War shaped the Framers' creation of the Electoral College and Divided Sovereignty. States, with militias, had just replaced a king. 

States, with militias, were assigned sovereignty to control the election and guard the transition of Presidential powers through the Electoral College:

  • The Electoral College is a military institution intended to minimize violence.
  • An unconstitutional President, controlling the Army, must be countered by States, controlling militias. 
  • Federalist #51: “Ambition must be made to counter ambition.”
  • Federalist #28 (Hamilton): “Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!”
  • Federalist #68 (Hamilton) explains the Electoral College in military terms: "The mode of appointment of the Chief Magistrate of the United States is … that the election of the President is pretty well guarded…."  

Article 2, Section 1:

  • “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."
  • Further, the Constitution explicitly forbids Congressmen injecting their opinions into state sovereignty over the Electoral College: "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector". 

Holding public office is a privilege, not a natural right. The US Supreme Court has no sovereignty to hear or overrule state sovereignty over Maine's and Colorado's Electoral College process unless that state process violates:

  • The obligation “The United States shall guarantee to every State in this Union a Republican Form of Government.” 
  • Amendment 14: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 

The United States of America is a compound republic for the reason cited in Federalist #10: “AMONG the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” The violence of faction is exactly what the Maine and Colorado are addressing in removing Mr. Trump from their ballots. Federalist #68: "that the election of the President is pretty well guarded” (by state militias).

Who eats lunch and who is lunch illustrates the violent nature of life seeking energy. We grant governments sovereignty, a monopoly on the use of violence within a jurisdiction, to minimize war and crime by coercing compliance with law. To constrain the nature of governments to monopolize and coerce, in ratifying the Constitution, We the People Divided Sovereignty between:

    • We the People for all powers not enumerated as sacrificed in written constitutions.
      • Declaration of Independence: “Governments are instituted among Men, deriving their just powers from the consent of the governed…” Citizens are the sovereigns.
      • Preamble is restated in Amendment 9: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
    • The Federal government to suppress wars and paths to war. Unlimited taxing powers for the limited and enumerated sovereignty to “provide for the common defence.”
      • Federalist #45: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."
  • Thomas Jefferson: "The states can best govern our home concerns and the federal government our foreign ones." 
  • State governments to suppress crime, resolve commercial disputes, “internal improvements,” and govern welfare. 
    • Preamble is restated in Amendment 10: “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.”
    • As noted above, Article 2, Section 1, assigns electing and enforcing the transition of Presidential powers to the states.
  • Federalist #51 (Madison): “Ambition must be made to counter ambition.”

Federalist #1-46 explain Divided Sovereignty (Federalism adding that Citizens are the Sovereigns with standing).

The Framers understood the need for Divided Sovereignty to mitigate government abuse of power.

On December 14, 2020, States certified their votes to the Electoral College. Actions to overturn that certification were acts of insurrection. 14th Amendment, Section 3: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office ... who ... engaged in insurrection or rebellion against the same (United States)." 

Violence on Jan 6th resulted from Mr. Trump and some Congressmen attempting to overthrow state sovereignty of the Electoral College.

State courts blocking Mr. Trump from ballots mitigates the need to use State militias to enforce decisions of the Electoral College. 

There is no sovereignty for the US Supreme Court to overrule decisions by the Colorado Supreme Court or Maine’s Secretary of State. Mr. Trump’s only appeal to be back on the ballot is for each state’s legislature to overrule each decision. America is a compound republic, not a democracy. Democracy is an essential and flawed tool. Divided Sovereignty is another tool.

States are sovereign over the Electoral College process unless they violate sovereignty of citizens. 

Page 30, https://www.documentcloud.org/documents/24233880-anderson-v-griswold

 Under Article II, Section 1, each state is authorized to appoint presidential electors “in such Manner as the Legislature thereof may direct.” U.S. Const. art. II, § 1, cl. 2. So long as a state’s exercise of its appointment power does not run afoul of another constitutional constraint, that power is plenary. Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020); McPherson v. Blacker, 146 U.S. 1, 25 (1892).

Colorado Supreme Court:

Page 36

Court has jurisdiction:

 We conclude that certifying an unqualified candidate to the presidential primary ballot constitutes a “wrongful act” that runs afoul of section 1-4-1203(2)(a) and undermines the purposes of the Election Code. Nothing in section 1-4-1204(4) limits challenges under that provision to those based on a breach of the Secretary’s duties under section 1-4-1204.

37

Reading the Election Code as a whole, then, we conclude that “qualified” in section 1-4-1203(2)(a) must mean, at minimum, that a candidate is qualified under the U.S. Constitution to assume the duties of the office of President.

40

Were we to adopt President Trump’s view, Colorado could not exclude from the ballot even candidates who plainly do not satisfy the age, residency, and citizenship requirements of the Presidential Qualifications Clause of Article II. See U.S. Const. art. II, § 1, cl. 5 (setting forth the qualifications to be “eligible to the Office of President” (emphasis added)). It would mean that the state would be powerless to exclude a twenty-eight-year-old, a non-resident of the United States, or even a foreign national from the presidential primary ballot in Colorado.

