Colorado Supreme Court removes Trump from 2024 ballot
December 19, 2023 4:09 PM Subscribe

In a stunning decision, the Court ruled that Trump isn’t an eligible presidential candidate because of the 14th Amendment’s insurrectionist ban.
posted by Rykey (214 comments total) 52 users marked this as a favorite

There’s no way this survives the Supreme Court. But does set a precedent for other states to follow suit.
posted by MisantropicPainforest at 4:10 PM on December 19, 2023 [29 favorites]

Good, it's a start. Fuck that guy.
posted by They sucked his brains out! at 4:11 PM on December 19, 2023 [56 favorites]

Is this where the "surely this" goes

(Seriously, though, good news; thanks for the post!)
posted by May Kasahara at 4:14 PM on December 19, 2023 [26 favorites]

It's "surely this" all the way down.
posted by CynicalKnight at 4:16 PM on December 19, 2023 [42 favorites]

Does TFG actually need to be convicted of insurrection, or is what Colorado concluded enough to get by? Does the Jack Smith trial need to complete before this can really take hold?
posted by JoeZydeco at 4:23 PM on December 19, 2023

I thought that elections were under State jurisdiction... can this be appealed to the US Supreme Court?
posted by phliar at 4:25 PM on December 19, 2023 [19 favorites]

What Roman Mars Can Learn About Con Law recently covered this possibility, it has an interesting review of the issues with the clause (tho confirming that water is wet is an obvious plus).
posted by Going To Maine at 4:27 PM on December 19, 2023 [5 favorites]

Does TFG actually need to be convicted of insurrection, or is what Colorado concluded enough to get by? Does the Jack Smith trial need to complete before this can really take hold?

Nobody knows anything in this bizzaro-world timeline, but Robert Reich says no.
posted by Rykey at 4:29 PM on December 19, 2023 [2 favorites]

I am not a judge, but when I read about the previous opinion, I had the same reaction as this appeals court:

The justices continued: “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.’”

To me, OF COURSE the Presidency is an office. "any office, civil or military" seems intentionally broad to me.

This is good news, even given likely appeals.

Thanks for posting this, Rykey!
posted by kristi at 4:29 PM on December 19, 2023 [28 favorites]

If it's a matter of interpreting the Constitution, I think it has to go to the Supremes, though I suppose they could just say "states can do what they want" and pass. But then, Bush v. Gore happened, so who the fuck knows.
posted by emjaybee at 4:30 PM on December 19, 2023 [11 favorites]

The SC already has the immunity claim from Smith on it’s docket, and i think they’ll be hard-pressed todecide that in Trumps favor with losing any remaining legitimacy. After that they will have to decide this?? Unless they are firmly committed to authoritarianism I see trump losing both times.
posted by TDIpod at 4:31 PM on December 19, 2023 [6 favorites]

Does TFG actually need to be convicted of insurrection, or is what Colorado concluded enough to get by?

The opinion says that was already decided by a lower Colorado court:

After permitting President Trump and the Colorado Republican State Central Committee (“CRSCC”; collectively, “Intervenors”) to intervene in the action below, the district court conducted a five-day trial. The court found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three. [...] But, the district court concluded, Section Three does not apply to the President. [...] Therefore, the court denied the petition to keep President Trump off the presidential primary ballot. [...]
Section Three encompasses the office of the Presidency and someone who has taken an oath as President. On this point, the district court committed reversible error. [...]
The district court did not err in concluding that the events at the U.S. Capitol on January 6, 2021, constituted an “insurrection.”
The district court did not err in concluding that President Trump “engaged in” that insurrection through his personal actions.

But they do acknowledge that it could be appealed to the federal Supreme Court, which is why they're staying the execution of the decision until January 4, the day before the ballots are to be certified.
posted by teraflop at 4:37 PM on December 19, 2023 [15 favorites]

Shit just got real.

Spotlight on Clarence Thomas too.
posted by mazola at 4:47 PM on December 19, 2023 [22 favorites]

According to TPM, this will be appealed to SCOTUS. Normally the conservatives there are all in favor of states’ rights. This will be an opportunity for them to show their hypocrisy. I’m sure the delicacy of their legal reasoning will be sublime, and the contortions serpentine.
posted by adamrice at 4:50 PM on December 19, 2023 [46 favorites]

Unless they are firmly committed to authoritarianism I see trump losing both times.

