No.

23-719

In the Supreme Court of the United States

_____________

DONALD J. TRUMP, PETITIONER

v.
NORMA ANDERSON, ET AL., RESPONDENTS
_____________

ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF COLORADO
_____________

REPLY BRIEF FOR THE PETITIONER

_____________

DAVID A. WARRINGTON JONATHAN F. MITCHELL

JONATHAN M. SHAW Counsel of Record
GARY M. LAWKOWSKI Mitchell Law PLLC
Dhillon Law Group Inc. 111 Congress Avenue
2121 Eisenhower Avenue Suite 400
Suite 608 Austin, Texas 78701
Alexandria, VA 22314 (512) 686-3940
(703) 574-1206 [email protected]
[email protected]
[email protected] SCOTT E. GESSLER
[email protected] Gessler Blue LLC
7350 East Progress Place
HARMEET DHILLON Suite 100
Dhillon Law Group Inc. Greenwood Village, CO 80111
177 Post Street, Suite 700 (720) 839-6637
San Francisco, CA 94108 [email protected]
(415) 433-1700
[email protected] Counsel for the Petitioner
 TABLE OF CONTENTS
Table of contents ................................................................... i
Table of authorities .............................................................. ii
I. The president is not an “officer of the
United States” ...........................................................2
II. President Trump did not “engage in
insurrection” ............................................................14
III. Section 3 should be enforced only through
Congress’s chosen methods of enforcement ........19
IV. Section 3 cannot be used to deny President
Trump access to the ballot .....................................20
V. The Colorado Supreme Court violated the
Electors Clause and the Colorado Election
Code ..........................................................................24
Conclusion ............................................................................25

(i)
 TABLE OF AUTHORITIES
Cases
Brandenburg v. Ohio, 395 U.S. 444 (1969) .......................17
Chiafalo v. Washington, 140 S. Ct. 2316 (2020) ...............23
City of Boerne v. Flores, 521 U.S. 507 (1997) ....................6
City of Houston v. Hill, 482 U.S. 451 (1987) ....................18
Franklin v. Massachusetts, 505 U.S. 788 (1992) .............14
Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477 (2010) .......8
Hassan v. Colorado, 495 F. App’x 947 (10th Cir.
2012) ..................................................................................21
Hess v. Indiana, 414 U.S. 105 (1973) ................................15
Maine Community Health Options v. United
States, 140 S. Ct. 1308 (2020) ...........................................7
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .........7
Middlesex County Sewerage Authority v. National
Sea Clammers Ass’n, 453 U.S. 1 (1981) .......................19
Million Youth March, Inc. v. Safir, 63 F. Supp. 2d
381 (S.D.N.Y. 1999) .........................................................16
Morrison v. Olson, 487 U.S. 654 (1988) ..............................4
Murphy v. Smith, 583 U.S. 220 (2018)................................7
National Federation of Independent Business v.
Sebelius, 567 U.S. 519 (2012) ...........................................5
Reynolds v. Sims, 377 U.S. 533 (1964)................................2
Russello v. United States, 464 U.S. 16 (1983) ....................5
Texas Democratic Party v. Benkiser, 459 F.3d 582
(5th Cir. 2006)...................................................................21

(ii)
U.S. Bank National Ass’n ex rel. CWCapital Asset
Management LLC v. Village at Lakeridge, LLC,
583 U.S. 387 (2018) ..........................................................18
United States v. Arthrex, Inc., 141 S. Ct. 1970
(2021)...................................................................................4
United States v. Mouat, 124 U.S. 303 (1888) ...................12
United States v. Smith, 124 U.S. 525 (1888) ....................12
United States v. Texas, 599 U.S. 670 (2023) .....................16
Watts v. United States, 394 U.S. 705 (1969) .....................15
Statutes
2 U.S.C. § 25 ...........................................................................5
2 U.S.C. § 287a .....................................................................10
3 U.S.C. § 19 ...........................................................................3
18 U.S.C. § 2383 ...................................................................20
1 Stat. 23 ...............................................................................11
Colo. Rev. Stat. § 1-4-1203(2)(a).........................................24
Md. Code, Election Law Code § LAW 8-505 .....................5
Constitutional Provisions
U.S. Const. amend. XVII .....................................................8
U.S. Const. amend. XXII .....................................................8
U.S. Const. art. I, § 2, cl. 2 .............................................8, 21
U.S. Const. art. I, § 2, cl. 5 .............................................3, 10
U.S. Const. art. I, § 3, cl. 2 .................................................21
U.S. Const. art. I, § 3, cl. 5 ...................................................3
U.S. Const. art. I, § 6, cl. 2 .........................................8, 9, 13
U.S. Const. art. II, § 1, cl. 1 ..................................................8
U.S. Const. art. II, § 1, cl. 6 ..............................................3, 8
U.S. Const. art. II, § 1, cl. 7 ..................................................8
(iii)
U.S. Const. art. II, § 2, cl. 2 ............................................8, 10
U.S. Const. art. II, § 2, cl. 3 ................................................10
U.S. Const. art. II, § 3...........................................................3
U.S. Const. art. II, § 3...........................................................7
U.S. Const. art. II, § 4...........................................................3
U.S. Const. art. VI, cl. 3 ..................................................5, 11
Rules
8 Colo. Code Regs. § 1505-1-24 ............................................5
Other Authorities
Akhil Reed Amar & Vikram David Amar, Is the
Presidential Succession Law Constitutional?,
48 Stan. L. Rev. 113 (1995) ...............................................3
Black’s Law Dictionary (11th ed. 2019) ............................17
Regina Garcia Cano, US Government Pulls Some
of Venezuela’s Sanctions Relief After Court
Blocks Opposition Candidate, Associated Press
(Jan. 29, 2024) ....................................................................2
Karine Jean-Pierre, Press Secretary, Press
Briefing at The White House (Jan. 29, 2024) ................2
Abraham Lincoln, Gettysburg Address (Nov. 19,
1863) ....................................................................................1
Michael W. McConnell, Is Donald Trump
Disqualified from the Presidency? A Response
to Matthew J. Franck, Public Discourse (Jan. 18,
2024), http://bit.ly/49i9spw .............................................15

