Samour's Dissent
Samour's Dissent
Samour's Dissent
¶273 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
hold public office without due process of law. Even if we are convinced that a
individual disqualified from holding public office. Procedural due process is one
Colorado’s presidential primary ballot flies in the face of the due process doctrine.
our state courts through the truncated procedural mechanism that resides in our
1
state Election Code.1 Thus, based on its interpretation of Section Three, our court
defenses, and the opportunity for a fair trial—to adjudicate a federal constitutional
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
primary ballot in less than all fifty states, thereby risking chaos in our country.
¶275 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
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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
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
2 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
¶276 Significantly, there is a federal statute that specifically criminalizes
fined or imprisoned and be disqualified from 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
¶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
4
¶278 In my 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
¶279 Context is key here. The Fourteenth Amendment was designed to address
Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev. (forthcoming 2024)
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.
abstract=4568771. And their response, in some measure, sounded the clarion call
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
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,
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
¶281 Thus, the indelible trespass of the former confederate states was met
intent and the weight of the relevant authorities, that Section Three of the
¶282 My colleagues in the majority turn Section Three on its head and hold that
and propel it into action, because President Trump has not been charged under
state courts to use Colorado’s Election Code as an engine to provide the necessary
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thrust to effectuate Section Three, I respectfully dissent.3 I would affirm the district
grounds.4
I. Analysis
¶283 The district court gave short shrift to the question of whether Section Three
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
with both the text of the Fourteenth Amendment and persuasive authority
interpreting it.
¶284 Griffin’s Case is the jumping-off point for any Section Three 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
insurrection and that his remarks deserve no shelter under the First Amendment’s
rather expansive protective canopy, are at least questionable. Because I conclude
that Section Three is not self-executing, and because that conclusion is dispositive,
I don’t address any other issue.
4 The district court decided that Section Three does not apply to the President of
the United States.
7
B. Griffin’s Case: The Fountainhead
¶285 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
¶286 Judge Hugh W. Sheffey presided over Caesar Griffin’s criminal trial after
the Fourteenth Amendment went into effect. Griffin’s Case, 11 F. 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. Id. at 16. Following the jury’s guilty verdict on the charge of
assault with intent to kill, Judge Sheffey sentenced Griffin to two years’
¶287 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
5At the time, Supreme Court justices rode the circuit and sat in regional federal
courts.
8
promulgation, vacated all offices held by persons within the category of
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. Id.
¶288 On appeal, Chief Justice Chase framed the issue in the following terms:
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
the third section of the amendment.” Id. at 25. In other words, he focused on the
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.” Id. at 26. But his prefatory statements echo the bugle blow of
constitutional revolution: “The amendment itself was the first of the series of
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government, in those states which had attempted . . . to establish an independent
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,”
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
¶290 It was 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
provision[s] 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
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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
Taking the third section then, in its completeness with this final
clause, it seems to put beyond reasonable question the conclusion that the
intention of the people of the United States, in adopting the 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 of congress in its ordinary course.
¶292 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
subject to disqualification and how they could be disqualified. More on this third
notion later.
¶293 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
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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
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
ruling against disqualification on state law grounds but stating that “Section 5 of
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
is not ‘self-executing’”).
¶294 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
¶295 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 of Davis, and unlike
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Griffin’s Case, Case of Davis is a two-judicial-officer, unwritten, split decision.6
the majority doesn’t rely on Case of Davis in its attempt to undermine Griffin’s Case.
¶296 In Case of Davis, Chief Justice Chase, again sitting as a circuit court judge,
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 90–91.
Furthermore, defense counsel maintained that Section Three “executes itself” and
¶297 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,
6Although the year in the citation for Case of Davis (1871) postdates the year in the
citation for Griffin’s Case (1869), it was in fact Case of Davis that came first. See
Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36
Const. Comment. 87, 100 n.66 (2021). Chief Justice Chase announced on
December 5, 1868, that the court had failed to reach consensus in Case of Davis.
Case of Davis, 7 F. Cas. at 102; Certificate of Division, Case of Jefferson Davis, 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].
