No.

23-719

In the Supreme Court of the United States

DONALD J. TRUMP,
Petitioner,
V.

NORMA ANDERSON, ET AL.,

Respondents.
——————
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF COLORADO

BRIEF OF AMICI CURIAE STATES OF

INDIANA, WEST VIRGINIA, 25 OTHER
STATES, AND THE ARIZONA LEGISLATURE
IN SUPPORT OF PETITIONER
PATRICK MORRISEY THEODORE E. ROKITA
Attorney General Attorney General
MICHAEL R. WILLIAMS JAMES A. BARTA*
Principal Deputy Solicitor Solicitor General
General MELINDA R. HOLMES
DAVID E. GILBERT Deputy Attorney General
Deputy Attorney General OFFICE OF THE INDIANA
OFFICE OF THE WEST VIRGINIA ATTORNEY GENERAL
ATTORNEY GENERAL IGC South, Fifth Floor
State Capitol Complex 302 Washington Street
Building 1, Room E-26 Indianapolis, IN 46204
Charleston, WV 25305 (317) 232-0709
(304) 558-2021 James.Barta@atg.in.gov
michael.r.williams@wvago.gov * Counsel of Record

Counsel for Amici States

Additional counsel listed with signature block
 i

QUESTION PRESENTED
Did the Colorado Supreme Court err in ordering
President Trump excluded from the 2024 presidential
primary ballot?
 ii

TABLE OF CONTENTS
INTRODUCTION AND INTERESTS OF
AMICI CURIAE ........................................................... 1

SUMMARY OF ARGUMENT ..................................... 3

REASONS FOR GRANTING THE PETITION.......... 4

I. The Court should grant the Petition to head

off the chaos that the Colorado decision will
produce .................................................................. 4

II. The Court should grant the Petition to return

power to Congress—where it belongs ................ 10

III. The Court should grant the Petition to erase

a standardless political judgment about what
constitutes “insurrection” ................................... 14

CONCLUSION .......................................................... 22
 iii

TABLE OF AUTHORITIES
CASES

Anderson v. Celebrezze,
460 U.S. 780 (1983) ......................................... 2, 4

Baker v. Carr,
369 U.S. 186 (1962) ............................................. 8

Benisek v. Lamone,
138 S. Ct. 1942 (2018) ......................................... 2

Bush v. Gore,
531 U.S. 98 (2000) ............................................... 1

Cale v. City of Covington,

586 F.2d 311 (4th Cir. 1978) ............................. 13

Case of Fries,
9 F. Cas. 924 (C.C.D. Pa. 1800) ........................ 19

Cawthorn v. Amalfi,
35 F.4th 245 (4th Cir. 2022) ............................. 11

Civil Rights Cases,

109 U.S. 3 (1883) ............................................... 14

Cousins v. Wigoda,
419 U.S. 477 (1975) ............................................. 2

Davis v. Burke,
179 U.S. 399 (1900) ........................................... 14

Davis v. Wayne Cnty. Elec. Comm’n,

No. 368615, 2023 WL 8656163 (Mich. Ct.
App. Dec. 14, 2023).............................................. 6
 iv

CASES [CONT’D]

In re Davis,
7 F. Cas. 63 (C.C.D. Va. 1871) ...................... 9, 18

Donald J. Trump for President, Inc. v. Sec’y

of Pa.,
830 F. App’x 377 (3d Cir. 2020) .......................... 1

Evenwel v. Abbott,
578 U.S. 54 (2016) ............................................... 3

Freytag v. Comm’r,
501 U.S. 868 (1991) ........................................... 10

In re Griffin,
11 F. Cas. 7 (C.C.D. Va. 1869) .......................... 11

Grinols v. Electoral Coll.,

No 2:12-CV-02997, 2013 WL 2294885
(E.D. Cal. May 23, 2013) ............................. 12, 13

Japan Whaling Ass’n v. Am. Cetacean Soc.,

478 U.S. 221 (1986) ........................................... 14

Kerchner v. Obama,
669 F. Supp. 2d 477 (D.N.J. 2009) .................... 11

Keyes v. Bowen,
117 Cal. Rptr. 3d 207
(Cal. Ct. App. 2010) ............................................. 8

Kneedler v Lane,
45 Pa. 238 (1863) ............................................... 16
 v

CASES [CONT’D]

Lamb v. Obama,
No. S-15155, 2014 WL 1016308
(Alaska Mar. 12, 2014) ........................................ 5

Lin v. United States,

539 F. Supp. 2d 173 (D.D.C. 2008) ................... 15

Martin v. Hortin,
64 Ky. 629 (1867)............................................... 18

Miller v. United States,

78 U.S. 268 (1870) ............................................. 17

Ex parte Milligan,
71 U.S. 2 (1866) ........................................... 18, 19

Nixon v. United States,

506 U.S. 224 (1993) ......................................... 8, 9

Oregon v. Mitchell,
400 U.S. 112 (1970) ............................................. 1

Ownbey v. Morgan,
256 U.S. 94 (1921) ............................................. 13

Pac. States Tel. & Tel. Co. v. Oregon,

223 U.S. 118 (1912) ........................................... 10

Purcell v. Gonzalez,
549 U.S. 1 (2006) ............................................. 3, 6

Robinson v. Bowen,
567 F. Supp. 2d 1144 (N.D. Cal. 2008) ............. 13
 vi

CASES [CONT’D]

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ......................................... 1

Spruill v. N.C. Mut. Life Ins. Co.,

46 N.C. 126 (1853) ............................................. 18

State v. McDonald,
4 Port. 449 (Ala. 1837) ...................................... 18

Stewart v. Kahn,
78 U.S. 493 (1870) ............................................. 15

Stinson v. N.Y. Life Ins.,

167 F.2d 233 (D.C. Cir. 1948) ........................... 15

Storer v. Brown,
415 U.S. 724 (1974) ............................................. 8

