Three Kingdoms and Humanity

 

          [Guo Jia:] “Your rival [Yuan Shao] has ten weak points whereas you have ten strong ones, and, though his army is large, it is not terrible.”

     Then Guo Jia continued, “Yuan Shao is overmuch devoted to ceremony and deportment; while you [Cao Cao] are sympathetic and natural; this is an excellence in conduct. He [Yuan Shao] is antagonistic and drives; you are conciliatory and lead; so you have the advantage of popular approval. For many years the government has been lax, and he makes it more so; you strive vigorously after efficiency; this is the excellence of able administration. He is outwardly liberal but grudging at heart, and too given to nepotism; you appear exacting, but you understand and use people after their ability; this is the advantage of correct appreciation. He is a visionary but lacking in decision; you are a man of prompt decision and direct action; this is an advantage in policy. He loves to gather about him people of renown; you treat people as you find them regardless of their reputation; this is where you excel in moral virtue. He is compassionate to those at hand, but careless about those out of sight; your care is all-embracing; this is where you excel in humanity. He lends a ready ear to calumny and is misled; you may be flooded with evil counsel, but you preserve independence; this is where you excel in perspicacity. His sense of right and wrong is confused; your appreciation is accurate and clear; this is where you excel in administrative capacity. He loves the make-believe force, but is ignorant of military essentials; you would overcome with far inferior numbers as you possess military genius; this is where you excel in war. With your ten superiorities, you will have no difficulty in overcoming Yuan Shao.” (emphasis added)

Seth Barrett Tillman, ‘Three Kingdoms and Humanity,’ New Reform Club (Nov. 26, 2023, 11:39 AM), <https://reformclub.blogspot.com/2023/11/three-kingdoms-and-humanity.html>;

Tillman’s Response to a Media Inquiry on Anderson v. Griswold

 

Generically speaking, my view has been and remains that the primary legal issue before the Colorado courts and any other state court assessing a Section 3 ballot challenge is ... Griffin’s Case, 11 F. Cas. 7 (United States Circuit Court for the District of Virginia 1869) (No. 5815) (Chase, Chief Justice of the United States)—that is, whether Section 3 of the Fourteenth Amendment is self-executing in the sense that it can be asserted as a sword, as opposed to a shield, by private parties seeking affirmative relief. See, e.g., Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978) (citing Griffin’s Case for the proposition that the Fourteenth Amendment’s provisions cannot be asserted as a sword absent federal statutory authority). Here, petitioners/plaintiffs are seeking affirmative relief: an order against the Colorado Secretary of State to remove Trump from the ballot.

Of course, if the Colorado Supreme Court affirms the trial court, it could do so on any number of grounds—including, e.g., the scope of Section 3’s “officer of the U.S.” language (or, the scope of Section 3’s “office under the U.S.” language). And it might affirm with a summary order absent much (or, perhaps, any) developed discussion. That sometimes happens in election law cases—no full-length opinion is issued. And, the state Supreme Court might reverse (or, perhaps, remand to the trial court). And the majority may be fractured—an agreed order, but with different rationales in support of its final order from different Colorado Supreme Court Justices.

The first question is when will the petitioners/plaintiffs file their notice of appeal, and will they file their merits brief with their notice. (I have heard that petitioners/plaintiffs might file today: Monday, Nov. 20, 2023.) Or, will petitioners/plaintiffs file a notice of appeal and ask for a briefing schedule—thereby dragging the process out? My guess is that the Colorado Supreme Court will want to clear this up promptly—perhaps, adjudicated merely on the papers and absent any oral argument or hearing. If so, a final decision might be rendered in less than a month. Perhaps much less. If Trump should prevail in the Colorado Supreme Court, the petitioners/plaintiffs will seek U.S. Supreme Court review, but I think they have less than a 50-50 shot of getting it—perhaps, considerably less than 50-50.

Judge Wallace had no substantial discussion of Griffin’s Case in her two decisions to date. And the issue was fairly raised in the briefing. I do not believe this was an oversight. She punted on this issue and left it for the Colorado Supreme Court (and the U.S. Supreme Court) to clear up. I do not say that Wallace’s opinion, as a whole, was less than professional for punting on this issue, but her silence on this issue is a reason to criticize her work product on this occasion. It is a judge’s job to do hard work and not to leave the most difficult questions to colleagues and appellate review.

