AMICUS BRIEF

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

BRIEF OF AMICI CURIAE

TERPSEHORE “TORE” MARAS AND ELIGIBLE VOTERS

OF

ALL 50 STATES AND 1 TERRITORY

IN SUPPORT OF PETITIONER

Warner Mendenhall Counsel of Record

MENDENHALL LAW GROUP

190 North Union Street, Suite 201

Akron, OH 44304 (330) 535-9160

warner@warnermendenhall.com

January 18, 2024

Counsel for Amici Curiae SUPREME COURT PRESS

♦ (888) 958-5705 ♦

BOSTON, MASSACHUSETTS

INTEREST OF THE AMICI CURIAE

1 This Court now has the great privilege of hearing from persons residing in every single state. Attached as an Appendix to this Amici Curiae submission are more than 3,000 American citizens from around the country who are all eligible to vote for the office of Presidency. Given the American people would suffer the greatest injury if this Court were to uphold the Colorado Supreme Court’s ruling, there can be no greater interest put before this Court than that of Amici Curiae. SUMMARY OF THE ARGUMENT The Framers of the Constitution, through their inclusion of the Ninth and Tenth Amendments, provided deft mechanisms to address the possibility of an overreaching government – whether federal or state. As a result, governmental action that might otherwise infringe upon fundamental rights belonging to the American People obtained protection. By removing President Trump from the primary ballot without the benefit of either Constitutional or applicable statutory 1 In accordance with Rule 37.6, no counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than Amici Curiae or its counsel made a monetary contribution to its preparation or submission.

2 authority, the Colorado Supreme Court violated both Amendments. In addition, the Colorado Supreme Court erred in accepting and relying on findings from a Colorado trial court given such expedited state trial was conducted thousands of miles away from where the alleged acts took place – in violation of Article III, Section 2, Para graph 3 of the United States Constitution and Rule 18 of the Federal Rules of Criminal Procedure. ARGUMENT I. THE COLORADO SUPREME COURT’S RULING IMPROPERLY CREATES RIGHTS NOT GIVEN IT AND IN SO DOING VIOLATES THE NINTH AMENDMENT TO THE UNITED STATES CONSTITUTION. This submission from over three thousand citizens records the indignation of disenfranchised voters from every single state. Among its many infirmities, the Colorado Supreme Court’s ruling improperly negated the truism voters, not judges, choose our President. See c.f., Donald J. Trump for President, Inc. v. Secretary of Pa., 830 F. App’x 377, 391 (3d Cir. 2020) (“Voters, not lawyers, choose the President.”). Even though the Fourteenth Amendment nowhere lists any state right that would grant the Colorado Supreme Court authority over Presidential ballots, that Court – without benefit of Constitutional or applicable statutory authority, 3 elevated its simple majority over that of all federal voters.2 Under the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. Amend. IX (emphasis added). “[T]he Ninth Amendment shows a belief of the Consti tution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amend ments and an intent that the list of rights included there not be deemed exhaustive.” Griswold v. Connecticut, 381 U.S. 479, 492 (1965).

A. The Ninth Amendment, when properly used as a rule of construction, safeguards fundamental rights of the People. The Ninth Amendment protects here the funda mental right to vote so that it cannot be usurped based on the untethering of Constitutional moorings by a single state court. For example, in Griswold v. State of Connecticut, the liberty of married couples to 2 The Colorado Court ruled on a provision that applies to persons who “engaged in insurrection or rebellion against the [Constitu tion],” or who have “given aid or comfort to the enemies thereof” while ignoring that this rudderless standard could never really be understood without Congressional guidance. U.S. Const. amend. XIV, § 3; 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.”); In re Griffin, 11 F. Cas. 7, 26 (C.C.D. Va. 1869) (“[L]egislation by congress is necessary to give effect to [Section 3’s] prohibition.”).

The fact that twenty seven states in amicus support only Congressional enforcement of the Fourteenth Amendment ipse dixit demonstrates the Colorado Court’s actions for what they are – a lone state seeking to improperly place its thumb on the Electoral scale. 4 buy and use contraceptives without government restrictions was found with the assistance of the Ninth Amendment. Justice Goldberg explained:

The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family – a relation as old and as fundamental as our entire civilization – surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically men tioned in the Constitution. Id. at 495-96. In his concurrence, Justice Goldberg recognized that the Court “has had little occasion to interpret the Ninth Amendment.” Id. at 490. Yet, he explained, “since 1791 it has been a basic part of the Constitution which we are sworn to uphold.” Id. at 491. Justice Goldberg added that “[t]he language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional funda mental rights, protected from governmental infringe ment, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.” Id. at 488. Noting the relationship between the Ninth Amend ment and other constitutional provisions, Justice Goldberg further explained, While the Ninth Amendment—and indeed the entire Bill of Rights—originally concerned 5 restrictions upon federal power, the subse quently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fun damental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the ‘liberty’ protected by the Fifth and Fourteenth Amendments from infringement by the Fed eral Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Id. at 493 (citing United Public Workers v. Mitchell, 330 U.S. 75, 94 – 95 (1947)).