(iv)
In the Supreme Court of the United States
_____________

No. 23-719
DONALD J. TRUMP, PETITIONER
v.
NORMA ANDERSON, ET AL., RESPONDENTS
_____________
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF COLORADO
_____________

REPLY BRIEF FOR THE PETITIONER

_____________

President Donald J. Trump won the Iowa caucuses

with the largest margin ever for a non-incumbent and
the New Hampshire primary with the most votes of any
candidate from either party. He is the presumptive Re-
publican nominee and the leading candidate for Presi-
dent of the United States. In our system of “government
of the people, by the people, [and] for the people,”1 the
American people — not courts or election officials —
should choose the next President of the United States.
As this Court has explained: “The right to vote freely for
the candidate of one’s choice is of the essence of a demo-

1. Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), (tran-

script available from the Library of Congress,
http://bit.ly/3SoPVgm).

(1)
 2
cratic society, and any restrictions on that right strike at
the heart of representative government.” Reynolds v.
Sims, 377 U.S. 533, 555 (1964).
Yet at a time when the United States is threatening
sanctions against the socialist dictatorship in Venezuela
for excluding the leading opposition candidate for presi-
dent from the ballot,2 respondent Anderson asks this
Court to impose that same anti-democratic measure at
home. To date, at least 60 state and federal courts
throughout the country have refused to remove Presi-
dent Trump from the ballot. The Colorado Supreme
Court is the lone outlier, and this Court should reverse,
for the reasons below, and protect the rights of the tens
of millions of Americans who wish to vote for President
Trump.
I. THE PRESIDENT IS NOT AN “OFFICER OF THE
UNITED STATES”
Section 3 contains two reticulated lists of officers and
offices, neither of which expressly mentions the presi-
dent. Anderson would have us believe that the presiden-
cy is tacitly subsumed within generic catch-all phrases
such as “officer of the United States” and “office … un-
der the United States.” But she cannot overcome the
overwhelming textual and structural evidence that “of-
ficer of the United States,” as used throughout the Con-

2. Regina Garcia Cano, US Government Pulls Some of Venezue-

la’s Sanctions Relief After Court Blocks Opposition Candidate,
Associated Press (Jan. 29, 2024), http://bit.ly/3uqodaU; Karine
Jean-Pierre, Press Secretary, Press Briefing at The White
House (Jan. 29, 2024), http://bit.ly/3UrHi7j.
 3
stitution, refers only to appointed and not elected offi-
cials. And her arguments that the presidency qualifies as
an “office … under the United States” also fail to per-
suade.
1. Anderson insists that every person who holds a
“federal office” is an “officer of the United States.” See
Anderson Br. 35 (“[T]he holder of a federal office is an
“officer of the United States.”); id. at 36–37 (citing opin-
ions of Attorney General Stanberry). That is wrong be-
cause the Speaker of the House and President Pro Tem-
pore of the Senate are “officers” and hold “federal offic-
es,”3 yet they cannot be “officers of the United States”
because they are not subject to impeachment4 and are
not commissioned by the president.5 Unless Anderson is
prepared to jettison Blount’s Case and subject the
Speaker and President Pro Tempore to impeachment,
she must concede that “officers of the United States” re-

3. U.S. Const. art. I, § 2, cl. 5 (“The House of Representatives shall

chuse their Speaker and other Officers”); U.S. Const. art. I, § 3,
cl. 5 (“The Senate shall chuse their other Officers”). If the
Speaker and President Pro Tempore are not “officers” within
the meaning of the Constitution, then the Presidential Succes-
sion Law is unconstitutional. See 3 U.S.C. § 19; U.S. Const. art.
II, § 1, cl. 6 (allowing only “officers” to act as president when the
presidency and vice presidency are vacant); Akhil Reed Amar &
Vikram David Amar, Is the Presidential Succession Law Con-
stitutional?, 48 Stan. L. Rev. 113 (1995).
4. Pet. Br. 24 & n.27 (discussing Blount’s Case); U.S. Const. art.
II, § 4 (subjecting “all civil Officers of the United States” to im-
peachment).
5. U.S. Const. art. II, § 3 (“[The President] … shall Commission all
the Officers of the United States.”).
 4
fers only to a subset of federal officeholders. And the on-
ly sensible construction of this phrase — in light of the
Appointments Clause, the Commissions Clause, and the
Impeachment Clause — is that “officers of the United
States” refers to appointed federal officials and excludes
elected individuals such as the Speaker, the President
Pro Tempore, and the President and Vice President.6
Anderson reiterates her claim that section 3 estab-
lishes “symmetry in pairing barred offices with excluded
individuals.” Anderson Br. 35. That is wrong because: (1)
“Member of Congress” sweeps more broadly than “Sen-
ator or Representative in Congress”;7 (2) Section 3 pro-
hibits disqualified individuals from serving in the Elec-
toral College, without disqualifying former electors who
engaged in insurrection;8 and (3) The canons of construc-
tion counsel against giving equivalent meanings to dif-
ferently phrased provisions, especially when Congress