Some might argue that Judge Wallace erred in writing a lengthy opinion with much dicta deciding issues she need not have resolved. Having determined that Section 3 did not apply to Trump because of the “office” and “officer” issue, it might be argued that she should not have resolved the other issues, as they were not necessary to reach her decision and because a judge should avoid reaching constitutional (and similar difficult) issues which are not necessary to resolve the case before the court. In my view, that criticism, on this occasion, would be wrong. The issues she reached were squarely before the court and should the Colorado Supreme Court reverse on the “office” and “officer” issue, a remand to adjudicate the outstanding issues would not be timely given the compressed election process.

As for the factual findings and findings of mixed fact-&-law, if Trump prevails on appeal, these findings have no legal value. As to the popular mind, my own view is that what people think about Trump and January 6, 2021 is already largely set in stone—and Judge Wallace’s finding will not move support into or out of the Trump column. Thus, I see no historic value at all. If Trump does not prevail on appeal, then those factual findings may very well supply a predicate (which met due process standards) for removing him from the ballot. And that would be consistent with the rule of law precisely because he will have had his day in court, with notice, and opportunity to be heard before a neutral adjudicator, and full appellate review.

Let me know if you need anything further.

Seth Barrett Tillman, ‘Tillman’s Response to a Media Inquiry on Anderson v. Griswold,’ New Reform Club (Nov. 20, 2023, 3:09 AM), <https://reformclub.blogspot.com/2023/11/tillmans-response-to-media-inquiry-on.html>. 

But see Derek Muller, ‘State power and the [U.S.] Term Limits v. Thornton problem in Anderson v. Griswold,’ Election Law Blog (Nov. 19, 2023, 7:17 PM), <https://electionlawblog.org/?p=139753>.

Briefs and Other Filings in Section 3 Cases

Useful resource: <https://www.lawfaremedia.org/current-projects/the-trump-trials/section-3-litigation-tracker>;

FINAL JUDGMENTS: California, Colorado, Michigan, Minnesota, and New Hampshire. 

California: Schaefer v. USA and Trump, Civ. A. No. 23-CV-1451-JLS-BLM, 2023 WL 6798507 (S.D. Ca. Oct. 13, 2023); 

California: Clark v. Weber, Civ. A. No. 2:23-CV-07489-DOC-DFMx, 2023 WL 6964727 (C.D. Ca. Oct. 20, 2023);

Colorado: Anderson v. Griswold, Colo. Sec. of State and Intervenors Republican State Central Cmt., Case No. 2023CV32577, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo., Nov. 17, 2023) (Wallace, J.), slip. op. at 95–102 (holding that a president is not an “officer of the United States” for the purposes of Section 3 of the Fourteenth Amendment), <https://tinyurl.com/2ucr64nu>, <https://www.courts.state.co.us/Courts/County/Case_Details.cfm?Case_ID=5240>;

Michigan: LaBrant v. Benson, Case No. 23-000137-MZ, 2023 WL _______ (Mich. Ct. Cl. Nov. 14, 2023) (Redford, J.);  

Minnesota: Growe v. Simon, Minnesota Secretary of State, Civ. A. No. A23-1354, 2023 WL 7392541, --- N.W.2d ---- (Minn. Nov. 8, 2023); 

New Hampshire: Castro v. New Hampshire Sec. of State, David M. Scanlan, Civ. A. No. 23-cv-416-JL, 2023 WL 7110390 (D.N.H. Oct. 27, 2023);

                                                     COLORADO LITIGATION: TRIAL COURT

[001]  Colorado Republican State Central Committee’s Motion to Dismiss Pursuant to Colorado Rule of Civil Procedure 12(b)(5) at 11, Anderson v. Griswold, Sec. of State, and Donald J. Trump, and Intervenor Colorado Republican State Central Committee, Civ. A. No. 2023CV32577, 2023 WL 6446966 (Dist. Ct., City and County of Denver, Colo., Sept. 22, 2023) (Wallace, J.) (filed by Michael Melito, Esq. of Melito Law LLC, and Robert Kitsmiller, Esq. of Podoll & Podoll, P.C.) (citing: Blackman/Tillman’s ‘Is the President and “Officer of the US”’ in NYU JL & Liberty), <https://www.courts.state.co.us/Courts/County/Case_Details.cfm?Case_ID=5240>;

