Anderson v. Griswold

• Court: Colorado Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Anderson v. Griswold, 543 P.3d 283 (Colo. 2023)
• Docket Number: Supreme Court Case No. 23SA300
• Decision Date: 19 December 2023
• Parties: Norma ANDERSON, Michelle Priola, Claudine Cmarada, Krista Kafer, Kathi Wright, and Christopher Castilian, Petitioners-Appellants/Cross-Appellees, v. Jena GRISWOLD, in her official capacity as Colorado Secretary of State, Respondent-Appellee, and Colorado Republican State Central Committee, an unincorporated association, Intervenor-Appellee, Donald J. Trump., Intervenor-Appellee/Cross-Appellant.

543 P.3d 283

2023 CO 63

Norma ANDERSON, Michelle Priola, Claudine Cmarada, Krista Kafer, Kathi Wright, and Christopher Castilian, Petitioners-Appellants/Cross-Appellees,

v.Jena GRISWOLD, in her official capacity as Colorado Secretary of State, Respondent-Appellee,andColorado Republican State Central Committee, an unincorporated association, Intervenor-Appellee,Donald J. Trump., Intervenor-Appellee/Cross-Appellant.

Supreme Court Case No. 23SA300

Supreme Court of Colorado.

December 19, 2023

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

Attorneys for Petitioners-Appellants/Cross-Appellees: KBN Law, LLC, Mario Nicolais, Lakewood, Colorado, Tierney Lawrence Stiles LLC, Martha M. Tierney, Denver, Colorado, Olson Grimsley Kawanabe Hinchcliff & Murray LLC, Eric Olson, Sean Grimsley, Jason Murray, Denver, Colorado, Donald Sherman, Nikhel Sus, Jonathan Maier, Washington, District of Columbia

Attorneys for Respondent-Appellee: Philip J. Weiser, Attorney General, Michael Kotlarczyk, Senior Assistant Attorney General, Jennifer L. Sullivan, Deputy Attorney General, Denver, Colorado

Attorneys for Intervenor-Appellee Colorado Republican State Central Committee: Melito Law LLC, Michael Melito, Denver, Colorado, Podoll & Podoll, P.C., Robert A. Kitsmiller, Greenwood Village, Colorado

Attorneys for Intervenor-Appellee/Cross-Appellant Donald J. Trump: Gessler Blue LLC, Scott E. Gessler, Geoffrey N. Blue, Greenwood Village, Colorado

Attorneys for Amici Curiae Floyd Abrams, Bruce Ackerman, 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, Rathod Mohamedbhai LLC, Edward C. Hopkins Jr., 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, Greenwood Village, Colorado

Attorneys for, Amicus Curiae Constitutional Accountability Center: Ernst Legal Group, LLC, Dan Ernst, Denver, Colorado

Amicus Curiae Treniss Jewell Evans III, pro se, Forney, Texas

Attorneys for Amicus Curiae Free Speech for People: Martinez Law Colorado, LLC, Anna N. Martinez, Denver, Colorado, Martinez Law, LLC, Esteban A Martinez, Longmont, Colorado

Attorneys for Amicus Curiae Professor Mark A. Graber: The Paul Wilkinson Law Firm LLC, Nelson Boyle, 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, Wiscon- sin 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: McGowne Law Offices, P.A., Christopher J. McGowne, Hays, Kansas

Attorneys for Amicus Curiae Professor Kurt T. Lash: Illingworth Law, LLC, David W. Illingworth II, Woodland Park, Colorado

Attorneys for Amicus Curiae Professor Derek T. Muller: Covenant Law PLLC, Ian Speir, 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,Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North 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, Michael R. Williams, Principal Deputy Solicitor General, Charleston, West Virginia, Nussbaum Gleason, Andrew Nussbaum, Colorado Springs, Colorado

Attorneys for Amicus Curiae Professor Seth Barrett Tillman: The Reisch Law 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, Suzanne M. Taheri, Denver, Colorado

En Banc

PER CURIAM.¹

¶1 More than three months ago, a group of Colorado electors eligible to vote in the Republican presidential 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 Republican presidential primary ballot.

¶2 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.

¶3 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. Id. at Part VI. Conclusion.

¶4 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 Election Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three.

• 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.

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

• 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. Capitol on January 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 protected by the First Amendment.

¶5 The sum of these 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.

¶6 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.

¶7 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 indude President Trump’S name on the 2024 presidential primary ballot. 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

¶8 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.

¶9 On 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.

¶10 On December 14, 2020, the Electoral College officially confirmed the results: 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 On January 6, 2021, pursuant to the Twelfth Amendment, U.S. Const. amend. XII, and the ...