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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
¶298 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
¶299 Certain legal scholars have sought to explain this purported incongruence
wrongly decided and the result of flawed logic. See Baude & Paulsen, supra
statement quoted above from the Federal Reports accurately represented Chief
Justice Chase’s views. They point out that the case reporter, a former confederate
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general, was the very attorney who represented Judge Sheffey in Griffin’s Case.7
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
¶301 The Fourth Circuit aptly adopted this distinction in Cale, thereby reconciling
7 Griffin’s Case was decided in 1869 and the statement from the case reporter
regarding Case of Davis appeared in the 1894 Federal Reports. Blackman & Tillman,
supra (manuscript at 140).
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implicated a wrongful discharge action in which the plaintiff asked the court to
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
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
shall be 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
amendments fully effective.
Ex parte Virginia, 100 U.S. at 345–46 (first emphasis in original, second emphasis
added).
¶302 But shortly after deciding Ex parte Virginia, the Supreme Court declared the
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
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blush the opinion in the 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
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
¶303 In supporting 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.”
Id. at 60. The Supreme Court, however, held that given the history of the
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-
particular interest for our purposes is the fact that the Court did not reject the use
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
(discussing the Civil Rights Cases, 109 U.S. at 46 (Harlan, J., dissenting)); see also The
dealt with, and not alone the validity of its laws,” the matter should be left in the
hands of Congress).
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
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
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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
must bring a cause of action under legislation enacted by Congress, such as section
1983.
Young claims, constitutional rights are “protected in all instances.” Cale, 586 F.2d
¶307 The majority devotes all of one sentence to Cale and disregards most of the
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
distinction to both Sections. Cale, 586 F.2d at 316. Accordingly, while courts have
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seldom had occasion to interpret Section Three, the case law on Section One is
¶308 Critically, the Supreme Court has affirmed that the Fourteenth Amendment,
self-executing cause of action. Ownbey v. Morgan, 256 U.S. 94, 112 (1921) (“[I]t
cannot rightly be said that the Fourteenth Amendment furnishes a universal and
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, “[l]ike substantive federal law itself, private rights of action to
¶309 The majority nevertheless protests that interpreting any section of 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
20
¶310 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
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
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
amendment while respecting our federalist system, courts have turned to the
delegated federal power and reserved state power” without forsaking the
protection of constitutional rights “in all instances.” Michigan Corr. Org., 774 F.3d
¶311 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
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the federal government to act as a protective check against a state’s selection of
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
¶312 In sum, 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
Sheffey. Davis, on the other hand, took a defensive posture and invoked Section
for insurrection, thus displacing the federal criminal treason charges brought
against him.
¶313 Having said that, I do not rely solely on Griffin’s Case. Congress’s own
¶314 The majority’s ruling that Section Three self-executes without the need for
promulgation of just such legislation. One year after Griffin’s Case was decided,
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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
bring a civil suit in federal court to remove from office a person who was
Three, and included punishment by imprisonment of not more than a year, a fine
¶315 The enforcement purpose behind the Act was evident in the congressional
debates held on these very two provisions. Speaking in support of their adoption,
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).
necessary to enforce the constitutional provision.” Id. The debate on the floor
focused not on whether the provisions were necessary for enforcing Section
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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
¶316 While the quo warranto provision in the Enforcement Act would have
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.
¶317 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
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
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what has been so apparently lacking from this state proceeding—clear
¶318 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
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
¶319 If there 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
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
¶320 To the extent there is interest in seeking to disqualify President Trump from
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 he received in
this constricted Election Code proceeding? To be sure, unlike section 2383, Section
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
¶321 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).
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)
through our Election Code. Instead, they prioritize their fear that a ruling
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
Maj. op. ¶ 68. They see this as a more insidious evil. As I discuss in the following
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),
Constitution: (1) Art. I, § 2, cl. 2; (2) Art. I, § 3, cl. 7; (3) Art. I, § 6, cl. 2; (4) Art. IV,
27
§ 4; (5) Art. VI, 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
(“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
¶324 Although Section Three was included in Powell among the so-called
different treatment. That’s because Section Three is the only one that is
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
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
28
see Blackman & Tillman, supra (manuscript at 23) (noting that there appears to be
“no deep well of consensus that constitutional provisions are automatically self-
qualifications, especially those found in Article II, Section One, Clause Five.