[002] Respondent Donald J. Trump’s Motion to Dismiss at 8–10, 9 n.16, 14 n.29, Anderson v. Griswold, Sec. of State, and Donald J. Trump, Civ. A. No. 2023CV32577, 2023 WL 6446965 (Dist. Ct., City and County of Denver, Colo., Sept. 29, 2023) (Wallace, J.) (filed by Scott E. Gessler, Esq. et al., of Gessler Blue LLC) (citing: [i] Blackman/Tillman’s ‘Response to Baude/Paulsen’ (forth. Tex. Rev. L. & Pol.); and, [ii] Blackman/Tillman’s ‘Is the President and “Officer of the US”’ in NYU JL & Liberty), <https://www.courts.state.co.us/Courts/County/Case_Details.cfm?Case_ID=5240>;

[003] Petitioners’ Opposition to Intervenor Trump’s Third Motion to Dismiss at 10, 28 n.19 & n.20, Anderson v. Griswold, Sec. of State, and Intervenors, Colo. Republican State Central Committee and Donald J. Trump, Civ. A. No. 2023CV32577, 2023 WL 7183893 (Dist. Ct., City and County of Denver, Colo., Oct. 6, 2023) (redacted version filed Oct. 12, 2023) (Wallace, J.) (filed by Mario Nicolais, Esq. of KBN Law, LLC; Martha M. Tierney, Esq. of Tierney Lawrence Stiles LLC; Eric Olson, Esq. of Olson Grimsley Kawanabe Hinchcliff & Murray LLC; and, Citizens for Responsibility and Ethics in Washington) (citing: [i] Blackman/Tillman’s ‘Response to Baude/Paulsen’ (forth. Tex. Rev. L. & Pol.); [ii] Blackman/Tillman’s ‘Is the President and “Officer of the US”’ in NYU JL & Liberty; and, [iii] Josh Blackman and Seth Barrett Tillman, The Emoluments Clauses litigation, Part 1: The Constitution’s taxonomy of officers and office, The Volokh Conspiracy, Sept. 25, 2017), <https://www.courts.state.co.us/Courts/County/Case_Details.cfm?Case_ID=5240>; [WL citation available, but NOT showing on court’s website] 

[004] Respondent Donald J. Trump’s Reply in Support of Motion to Dismiss at 24 n.80, 30 n.98, 38–39, 47 n.163, Anderson v. Griswold, Sec. of State, and Intervenor Donald J. Trump, Civ. A. No. 2023CV32577, 2023 WL ______ (Dist. Ct., City and County of Denver, Colo., Oct. 16, 2023) (Wallace, J.) (filed by Gessler Blue LLC) (citing: [i] Blackman/Tillman’s ‘Response to Baude/Paulsen’ (forth. Tex. Rev. L. & Pol.); [ii] Blackman/Tillman’s Part III, ‘Office and Officers of the Constitution’ in S Tex L Rev), <https://www.courts.state.co.us/Courts/County/Case_Details.cfm?Case_ID=5240>; [NO WL citation; and NOT showing on court’s website]

 NON-FINAL ORDER: Anderson v. Griswold, Sec. of State, and Donald J. Trump, Civ. A. No. 2023CV32577, 2023 WL 7017745 (Dist. Ct., City and County of Denver, Colo. Oct. 25, 2023) (Wallace, J.) (denying motion to dismiss, and citing Blackman and Tillman by name, and referring to Blackman & Tillman ‘Response to Baude and Paulsen’);

[005] Expert Report of Robert J. Delahunty at 12 n.13, 30, 42 n.96, 83–85, Anderson v. Griswold, Sec. of State, and Donald J. Trump, Civ. A. No. 2023CV32577, 2023 WL _______ (Dist. Ct., City and County of Denver, Colo., Oct. 27, 2023) (Wallace, J.) (filed by: Gessler Blue LLC) (citing: [i] Blackman/Tillman’s ‘Is the President and “Officer of the US”’ in NYU JL & Liberty; [ii] Blackman/Tillman’s ‘Response to Baude/Paulsen’ (forth. Tex. Rev. L. & Pol.)), <https://www.courts.state.co.us/Courts/County/Case_Details.cfm?Case_ID=5240>; [NO WL citation; and NOT showing on court’s website]

