On Tuesday, November 28, Free Speech For People filed an amicus brief in the Colorado Supreme Court case of Anderson v. Griswold, a challenge to Donald Trump’s eligibility under Section 3 of the Fourteenth Amendment led by our allies at Citizens for Responsibility and Ethics in Washington (CREW). 

Our amicus brief explains why Colorado courts can decide whether Trump is disqualified under Section 3. In his own cross-appeal of the trial court’s decision, Trump has argued that the “political question doctrine,” a narrow legal exception for questions that the Constitution assigns to another branch of government or which are incapable of judicial resolution, prevents Colorado’s (or any state’s) courts from deciding whether he is disqualified under Section 3.

Our brief explains that the Constitution does not commit adjudication of presidential candidates’ qualifications to Congress. Rather, Article II grants states plenary power to appoint presidential electors “in such Manner as the Legislature thereof may direct”; in Colorado, the legislature has directed a process that includes a candidacy challenge procedure. After states appoint electors, Congress’s role under the Twelfth Amendment is to count electoral votes. The Constitution does not assign Congress the task of judging presidential candidates’ qualifications; if Congress has any implicit power to do so, it is not exclusive. In this respect, Section 3 of the Fourteenth Amendment does not differ from other presidential qualifications in Article II or the Twenty-Second Amendment. Furthermore, the questions here are judicially manageable. They involve interpretation of words in the Constitution (“engage,” “insurrection,” “office,” “officer,” etc.) and application of law to facts. That is what courts do. 

Free Speech For People is pleased to partner with Colorado attorneys Anna Martinez of Martinez Law Colorado, LLP and Esteban Martinez of Martinez Law LLC in filing this brief.

For more information on Anderson v. Griswold, see CREW’s web site.

For more information on Free Speech For People’s other work to enforce Section 3 in Michigan, Minnesota, Oregon, and other states, see here

To read the full brief, see here.