Here, however, the Electors do not challenge the constitutionality of the Election Code. Nor do they allege a violation of the Constitution. Instead, they allege a “wrongful act” under section 1-1-113

49

The Electors’ challenge to the Secretary’s ability to certify President Trump as a qualified candidate presumes that Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress. Because Congress has not authorized state courts to enforce Section Three, Intervenors argue that this court may not consider President Trump’s alleged disqualification under Section Three in this section 1-1-113 proceeding.11 We disagree. 

54

14th Amendment is Self executing

60

 In summary, based on Section Three’s plain language; Supreme Court decisions declaring its neighboring, parallel Reconstruction Amendments self- executing; and the absurd results that would flow from Intervenors’ reading, we conclude that Section Three is self-executing in the sense that its disqualification provision attaches without congressional action. Intervenors’ contrary arguments do not persuade us otherwise.

65

disqualification of insurrectionist oath-breakers

69

In our view, declining to decide an issue simply because it requires us to address difficult and weighty questions of constitutional interpretation would create a slippery slope that could lead to a prohibited dereliction of our constitutional duty to adjudicate cases that are properly before us.

Section Three Applies to the President ¶127 The parties debate the scope of Section Three. The Electors claim that this potential source of disqualification encompasses the President. President Trump argues that it does not, and the district court agreed. On this issue, we reverse the district court. 

72

We cannot accept this interpretation. A conclusion that the Presidency is something other than an office “under” the United States is fundamentally at odds with the idea that all government officials, including the President, serve “we the people.”

The Constitution refers to the Presidency as an “Office” twenty-five times.

83

“[A]ll of us understand the meaning of the third section,” Senator John Sherman stated, “[it includes] those men who have once taken an oath of office to support the Constitution of the United States and have violated that oath in spirit by taking up arms against the Government of the United States are to be deprived for a time at least of holding office . . . .” Cong. Globe, 39th Cong., 1st Sess. 2899 (1866)

87

 President Trump asks us to hold that Section Three disqualifies every oath- breaking insurrectionist except the most powerful one and that it bars oath-breakers from virtually every office, both state and federal, except the highest one in the land. Both results are inconsistent with the plain language and history of Section Three. ¶160 We therefore reverse the district court’s finding that Section Three does not apply to a President and conclude that Section Three bars President Trump from p. 89 88 holding the office of the President if its other provisions are met; namely, if President Trump “engaged in insurrection.” U.S. Const. amend. XIV, § 3.

89

Hearsay statements are out-of-court statements offered in court for the truth of the matter asserted. CRE 801(c). Such statements are generally inadmissible, CRE 802, but CRE 803(8) creates an exception for “reports . . . of public offices or agencies, setting forth . . . factual findings resulting from an investigation made pursuant to authority granted by law.” This exception, however, applies only if the report is trustworthy. Id.

91

First, President Trump claims the Report was biased against him because all nine Committee members voted in favor of impeaching him before their investigation began. Timothy Heaphy, Chief Investigative Counsel for the Committee, testified at trial, however, that although members “certainly had . . . hypotheses that were a starting point,” such hypotheses did not impair the members’ ability to be fair and impartial. Anderson, ¶ 26. The district court found “Mr. Heaphy’s testimony on this subject to be credible and h[eld] that any perceived animus of the committee members towards [President] Trump did not taint the conclusions of the January 6th Report in such a way that would render them unreliable.” Id. We see no abuse of discretion. See People v. Pitts, 13 P.3d 1218, 1221 (Colo. 2000) (“It is the function of the trial court, and not the reviewing court, to weigh evidence and determine the credibility of the witnesses.”).

100

 The question thus becomes whether the evidence before the district court sufficiently established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. We have little difficulty concluding that substantial evidence in the record supported each of these elements and that, as the district court found, the events of January 6 constituted an insurrection.

101

Substantial evidence in the record further established that this use of force was concerted and public. As the district court found, with ample record support, “The mob was coordinated and demonstrated a unity of purpose . . . . They marched through the [Capitol] building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.”

102

Finally, substantial evidence in the record showed that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment and from certifying the 2020 presidential election; that is, to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of power.

As discussed more fully below, these actions were the product of President Trump’s conduct in singling out Vice President Pence for refusing President Trump’s demand that the Vice President decline to carry out his constitutional duties.

107
 On this point, and relevant to President Trump’s intent in this case, many of the state officials targeted by President Trump’s efforts were subjected to a barrage of harassment and violent threats by his supporters. Id. at ¶ 104. President Trump was well aware of these threats, particularly after Georgia election official Gabriel Sterling issued a public warning to President Trump to “stop inspiring people to commit potential acts of violence” or “[s]omeone’s going to get killed.” Id. President Trump responded by retweeting a video of Sterling’s press conference with a message repeating the very rhetoric that Sterling warned would result in violence.