Strunk v. N.Y. State Bd. of Elections,

No. 6500/11, 2012 WL 1205117
(N.Y. Sup. Ct. Apr. 11, 2012) .............................. 5

Taitz v. Democrat Party of Miss.,

No 3:12-CV-280, 2015 WL 11017373
(S.D. Miss. Mar. 31, 2015) ................................ 13

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ............................................. 4

United States v. Hammond,

26 F. Cas. 99 (C.C.D. La. 1875) ........................ 17
 vii

CASES [CONT’D]

United States v. Mitchell,

2 U.S. 348 (C.C.D. Pa. 1795) ............................. 19

Vanderpool v. Loftness,
300 P.3d 953 (Col. Ct. App. 2012) ....................... 6

Vieth v. Jubelirer,
541 U.S. 267 (2004) ............................................. 1

Ex parte Virginia,
100 U.S. 339 (1879) ........................................... 13

Voeltz v. Obama,
No. 2012-CA-02063, 2012 WL 4117478
(Fla. Cir. Ct. Sep. 06, 2012) .............................. 13

Ware v. Hylton,
3 U.S. 199 (1796) ............................................... 14

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. XIV, § 3 ...................... 10, 11, 16

U.S. Const., amend. XIV, § 5 ............................ 10, 20

U.S. Const., amend. XXV ....................................... 12

U.S. Const., art. I .................................................... 18

U.S. Const., art. I, § 2 ........................................... 5, 8

U.S. Const., art. I, § 3 ........................................... 5, 8

U.S. Const., art. I, § 8 ....................................... 16, 20

 viii

CONSTITUTIONAL PROVISIONS [CONT’D]

U.S. Const., art. I, § 12. .......................................... 20

U.S. Const., art. II, § 1 ............................................. 4

U.S. Const., art. II, § 4 ......................................... 5, 8

STATUTES

10 U.S.C. § 254 ....................................................... 20

Act of February 28, 1795, ch. 36, 1 Stat. 424,

10 U.S.C. § 332 ............................................ 17, 20

Act of July 13, 1861, ch 3, § 5, 12 Stat 255 ............ 21

Act of May 2, 1792, Ch. 28, §§ 1–3, 1 Stat.

264 ..................................................................... 20

Insurrection Act of 1807, ch. 39, Pub. L. 9-2,

2 Stat. 443.......................................................... 17

N.Y. Code of Crim. Proc., ch. 4, § 97

(Weed, Parsons & Co, 1850).............................. 20

OTHER AUTHORITIES

4 William Blackstone, Commentaries on the

Laws of England ............................................... 16

166 Cong. Rec. S938 (daily ed. Feb. 5, 2020) ........... 8

167 Cong. Rec. S733 (daily ed. Feb. 13,

2021) .................................................................... 8
 ix

OTHER AUTHORITIES [CONT’D]

Andrew Johnson, U.S. President, Message

Proclaiming End to Insurrection in the
United States (Aug. 20, 1866) ........................... 21

B. Mitchell Simpson, Treason and Terror: A

Toxic Brew, 23 Roger Williams U.L. Rev.
1 (2018) .............................................................. 19

Cong. Globe, 39th Cong., 1st Sess. 2898,

(1866) ................................................................. 18

Derrick Bryson Taylor, George Floyd

Protests: A Timeline, N.Y. Times (Nov. 5,
2021) ............................................................ 15, 16

F.E. Guerra-Pujol, Domestic Constitutional

Violence, 41 U. Ark. Little Rock L. Rev.
211 (2019) .......................................................... 17

Henry Halleck, Elements of International

Law and Laws of War (1866) ............................ 18

James G. Wilson, Chaining the Leviathan:

The Unconstitutionality of Executing
Those Convicted of Treason, 45 U. Pitt.
L. Rev. 99 (1983)................................................ 16

James Madison, Notes of Debates in the

Federal Convention of 1787 (Adrienne
Koch ed, Ohio Univ Press, 1966) (1840) ....... 5, 17
 x

OTHER AUTHORITIES [CONT’D]

Jason Mazzone, The Commandeerer in

Chief, 83 Notre Dame L. Rev. 265
(2007) ........................................................... 16, 19

John Bouvier, Bouvier’s Law Dictionary (6th

ed, 1856), available at
https://bit.ly/3uzlbAP ........................................ 18

Joseph Story, Commentaries on the

Constitution of the United States (4th ed.
1873) .................................................................. 17

Kurt Lash, The Meaning and Ambiguity of

Section Three of the Fourteenth
Amendment, Working Paper (Oct. 31,
2023), https://bit.ly/3RfwVS8 ............................ 12

Laws of New Haven Colony (1656) (Hartford

ed, 1858) ...................................................... 16, 17

Mark Graber, Section Three and (Not) Bills of

Attainder, Balkinization (Jan. 13, 2021),
https://bit.ly/3vg4drM ......................................... 9

Myles S. Lynch, Disloyalty &

Disqualification: Reconstructing Section
3 of the Fourteenth Amendment, 30 Wm.
& Mary Bill Rts. J. 153 (2021) .................... 16, 21
 xi

OTHER AUTHORITIES [CONT’D]

Robert J. Reinstein, Expulsion, Exclusion,

Disqualification, Impeachment, Pardons:
How They Fit Together, Lawfare (Feb.
11, 2011), https://bit.ly/ 47nxYo0 ........................ 9

The Reconstruction Acts,

12 U.S. Op. Att’y Gen. 141 (1867)..................... 18

U.S. War Dep’t, Adjutant-Gen’s Off, General

Order No. 100: The Lieber Code,
Instructions for the Government of
Armies of the United States in the Field
§ X art. 151 (1863) ....................................... 18, 19
 1