¶325 Here, once again, the interplay between Sections Three and Five of the
As mentioned, Article II, Section One, Clause Five contains nothing akin to the
enabling legislation.
¶326 We are not at liberty to ignore this blistering lacuna in Article II’s language.
But that is exactly what my colleagues in the majority do. And in so doing, they
or allow for state enabling legislation—thereby providing the Electors with a cause
primary ballot, see, e.g., Hassan v. Colorado, 870 F. Supp. 2d 1192, 1194–95 (D. Colo.
29
2012), aff’d, 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.
as my third takeaway from Griffin’s Case. Recall that the Fourteenth Amendment’s
pragmatic, not merely formalistic. It was motivated by the complex nature of the
experience of the instant litigation proves beyond any doubt the foresight of Chief
legal acumen to determine whether a candidate is barred by the binary and clerical
statement of intent will do the trick. See § 1-4-1204(1)(c), C.R.S. (2023). By contrast,
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;
Additionally, there’s a vital need for definitional counsel on such questions as who
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
decidedly outside the judicial bailiwick to furnish the scaffolding that only
“appropriate legislation” can supply. Because the Constitution gives this job to
¶329 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.
(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, I 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
¶330 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
8 Interestingly, the majority does not explain what should happen moving forward
if nobody challenges a candidate whom the Secretary believes previously engaged
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 doing that? Would the majority expect her to act as
investigator, prosecutor, and adjudicator in that type of situation?
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and 1-4-1204(4), C.R.S. (2023), of the Colorado Election Code because the
primary ballot would be a “wrongful act,” as that term is used in section 1-1-113.
See § 1-1-113(1). Maj. op. ¶¶ 4–5. But the truncated procedures and limited due
¶331 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
. . . upon a finding of good cause, the district court shall issue an order requiring
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.”
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
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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
¶332 As these statutory provisions make clear, a section 1-1-113 challenge to the
handled on an expedited basis. See Frazier v. Williams, 2017 CO 85, ¶ 11, 401 P.3d
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 under the Colorado
¶333 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
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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,
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. 9
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
Cf. 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.
9I 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.
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That’s fifty-four days, which is nearly ten times the amount of time permitted by
the Election Code. See § 1-4-1204(4) (“No later than five days after the challenge is
¶335 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
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
may be presented at trial.”). Instead, the court ordered that expert reports must
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be “fulsome” and that experts would not be allowed to testify to anything outside
their reports.
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
on November 17, two weeks after the hearing concluded and seventy-two days
¶337 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
¶338 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
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
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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
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”).
¶339 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
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“summary proceeding” envisioned by section 1-1-113 nor a full-blown trial; rather,
sections 1-1-113 and 1-4-1204(4) and remnants of traditional civil trial practice.
¶340 Even with the unauthorized statutory alterations made by the district court,
proceedings of many basic protections that normally accompany a civil trial, never
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.
¶341 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
generally and Section Three specifically; and the court received and considered a
¶342 I 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
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conduct discovery, subpoena documents and compel witnesses, and adequately
prepare for trial, and experts are never permitted to usurp the role of the judge by
¶343 The majority tries to excuse the due process shortcomings I have discussed
concerns a candidate’s access to the ballot.” Maj. op. ¶ 81. But that’s exactly my
why the Electors should not have been allowed to piggyback a Section Three
in the first place. In any event, the majority’s acknowledgement that section
contradict its determination that the Election Code endowed the district court with
Id. at ¶¶ 81, 85.10 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
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¶344 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 primary.11
¶345 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
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 adjudication of federal
constitutional provisions, disqualifying President Trump from office, would have
met its road’s end in state district court. How can this court give its imprimatur
to such an inverted conception 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.
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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).
¶346 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?
¶347 I cannot agree with the majority that the chimeric proceedings below gave
deprived. Nor did the proceedings below protect the interest Coloradans have in
wish to vote for him in Colorado. But such a determination must follow the
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II. Conclusion
¶349 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. In 2023, just as in 1776, all, including those people who
may have committed horrendous acts, are entitled to procedural due process.
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
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. It erred in not doing so. I would therefore affirm its judgment on other
grounds.
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