They are firmly committed to quality RVs.
posted by They sucked his brains out! at 4:54 PM on December 19, 2023 [51 favorites]

There’s no way this survives the Supreme Court. But does set a precedent for other states to follow suit.

That’s not clear to me: he hasn’t had a good record with them and the establishment GOP doesn’t like him much. I wouldn’t say it’s likely but I won’t be shocked if they basically say “we value states rights too much to interfere” and decline to get involved.
posted by adamsc at 4:55 PM on December 19, 2023 [9 favorites]

Trump does not need and was never going to win Colorado. Still, it's big. Will Republicans run an alternate candidate in Colorado? Run nobody? Run someone else while getting the message "unofficially" across that electors will vote for Trump anyway? Whatever they decide, it will look bad to those who believe in the rule of law.
posted by rikschell at 4:55 PM on December 19, 2023 [6 favorites]

A majority of the Supremes will kill this and won't even pretend to be concerned about the rule of law. After the last three years I'm astonished that people expect otherwise.
posted by ZaphodB at 5:01 PM on December 19, 2023 [61 favorites]

I can see the Supreme Court going along with this as a favor to the Koch brothers and some other wealthy Republicans. They might also find this useful for future use against democrats.
posted by interogative mood at 5:03 PM on December 19, 2023 [9 favorites]

The Independent State Legislature Theory has entered the chat.
posted by butterstick at 5:06 PM on December 19, 2023 [7 favorites]

this will wendell.
posted by bombastic lowercase pronouncements at 5:06 PM on December 19, 2023 [24 favorites]

After 14 years as a practicing attorney, it no longer shocks me that a supposed court of law could conclude that the law was violated but decide that, nah, there's no penalty and no sanction because WTF, amiright? If the 14th Amendment's ban on insurrectionists seeking office doesn't apply to Trump, then it doesn't exist at all.
posted by 1adam12 at 5:09 PM on December 19, 2023 [40 favorites]

The Koch network is backing Haley, so it’s easier to imagine a favor going the other way. If you really want to think about a back room deal, how many of the Republican elites are tired of Trump complicating their plans and would quietly urge the court to decide that Colorado’s precedent should apply nationally.
posted by adamsc at 5:09 PM on December 19, 2023 [17 favorites]

sorry hippybear-- with this court, I am not generous enough to equate declining to hear with refuting the theory. If they want another bite at the apple, they will take it.
posted by butterstick at 5:11 PM on December 19, 2023 [1 favorite]

"He's really gonna git it this time!"

(I'm not keeping count on how often I've said this).
posted by ovvl at 5:11 PM on December 19, 2023 [6 favorites]

“surely this”, Supreme Court edition.
posted by zenzenobia at 5:29 PM on December 19, 2023 [3 favorites]

If SCOTUS upholds this, the 2024 Presidential election descends into utter chaos, with SCOTUS glumly awaiting a barrage of other lawsuits attempting to remove Trump from other ballots -- and Biden as well, in others. (Frivolous as the attempts would be, I've already seen several calls to remove Biden from the Florida and Texas ballots "due to aiding and abetting a migrant insurrection. If Trump hasn't been convicted but is subject to potential disqualification, it doesn't matter whether Biden has, either.")

So I believe that they will begin with a basic premise -- that they are not going to fundamentally alter the election themselves, and will find instead that it is in the best interests of the nation for the people to decide -- and find pretexts to go 6-3 in Trump's favor, perhaps worse than that, simply to let this poisoned chalice pass from their hands.

Amusingly, the Colorado SCOTUS's ruling rests partly upon a case decided by... Neil Gorsuch, who had declared that "it is a state's legitimate interest in protecting the integrity and practical functioning of the political process" that "premits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office." But assuming that Gorsuch will follow his own precedent here, much less agree that Trump is in fact Constitutionally prohibited, is dangerously wishful thinking.