6. Anderson falsely claims that our interpretation limits “officers

of the United States” to “presidential appointees.” Anderson Br.
39, 41. “Officers of the United States” include inferior officers
appointed by courts or heads of department. See Morrison v.
Olson, 487 U.S. 654, 670–71 (1988).
Anderson also quotes Chief Justice Marshall and suggests
that every federal employee is an “officer of the United States,”
but the Court has emphatically rejected that stance. Compare
Anderson Br. 35 (“ ‘If employed on the part of the United States,
he is an officer of the United States.’ ” (quoting United States v.
Maurice, 26 F. Cas. 1211, 1214 (C.C.D. Va. 1823)), with United
States v. Arthrex, Inc., 141 S. Ct. 1970, 1980 (2021) (distinguish-
ing “officers” from “ ‘lesser functionaries’ such as employees or
contractors”).
7. Pet. Br. 29 & nn.39–40.
8. Pet. Br. 30.
 5
could have used identical wording in the lists of offices
and officers.9 Anderson does not deny any of this, but she
tries to get around these admitted asymmetries by ob-
serving that electors and non-voting “members” of Con-
gress are not constitutionally required to swear or affirm
their support of the Constitution. See U.S. Const. art. VI
cl. 3; Anderson Br. 36 & n.10. But nonvoting delegates
and resident commissioners have always sworn such an
oath10 and many presidential electors do,11 even though
Article VI does not require it. And section 3 turns on
whether the oath was previously taken, not on whether it
was constitutionally compelled. So Anderson cannot es-
tablish the “symmetry” that she insists upon, and she
has no basis for demanding correspondence between the
“officers of the United States” and those who hold an “of-
fice … under the United States.”
Anderson tries to get traction from non-
constitutional sources that describe the president as an
“officer” in the colloquial sense of the word. See Ander-
son Br. 37–39. But none of this purports to interpret the
meaning of “officer of the United States” in the Constitu-

9. Pet. Br. 30–31 (citing National Federation of Independent

Business v. Sebelius, 567 U.S. 519, 544 (2012); Russello v. Unit-
ed States, 464 U.S. 16, 23 (1983)).
10. 2 U.S.C. § 25.
11. 8 Colo. Code Regs. § 1505-1-24 (requiring presidential electors
to swear or affirm that they will support the Constitution of the
United States); Md. Code, Election Law Code § LAW 8-505
(same).
 6
tion.12 And none of it can alter or affect the constitutional
meaning of this phrase. President Johnson cannot make
the President into a constitutional “officer of the United
States” by issuing a proclamation describing himself that
way, any more than Congress can change the meaning of
the Fourteenth Amendment by enacting a statute that
purports to define its substantive reach. See City of
Boerne v. Flores, 521 U.S. 507, 519–20 (1997). And no
proclamation, floor statement, or court opinion can over-
come the fact that elected officials — including the Presi-
dent, Vice President, and members of Congress — cannot
be characterized as “officers of the United States” be-
cause: (1) They are not commissioned by the President;
(2) They are not “appointed” pursuant to Article II; and
(3) They are excluded from the “civil officers of the Unit-
ed States” described in the Impeachment Clause.
Anderson eventually gets around to addressing the
Commissions Clause, the Appointments Clause, and the
Impeachment Clause. See Anderson Br. 40–43. She
claims that the Commissions Clause “means only that
the President alone has the power to grant commis-
sions,”13 but that stance cannot be squared with the con-
stitutional language. The Commissions Clause does not
say: “[T]he President alone may Commission the Offic-
ers of the United States.” It says that the president

12. None of the judicial opinions cited by Anderson consider or ad-

dress whether the president is an “officer of the United States”
as that phrase is used in the Constitution. See Anderson Br. 38–
39.
13. Anderson Br. 42.
 7
“shall Commission all the Officers of the United States.”
U.S. Const. art. II, § 3 (emphasis added). “Shall” means
must,14 and “all” means every one.15 And when the Con-
stitution requires every “officer of the United States” to
be commissioned by the president, the contrapositive fol-
lows as a matter of logic: Anyone who is not constitution-
ally required to be commissioned by the President can-
not be an “officer of the United States.” See Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 157, 162 (1803) (holding
that the issuance of a presidential commission is a legal
prerequisite to a valid appointment).
Anderson tries to get around the Appointments
Clause by observing that it requires the president and
Senate to appoint only those officers “whose Appoint-
ments are not herein otherwise provided for.” Anderson
Br. 40 (quoting U.S. Const. art. II, § 2). Then she insists
that this caveat refers to the “appointments” of the Pres-
ident, Vice President, Speaker of the House, and Presi-
dent Pro Tempore of the Senate — which would make
each of them into an “officer of the United States.” Id.
This is wrong for many reasons.