As this Court is aware, the seldom–litigated Ninth Amendment has largely been relegated to the status of a “saving clause” or rule of construction. See Richmond Newspapers v. Virginia, 448 U.S. 555, 579, n.15 (1980) (“Madison’s comments in Congress also reveal the perceived need for some sort of constitu tional “saving clause,” which, among other things, would serve to foreclose application to the Bill of Rights of the maxim that the affirmation of particular rights implies a negation of those not expressly defined. Madison’s efforts, culminating in the Ninth Amendment, served to allay the fears of those who were concerned that expressing certain guarantees could be read as excluding others.”) (internal citations omitted). See also Charles v. Brown, 495 F. Supp. 862, 6 863-64 (N.D.Ala.1980) (The Ninth Amendment “was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely be cause they were not specifically enumerated in the Constitution.”).

To minimize the Ninth Amendment would be a great disservice to the Drafters. Indeed, the doctrinal harbinger of the “certain guarantees” referenced in Richmond Newspapers v. Virginia originates in the DECLARATION OF INDEPENDENCE: We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness— That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed . . .

DECLARATION OF INDEPENDENCE (U.S. 1776).

St. George Tucker, whose View of the Constitution of the United States is considered the first expansive commentary on the United States Constitution, also explains how foundational rights can run both ways: “The right of governing can, therefore, be acquired only by, consent, originally; and this consent must be that of at least a majority of the people. [Thus,] [l]egitimate government can therefore be derived only from the voluntary grant of the people, and exer cised for their benefit.”

St. George Tucker, View of the Constitution of the United States, in 1 St. George Tucker,

BLACKSTONE’S COMMENTARIES: WITH NOTES OF REFERENCE, TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF 7 THE COMMONWEALTH OF VIRGINIA

ED app. at 300 (St. George Tucker ed., Lawbook Exch. 1996) (1803).

B. The Ninth Amendment ensures that the American people have the right to fair and free elections, and the ultra vires removal of a candidate violates it. Colorado’s removal of President Trump from the primary ballot infringes upon the constitutional pro tections afforded Americans to vote for the candidate of their choosing in a fair and free election. See e.g., Anderson v. Celebrezze, 460 U.S. 780, 794–95 (1983) (“[I]n the context of a Presidential election, state imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.”) (internal citations omitted); Bullock v. Carter, 405 U.S. 134, 143 (1972) (“[T]he rights of voters and the rights of candidates do not lend them selves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.”). Under the Fifteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U.S. Const. amend. XV, § 1. Even though “the immediate concern of the Amendment was to guarantee to the emancipated slaves the right to vote,” this Court has acknowledged the Fifteenth Amendment “is cast in fundamental terms, terms 8 transcending the particular controversy,” and “grants protection to all persons, not just members of a partic ular race.” Rice v. Cayetano, 528 U.S. 495, 512 (2000). Only Congress is empowered to enforce voting rights and protections under the Fifteenth, Twenty Fourth, and Twenty-Sixth Amendments. U.S. Const. amend. XV, § 2 (“The Congress shall have power to enforce this article by appropriate legislation.”); U.S. Const. amend. XXIV, § 2 (“The Congress shall have power to enforce this article by appropriate legislation.”); U.S. Const. amend. XXVI, § 2 (“The Congress shall have power to enforce this article by appropriate legislation.”). In other words, it may be Constitutionally reason able for Congress to legislate in this fundamental rights arena but certainly not for a state court. In Ex parte Yarbrough, this Court acknowledged Congress’s unique power to protect the electoral process: “If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption.” Ex parte Yarbrough, 110 U.S. 651, 657–58 (1884). Yet, even such Congressional power is not unbridled and will forever yield to the fundamental voting rights set forth in the Constitution. See Shelby County, Ala. v. Holder, 570 U.S. 529 (2013) (ruling unconstitutional § 4(b) of the Voter Rights Act of 1965). Meriting less deference, state courts are absolutely prohibited from aggrandizing power to dilute electoral 9 votes in the manner done here. In Williams v. Rhodes, 393 U.S. 23 (1968), this Court struck down an entire state system that effectively limited ballots to electors of the two major parties. In the Court’s view, that system adversely impacted the right of voters to cast ballots for electors of their choosing. The Court stated: “There, of course, can be no question but that [the Electoral College Clause] does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. . . . [It cannot be] thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. . . . Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions.” Id. at 29 (emphasis added).

Neither the Constitution, Congress, nor the American people ever granted a state court the power to potentially exclude a Presidential candidate based simply on its interpretation of that candidate’s prior conduct. Indeed, recent conflicting cases on this issue demonstrate why the Colorado Court’s ruling if left unchecked would wreak havoc on our electoral system and trample fundamental voting rights. 10 II.