FINAL ORDER: Anderson v. Griswold, Colo. Sec. of State and Intervenors Republican State Central Cmt., Case No. 2023CV32577, 2023 WL 8006216 (Dist. Ct., City and County of Denver, Colo., Nov. 17, 2023) (Wallace, J.), slip. op. at 95–102 (holding that a president is not an “officer of the United States” for the purposes of Section 3 of the Fourteenth Amendment), <https://tinyurl.com/2ucr64nu>, <https://www.courts.state.co.us/Courts/County/Case_Details.cfm?Case_ID=5240>; [NOT CITING TILLMAN]

                                     COLORADO LITIGATION: SUPREME COURT

[001] Brief of Amicus Curiae Constitutional Law Professor Mark Graber in Support of Petitioners-Appellants Norma Anderson at 16 n.41, Anderson v. Griswold, Case No. 2023SA300, 2023 WL 8190200 (Colo. Sup. Ct. Nov. 20, 2023, 9:39 PM) (citing Blackman & Tillman’s ‘Response to Baude and Paulsen’), Filing Id. 780AE5A95093E;

[002] Colorado Republican State Central Cmt’s Answer Brief to the Appellant Electors’ Opening Brief at 9, Anderson v. Griswold, Case No. 2023SA300, 2023 WL 8190197 (Colo. Sup. Ct. Nov. 27, 2023, 3:51 PM) (citing Blackman/Tillman’s ‘Is the President an “Officer of the US”’ in NYU JL & Liberty), Filing Id. 91C60F62E990B; 

[003] Brief of Amici Curiae Republican National Committee, National Republican Senatorial Committee, and National Republican Congressional Committee in Support of Intervenor-Appellant/Cross-Appellee at 11, 14, 17, Anderson v. Griswold, Case No. 2023SA300, 2023 WL 8259221 (Colo. Sup. Ct. Nov. 28, 2023, 1:23 PM) (citing: [i] Blackman/Tillman’s ‘Response to Baude/Paulsen’ (forth. Tex. Rev. L. & Pol.); and, [ii] Tillman & Blackman’s ‘Offices and Officers of the Constitution Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses,’ 62 S. Tex. L. Rev. 349 (2023)), Filing Id. F6908DE959D9F;

Brief Submitted by Professor Seth Barrett Tillman as Amicus Curiae in Support of Intervenor-Appellant/Cross-Appellee Donald J. Trump, Supreme Court Case No. 2023SA300, 2023 WL 8188397 (Colo. Nov. 27, 2023, 1:13 PM) (filed by Reisch Law Firm, LLC and Josh Blackman et al.), Filing ID:  5DE684C1AED0C, 2023 WL 8188397, <https://ssrn.com/abstract=4644676>.

[004] Petitioners’ Answer-Reply Brief at 28 n.3, Anderson v. Griswold, Case No. 2023SA300             (Colo. Dec. 1, 2023) (citing’s Tillman Colorado Supreme Court amicus brief), 2023                     WL _______;

CONNECTICUT LITIGATION 

[001] Memorandum in Support of Motion to Dismiss of Defendant Donald J. Trump at 19–20 & n.9, 23–24 & n.18, Castro v. Stephanie Thomas, Sec. of State, Civ. A. No. 3:23-cv-01238-VAB, 2023 WL 7486769 (D. Conn. Oct. 12, 2023) (filed by Peter C. Bowman, Esq., BBB Attorneys, LLC) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 24;

[002] Defendant’s Response in Opposition to Plaintiff’s Emergency Application for a Temporary Restraining Order and Expedited Preliminary Injunction Hearing Consolidated with a Preliminary Bench Trial on the Merits at 10, Castro v. Stephanie Thomas, Sec. of State, Civ. A. No. 3:23-cv-01238-VAB, 2023 WL 7486771 (D. Conn. Oct. 12, 2023) (filed by Peter C. Bowman, Esq., BBB Attorneys, LLC) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 22;

MICHIGAN LITIGATION

[001][Donald J. Trump] Proposed-Intervenor’s Brief in Support of Motion for Summary Disposition at 13 n.5, 20, LaBrant v. Benson, Sec. of State, Civ. A. No. 23-000137-MZ, 2023 WL 7343057 (Mich. Ct. Claims Oct. 16, 2023, 4:48:19 PM) (Redford, J.) (citing: [i] Blackman and Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol. (forth.); [ii] Blackman and Tillman’s NYU JLL article (2021));