Geez, I hope I'm wrong.
posted by delfin at 5:35 PM on December 19, 2023 [33 favorites]

So I believe that they will begin with a basic premise -- that they are not going to fundamentally alter the election themselves, and will find instead that it is in the best interests of the nation for the people to decide -- and find pretexts to go 6-3 in Trump's favor, perhaps worse than that, simply to let this poisoned chalice pass from their hands.

This is my guess also. Trump doesn't have much loyalty on the court (which is funny, given how transactionally he approached the appointments), but the SC is also trying to not be in the middle of a total shit-storm, which is what would happen if they upheld this.

Geez, I hope I'm wrong.

Me, too.
posted by Dip Flash at 5:39 PM on December 19, 2023

And so if a state makes rules about who appears on the ballot, that's the rules.

But this decision was based on an interpretation of the US Constitution, and the US Supreme Court has final say over interpreting the US Constitution.

I also think the court will find a way to make a small-c conservative decision and rule in a way that doesn't interfere with the "normal" functioning of elections. It'll be interesting to see how they do it, though. I doubt they'll actually come to a conclusion on the 14th Amendment question.

Because you're planning on having Democratic candidates for President stage insurrections using their followers as cannon fodder while they sit in a banquet hall watching on television?

The theory would be that Democrats are facilitating an insurrection by allowing an immigrant "army" to invade at the Southern border; this is the legal theory that Texas is trying to use to take state control over immigration law.
posted by mr_roboto at 5:43 PM on December 19, 2023 [2 favorites]

The GOP people in government mostly hate Trump as much as they love him, and only the fear of MAGA terrorism literally upon themselves is keeping them in check. Look at how spineless swine McCarthy dealt with the coup attempt: profane outrage in the morning, and then voting for the coup that night.

They're desperate to find enough people with both the intestinal fortitude and the mechanical opportunity to get Trump out of their hair so they can get on with the dirty work of modern GOP fascism without the circus. It just so happens to be that in order to get anywhere in the party now, a spine is a liability, and if you stand up to Trump without the leverage to actually get rid of him? You're out. Just ask Cheney.

They want to get rid of him rather badly, but they want someone else to actually make it happen and take the proverbial, and probably literal, bullets. So at each opportunity, they chicken out. McCarthy. McConnell. Next up: Roberts. I'd put some cash money that he will chicken out like the rest of them.
posted by tclark at 5:48 PM on December 19, 2023 [10 favorites]

I'm not sure anyone on a Federal level can require a State to have anyone on a ballot that the state doesn't qualify to be there.

US Term Limits v Thornton -- a state cannot add to the list of qualifications for office in the constitution, even if it calls it a qualification for ballot access instead of a qualification for office.
posted by GCU Sweet and Full of Grace at 5:52 PM on December 19, 2023 [6 favorites]

I dunno. Scotus is just gonna void an amendment? I mean, I hope not.
posted by j_curiouser at 5:57 PM on December 19, 2023 [2 favorites]

Now's when we set up the Liberals for Better Vacations for Clarence Thomas GoFundMe site and raise funds for a better RV for him.
posted by ocschwar at 6:04 PM on December 19, 2023 [14 favorites]

Written above: "they’ll be hard-pressed to decide that in Trumps favor with losing any remaining legitimacy. " One thing that is clear in this whole muddle is that shamelessness reigns. While appeals to legitimacy, civility and lawfulness ought to be powerful arguments, they increasingly feel like bringing a [holy book of your choice] to a gun fight. As the post Cold War history of Eastern Europe shows, the oligarchs ain't playing.
posted by SnowRottie at 6:05 PM on December 19, 2023 [13 favorites]

Let's hope it's not just another "This time..."
posted by cubby at 6:05 PM on December 19, 2023

This shitshow is going to play out for another year.