INTRODUCTION AND INTERESTS

OF AMICI CURIAE
This Court has warned judges away from
intervening in “the most intensely partisan aspects of
American political life.” Rucho v. Common Cause, 139
S. Ct. 2484, 2507 (2019). Court involvement in pure
politics can bring “delay and uncertainty … to the
political process … [and] partisan enmity … upon the
courts.” Vieth v. Jubelirer, 541 U.S. 267, 301 (2004)
(plurality op.). And this case involves perhaps the
most “intensely partisan” event one can imagine—a
presidential election. Even when the Court has been
compelled to address questions related to elections, it
has stressed that the “Constitution’s design … leave[s]
the selection of the President to the people, through
their legislatures, and to the political sphere.” Bush
v. Gore, 531 U.S. 98, 111 (2000) (per curiam). This
notion—that courts should show restraint in
presidential-election cases—advances a common-
sense ideal: “Voters, not lawyers, choose the
President.” Donald J. Trump for President, Inc. v.
Sec’y of Pa., 830 F. App’x 377, 391 (3d Cir. 2020).
Yet the Colorado Supreme Court showed no
restraint here. Instead, amid a hotly contested
election, it has barred a former President and leading
candidate from its presidential ballot.
The state court’s choice to declare former President
Donald Trump an insurrectionist under Section 3 of
the Fourteenth Amendment has vast consequences
that reach far beyond Colorado. “[E]lections for
presidential and vice-presidential electors” are, after
all, “national elections.” Oregon v. Mitchell, 400 U.S.
112, 117–18 (1970). As to primaries in particular,
“States themselves have no constitutionally mandated
 2

role in” selecting “Presidential and Vice-Presidential

candidates” at all. Cousins v. Wigoda, 419 U.S. 477,
489–90 (1975). So “in the context of a Presidential
election, state-imposed restrictions implicate a
uniquely important national interest.” Anderson v.
Celebrezze, 460 US 780, 794–95; (1983) (footnote
omitted). No State is an electoral “island” because
“the impact of the votes cast in each State is affected
by the votes cast”—or, in this case, not cast—“in other
States.” Id. at 795. The Amici States have a strong
interest in protecting their electorates from actions
that dilute their citizens’ choices.
The Colorado court’s decision to dilute former
President Trump’s votes in the upcoming election
cannot stand for several reasons. It threatens to
throw the 2024 presidential election into chaos. Yet
courts are supposed to give “a due regard for the public
interest in orderly elections.” Benisek v. Lamone, 138
S. Ct. 1942, 1944 (2018). At the same time, the state
court took on a question that the Constitution says
belongs to Congress. Section 3 of the Fourteenth
Amendment is not self-executing. And the court
purported to decide what events might constitute an
“insurrection” even though the definition rests on a
series of purely political judgments—not legal ones.
To make matters worse, the Colorado courts decided
“complicated” constitutional questions through a
truncated state process that denied former President
Trump any opportunity for “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.”
App. 126a (Samour, J., dissenting).
 3

The Colorado Supreme Court has cast itself into a

“political thicket,” Evenwel v. Abbott, 578 U.S. 54, 58,
(2016), and it is now up to this Court to pull it out.
“Confidence in the integrity of our electoral processes
is essential to the functioning of our participatory
democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006)
(per curiam). If the Colorado decision stands, that
critical confidence will be harmed. Many Americans
will become convinced that a few partisan actors have
contrived to take a political decision out of ordinary
voters’ hands.
The Court should grant the Petition.

SUMMARY OF ARGUMENT
I. This Court’s immediate intervention is
required. The Colorado court’s decision will create
widespread chaos. Most obviously, it casts confusion
into an election cycle that is just weeks away. Beyond
that, it upsets the respective roles of the Congress, the
States, and the courts.
II. The Fourteenth Amendment—perhaps because
of the very sorts of problems described above—
anticipates that Congress will decide whether a
particular person is qualified to hold office under
Section 3 (or at least determine the process for making
that decision). The structure of the Constitution,
relevant history, and authority from this Court
confirm as much. The Court should grant the Petition
to prevent state courts from usurping Congress’s
exclusive power.
III. In deciding that former President Trump
engaged in insurrection, the Colorado court fashioned
a definition of “insurrection” that is standardless and
vague. The best available evidence suggests that
 4

insurrection equates with rebellion—a more

demanding standard than the Colorado Court settled
on. But what constitutes insurrection is not a question
courts should answer at all.

REASONS FOR GRANTING THE PETITION

I. The Court should grant the Petition to
avoid the chaos that the Colorado decision
will produce.
Our country needs an authoritative, consistent,
and uniform answer to whether former President
Trump is constitutionally eligible for President.
Granting the Petition would at least be a step in that
direction.
A. The President occupies a unique place under
our Constitution. The President is only one of two
“elected officials who represent all the voters in the
Nation.” Anderson, 460 US at 795. So, when States
try to impose “more stringent ballot access
requirements” or eligibility criteria on candidates for
President, that effort “has an impact beyond [a State’s]
own borders.” Id. at 795. And the practical impact
makes it essential to have a single, national answer as
to whether someone is eligible to run for President.
The Constitution itself recognizes the need for
national answers on this issue. It imposes a single set
of eligibility requirements for President, see, e.g., U.S.
Const., art. II, § 1 (imposing age, citizenship, and
residency eligibility requirements), which States may
not “modif[y],” U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 811 (1995). It also gives Congress—an
elected, national body capable of giving a single
answer—responsibility for determining whether a
President may continue in office. U.S. Const., art. I,
 5