[002] Amicus Curiae Brief by Gerard N. Magliocca at 13 n.7, LaBrant v. Benson, Sec. of State, Civ. A. No. 23-000137-MZ, 2023 WL 7343056 (Mich. Ct. Claims Oct. 23, 2023) (Redford, J.) (citing: Blackman and Tillman’s NYU JLL article (2021));

[003] Defendant Secretary of State’s Memorandum of Law Pursuant to the Court’s October 9, 2023 at 9, 14 & n.6, Scheduling Order Ordering Defendant to Address Specific Questions, LaBrant v. Benson, Sec. of State, Civ. A. No. 23-000137-MZ, 2023 WL _______ (Mich. Ct. Claims Oct. 16, 2023) (Redford, J.) (citing: [i] Blackman and Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol. (forth.); [ii] Blackman and Tillman’s NYU JLL article (2021)); [No WL citation]

[004]  Plaintiffs’ Brief in Opposition to Intervening Defendant’s Motion for Summary Disposition and in Response to Intervening Defendant’s Amicus Brief at 26, LaBrant v. Benson, Sec. of State, Civ. A. No. 23-000137-MZ, 2023 WL _______ (Mich. Ct. Claims Oct. 23, 2023) (Redford, J.) (citing: [i] Blackman and Tillman’s Part I of the “ ‘Offices’ and ‘Officers’ of the Constitution” in S Tex L Rev); [No WL citation]

[005] Proposed Amicus Curiae Brief of Donald J. Trump at 13–14 & n.5, 21, LaBrant v. Benson, Sec. of State, Civ. A. No. 23-000137-MZ, 2023 WL _______ (Mich. Ct. Claims signed: Oct. 23, 2023, received by the courts: Oct. 30, 2023, 3:44:18 PM) (Redford, J.) (citing: [i] Blackman and Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol. (forth.); and, [ii] Blackman and Tillman’s NYU JLL article (2021)), <https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/r8OKUb2ac7zc/v0>; [No WL citation]

           LaBrant v. Benson, Case No. 23-000137-MZ, 2023 WL _______ (Mich. Ct. Cl. Nov. 14, 2023) (Redford, J.);  

MINNESOTA LITIGATION

[001]  Petitioners’ Brief at 44, Growe v. Simon, Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023 WL 6883472 (Minn. Oct. 4, 2023) (filed by Lockridge Grindal Nauen PLLP and Free Speech for People) (citing Blackman and Tillman’s Part I of ‘Offices and Officers of the Constitution’ in S Tex L Rev), <https://mncourts.gov/A23-1354-Joan-Growe,-et-al-,-Petitioners,-vs-Steve-Simon,-Minnesota-Secretary-of-State,-Respondent.aspx>; [available on court’s website]

[002]  Brief of Amicus Curiae Citizens for Responsibility and Ethics in Washington at 3, 4, 13, Growe v. Simon, Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023 WL 6883478 (Minn. Oct. 6, 2023) (filed by Van Norman Law and CREW) (citing Blackman and Tillman’s Response to Baude and Paulsen in Tex. Rev. L. & Pol.), <https://mncourts.gov/A23-1354-Joan-Growe,-et-al-,-Petitioners,-vs-Steve-Simon,-Minnesota-Secretary-of-State,-Respondent.aspx>; [available on court’s website]

[003]  Brief of Gerard N. Magliocca as Amicus Curiae in support of Petitioners at 17 n.8, Growe v. Simon, Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023 WL 6883483 (Minn. Oct. 6, 2023) (filed by Gustafson Glueck PLLC and Law Office of Harry Williams) (citing Blackman and Tillman’s Is the President an ‘Officer of the US’ in NYUJLL (2021)), <https://mncourts.gov/A23-1354-Joan-Growe,-et-al-,-Petitioners,-vs-Steve-Simon,-Minnesota-Secretary-of-State,-Respondent.aspx>; [available on court’s website]

[004] Donald J. Trump’s Brief Regarding Justiciability, Section Three of the Fourteenth Amendment, and Other Matters at 11 n.7, 21 n.16, Growe v. Simon, Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023 WL 7106747 (Minn. Oct. 18, 2023) (filed by CrossCastle PLLC and the Dhillon Law Group, Inc.) (citing Blackman and Tillman’s Tex. Rev. L. & Pol.), <https://mncourts.gov/A23-1354-Joan-Growe,-et-al-,-Petitioners,-vs-Steve-Simon,-Minnesota-Secretary-of-State,-Respondent.aspx>; [available on court’s website]