(Thanks for making this post, I’m a little burnt out on posting Trump but I love reading other people’s.)
posted by box at 6:12 PM on December 19, 2023 [4 favorites]

I agree with the people saying the Supreme Court will overturn this and that their reasoning and precedents and ostensible justifications don't matter because they do not care; this is not about the law for them, it's about supporting Republicans/conservatives. They can and will make up the rules as they go along because they are not bound by laws or morality and God I hope I'm wrong about where all this ends up but everything I've observed over the last five to ten years makes me think I'm not.
posted by an octopus IRL at 6:14 PM on December 19, 2023 [17 favorites]

Assume that the Colorado decision survives, but SCOTUS frames the issue in such a way that it doesn't automatically apply to other states. Biden would've probably won Colorado anyway. But in this scenario, if enough Trumpists stay home instead of voting, that could have downballot effects, including ending the career of Lauren Boebert, who barely squeaked by to get re-elected to CO-3 in 2022.
posted by gimonca at 6:17 PM on December 19, 2023 [25 favorites]

I predict that the Supreme Court will reject this based on Alito's assessment that the Constitution was written for leprechauns. The Wee people of the United States. . .
posted by dances_with_sneetches at 6:32 PM on December 19, 2023 [13 favorites]

There's no realistic path for SCOTUS to issue a decision which allows this to stand in CO but wouldn't unambiguously mean the end of Trump's entire candidacy. They either uphold it and he's out or they overturn it and he stays in.

It's not as if SCOTUS has ever dribbled out a controversial, election-deciding ruling that they explicitly tried to declare non-precedential and applicable only to immediate and limited circumstances, right?

...Right?
posted by delfin at 6:35 PM on December 19, 2023 [30 favorites]

When I was a kid and they told me "anyone can become president" I really didn't expect this to be what they meant.
posted by ananci at 6:38 PM on December 19, 2023 [33 favorites]

I dunno. Scotus is just gonna void an amendment? I mean, I hope not.

They’ll hang their decision on a candidate needing to be legally proven to have taken part in insurrection.
posted by Thorzdad at 6:38 PM on December 19, 2023 [24 favorites]

Could red states do the same to Biden?…saying he stole the last election; without it legally proven?
posted by brachiopod at 6:42 PM on December 19, 2023 [8 favorites]

What’s fascinating about this is all the permutations of how this plays out. For example: in every battleground state where Trump is ineligible to be placed on the ballot, either Biden wins that state’s electoral votes by default, or the Republicans run some rando candidate. Either way, Trump loses, because electoral votes go to candidates, not parties.
posted by rhymedirective at 6:43 PM on December 19, 2023 [3 favorites]

>I predict that the Supreme Court will reject this based on Alito's assessment that the Constitution was written for leprechauns.

The real reason Clarence Thomas bought that rv was he was looking to get back to Schmigadoon.
posted by Catblack at 6:43 PM on December 19, 2023 [5 favorites]

Is the US gonna end up with an Imran Khan situation where Trump is using an AI avatar to campaign from behind bars?
posted by clawsoon at 6:44 PM on December 19, 2023 [2 favorites]

if the supreme court affirms the colorado decision, that is functionally the same as agreeing trump engaged in insurrection, effectively removing him from the ballot in every state.

I say this with the full legal expertise of a guy who was pre-law for a while, but I don’t think that’s necessarily true—there was a finding of fact to that effect in a Colorado court, but I don’t think that finding is binding on other states or that it’s necessary for the Supreme Court to endorse the finding to rule that the Colorado Supreme Court followed the law correctly subsequent to that finding. (Beyond that though, I would be shocked if they let this stand.)
posted by Horace Rumpole at 6:48 PM on December 19, 2023 [6 favorites]

Could red states do the same to Biden?…saying he stole the last election; without it legally proven?

At this point, who the fuck knows. I’m sure some of them will try.

Honestly, I’m to the point where I’ll be shocked we even have an election in 2024. Not in all 50 states, anyway. And not without serious violence, both before and after the election. The next year is going to be a royal shitshow.
posted by Thorzdad at 7:03 PM on December 19, 2023 [17 favorites]

Can't we just get someone on the left this time to jingle some RV keys in front of a few judges, in the name of democracy?
posted by They sucked his brains out! at 7:10 PM on December 19, 2023 [9 favorites]

If this is overturned narrowly, the barrage of lawsuits that will follow (most tossed out on standing, but enough to maximize chaos) will be epic. Attempts to declare Trump ineligible in state X and Biden ineligible in state Y and Trump eligible in state Z and that the 14th doesn't apply to Trump at all and every other cockamamie theory some guy on Newsmax can dream up.