§ 2 (allocating “sole Power of Impeachment” to the

House); U.S. Const., art. I, § 3 (allocating “sole Power
to try all Impeachments” to the Senate); id. (limiting
“[j]udgment in Cases of Impeachment “to removal
from Office[] and disqualification” from further office);
U.S. Const., art. II, § 4 (providing for “remov[al] from
Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and
Misdemeanors”). These provisions reflect the
necessity of consistent, uniform rules for presidential
candidates.
Previously, courts from coast to coast have warned
against efforts to use state courts to determine “the
eligibility of candidates to hold national offices,”
recognizing that making “a determination reserved for
the Electoral College and Congress” may embroil
courts “in national political matters for which [they
are] institutionally ill-suited and may interfere with
the constitutional authority of the Electoral College
and Congress.” Lamb v. Obama, No. S-15155, 2014
WL 1016308, at *2 (Alaska Mar. 12, 2014); see also,
e.g., Strunk v. N.Y. State Bd. of Elections, No. 6500/11,
2012 WL 1205117, at *12 (N.Y. Sup. Ct. Apr. 11, 2012)
(same). These concerns are weighty. Indeed, James
Madison thought it was “out of the question” that the
federal judiciary would be called upon to decide the
presidency, let alone 50 state systems. See James
Madison, Notes of Debates in the Federal Convention
of 1787 363 (Adrienne Koch ed, Ohio Univ Press, 1966)
(1840).
B. Now that the Colorado court has intruded into
an arena where courts previously have feared to tread,
swift intervention is essential. “Court orders affecting
elections, especially conflicting orders, can themselves
 6

result in voter confusion and consequent incentive to

remain away from the polls. As an election draws
closer, that risk will increase.” Purcell, 549 U.S. at 4–
5. With Colorado declaring former President Trump
ineligible, and other courts rejecting similar
challenges, see, e.g., Davis v. Wayne Cnty. Elec.
Comm’n, No. 368615, 2023 WL 8656163, at *1 (Mich.
Ct. App. Dec. 14, 2023), conflict and chaos is already
setting in. Voters who may wish to cast their ballots
for former President Trump cannot know whether he
ultimately will be excluded from the ballot in their
State or others. They may wonder whether a little
non-mutual offensive collateral estoppel is all it takes
for former President Trump to be excluded from
ballots across the Nation. See Vanderpool v. Loftness,
300 P.3d 953, 957–59 (Col. Ct. App. 2012). So will
voters risk casting their votes for a candidate who
might be later disqualified in some or all States? If
they do, what becomes of their votes?
With the earliest primaries approaching in just a
few months, this Court should not let the uncertainty
persist. Any damage may already have been done by
the time another case raising similar issues makes its
way back to this Court. And the longer litigation over
a national candidate’s eligibility persists, the more
uncertainty and confusion will spread. Voters need an
answer in time to judiciously weigh the merits of
competing candidates before casting their ballots, not
after voting has begun.
An authoritative answer from this Court is needed
to prevent the situation from deteriorating further.
With some plaintiffs having succeeded in their
challenge to former President Trump’s candidacy,
more litigation is sure to follow. Suppose plaintiffs in
 7

five States sue to enjoin their respective secretaries of

state from placing a presidential candidate on their
primary ballot just before primaries are held in 15
different States on Super Tuesday. Perhaps three
succeed in obtaining an injunction. Appeals from both
sides will take time. And while the litigation
continues, voters will not know whether former
President Trump will ultimately be disqualified in
their State or others. That will undoubtedly affect
how some voters cast their ballots. Perhaps some
would have chosen a different candidate had they
known their preferred candidate had a reduced
chance, or even no chance, at the nomination.
And the way things played out below is an example
of how damaging state-court-by-state-court
idiosyncrasies can be. With extremely limited
discovery, rapid proceedings that nevertheless blew
statutory deadlines, loose evidentiary standards, no
jury, and more, see App. 154a–60a (Samour, J.,
dissenting), a state court knocked former President
Trump off the ballot, and applying mushy definitions,
deemed him to have engaged in efforts to overthrow
the government. As Justice Samour noted below, “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” seems
“antithetical to the framers’ intent.” App. 160a
(Samour, J., dissenting).
For elections to be fair, voters need a single, certain
answer as to whether someone is ineligible for
President under Section 3 of the Fourteenth
Amendment. If left to the “courts of 50 states,”
litigation over a candidate’s eligibility for President
 8

will result in “conflicting rulings and delayed

transition of power in derogation of statutory and
constitutional deadlines.” Keyes v. Bowen, 117 Cal.
Rptr. 3d 207, 215 (Cal. Ct. App. 2010). Swift
intervention from this Court is critical.
C. The decision below has consequences beyond
just the next election. By wielding a political provision
of the Fourteenth Amendment without congressional
authorization, the court below “sacrifice[d] the
political stability of the system” of the Nation “with
profound consequences for the entire citizenry.”
Storer v. Brown, 415 U.S. 724, 736 (1974). At a
minimum, it has “expose[d] the political life of the
country to months, or perhaps years, of chaos.” Nixon
v. United States, 506 U.S. 224, 236 (1993).
The lower court’s decision “express[es] lack of the
respect due” to Congress. Baker v. Carr, 369 U.S. 186,
217 (1962). Constitutionally, Congress has sole
authority to remove a President from office for
“Treason, Bribery, or other high Crimes and
Misdemeanors.” U.S. Const., art. II, § 4. The power
to accuse a President of an impeachable offense
resides solely in the House of Representatives, id., art.
I, § 2, cl. 5, while the power to remove a President
resides solely in the Senate, id., art. I, § 3, cl 6.
Congress vigorously applied these powers to former
President Trump, as the House impeached him twice.
But the Senate acquitted him both times, even when
political opponents accused him of fomenting
insurrection, much as the lower court held here. See
166 Cong. Rec. S938 (daily ed. Feb. 5, 2020); 167 Cong.
Rec. S733 (daily ed. Feb. 13, 2021). So Colorado has
effectively rendered its judgment that Congress was
wrong during the impeachment proceedings. Contra
 9