14. See Maine Community Health Options v. United States, 140 S.

Ct. 1308, 1320 (2020) (“Unlike the word ‘may,’ which implies dis-
cretion, the word ‘shall’ usually connotes a requirement.”);
Murphy v. Smith, 583 U.S. 220, 223 (2018) (“[T]he word ‘shall’
usually creates a mandate, not a liberty”).
15. All, Merriam-Webster, https://bit.ly/42uzBPy (“every member
or individual component of”); All, The Britannica Dictionary,
https://bit.ly/492JiY0 (“every member or part of”).
 8
First. The president is not “appointed” by the Elec-
toral College; he is elected.16 And only an appointed and
not an elected official can be an “officer of the United
States.” See Free Enterprise Fund v. Public Company
Accounting Oversight Board, 561 U.S. 477, 497–98
(2010) (“The people do not vote for the ‘Officers of the
United States.’ ” (quoting U.S. Const. art. II, § 2, cl. 2)).
House and Senate members, for example, are elected
rather than “appointed,”17 so they cannot qualify as “of-
ficers of the United States” under the “otherwise provid-
ed for” caveat.18 The Constitution consistently describes
the President as elected and not appointed,19 and he can-
not be regarded as an “officer of the United States” for
the same reason.

16. U.S. Const. art. II, § 1, cl. 1 (“The … President … shall …, to-
gether with the Vice President, … be elected, as follows” (em-
phasis added)); U.S. Const. art. II, § 1, cl. 6 (“until … a Presi-
dent shall be elected.” (emphasis added)); U.S. Const. art. II, § 1,
cl. 7 (prohibiting changes to the president’s salary “during the
Period for which he shall have been elected” (emphasis added));
U.S. Const. amend. XXII (“No person shall be elected to the of-
fice of the President more than twice” (emphasis added)).
17. U.S. Const. art. I, § 2, cl. 2 (“No Person shall be a Representa-
tive … who shall not, when elected, be an Inhabitant of that
State” (emphasis added)); U.S. Const. art. I, § 6, cl. 2 (“No Sena-
tor or Representative shall, during the Time for which he was
elected …” (emphasis added)); U.S. Const. amend. XVII (“The
Senate of the United States shall be composed of two Senators
from each State, elected by the people” (emphasis added)).
18. Pet. Br. 24 n.27 (describing Blount’s Case, which established
that Senators and Representatives are not subject to impeach-
ment as “civil officers of the United States.”).
19. See supra note 16.
 9
Anderson’s stance also has implications for the Sine-
cure Clause, which says that “[n]o Senator or Repre-
sentative shall, during the Time for which he was elect-
ed, be appointed to any civil Office under the Authority
of the United States … [if] the Emoluments whereof
shall have been encreased during such time.” U.S. Const.
art. I, § 6, cl. 2 (emphasis added). If this Court holds that
presidents and vice presidents are “appointed,” then any
Senator who became president or vice president before
the expiration of his six-year term will have served in
violation of the Constitution if the president or vice pres-
ident’s salary had increased during that Senate term but
before his “appointment” to office. It would also empow-
er Congress to strategically disqualify sitting Senators
from the presidency by voting to increase the president’s
salary by a small amount.
Second. Even if the President could somehow be de-
scribed as an “appointed” rather than elected official, he
still cannot be characterized as an “officer of the United
States” under the “otherwise provided for” caveat be-
cause: (1) He does not receive a presidential commission;
and (2) He is listed separately from “civil officers of the
United States” in the Impeachment Clause. The Speaker
of the House and the President Pro Tempore of the Sen-
ate likewise cannot be squeezed into the “otherwise pro-
vided for” caveat — even if one considers them “appoint-
ed” officials — because they are not commissioned by the
president and cannot be impeached.20

20. See supra note 18.

 10
Third. Anderson is wrong to claim that our interpre-
tation leaves the “otherwise provided for” caveat without
any work to do. See Anderson Br. 40. The Constitution
“otherwise provide[s]” for the appointments of inferior
officers21 and recess appointees,22 and this caveat refers
(at the very least) to the appointments of these “officers
of the United States,” who need not receive a presiden-
tial appointment with the Senate’s advice and consent. It
could also refer to the appointment of legislative “offic-
ers” such as the House parliamentarian, who is unilater-
ally appointed by the Speaker pursuant to 2 U.S.C.
§ 287a and U.S. Const. art. I, § 2, cl. 5, although these
officials cannot qualify as “officers of the United States”
unless they are subject to impeachment and required to
be commissioned by the President.
Anderson claims that the Impeachment Clause lists
the president and vice president separately from “all civ-
il Officers of the United States” to avoid confusion that
might arise from the president’s role as both a “civil” and
“military” officer. See Anderson Br. 41. But this does not
explain why the Impeachment Clause omits the word
“other” before “civil Officers of the United States,” and
it cannot explain the separate enumeration of the vice

