
candidate for president; (2) submitting a notarized candidate's statement of intent,
and (3) paying the $500 filing fee or submitting a valid write -in petition.

See 1-4-1204(1)(b),(c).

It is significant ,as well, that this part of the statute describes when a political
party can participate in a presidential primary election . The consequence for a
party that does not have a qualified candidate that is,a candidate who does not
meet the three-part criteria laid out in section 1-4-1204 (1)(b) and (c) that the
party cannot participate in the primary . Considered in context, then , the term

19
 qualified candidate does not offer support for an expansive reading of the

court's authorityto determinea challengeunder SectionThree.

The majority takes a slightly different approach. It points to

section 1-4-1201's federal law declaration and suggests it means that the General
Assembly intended part 12 to operate in harmony" with federal law . Maj op.
36. Then, like the district court, it gives great weight to the language in
section 1-4-1203(2)(a), which it construes to mean that participation in the
presidential primary is limited to qualified candidates. Id. at ¶¶ 37, 62-64. It
effectively reads "pursuant to this section" out of the statute by concluding that
the phrase sheds no light on the meaning of qualified candidate. Id. at ¶ 37 n.3
(quoting 1-4-1203(2) (a)) . The majority then asserts that, [a]s a practical matter,
the mechanism through which a presidential primary hopeful attests that he or
she is a qualified candidate is the statement of intent (or affidavit of intent )
filed with the Secretary Id. at 37 (quoting 1-4-1204(1)(c)).
¶386 And , it explains , the Secretary's statement of intent for a major party
presidential candidate requires the candidate to affirm via checkboxes that the
candidate meets the qualifications set forth in Article IIof the U.S. Constitution for
the Office of President, i.e., that the candidate is at least thirty -five years old,has
been a resident of the United States for at least fourteen years , and is a natural
born U.S. citizen . Id. at 38; U.S. Const . art. II, § 1, cl. 5; Major Party Candidate

20
Statement of Intent for Presidential Primary, Colo. Sec'y of State, https: //

www.sos.state.co.us/pubs/elections/Candidates/files/

MajorPartyCandidateStatementOfIntentForPresidentialPrimary.pdf [https://

perma.cc/RY72-ASSD . As well, the form requires the candidate to sign an

affirmation that states : I intend to run for the office stated above and solemnly

affirm that I meet all qualifications for the office prescribed by law . Major Party

Candidate Statement of Intent for Presidential Primary, supra.

The majority stitches these various parts of the Election Code together to
conclude the General Assembly intended to grant state courts the authority to
decide Section Three challenges . Maj. op. ¶¶ 36-38, 62. This approach falls short
for five reasons.

First, there is nothing in section 1-4-1201's federal law declaration that

indicates the General Assembly meant to refer to Section Three . Perhaps the
declaration refers to the General Assembly's concern regarding a potential First
Amendment right of association challenge to the open primary system created by
part 12, perhaps not. The declaration's history is muddy at best.

Second, the term qualified candidate cannot be fairly read to grant

Colorado courts authority to adjudicate Section Three disqualification claims. The
term is best understood as describing when a political party can participate inthe

21
presidential primary process,not as the foundation for a wrongful act claim under

section 1-4-1204(4) and section 1-1-113.

Third, even assuming the General Assembly intended to grant some
authority to the courts through its reference to the candidate's statement of intent

in the exceptionally roundabout manner suggested by the majority, there is no

basis for concluding that authority extends beyond the fairly basic types of
Article II challenges that have come before this court in the past, such as those
involving a candidate´s age, or other challenges like those alleging that petition
circulators did not reside in Colorado .