Nixon, 506 U.S. at 238 (holding impeachment is the

exclusive domain of Congress).
The decision below throws confusion into the
executive branch’s activities, too.
First, the past. If the Colorado decision is correct,
then some have argued that former President Trump
would be immediately disqualified the moment he
purportedly engaged in insurrection on January 6,
2021. See, e.g., Mark Graber, Section Three and (Not)
Bills of Attainder, Balkinization (Jan. 13, 2021),
https://bit.ly/3vg4drM. Under this view, “the actions
that [former President Trump] took between Jan. 7
and Jan. 20—including the pardons he issued and the
bills he signed into law”—would not be
constitutionally valid. Robert J. Reinstein, Expulsion,
Exclusion, Disqualification, Impeachment, Pardons:
How They Fit Together, Lawfare (Feb. 11, 2011),
https://bit.ly/ 47nxYo0. Thanks to Colorado, then,
some might now try to say that America was without
a President for two full weeks.
Second, the future. If state courts start declaring
persons insurrectionists under Section 3, then it could
spawn questions about whether the Double Jeopardy
Clause would prevent the government from levying a
second punishment against any of those persons for
the same events. Jefferson Davis, for example, argued
exactly that—and the issue has never been finally
resolved. In re Davis, 7 F. Cas. 63, 90–91 (C.C.D. Va.
1871). So decisions like Colorado’s significantly
complicate criminal prosecutions. That’s not to
suggest that any given prosecution is warranted—but
the potential impairment does illustrate just how far-
reaching the consequences of the decision below are.
And if the lid is truly off Pandora’s box, and state
 10

courts can freely disqualify past and present

Presidents under Section 3, then it’s not hard to
conceive of even more troubling outcomes. For
instance, could a state court disqualify a sitting
President from running for reelection by construing a
serious misstep taken during time of war as an action
that has “given aid or comfort to” enemies? U.S.
Const., amend. XIV, § 3.
The Court should act now to stop all these “strange,
far-reaching, and injurious results” from spinning out
of control. Pac. States Tel. & Tel. Co. v. Oregon, 223
U.S. 118, 142 (1912). It should grant the Petition to
end the uncertainty that is sure to otherwise result.
II. The Court should grant the Petition to
return power to Congress—where it
belongs.
Putting aside the serious practical consequences of
the lower court’s decision, the decision also strikes a
serious blow to “the Constitution’s structural
separation of powers.” Freytag v. Comm’r, 501 U.S.
868, 873 (1991). Only Congress can disqualify a
presidential candidate under Section 3.
The Fourteenth Amendment provides that “[n]o
person shall … hold any office … 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. But
it then stresses that “Congress shall have power to
enforce, by appropriate legislation, the provisions of
this article.” U.S. Const., amend. XIV, § 5. And it
specifies that only “Congress … by a vote of two-thirds
of each House” may “remove [the] disability” imposed
 11

by the Insurrection Clause. U.S. Const., amend. XIV,

§ 3. Thus, the Fourteenth Amendment charges
Congress with deciding how the Insurrection Clause
will be enforced. See Kerchner v. Obama, 669 F. Supp.
2d 477, 483 n. 5 (D.N.J. 2009) (detailing constitutional
provisions that show qualifications of a President are
not to be resolved by courts).
Just months after the Fourteenth Amendment’s
ratification, Chief Justice Salmon P. Chase (while
riding circuit in Virginia) reached that very
conclusion. In re Griffin, 11 F. Cas. 7 (C.C.D. Va.
1869). Although the Colorado court refused to engage
with Griffin’s specific reasoning, it rejected it as
unpersuasive. See App. 52a–53a. But the Colorado
court should have read it again. Examining the text,
the Chief Justice in Griffin explained that the
Fourteenth Amendment’s “fifth section qualifies the
third.” 11 F. Cas. at 26. Section 5 “gives to congress
absolute control of the whole operation of the
amendment,” and hence “legislation by congress is
necessary to give effect to [Section 3’s] prohibition.”
Id.
Practical considerations, Chief Justice Chase
explained, “very clearly” underscored the need for
legislation. Griffin, 11 F. Cas. at 26. To give effect to
Section 3, “it must be ascertained what particular
individuals” are subject to a disability. Id. But “only
… congress” may “provide” the “proceedings, evidence,
decisions, and enforcements of decisions” required to
“ascertain[] what particular individuals are embraced
by the definition” and “ensure effective results.” Id.;
cf. Cawthorn v. Amalfi, 35 F.4th 245, 275–82 (4th Cir.
2022) (Richardson, J., concurring) (explaining why
only Congress may decide whether its own members
 12

are disqualified under Section 3 of the Fourteenth

Amendment). No wonder, then, that Congress at one
point did pass (later-repealed) enabling legislation;
Congress, like Chief Justice Chase and those who
pushed the Fourteenth Amendment in the first place,
recognized that this portion of “[t]he Constitution
provides no means for enforcing itself.” Kurt Lash,
The Meaning and Ambiguity of Section Three of the
Fourteenth Amendment, Working Paper, at 46 (Oct.
31, 2023), https://bit.ly/3RfwVS8 (quoting Sen. Lyman
Trumbull).
In requiring that “two-thirds of each House” agree
to remove the disability, the Fourteenth Amendment
also aligns with the standard for Congress to
determine a President’s legal qualifications under the
Twenty-Fifth Amendment. Under that amendment, if
the Vice President and certain officers find that the
President is unable to perform the duties of his office,
“Congress shall decide the issue [of ability] … by two-
thirds vote of both Houses.” U.S. Const., amend. XXV.
“[O]therwise, the President shall resume the powers
and duties of his office.” Id. An unable President is
one who lacks the ability or the legal qualifications to
discharge his office. See Grinols v. Electoral Coll., No
2:12-CV-02997, 2013 WL 2294885, at *6 (E.D. Cal.
May 23, 2013). So the Twenty-Fifth Amendment—
and by extension the Fourteenth—gives Congress the
ultimate power to decide whether an official is legally
unqualified to serve.
The voters first will decide whether former
President Trump is legally qualified to be reelected as
President. “Arguments concerning qualifications or
lack thereof can be laid before the voting public before
the election,” as they already have been. Robinson v.
 13

Bowen, 567 F. Supp. 2d 1144, 1147 (N.D. Cal. 2008).

