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>.