21. U.S. Const. art. II, § 2, cl. 2 (“[B]ut the Congress may by Law
vest the Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or in the
Heads of Departments.”).
22. U.S. Const. art. II, § 2, cl. 3 (“The President shall have Power to
fill up all Vacancies that may happen during the Recess of the
Senate, by granting Commissions which shall expire at the End
of their next Session.”).
 11
president, who has no military responsibilities. The only
plausible inference is the one drawn by Justice Story:
That the president and vice president are listed sepa-
rately from “all civil Officers of the United States” be-
cause they are not “officers of the United States.” Pet.
Br. 21–22. And if Anderson wants to argue that the Im-
peachment Clause lists the president separately to
“avoid . . . uncertainty” while simultaneously insisting
that the president falls within the “civil Officers of the
United States,” then she must explain why section 3 fails
to explicitly mention the President as a covered officer
given the many difficulties with characterizing the presi-
dent as an “officer of the United States.”
Anderson observes that President Trump’s interpre-
tation of “officers of the United States” will exempt the
vice president from the oath requirement of Article VI.
See Anderson Br. 41; U.S. Const. art. VI, cl. 3. But the
first Congress enacted legislation requiring the vice
president to swear the same oath as everyone else listed
in Article VI. See 1 Stat. 23. And a statutory oath re-
quirement can reach beyond those mentioned in Article
VI. See 5 U.S.C. § 3331. So the absence of an explicit
constitutional oath requirement for the vice president is
no reason for concern, and is certainly no reason to force
the president into the category of “officers of the United
States.”
It is also hard to accept Anderson’s construction of
“officer of the United States” when section 3 covers only
those who swear an oath to “support” the Constitution.
Anderson says that the presidential oath to “preserve,
protect, and defend” is just another way of promising to
 12
“support” the Constitution. See Anderson Br. 43–44. But
then she needs to explain why the drafters of section 3
would create this ambiguity by using the word “sup-
port” — and excluding any reference to the presidential
oath — if the president were understood to be included
as a covered officer.
Anderson is also wrong to say that President
Trump’s interpretation of section 3 “def[ies] common
sense.” See Anderson Br. 44–45. It was entirely sensible
for section 3 to exclude the president as a covered “of-
ficer” because: (1) No ex-president supported the con-
federacy except John Tyler, who died in 1862;23 (2) Each
of our 46 presidents, except George Washington and
Donald Trump, would be covered by section 3 because
they held a previous job listed in the amendment; and (3)
Former presidents rarely seek election or appointment
to office, and the overwhelming majority retire from
public service. Indeed, Anderson’s construction of sec-
tion 3 will allow the courts to eject a sitting president
from office, apart from the impeachment process, if a
court independently determines that he “engaged in in-
surrection” against the Constitution, even if Congress
refuses to impeach and convict on that ground.
Finally, Anderson does not even mention United
States v. Smith, 124 U.S. 525 (1888), or United States v.
Mouat, 124 U.S. 303 (1888), which make clear that the
president is not an “officer of the United States”—either
under the Appointments Clause or under any federal

23. Pet. Br. 32 & n.42.

 13
statute using this phrase.24 A ruling that adopts Ander-
son’s construction of “officers of the United States” will
overrule the interpretations adopted in Smith and
Mouat.
2. Anderson describes the presidency as an “office”
(which it undoubtedly is)25 and insists that “office … un-
der the United States” encompasses every federal “of-
fice.” See Anderson Br. 34 (“ ‘[U]nder the United States’
… distinguish[es] federal offices from offices ‘under any
State.’ ”). Anderson’s construction of “office … under the
United States” is wrong. The Speaker of the House and
President Pro Tempore of the Senate are “officers”26 who
hold federal “offices.” But neither holds an “office … un-
der the United States” because the Incompatibility
Clause bars House and Senate members from “holding”
such an office. See U.S. Const. art. I, § 6, cl. 2 (“[N]o Per-
son holding any Office under the United States, shall be
a Member of either House during his Continuance in Of-
fice.”).
Anderson says it is “clear” that “office … under the
United States” includes the presidency,27 but the evi-
dence is far from “clear.” See Amicus Br. of Professor
Kurt T. Lash. The most troublesome evidence for Ander-
son is that section 3 does not mention the presidency or

24. In a footnote, Anderson falsely suggests that these cases involve

only the president’s authority to appoint “other officers.” An-
derson Br. 40 n.13.
25. Pet. Br. 25–26 & nn.34–35.
26. See note 3 and accompanying text.
27. Anderson Br. 34.
 14
the vice presidency as covered “offices” — even though it
specifically enumerates senators, representatives, and
electors for president and vice president. And a draft of
section 3 introduced by Representative Samuel McKee
explicitly listed the presidency and vice presidency as
“offices” closed to confederate rebels,28 yet this was re-
jected in favor of the enacted language, which omits any
mention of the presidency and instead disqualifies indi-
viduals from serving as electors.
The Colorado Supreme Court tried to explain this by
observing that senators, representatives, and electors do
not hold “offices … under the United States” and there-
fore needed to be separately enumerated. Pet. App. 63a–
64a. But it was at least debatable whether that phrase
would encompass the presidency,29 especially when the
cognate phrase “officers of the United States” excludes
the president every time it appears in the Constitution.
Pet. Br. 20–33. So one would expect the text of section 3
to specifically mention the presidency in the list of enu-
merated offices rather than leave this matter to a con-
testable inference. Cf. Franklin v. Massachusetts, 505
U.S. 788, 800–01 (1992) (clear statement needed for stat-
utory language to encompass the president).
II. PRESIDENT TRUMP DID NOT “ENGAGE IN
INSURRECTION”
Anderson claims that the events at the U.S. Capitol
were an “insurrection” and that President Trump “en-