And the problem there is that the primaries and the general election are coming up SOON. Lawsuits do not flit through courts, generally speaking, at the speed of sound. Declaring Trump eligible OR ineligible now is weighty, but it pales besides doing so after he is the formally nominated Republican candidate. Escalating madness and chaos lie that way, and while it is not the job of SCOTUS to avoid madness and chaos at their doorstep, you can be damned sure that they'll do it if they have a way out.
posted by delfin at 7:17 PM on December 19, 2023

I went to bed the night Trump beat Clinton thinking that was the beginning of the end of the United States. Not much since then has shaken that belief, and now things are almost certainly too far gone for there to be a positive resolution.
posted by The Card Cheat at 7:17 PM on December 19, 2023 [31 favorites]

Bush v. Gore featured Scalia fundamentally betraying his stated ideology to intervene in a presidential election, so, like, 🤷‍♀️. This was one of the major reasons I was losing my mind when RBG kicked the bucket.
posted by constraint at 7:24 PM on December 19, 2023 [18 favorites]

> I went to bed the night Trump beat Clinton

I am so mad about what the last 7 years could have been like.
posted by constraint at 7:26 PM on December 19, 2023 [60 favorites]

It doesn't even need to corruption or one hand washing the other here. It can just be rank cowardice!

Look at every judge who punts on QI instead of making a tough call, deferring to "well, this didn't happen under any existing precedent so... too bad". I feel like a few drinks in most lawyers have a tale to tell of "Well, it should have been this way, but it was the other way. Because the judge is elected in this state/county/city". Or the judge has eyes on a higher prize.
posted by Slackermagee at 7:34 PM on December 19, 2023 [1 favorite]

Also, Trump’s legal situation reminds me of that Simpsons gag where Mr. Burns’ doctor says he has so many diseases that none of them can break through and actually harm him.
posted by The Card Cheat at 7:36 PM on December 19, 2023 [35 favorites]

I do not understand why people are talking abiut precedent or legal argument.

SCOTUS has made it clear that no precedent binds it. It will do so in a ficticious case - where the events never happened and where invented out of whole cloth.

It will invent legal blather for what it does, but the law does not bind SCOTUS. It does whatever its federalist society trainers and its financially generous friends says.

Ya'all ain't a nation of laws. Peaceful transition of power has been interrupted. 30% of the country believes any election they don't win is illegitimate.

Fiddle.
posted by NotAYakk at 7:50 PM on December 19, 2023 [45 favorites]

The Republican Party of the United States of America does not believe in the rule of law. They only use the courts and the law to advance their white supremacist agenda. Let's see a judge put that in an opinion. I am sick and tired of this, "Ain't no rule that says a dog can't play basketball," routine.
posted by ob1quixote at 7:50 PM on December 19, 2023 [14 favorites]

Trump fucken hates judges. Hates 'em. Says it all the time. All the time! Even his own appointees.

Perhaps SCOTUS will realize that a new Trump regime won't be good for them. Suppose they have to make a decision about any of his batshit plans. They say no to concentration camps in the desert, so he tweets out their home address. They must see this coming.

They'll lose their power in a new regime. They really love their power.

---

Just a reality check, this has been obvious since J6. That guy can't run again, he did a coup! We all saw it! He should have been in prison that night, right? Everything is broken.
posted by adept256 at 8:07 PM on December 19, 2023 [35 favorites]

The Republican Party of the United States of America does not believe in the rule of law.

During the first debate, the candidates were asked if they would pardon Trump on their first day. All but one (Asa) raised their hand. Before any trial, before any evidence is presented, before any defense, before any jury decision, before any judges finding or sentencing, they have decided none of that matters. The law doesn't matter - that's what they were saying when they raised their hands.
posted by adept256 at 8:13 PM on December 19, 2023 [31 favorites]

IMO, SCOTUS needs to rule quickly on the J6, "Total immunity," appeal first. Then quickly on this one, too, although they can drag their feet and do some sort of stay of execution BS...