If the voters find former President Trump qualified,
and Congress concurs, then the Constitution does not
contemplate a time for the judiciary to second-guess
that call. Rather, the Constitution gives Congress the
sole and final authority to determine whether the
President can continue to serve, as many courts have
said. See, e.g., Taitz v. Democrat Party of Miss., No
3:12-CV-280, 2015 WL 11017373, at *16 (S.D. Miss.
Mar. 31, 2015); Grinols, 2013 WL 2294885, at *6;
Voeltz v. Obama, No. 2012-CA-02063, 2012 WL
4117478, at *5 (Fla. Cir. Ct. Sep. 06, 2012).
The court below concluded that Section 3 is self-
executing largely by focusing on things that have been
said about other aspects of the Fourteenth
Amendment (or other amendments entirely). In doing
so, the court ignored many cases that say the
Fourteenth Amendment is not self-executing. See,
e.g., Ownbey v. Morgan, 256 U.S. 94, 112 (1921) (“[I]t
cannot rightly be said that the Fourteenth
Amendment furnishes a universal and self-executing
remedy.”); Ex parte Virginia, 100 U.S. 339, 345 (1879)
(“All of the [Reconstruction] amendments derive much
of their force from this latter provision [in Section 5].
… Some legislation is contemplated to make the
amendments fully effective.”); accord Cale v. City of
Covington, 586 F.2d 311, 316 (4th Cir. 1978) (“[W]e
believe that the Congress and Supreme Court of the
time were in agreement that affirmative relief under
the amendment should come from Congress.”). And
anyway, courts need to examine each specific
constitutional provision on its own merits to decide
whether that provision is self-executing—not just
lump provisions adopted around the same time
together. Cf. Civil Rights Cases, 109 U.S. 3, 20 (1883)
 14

(explaining that portions of the Fourteenth and

Fifteenth Amendment that “abolished slavery[] and
established universal freedom” were “self-executing,”
but other portions were not). A constitutional
provision “is self-executing only so far as it is
susceptible of execution,” Davis v. Burke, 179 U.S. 399,
403 (1900), and that’s a provision-specific question,
after all.
III. The Court should grant the Petition to
erase a standardless political judgment
about what constitutes “insurrection.”
“[C]onsiderations of policy [and] considerations of
extreme magnitude” are “certainly entirely
incompetent to the examination and decision of a
Court of Justice.” Ware v. Hylton, 3 U.S. 199, 260
(1796). “[C]ourts are fundamentally underequipped to
formulate national policies or develop standards for
matters not legal in nature.” Japan Whaling Ass’n v.
Am. Cetacean Soc., 478 U.S. 221, 230 (1986). But in
trying to define Section 3’s reach, those kinds of
judgments are all the lower court could offer. Without
more direction from Congress about what it means to
engage in an “insurrection”—for instance, a
declaration that participating in what happened on
January 6 would constitute that kind of event—the
Colorado court had no warrant to act here.
A. Section 3’s text provides little useful guidance
for judges. It applies to persons who “engaged in
insurrection or rebellion against the [Constitution],”
or who have “given aid or comfort to the enemies
thereof.” U.S. Const., amend. XIV, § 3. Evaluating
whether someone has given inappropriate and
actionable aid to the enemy or whether an
insurrection occurred is the kind of question answered
 15

in war and diplomacy. Cf. Stinson v. N.Y. Life Ins.,

167 F.2d 233, 236 (D.C. Cir. 1948) (existence of a war
is a political question). But “[j]udges are not soldiers
or diplomats.” Lin v. United States, 539 F. Supp. 2d
173, 180 (D.D.C. 2008). And generally, “[t]he decision
of all such questions [pertaining to war and
insurrection] rests wholly in the discretion of those to
whom the substantial powers involved are confided by
the Constitution”—Congress and, to a lesser extent,
the President. Stewart v. Kahn, 78 U.S. 493, 506
(1870).
The decision below offered a vague understanding
of insurrection: “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.” App. 87a. The definition spawns
more questions than answers. What constitutes a
threat? Is a mere assemblage of people shouting
enough to constitute a threat of force? What actions
are necessary to peacefully transfer power? If two
people link arms across a sidewalk to block a poll
worker from entering a ballot-counting site, does that
“hinder” the transfer enough to constitute an outright
insurrection? Does incendiary political rhetoric at a
rally become insurrection if the winning party deems
that rhetoric insufficiently supportive of the new
regime? Have protesters “hinder[ed] or prevent[ed]
execution of the Constitution of the United States[,]”
App. 85a, if their activities “prompt[] the Secret
Service to temporarily lock down the” White House
and cause the President to be “moved to [an]
underground bunker used … during terrorist
attacks”? Derrick Bryson Taylor, George Floyd
 16

Protests: A Timeline, N.Y. Times (Nov. 5, 2021),

https://bit.ly/3S94h5L.
B. In truth, an “insurrection” is more serious than
the lower court’s definition supposes. Where the
Constitution uses the term “insurrection,” that term
appears alongside terms like “invasion” and
“rebellion.” For example, Article I empowers Congress
to use the militia to “execute” laws and to “suppress
Insurrections and repel Invasions.” U.S. Const., art.
I, § 8. Similarly, Section 3 of the Fourteenth
Amendment speaks of “insurrection” and “rebellion”
together. U.S. Const., amend. XIV, § 3. This
terminology suggests that an insurrection is “an effort
to overthrow the government” and therefore “more
serious than” “mere[] opposition to the enforcement of
the laws.” Jason Mazzone, The Commandeerer in
Chief, 83 Notre Dame L. Rev. 265, 336 n. 450 (2007);
see Myles S. Lynch, Disloyalty & Disqualification:
Reconstructing Section 3 of the Fourteenth
Amendment, 30 Wm. & Mary Bill Rts. J. 153, 167
(2021).
Other early authorities describe insurrections in
similar terms. On the spectrum of civil disturbance,
Blackstone places “insurrection” closer to a foreign
invasion than a riot. 4 William Blackstone,
Commentaries on the Laws of England, *82, *420; cf.
Kneedler v Lane, 45 Pa. 238, 291 (1863) (noting Lord
Coke put “invasion, insurrection,” and “rebellion” in
the same ballpark). Colonial-era laws often treated
invasion, insurrection, and rebellion similarly. See
James G. Wilson, Chaining the Leviathan: The
Unconstitutionality of Executing Those Convicted of
Treason, 45 U. Pitt. L. Rev. 99, 107 (1983) (quoting
Laws of New Haven Colony 24 (1656) (Hartford ed,
 17