28. Cong. Globe, 39th Cong., 1st Sess., at 919 (1866).

29. Amicus Br. of Professor Kurt T. Lash.
 15
gaged” in it by supposedly “inciting” the crowd. See An-
derson Br. 15–33. This is wrong on every count. There
was no “insurrection,” President Trump did not “incite”
anything, and President Trump did not “engage in” any-
thing that constitutes “insurrection.”
First. The events of January 6 were not an “insurrec-
tion,” as they did not involve an organized attempt to
overthrow or resist the U.S. Government. See Amicus
Br. of Indiana et al. 8–17; Michael W. McConnell, Is Don-
ald Trump Disqualified from the Presidency? A Re-
sponse to Matthew J. Franck, Public Discourse (Jan. 18,
2024), http://bit.ly/49i9spw (events of January 6 were not
“insurrection” because they “lasted only about three
hours, most of the participants acted on the spur of the
moment, few [if any] … carried firearms, and their ob-
jectives were narrow: to pressure Congress and the vice
president to correct what they … thought were fraudu-
lent election returns.”).
Second. President Trump did not “incite” violence by
telling his supporters to “fight,” “fight like hell,” march
to the Capitol, and “take back our country.” Anderson Br.
32 (claiming that these statements “explicitly” incited
violence). Even the district court acknowledged that lan-
guage of this sort is “prevalen[t] … in the political are-
na,”30 and President Trump’s statements are far less
provocative than language that falls short of “incite-
ment” under Brandenburg. See Hess v. Indiana, 414
U.S. 105, 107 (1973) (“We’ll take the f — ing street
again”); Watts v. United States, 394 U.S. 705, 706 (1969)

30. Pet. App. 276a (¶ 297).

 16
(“[T]he first man I want to get in my sights is L.B.J.”);
Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381,
391 (S.D.N.Y. 1999) (“hateful, racist, and offensive” re-
marks and open “call[s] for violence” did not constitute
incitement). Anderson touts President Trump’s 2:24 P.M.
tweet, but that tweet did not call for any action whatso-
ever. It was also sent over an hour after disorder broke
out at the Capitol and could not have “incited” events
that were long underway.31
So the district court had to rely on Professor Simi’s
opinion that President Trump communicates in “coded
language with his violent supporters”32 to push President
Trump’s speech into the “incitement” category. Anderson
now tries to downplay the role of Simi’s testimony,33 but
she has nothing apart from Simi that can convert Presi-
dent Trump’s statements — which would be constitution-
ally protected speech if uttered by any person other than
President Trump — into criminally proscribable “incite-
ment.”

31. Similar deficiencies afflict Anderson’s reliance on President

Trump’s statements before January 6, 2021, which are core po-
litical speech. See Anderson Br. 20–21. And Anderson’s at-
tempts to invoke President Trump’s post-speech actions and al-
leged failures to deploy federal resources to stop the disorder
fare even worse. See id. at 23–24, 26–27. Those are judicially un-
reviewable exercises of the President’s law-enforcement discre-
tion, see United States v. Texas, 599 U.S. 670, 678 (2023), and
they could not have “incited” already-past events.
32. Pet. App. 228a (¶ 142).
33. Anderson Br. 28 (“Simi’s testimony was … just one facet of the
overwhelming and largely undisputed evidence presented at tri-
al”).
 17
Third. Even if there had been “incitement” and “in-
surrection,” President Trump still did not “engage in” it.
“Incitement” (which did not occur here) is not “engage-
ment” in “insurrection,” because a person who “incites”
seeks only to bring about “imminent lawless action.”
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Not all
lawlessness rises to the level of “insurrection.” And the
district court found only that President Trump’s speech-
es and tweets “incited imminent lawless violence”34— not
that they incited anything that might be characterized as
“insurrection.”
Even “incitement” of insurrection would not be
enough to constitute “engagement in” insurrection, be-
cause incitement turns on whether a person’s speech or
conduct is “directed” toward and “likely to … produce”
the relevant act of lawlessness. See Brandenburg, 395
U.S. at 447. “Engagement,” by contrast, requires active
participation in insurrection. See Black’s Law Diction-
ary (11th ed. 2019) (defining “engage” as “employ or in-
volve oneself; to take part in; to embark on.”).
President Trump is not arguing that “engagement in
insurrection” requires an individual to “personally com-
mit[] violent acts.” See Anderson Br. 29. President
Trump is arguing that none of his actions — including his