[005]  Respondent Republican Party of Minnesota’s Brief at 22 & n.5, Growe v. Simon, Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023 WL 7106418 (Minn. Oct. 18, 2023) (filed by Jacobson, Magnuson, Anderson & Halloran, P.C.) (citing Blackman and Tillman’s Tex. Rev. L. & Pol.), <https://mncourts.gov/A23-1354-Joan-Growe,-et-al-,-Petitioners,-vs-Steve-Simon,-Minnesota-Secretary-of-State,-Respondent.aspx>; [available on court’s website]

[006]  Brief of Amici Curiae Republican National Cmt, National Republican Senatorial Cmt, and National Republican Congressional Cmt in Support of Petitioners at 15, 18, Growe v. Simon, Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023 WL 7162535 (Minn. Oct. 20, 2023) (filed by Consovoy McCarthy PLLC and Mohrman, Kaardal & Erickson, P.A.) (citing Blackman and Tillman’s Part III of the ‘“Offices” and “Officers” of the Constitution’ in S Tex L Rev), <https://mncourts.gov/A23-1354-Joan-Growe,-et-al-,-Petitioners,-vs-Steve-Simon,-Minnesota-Secretary-of-State,-Respondent.aspx>; [available on court’s website]

           Petitioners’ Reply Brief at 28, 29 n.20, Growe v. Simon, Secretary of State, and Republican Party of Minnesota, Civ. A. No. A23-1354, 2023 WL 7221204 (Minn. Oct. 23, 2023) (citing Blackman and Tillman generally), <https://mncourts.gov/A23-1354-Joan-Growe,-et-al-,-Petitioners,-vs-Steve-Simon,-Minnesota-Secretary-of-State,-Respondent.aspx>; [available on court’s website]

         [ORDER] Growe v. Simon, Minnesota Secretary of State, Civ. A. No. A23-1354, 2023 WL 7392541, --- N.W.2d ---- (Minn. Nov. 8, 2023)

NEVADA LITIGATION

[001] Defendant Donald John Trump’s Opposition to Emergency Application for a Temporary Restraining Order and Expedited Preliminary Injunction Hearing Consolidated with a Preliminary Bench Trial on the Merits at 13–14 & n.8, 16–17,  Castro v. Aguilar, Sec. of State v. Donald John Trump, Civ. A. No. 2:23-cv-01387-RFB-BNW, 2023 WL 6804954 (D. Nev. Oct. 2, 2023) (citing: [1] Blackman and Tillman’s Is the President an ‘Officer of the US’ in NYUJLL (2021); and, [2] Blackman and Tillman’s Response to Baude and Paulsen), ECF Nos. 9 & 11;

[002] Defendant Donald John Trump’s Motion to Dismiss Plaintiff’s Complaint Pursuant to FRCP 12(b) at 9–10 & n.3, 17–18,  Castro v. Aguilar, Sec. of State v. Donald John Trump, Civ. A. No. 2:23-cv-01387-RFB-BNW, 2023 WL 6804953 (D. Nev. Oct. 5, 2023) (citing: [1] Blackman and Tillman’s Is the President an ‘Officer of the US’ in NYUJLL (2021); and, [2] Blackman and Tillman’s Response to Baude and Paulsen), ECF No. 1;

[003] Defendant Donald John Trump’s Renewed Motion to Dismiss Plaintiff’s First Amended Complaint Pursuant to FRCP 12(b) at 9–10, 10 n.4, 16–18, Castro v. Aguilar, Sec. of State v. Donald John Trump, Civ. A. No. 2:23-cv-01387-RFB-BNW, 2023 WL 7002545 (D. Nev. Oct. 19, 2023) (citing: [1] Blackman and Tillman’s Is the President an ‘Officer of the US’ in NYUJLL (2021); and, [2] Blackman and Tillman’s Response to Baude and Paulsen), ECF No. 21;  

NEW HAMPSHIRE LITIGATION

[001] [Trump’s] Response to Emergency Application for a Temporary Restraining Order and Expedited Preliminary Injunction Hearing at 12–13, Castro v. Scanlan, Sec. of State and Donald John Trump, Civ. A. No. 1:23-cv-00416-JL-TSM, 2023 WL 7040105 (D.N.H. Sept. 19, 2023) (citing Blackman and Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol. (forth.));