124

 He testified, according to the court’s summary, that (1) “violent far-right extremists understood that [President] Trump’s calls to ‘fight,’ which most politicians would mean only symbolically, were, when spoken by [President] Trump, literal calls to violence by these groups, while [President] Trump’s statements negating that sentiment were insincere and existed to obfuscate and create plausible deniability,” id. at ¶ 84; and that (2) “[President] Trump’s speech took place in the context of a pattern of [President] Trump’s knowing ‘encouragement and promotion of violence’ to develop and deploy a shared coded language with his violent supporters,” id. at ¶ 142.

127

President Trump incited and encouraged the use of violence and lawless action to disrupt the peaceful transfer of power. The tenor of President Trump’s messages to his supporters in exhorting them to travel to Washington, D.C. on January 6 was obvious and unmistakable: the allegedly rigged election was an act of war and those victimized by it had an obligation to fight back and to fight aggressively. And President Trump’s supporters did not miss or misunderstand the message: the cavalry was coming to fight. 

132

 The district court erred by concluding that Section Three does not apply to the President. We therefore reverse the district court’s judgment. As stated above, however, we affirm much of the district court’s reasoning on other issues. Accordingly, we conclude that because President Trump is disqualified from holding the office of President under Section Three, it would be a wrongful act under the Election Code for the Secretary to list President Trump as a candidate on the presidential primary ballot. Therefore, the Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him.

Maine:

  1. As a General Matter, the Secretary of State Has Authority to Keep Unqualified Candidates Off the Primary Election Ballot. As a general matter, states have inherent authority over their ballots. Consistent with state authority to regulate the "Times, Places and Manner" of congressional elections under Article I, Section 4 of the U.S. Constitution, and to manage the selection process for presidential electors, see U.S. Const. art. II, § 1 ("Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors .... "); McPherson v. Blacker, 146 U.S. 1, 35 (1892 ("[T]he appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States."), ''the States have evolved comprehensive ... election codes regulating .... [the] selection and qualification of candidates." Storer v. Brown, 415 U.S. 724, 730 (1974). The inevitable result of States managing their own elections is that each has different requirements and procedures for ballot access, even with respect to presidential candidates. President Biden, for example, will not appear on New Hampshire's 2024 Democratic presidential primary ballot, even though he has qualified for Maine's 2024 Democratic presidential primary ballot. At the same time, Mr. Chris Christie will not appear on the Maine's 2024 Republican presidential primary ballot, even though he will appear on New Hampshire's 2024 Republican presidential primary ballot. Similarly, while state legislatures cannot create new qualifications for holding presidential office, they can choose to establish a process to exclude candidates who fail to meet the qualifications set forth in the U.S. Constitution. See, e.g., Anderson, 2023 CO 63, ,r,r 53-56. As 11 now-Justice Gorsuch observed in Hassan v. Colorado, 495 F. App'x 947 (10th Cir. 2012), "a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office." Id. at 948; see also Lindsay v. Bowen, 750 F.3d 1061, 1065 (9th Cir. 2022) (excluding age-ineligible candidate for president because "a state has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies" (quoting Bullock v. Carter, 405 U.S. 134, 145 (1972))); Socialist Workers Party of Ill v. Ogilvie, 357 F. Supp. 109, 113 (N.D. Ill. 1972) (holding state was not obligated to place presidential candidate on the ballot who did not meet age requirement). It is that authority that the Maine Legislature has delegated to me.As the Rosen Challengers note, under Section 443 of Title 21-A, the Secretary of State is statutorily obligated to determine if a nomination petition meets the requirements of Section 336. See, e.g., Christie v. Bellows, No. AP-23-42 (Me. Super. Ct., Ken. Cnty., Dec. 21, 2023) (affirming Secretary's decision to reject candidate petition of presidential candidate for lacking sufficient certified signatures). Section 336, in turn, requires all candidates, including presidential candidates, to submit a written consent containing a declaration of residency and party designation, and a statement that the candidate "meets the qualifications of the office the candidate seeks." 21-A M.R.S. § 336(3). Section 336 also renders any primary petition void where I find, pursuant to a challenge like those filed in this case, that "any part of the declaration is ... false." Id Maine's election laws thus contemplate that I review the accuracy of a candidate's declaration that they meet the qualifications of the office they seek. I therefore disagree with Mr. Trump's contention that only Congress can adjudicate the qualifications of a Presidential candidate. The State's authority, and that delegated by the Legislature, require me to limit access 12 to the primary ballot to qualified candidates See, e.g., Christie, No. AP-23-42; Carey v. Secy of State, No. CV-2022-09 (Me. Super. Ct., Oxford Cnty., May 10, 2022) (affirming decision to exclude candidate for District Attorney from primary ballot because "Maine election law required that [the candidate] certify ... that he was qualified to serve as a District attorney" but he failed to so certify because by statute he was not qualified).