34. Pet. App. 229a (¶ 144) (“Trump’s Ellipse speech incited immi-
nent lawless violence.”); id. at 235a (¶ 172) (“Trump’s 2:24 P.M.
tweet further encouraged imminent lawless violence”); id. at
269a (¶ 282) (falsely claiming that Anderson could prove that
President Trump “engaged in insurrection through incitement”
if “his speech was intended to produce imminent lawless action
and was likely to do so.”).
 18
speeches and social-media posts — can qualify as “en-
gagement in insurrection.” None of the authorities cited
by Anderson that include “incitement” as “engagement
in insurrection” involved speech or conduct of the sort
that President Trump engaged in. See Anderson Br. 29–
31.
Finally, the Court should not apply the clearly erro-
neous standard to constitutional facts or mixed questions
of fact and law, such as whether President Trump “incit-
ed” violence or “engaged in” insurrection (which he did
not as is clear from his speech and social-media posts).
See U.S. Bank National Ass’n ex rel. CWCapital Asset
Management LLC v. Village at Lakeridge, LLC, 583
U.S. 387, 396 n.4 (2018) (citing authorities). Clearly-
erroneous review is appropriate for “basic” or “histori-
cal” facts — such as who said what, or when and where it
was said — but the blanket deference demanded by An-
derson is unwarranted. See id. at 394; Anderson Br. 18–
19. The district court’s findings involving President
Trump’s mens rea should also be reviewed independent-
ly, as no witness claimed to have firsthand knowledge of
President Trump’s intent or thought process. The trial
court is in no better position than this Court to evaluate
President Trump’s state of mind based on the evidence
presented. See City of Houston v. Hill, 482 U.S. 451, 458
n.6 (1987) (“An independent review of the record is ap-
propriate where the activity in question is arguably pro-
tected by the Constitution.”).
 19
III. SECTION 3 SHOULD BE ENFORCED ONLY
THROUGH CONGRESS’S CHOSEN METHODS OF
ENFORCEMENT
President Trump is not arguing that section 3 is
“non-self-executing.” His claim is that section 3 may be
enforced only through the congressionally enacted
methods of enforcement.
Anderson does not deny that congressional imple-
menting legislation can implicitly preclude other means
of enforcing section 3, see Middlesex County Sewerage
Authority v. National Sea Clammers Ass’n, 453 U.S. 1,
20 (1981), yet she presents no argument for why the Sea
Clammers principle should not apply here. Instead, An-
derson attacks the rationale of Griffin’s Case and the
Colorado Republican Party’s claim that section 3 is “not
self-executing.” See Anderson Br. 52–56. But regardless
of what litigants and commentators now think about
Griffin’s Case, the fact remains that it was the only judi-
cial decision in place when Congress enacted (and later
modified) its statutory regime to enforce section 3. Con-
gress legislated on the understanding that its imple-
menting legislation would be exclusive, so rejecting Grif-
fin’s Case now would not only undermine stare decisis
principles but also repudiate the premise of the statutory
enforcement regime that Congress has enacted.
Anderson notes that the Insurrection Act — the only
surviving piece of congressional enforcement legisla-
tion — was enacted before the Fourteenth Amendment
and sweeps more broadly than the constitutional disqual-
ification. See Anderson Br. 53 n.19. But none of that un-
dermines its exclusivity under Sea Clammers. When
 20
Congress repealed the quo warranto provisions that it
enacted in response to Griffin’s Case, it knew that the
Insurrection Act was the only means of enforcement left,
and that the Insurrection Act would be the exclusive
means of enforcing section 3 given the precedent of Grif-
fin’s Case. It defies belief that Congress, having abol-
ished the quo warranto regime while leaving criminal
prosecution under 18 U.S.C. § 2383 as the sole means of
removing insurrectionist office-holders, would have
wanted to allow state courts to enforce section 3 on their
own by blocking candidates from the ballot.
Finally, Anderson’s “self-execution” arguments and
interpretation of section 3 would mean that President
Trump could not constitutionally serve as president after
January 6, 2021. This will open the door for litigants to
challenge the validity of every executive action that
President Trump and his administration took during his
last two weeks in office.
IV. SECTION 3 CANNOT BE USED TO DENY
PRESIDENT TRUMP ACCESS TO THE BALLOT
Anderson concedes that the states are constitutional-
ly forbidden to add to or alter the Constitution’s qualifi-
cations to the presidency. See Anderson Br. 49 (“[A] state
has no power to add qualifications for the office of the
Presidency”); Griswold Br. 28 (“It is beyond dispute that
states cannot add or modify qualifications for the presi-
dency.”). And she acknowledges that Congress may “re-
move” a section 3 disability “at any time and for any rea-
son.” Anderson Br. 2. Yet Anderson argues that the Con-
stitution allows Colorado to exclude President Trump
from the ballot if this Court concludes that he is “pres-
 21
ently” disqualified under section 3 — even though Con-
gress can lift that disability before the inauguration. See
Anderson Br. 45–52.
Anderson’s argument is foreclosed by U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779 (1995), as she is
demanding that President Trump qualify under section 3
not only on the dates that he holds office, but also on the
dates of the primary and general elections and on any
date that a court might rule on his ballot eligibility. An-
derson’s stance is indistinguishable from laws requiring
congressional candidates to “inhabit” their state prior to
Election Day, when the Constitution requires only that
they inhabit the state “when elected.”35 Pet. Br. 44–45
(citing Texas Democratic Party v. Benkiser, 459 F.3d
582, 589–90 (5th Cir. 2006), and other authorities); Ami-
cus Br. of Senator Daines 5–20. Yet Anderson ignores the
cases that disapprove attempts to alter the timing of Ar-
ticle I’s congressional-residency requirements, and she
makes no attempt to reconcile her argument with the
holdings of those cases.
Anderson tries to analogize the Colorado Supreme
Court’s ruling to Hassan v. Colorado, 495 F. App’x 947
(10th Cir. 2012), and rulings that uphold ballot exclusions
of naturalized citizens, 27-year-olds, and candidates who
are categorically disqualified from the presidency. See
Anderson Br. 47–48. But excluding those types of candi-