[002] Defendant’s [Trump’s] Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction at 11–12, Castro v. Scanlan, Sec. of State and Donald John Trump, Civ. A. No. 1:23-cv-00416-JL-TSM, 2023 WL 7040107 (D.N.H. Sept. 29, 2023) (citing Blackman and Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol. (forth.));  

[003] Defendant Donald J. Trump’s Objection to Plaintiff’s Motion for Preliminary Injunction at 6 n.3, 7 n.5, Castro v. Scanlan, Sec. of State and Donald John Trump, Civ. A. No. 1:23-cv-00416-JL-TSM, 2023 WL 7040108 (D.N.H. Oct. 3, 2023) (citing: [i] Blackman and Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol. (forth.); [ii] Blackman and Tillman’s NYU JLL article (2021));

         Castro v. New Hampshire Sec. of State, David M. Scanlan, Civ. A. No. 23-cv-416-JL, 2023 WL 7110390 (D.N.H. Oct. 27, 2023);

WEST VIRGINIA LITIGATION

[001] State of West Virginia’s Memorandum of Law in Support of its Motion to Dismiss at 14–15, Castro v. Secretary of State Andrew Warner and Donald John Trump v. West Virginia Republican Party and State of West Virginia, 2:23-cv-00598, 2023 WL 7001813 (S.D. W. Va. Oct. 12, 2023) (Berger, J.) (filed by Patrick Morrisey, A.G. et al.) (citing: [i] Blackman and Tillman’s ‘Response to Baude and Paulsen’ in Tex. Rev. L. & Pol. (forth.); [ii] Tillman’s Duke JCLPP (2008); and, [iii] Blackman and Tillman’s ‘Is the President and “Officer of the United States”’ in NYU JL & Liberty (2021)), ECF No. 44, <https://ago.wv.gov/Documents/Motion%20to%20Dismiss.pdf>;  

[002] West Virginia’s Republican Party’s Motion to Dismiss Pursuant to FRCP 12(b)(1) AND 12(b)(6) and Memorandum of Law in Support at 11–12, Castro v. Andrew Warner, Sec. of State, and Donald J. Trump, and West Virginia Republican Party, Intervenor, 2:2023-cv-00598, 2023 WL 7458679 (S.D. W. Va. Oct. 10, 2023) (Berger, J.) (filed by McArdle Law Office and ACLJ) (citing Blackman and Tillman’s ‘Is the President and “Officer of the United States”’ in NYU JL & Liberty (2021)), ECF No. 42, <http://media.aclj.org/pdf/Filed-MTD-Castro-v.-Warner-(WV)-10.10.23_Redacted.pdf>; 

        Report and Recommendation, Castro v. Sec. of State Andrew Warner, 2:23-CV-00598, 2023 WL 7399122 (S.D. W. Va. Sept. 28, 2023) (Aboulhosn, M.J.), converted to summary judgment motion 2023 WL 7171462 (Oct. 31, 2023) (Berger, J.).

 

OTHER SECTION 3 CASES:

D. Ariz., C.D. Ca., E.D. Ca., D. Del., D. Mass., D. Mont., D.N.M., N.D.N.Y., D.S.C.

[001] [Donald J. Trump’s] Motion to Dismiss Plaintiff’s Complaint at 17 & n.8, 18, 21, Castro v. Secretary of State Adrien Fontes, Civ. A. No. 2:23-cv-01865-DLR, 2023 WL 7545189 (D. Ariz. Oct. 13, 2023) (filed by Timothy A. La Sota, Esq., Timothy A. La Sota, PLC) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 30;

[002] Donald J. Trump’s Response in Support of Order to Show Cause at 9–10 & n.5, Clark v. Shirley N. Weber, Calif. Sec. of State, Civ. A. No. 2:23-cv-07489-DOC-DFM, 2023 WL 7545186 (C.D. Ca. Oct. 16, 2023) (filed by Shawn E. Cowles, Esq., Dhillon Law Group Inc.) (citing Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 27;

        Clark v. Weber, Civ. A. No. 2:23-CV-07489-DOC-DFMx, 2023 WL 6964727 (C.D. Ca. Oct. 20, 2023);

[003] Motion to Dismiss by Defendant Donald John Trump at 5, 11; Castro v. Sec. of State Shirley Weber, Civ. A. No. 2:23-cv-02172-DAD-AC(PS), 2023 WL 7545196 (E.D. Ca. Oct. 26, 2023) (filed by Shawn E. Cowles, Esq., Dhillon Law Group, Inc.) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 12;

           Findings and Recommendation, Castro v. Weber, Civ. A. No. 2:23-cv-02172-DAD-AC(PS), 2023 WL 6931322 (E.D. Ca. Oct. 19, 2023) (Claire, M.J.)