THE EXCLUSION OF PRESIDENT TRUMP BY THE COLORADO SUPREME COURT VIOLATES THE TENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

The Tenth Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” U.S. Const. amend. X (emphasis added). To that end, this Court has stated: “In our federal system, the National Gov ernment possesses only limited powers; the States and the people retain the remainder.” NFIB v. Sebelius, 567 U.S. 519, 533 (2012). See also Chiafalo v. Washington, 140 S.Ct. 2316, 2333 (2020) (Thomas, J., concurring) (“When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment.”). While the Tenth Amendment has primarily been used to curtail federal overreach, any constitutional pro hibition – including one found under the Tenth Amend ment, stands as a prohibition against any such conduct from any quarters. The Supreme Court of Colorado’s attempt to dis qualify a candidate from the Presidential ballot should be regarded as repugnant to the Tenth Amendment because the Constitution is not silent on this issue – the federal government has exclusive responsibility for resolving such fundamental eligibility issues related to Presidential elections. For example, the Twelfth Amendment provides: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.” U.S. 11 Const. amend. XII. Indeed, Section 3 of the Fourteenth Amendment specifically delegates to Congress the authority to resolve questions concerning a Presidential candidate’s continued eligibility for office. U.S. Const. amend. XIV, § 3 (“But Congress may by a vote of two thirds of each House, remove such disability.”). In turn, Section 5 of the Fourteenth Amendment states: “The Congress shall have power to enforce, by appro priate legislation, the provisions of this article.” U.S. Const. amend. XIV, § 5. Finally, Section 3 of the Twentieth Amendment to the United States Constitution also provides, if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qual ified. U.S. Const. amend. XX, § 3. These Constitutional provisions demonstrate that only Congress has oversight to resolve Presidential eligibility disputes under Section 3 of the Fourteenth Amendment. To the extent powers under Section 3 of the Fourteenth Amendment were not delegated to Congress, such powers are reserved for the states, and should the state not exercise legislative authority over 12 such specific matters – as was done here, to the People. Assuming arguendo Congress did not have the powers it does have, the Supreme Court of Colorado could not properly assert any such Constitutional authority on its own judicial behalf. Again, the Colorado Supreme Court did not ultimately rely on a specific Colorado law when ruling President Trump ineligible to appear on the 2024 primary Presidential ballot – it relied on the United States Constitution. After accepting a lower court ruling that President Trump was involved in a purported “insurrection” that occurred on January 6, 2021, the Colorado Court then relied exclusively on language found in Section 3 of the Fourteenth Amendment for its decision. Necessary jurisdictional authority was lacking because the state of Colorado never legislatively sought authority to determine whether a Presidential candidate is ineligible for the presidency under Section 3 of the Fourteenth Amendment.3 More to the point, because the Colorado Supreme Court cannot rely on any Colorado state law creating the right to so resolve the eligibility of Presidential candidates under the Fourteenth Amend ment, under the Tenth Amendment that right remains 3 Other submitted briefs more fully address the Colorado Supreme Court’s incorrect view that sections 1-4-1204 and 1-1 113 of the Colorado Election Code provide statutory authority for determining whether a candidate was in violation of Section 3 of the Fourteenth Amendment. As referenced above and recounted in much more detail by these other submissions – as well as by the three Dissenting Justices in the case sub judice, this position is also Constitutionally unsound given Congress alone has power to act under Section 3 of the Fourteenth Amendment. 13 with the American people – a right that will be exer cised by the People on Tuesday, November 5, 2024. III.

PRESIDENT TRUMP DID NOT “ENGAGE IN INSURRECTION” IN COLORADO; THEREFORE, THE COLORADO STATE COURT LACKED SUBJECT MATTER JURISDICTION OVER HIM.

It was inappropriate for the Colorado Supreme Court to accept the quasi–criminal conclusion President Trump engaged in an “insurrection” when the events of January 6, 2021 took place thousands of miles away in another jurisdiction. Even though the underlying matter is cast as a civil case, it implicates a federal crime and ultimately is punitive in nature: Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. 18 U.S.C. § 2383. Article III, Section 2, Paragraph 3 of the United States Constitution provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not com mitted within any State, the Trial shall be at such Place or Places as the Congress may by Law have di rected.” U.S. Const. art. III, § 2. 14 Moreover, Rule 18 of the Federal Rules of Criminal Procedure states: “Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.

The court must set the place of trial within the district with due regard for the convenience of the defendant, any victim, and the witnesses, and the prompt admin istration of justice.” Fed. R. Crim. P. 18. Given the nature of the action and where it allegedly took place, the adjudication of whether President Trump engaged in an insurrection on January 6, 2021 was required to be in a Washington, D.C. courtroom and not in a Colorado state court bound by a local state rule imposing an extremely expedited trial schedule. As a result, the Colorado Supreme Court erred by accepting a local state court’s factual finding on events solely taking place outside that court’s jurisdictional boundaries. 15 CONCLUSION For the foregoing reasons, amici respectfully request that this Court reverse the decision of the Colorado Supreme Court, and in so doing, ensure the preservation of the American People’s fundamental right to choose who governs them.

Respectfully submitted,

Warner Mendenhall

Counsel of Record

WARNER MENDENHALL

190 North Union Street, Suite 201

Akron, OH 44304 (330) 535-9160

warner@warnermendenhall.com

Counsel for Amici Curiae,

Terpsehore “Tore” Maras and Eligible Voters from 50 States and 1 Territory

January 18, 2024