35. U.S. Const. art. I, § 2, cl. 2 (“No Person shall be a Representa-

tive … who shall not, when elected, be an Inhabitant of that
State in which he shall be chosen” (emphasis added)); U.S.
Const. art. I, § 3, cl. 2 (same rule for senators).
 22
dates from the ballot does not in any way alter the Con-
stitution’s eligibility rules. None of these rulings allow
states to deny ballot access to candidates whose qualifi-
cations are contingent upon future action (or inaction),
and a state cannot use its ballot-access rules to acceler-
ate the deadline for satisfying a constitutional qualifica-
tion for office.36
Anderson is also wrong to say that President Trump
is “presently” disqualified from holding office. See An-
derson Br. 48 (“Section 3 imposes a present disqualifica-
tion”). Section 3 is a prohibition only on holding office,
and Congress can waive this prohibition between now
and the end of the next presidential term. So no court or
litigant can declare that President Trump is “presently”
disqualified from holding office without assuming or
predicting that Congress will refuse to lift any section 3
disability that might apply. Anderson may believe or
hope that Congress will not waive section 3 between now
and January 20, 2029. But neither the Colorado Supreme
Court nor this Court can declare a candidate ineligible
for the presidency now based on a prediction of what
Congress may or may not do in the future. Nor can a
court deprive a presidential candidate of the opportunity
to petition Congress for a waiver — especially when Con-

36. Griswold falsely claims that our argument would forbid states to
exclude foreign-born citizens from the presidential ballot on the
off chance that the Constitution might be amended to allow
them to serve before Inauguration Day. See Griswold Br. 30
n.10. Whether a state law alters the qualifications established by
the Constitution obviously must be assessed under the Constitu-
tion as it currently exists.
 23
gress is mostly likely to grant a waiver after the candi-
date has been elected, as its members will face political
pressures to respect the will of the voters and allow the
president-elect to take office. Anderson’s position would
also allow a state to block a 34-year-old from the presi-
dential ballot, even if that candidate will turn 35 before
Inauguration Day, on the ground that he is “presently
disqualified” from holding office. See Anderson Br. 50.
Anderson and Griswold suggest that states can bar
President Trump from the ballot to protect voters from
potentially “wasting” their ballots on someone who may
eventually be found ineligible for office. See Anderson
Br. 47, 51; Griswold Br. 26. But it is for the individual
voters to decide for themselves how to weigh this possi-
bility when casting ballots, and a state cannot invoke this
paternalism to prevent voters from supporting a candi-
date who may be eligible by Inauguration Day.
Finally, Anderson invokes the Electors Clause and
Chiafalo v. Washington, 140 S. Ct. 2316 (2020),37 but nei-
ther does anything to support the Colorado Supreme
Court’s ruling. Anderson acknowledges that states are
constitutionally forbidden to alter qualifications for the
presidency,38 so a state cannot bar its electors from vot-
ing for candidates who fail to satisfy an extraneous state-
imposed qualification. Chiafalo is no help because there
is no “long settled and established practice” of requiring
electors to comply with state-imposed eligibility criteria.
See Chiafalo, 140 S. Ct. at 2326. And the Electors Clause

37. Anderson Br. 46–47.

38. Anderson Br. 49.
 24
empowers only a state legislature — not its judiciary —
to direct the manner of choosing presidential electors.
There is no legislative enactment that requires or even
allows Colorado’s Secretary of State to exclude supposed
“insurrectionists” from the presidential primary ballot,
and Anderson has yet to identify such a statute. See An-
derson Br. 58–60; Pet. Br. 46–50.
V. THE COLORADO SUPREME COURT VIOLATED
THE ELECTORS CLAUSE AND THE COLORADO
ELECTION CODE
The Colorado Supreme Court adopted an atextual in-
terpretation of Colo. Rev. Stat. § 1-4-1203(2)(a), which
requires only that a political party that participates in
Colorado’s presidential primary election have at least
one “qualified candidate.” Anderson makes no attempt to
reconcile the language of this statute with the Colorado
Supreme Court’s interpretation of it. This defeats any
attempt to invoke Article II’s Electors Clause or Chiafa-
lo, because “the legislature” has not directed President
Trump’s exclusion from the ballot. See Anderson Br. 46.
 25
CONCLUSION
The judgment of the Colorado Supreme Court should
be reversed.
Respectfully submitted.

DAVID A. WARRINGTON JONATHAN F. MITCHELL

JONATHAN M. SHAW Counsel of Record
GARY M. LAWKOWSKI Mitchell Law PLLC
Dhillon Law Group Inc. 111 Congress Avenue
2121 Eisenhower Avenue Suite 400
Suite 608 Austin, Texas 78701
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[email protected] SCOTT E. GESSLER
[email protected] Gessler Blue LLC
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Dhillon Law Group Inc. Greenwood Village, CO 80111
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(415) 433-1700
[email protected] February 5, 2024