[004] Brief in Support of Defendant Donald John Trump’s Motion to Dismiss Plaintiff’s Verified Complaint at 8 n.5, 14, Castro v. State Election Commissioner Anthony J. Albence, Civ. A. No. 1:23-cv-01068-RGA-UNA, 2023 WL 7545187 (D. Del. Nov. 9, 2023) (filed by Scott D. Cousins, Esq., Cousins Law LLC) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 8;

[005] Memorandum of Law in Support of Defendant’s Motion to Dismiss at 14–15 & n.7, 18 & n.16, Castro v. Galvin, Secretary of State and Donald J. Trump, Civ. A. No. 1:23-cv-12121-MJJ, 2023 WL 7458682, 2023 WL 7545190 (D. Mass. Oct. 13, 2023) (filed by Nixon Peabody LLP) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s Response to Baude and Paulsen), ECF No. 20, <https://abovethelaw.com/uploads/2023/11/Trump-Nixon.pdf>;

[006] [Donald J. Trump’s] Memorandum in Support of Motion to Dismiss at 17–18 & n.7, 20–21 & n.10, Castro v. Sec. of State Christi Jacobson, Civ. A. No. 6:23-cv-00062-SPW, 2023 WL 7545188 (D. Mont. Oct. 6, 2023) (filed by Quentin M. Rhoades, Esq., Rhoades & Erickson PLLC) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 10-1;

[007] Defendant Donald John Trump’s Opposition to Plaintiff John Anthony Castro’s Verified Motion for Judgment on the Pleadings at 16 n.7, 17, Castro v. Maggie Toulouse Oliver, Sec. of State, Civ. A. No. 1:23-cv-00766-MLG-GJF, 2023 WL 7545185 (D.N.M. Nov. 10, 2023) (filed by Marc J. Caruso, Esq.) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 39;

[008] Memorandum of Law in Support of Defendant Donald John Trump’s Motion to Dismiss Plaintiff’s Verified Complaint at 8, 14, Castro v. New York State Board of Elections, Civ. A. No. 1:23-cv-01223-GTS-DJS, 2023 WL 7545200 (N.D.N.Y. Oct. 26, 2023) (filed by Ronald D. Coleman, Esq., Dhillon Law Group Inc.) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 9-1;

[009] [Donald J. Trump’s] Defendant’s Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction at 12–13, Castro v. SC Elections Commission, Executive Director Howard M. Knapp, Civ. A. No. 3:23-cv-04501-MGL-SVH, 2023 WL 7545193 (D.S.C. Oct. 6, 2023) (filed by Nathan S. Williams, Esq., Law Offices of Nathan S. Williams) (citing Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 28;

[010]  [Donald J. Trump’s] Motion to Dismiss at 11, 14, Perry-Bey v. Trump, Civ. A. No. 1:23-cv-01165-LMB-IDD, 2023 WL _______ (E.D. Va. Oct. 25, 2023) (Brinkema, J.) (filed by David A. Warrington of the Dhillon Law Group Inc.) (citing: [1] Blackman and Tillman’s “Is the President an ‘Officer of the US’” in NYUJLL (2021); and, [2] Blackman and Tillman’s “Response to Baude and Paulsen”), ECF No. 26;

MISCELLANEOUS

     Schaefer v. USA and Trump, Civ. A. No. 23-CV-1451-JLS-BLM, 2023 WL 6798507 (S.D. Ca. Oct. 13, 2023); 

Seth Barrett Tillman, ‘Briefs and Other Filings in Section 3 Cases,’ New Reform Club (Nov. 16, 2023, 4:11 AM), <https://reformclub.blogspot.com/2023/11/briefs-and-other-filings-in-section-3.html>;