Fourth, I am not persuaded by the majority's reliance on sections 1-4-1205

and 1-4-1101, which govern the requirements write -in candidates must satisfy

before being certified to the ballot. See Maj. op . , 62. Like major party
presidential primary candidates , write -in candidates for the presidential primary

must file a notarized statement of intent and submit to the Secretary a

nonrefundable fee of five hundred dollars no later than the close of business
on the sixty-seventh day before the presidential primary election . § 1-4-1205 .
Section 1-4-1101(1), which applies to all write-in candidates regardless of office,
requires that the write-in candidate confirm that he or she desires the office and
is qualified to assume its duties if elected. (Emphasis added .) According to the
majority , t he Election Code's explicit requirement that a write -in candidate be

22
qualified to assume the duties of their intended office logically implies that major
party candidates under 1-4-1204( 1)(b) must be qualified in the same manner.
Maj. op. 62.
It is true that both major party candidates and write -in candidates must fill
out statement of intent forms , and that the forms are similar in some respects . But,
if anything, the General Assembly's decision to include a specific qualification

provision for write -in candidates shows that when it wants to include an explicit
qualifications requirement , like the one in section 1-4-1101(1), it knows how to do

so. See People v. Diaz, 2015 CO 28, ¶ 15, 347 P.3d 621, 625 ( But, in interpreting a
statute,we must accept the General Assembly's choice of language and not add or
imply words that simply are not there . (quoting People v. Benavidez, 222 P.3d 391,
393-94 (Colo .App . 2009))).
Fifth and finally , there is the problem that Section Three is a disqualification
for office, not a qualification to serve. As the majority acknowledges , the U.S.
Supreme Court has twice declined to address whether Section Three which is

described in the text as a disability and is referred to as the Disqualification

Clause amounts to a qualification for office . Powell v. McCormack , 395 U.S. 486 ,

520 n.41 (1969) (observing that an academic suggested in a law review article in
1968 that the three grounds for disqualification (impeachment , Section Three , and

the Congressional incompatibility clause) and two other similar provisions were

23
each no less of a "qualification" than the Article II, Section 5 qualifications) ;
Term Limits, Inc. v. Thornton, 514 U.S. 779, 787 n.2 (1995) (seeing no need to
resolve the same question regarding Section Three in a case concerning the
propriety of additional qualifications for office); Maj. op. ¶ 65.
Given the fact that the U.S. Supreme Court has not weighed in on whether
Section Three is a qualification for office, it seems all the more important to look
for some affirmative expression by the General Assembly of its intent to grant state
courts the authority to consider Section Three challenges through Colorado's
summary hearing and appeal process under the Election Code. I see no such
expression

IV. Conclusion

The Electors arguments below and before this court are, to my mind,
unavailing. Too much of their position rests on text like federal law and
qualified candidate that on closer examination does not appear to mean
what they say it means because it is taken out of context. In short, these sections
do not show an affirmative grant by the General Assembly to state courts to decide
Section Three cases through Colorado's summary election challenge process.
Because it too relied on the provisions of part 12 regarding federal law

and qualified candidate, the district court's reasoning suffers from the same

shortcomings.

24
 And, at the end of the day , while the majority's approach charts a new
course one not entirely presented by the parties its approach has many of the
same problems . It stitches together support from the Secretary's general authority
to supervise the conduct of primary and other elections, 1-1-107( 1),C.R.S. (2023);
the inference that section 1-4-1201's federal law declaration means something

pertinent to Section Three; part, but not all, of the qualified candidate statute,
§ 1-4-1203(2)(a); inferences from the write-in candidate process statute,
1-4-1101(1); and the novel suggestion that the General Assembly granted

authority to state courts to adjudicate a Section Three challenge by virtue of its

reference to the Secretary's statement of intent form in section 1-4-1204( 1)( c ) . See
Maj.op . , .
I agree with the majority that, if the General Assembly wants to grant state
courts the authority to adjudicate Section Three challenges through the Election
Code, it can do so. See U.S. Const . art . II, § 1, cl. 2 (authorizing states to appoint
presidential electors in such Manner as the Legislature thereof may direct ); see
also Hassan v. Colorado , 495 F. App'x 947, 948 (10th Cir . 2012) (recognizing that it is
a state's legitimate interest in protecting the integrity and practical functioning of
the political process that permits it to exclude from the ballot candidates who
are constitutionally prohibited from assuming office ) . Ijust think it needs to say
.

25