1858)); Joseph Story, Commentaries on the

Constitution of the United States § 111 (4th ed. 1873)
(noting New York put “rebellion, insurrection, mutiny,
and invasion” on a similar plane). And during the
Constitutional Convention debates, James Wilson
noted that the major reason for the republican-form-
of-government clause was to prevent “dangerous
commotions, insurrections and rebellions.” James
Madison, Notes of Debates in the Federal Convention
of 1787 321 (Adrienne Koch ed, Ohio Univ Press, 1966)
(1840); accord Story, supra, § 490.
Early Congresses took a similar view. Section 1 of
the 1792 and 1795 Militia Acts says the President can
use the militia to repel a foreign “invasion” or an
“insurrection in any state” if the State asks, while
Section 2 says he can use the militia to stop the
obstruction of the execution of laws once normal civil
processes are overwhelmed. Act of February 28, 1795,
ch. 36, 1 Stat. 424, 10 U.S.C. § 332; cf. The
Insurrection Act of 1807, ch. 39, Pub. L. 9-2, 2 Stat.
443 (differentiating between “suppressing an
insurrection” and “causing the laws to be duly
executed”). This framing means “insurrection” and
merely hindering the execution of laws are
fundamentally different “type[s] of domestic danger.”
F.E. Guerra-Pujol, Domestic Constitutional Violence,
41 U. Ark. Little Rock L. Rev. 211, 222 (2019).
Judges and others during the Civil War and
Reconstruction Era treated “insurrection,” “rebellion,”
and “invasion” as on the same plane, too. See, e.g.,
Miller v. United States, 78 U.S. 268, 308 (1870)
(discussing federal laws using these terms seemingly
equivalently); United States v. Hammond, 26 F. Cas
99, 101 (C.C.D. La. 1875) (discussing a state law
 18

regarding grand jury service). The primary

Reconstruction Era legal dictionary—echoing many of
the sources above—defined “insurrection” as a
“rebellion” “against the government”; and “rebellion”
primarily meant “taking up arms traitorously against
the government.” John Bouvier, Bouvier’s Law
Dictionary (6th ed, 1856), available at
https://bit.ly/3uzlbAP. In the Fourteenth Amendment
floor debates, legislators freely swapped the terms.
Cong. Globe, 39th Cong., 1st Sess. 2898, 2900 (1866).
And a contemporaneous Attorney General opinion
interpreting Section 3 of the Fourteenth Amendment
saw no meaningful distinction either, constantly
equating them and even defining them identically as
a “domestic war.” The Reconstruction Acts, 12 U.S.
Op. Att’y Gen. 141, 160 (1867).
Indeed, throughout the early 19th century,
“rebellion” and “insurrection” were often deemed
“synon[y]mous.” State v. McDonald, 4 Port. 449, 456
(Ala. 1837); see Spruill v. N.C. Mut. Life Ins. Co., 46
N.C. 126, 127–28 (1853) (describing insurrection as a
“seditious rising against the government …; a
rebellion; a revolt”); Ex parte Milligan, 71 U.S. 2, 142
(1866) (Chase, C.J., concurring) (equating
“insurrection” and “invasion”); Davis, 7 F. Cas. at 96
(treating “insurrection” and “rebellion”
interchangeably). Insurrections, like rebellions and
revolutions, were understood to “come under the
general head of civil wars.” Martin v. Hortin, 64 Ky.
629, 633 (1867) (quoting Henry Halleck, Elements of
International Law and Laws of War 153 (1866)). They
were thought to be “war between the legitimate
government of a country and portions of provinces of
the same who seek to throw off their allegiance to it
and set up a government of their own.” U.S. War
 19

Dep’t, Adjutant-Gen’s Off, General Order No. 100: The

Lieber Code, Instructions for the Government of Armies
of the United States in the Field § X art. 151 (1863).
These descriptions are consistent with four of the
pre-Civil War insurrections that would have been top
of mind for the Fourteenth Amendment’s framers:
Shay’s Rebellion (1786–1787), the Whiskey Rebellion
(1794), Fries’s Rebellion (1799–1800), and Dorr’s
Rebellion (1841–1842). These insurrection-rebellions
lasted several months; involved extended violence
that shut down courts and revenue collection in local
areas; targeted particular local officials; involved
militarily arrayed participants; and saw either combat
or the election of a rival government. See United
States v. Mitchell, 2 U.S. 348, 355 (C.C.D. Pa. 1795);
Case of Fries, 9 F. Cas. 924, 933 (C.C.D. Pa. 1800);
Milligan, 71 U.S. at 129. All were far more serious
than the lower court’s definition suggests.
C. Although it’s clear enough that the lower court’s
definition is the wrong one, that’s not to say that a
court would be equipped to provide the right one.
“Evidence from the Founding era is not entirely clear”
about when a riot becomes insurrection. Mazzone,
supra, at 336 n. 450; see B. Mitchell Simpson, Treason
and Terror: A Toxic Brew, 23 Roger Williams U.L. Rev.
1, 24 (2018) (saying the “distinction between
insurrection and riot” can be “narrow”). And the
Colorado court oddly concluded that it could define
“insurrection” just because some other modern-day
courts have occasionally found a definition for the
word in latter-day dictionaries in distinguishable
contexts. App. 60a. That’s a rough-and-ready form of
constitutional construction that this Court should not
endorse.
 20

The Constitution provides the solution to the chaos

that would accompany the Colorado court’s approach.
It specifies that a politically accountable body should
publicly declare whether an ongoing disturbance of
the peace constitutes a war, rebellion, or insurrection
precisely because the lines between them are not
always clear. Across the board, the Constitution
entrusts to Congress the power “[t]o declare War,”
“call[] forth the Militia to suppress Insurrections and
repel Invasions,” and of course “enforce” Section 3 of
the Fourteenth Amendment “by appropriate
legislation.” U.S. Const., art. I, §§ 8, 12; U.S. Const,
amend. XIV, § 5.
Using legislative and political processes to decide
which disturbances rise to the level of war, rebellion,
or insurrection would also have been familiar to those
who adopted the Fourteenth Amendment. As early as
1792, Congress required the President to issue a
proclamation before exercising authority to use the
Militia to “suppress Insurrections and repel
Invasions.” U.S. Const., art. I, § 8, cl. 15. The 1792
Militia Act authorized the President to “call forth” the
militia only if he first issued a “proclamation,
command[ing] [the] insurgents to disperse, and retire
peaceably.” Act of May 2, 1792, Ch. 28, §§ 1–3, 1 Stat.
264; cf. N.Y. Code of Crim. Proc., ch. 4, § 97 (Weed,
Parsons & Co, 1850) (requiring published
proclamation that a county is “in a state of
insurrection”). The Militia Act of 1795 included the
same proclamation requirement, Act of February 28,
1795 § 3—as does federal law today, see 10 U.S.C.
§ 254.
The Framers of the Fourteenth Amendment knew
these processes well. The President issued many
 21

proclamations during the Civil War declaring it to be

an “insurrection against the United States.” Andrew
Johnson, U.S. President, Message Proclaiming End to
Insurrection in the United States (Aug. 20, 1866)
(collecting examples). In 1861, for example, Congress
authorized a proclamation to be issued “when
insurgents … failed to disperse by the time directed by
the President” and the insurgents claimed to be acting
under State authority. Act of July 13, 1861, ch 3, § 5,
12 Stat 255. No one therefore had to guess whether
the Civil War was an insurrection; an authoritative,
public process for proclaiming it an insurrection gave
the definite answer. But Congress did not exercise
any of those powers when it came to the events of
January 6, and—beyond the Civil War—Congress has
not endeavored to define what might constitute an
“insurrection” more generally.
If Congress or the President were to authoritatively
give persons notice that continuing to take part in a
serious, widespread disturbance constitutes an
insurrection (as they did during and after the Civil
War), then courts perhaps would have a manageable
standard to apply. See Lynch, supra, at 214–15
(stating that disqualification requires certain acts
“after the President issues a Proclamation pursuant to
the Insurrection Act”). But without a proclamation,
courts—the Colorado Supreme Court included—are
ill-equipped to second-guess the judgments of
politicians, soldiers, and diplomats about how to label
politically charged conflicts. But when it comes to the
events of January 6, at least, the Colorado court
simply had no legal standard to apply.
 22

CONCLUSION
The Court should grant the Petition.

Respectfully submitted.
THEODORE E. ROKITA PATRICK MORRISEY
Attorney General Attorney General

JAMES A. BARTA MICHAEL R. WILLIAMS

Solicitor General Principal Deputy Solicitor
Counsel of Record General

MELINDA R. HOLMES DAVID E. GILBERT

Deputy Attorney Deputy Attorney General
General
OFFICE OF THE
OFFICE OF THE WEST VIRGINIA
INDIANA ATTORNEY GENERAL
ATTORNEY GENERAL State Capitol Complex
IGC South, Fifth Floor Building 1, Room E-26
302 Washington Street Charleston, WV 25305
Indianapolis, IN 46204 michael.r.williams@wvago.gov
James.Barta@atg.in.gov (304) 558-2021
(317) 232-0709
Counsel for Amicus Curiae
Counsel for Amicus State of West Virginia
Curiae State of Indiana
 23

ADDITIONAL COUNSEL

STEVE MARSHALL RUSSELL COLEMAN

Attorney General Attorney General
State of Alabama Commonwealth of
Kentucky
TREG TAYLOR
Attorney General JEFF LANDRY
State of Alaska Attorney General
State of Louisiana
TIM GRIFFIN
Attorney General LYNN FITCH
State of Arkansas Attorney General
State of Mississippi
ASHLEY MOODY
Attorney General ANDREW BAILEY
State of Florida Attorney General
State of Missouri
CHRISTOPHER M. CARR
Attorney General AUSTIN KNUDSEN
State of Georgia Attorney General
State of Montana
RAÚL LABRADOR
Attorney General MICHAEL T. HILGERS
State of Idaho Attorney General
State of Nebraska
BRENNA BIRD
Attorney General JOHN M. FORMELLA
State of Iowa Attorney General
State of New
KRIS KOBACH Hampshire
Attorney General
State of Kansas DREW H. WRIGLEY
Attorney General
State of North Dakota
 24

DAVID A. YOST BRIDGET HILL

Attorney General Attorney General
State of Ohio State of Wyoming

GENTNER DRUMMOND WARREN PETERSEN

Attorney General President of the Senate
State of Oklahoma State of Arizona

ALAN WILSON By counsel:

Attorney General Rusty D. Crandell
Majority General Counsel
State of South Arizona State Senate
Carolina 1700 W. Washington St.
Phoenix, Arizona 85007
MARTY JACKLEY rcrandell@azleg.gov
Attorney General (602) 926-3137
State of South Dakota
BEN TOMA
JONATHAN SKRMETTI Speaker of the House
Attorney General and of Representatives
Reporter State of Arizona
State of Tennessee
By counsel:
Linley Wilson
KEN PAXTON Majority General Counsel
Attorney General Arizona House of
State of Texas Representatives
1700 W. Washington St.
Phoenix, Arizona 85007
SEAN D. REYES LWilson@azleg.gov
Attorney General (602) 926-5418
State of Utah

JASON MIYARES
Attorney General
Commonwealth of
Virginia