The RNC screwed the pooch on this one already. The Republicans had their shot at impeachment, but they punted, hoping someone else would bail them out. Now they're pot-committed to a bad hand, and have no options but to watch it all crumble around them.

SCOTUS doesn't want to lose their power, or their lifetime appointments, and allowing PO1135809 to become King of the USA doesn't bode well for them. This whole thing is so clownish and stupid.
posted by Chuffy at 8:23 PM on December 19, 2023 [11 favorites]

(Regardless of SCOTUS, the Republican candidate for president is not going to be removed from the ballot in swing states or red states - I believe Michigan has already punted on a similar case. I’m all in favor of doing everything possible to make it clear that the last President and his party have done crimes, but this is just gonna be a good thing that happened, not a silver bullet.)
posted by Going To Maine at 8:45 PM on December 19, 2023 [4 favorites]

I expect that if SCOTUS overturns this decision it will be on procedural grounds. The original case was not tried and decided within the timeframe required by Colorado law, so they've got a very similar out to the one they used in Bush v. Gore.

Which way they actually rule, all I've got is ¯\_(ツ)_/¯. It really could go either way.
posted by wierdo at 8:46 PM on December 19, 2023 [3 favorites]

Elections are run by the states, even for President. And so if a state makes rules about who appears on the ballot, that's the rules. I'm not sure anyone on a Federal level can require a State to have anyone on a ballot that the state doesn't qualify to be there.

This is wrong. States cannot set rules for Federal eligibility that exceed what is in the Constitution. This has come up with, e.g., attempts to impose term limits on Congress.

What states can do is set rules for things like signatures required to appear on a ballot. They couldn't do something like say "We only want people of over 55 years to be eligible." Any attempt to remove a major party candidate will get serious scrutiny.

Federal courts has intervened in state approaches to elections any number of times, most memorably in 2000 in Florida.
posted by mark k at 8:57 PM on December 19, 2023 [1 favorite]

Just a reality check, this has been obvious since J6. That guy can't run again, he did a coup! We all saw it! He should have been in prison that night, right? Everything is broken.

I think you just quoted the Colorado Supreme Court.
posted by susiswimmer at 9:13 PM on December 19, 2023 [10 favorites]

After Bush v Gore, there's no reason to believe that the Supremes will decide based on anything but power and politics. The question, as comments here have so clearly demonstrated, is where the power and politics of the majority are going to lie.

Either way it's a bad look. Either they let the guy who did a coup run for president again or they interfere in a big way in the presidential election. If it were me, I'd take the hit for interference (and use the same language from Bush v Gore about not being a binding precedent on other decisions, big eyeball), but I'm a pinko commie and couldn't get confirmed even if I'd been a practicing lawyer because 1. would not have gone to the correct set of law schools to get in the pipeline; 2. as mentioned, pinko commie; 3. would not lie to the Senate to get on the court, so absolutely unconfirmable.

But there is no way that SCOTUS comes out of this making any decision, including "we decline to review", where anybody respects what they do even if they like the outcome. If Roberts thought he had a legitimacy crisis on his hands before with all the (lack of) ethics business, wait until he sees what happens after this case, even on the off chance someone forces Thomas to recuse himself.
posted by gentlyepigrams at 9:22 PM on December 19, 2023 [6 favorites]

“Let's talk about Trump being off the ballot in Colorado....” [3:48]—Beau of the Fifth Column, 19 December 2023
posted by ob1quixote at 9:30 PM on December 19, 2023 [2 favorites]

It seems like there's a easy way out for SCOTUS. They can simply void it based on Trump not having been convicted. The Constitution isn't overturned, it's open for future people to be excluded. And they side-step the chaos of Republicans trying to remove Biden.
posted by CheeseDigestsAll at 9:34 PM on December 19, 2023 [4 favorites]

The way this plays out is a bunch of blue states rule him off the ballot and the blue state center vote is split Biden/Halley and Trump runs away with the electoral collage.
posted by simra at 9:42 PM on December 19, 2023 [1 favorite]

the blue state center vote is split Biden/Halley

I don’t understand - Haley is going to lose to Trump in the primary and then possibly run as his veep. I don’t think she has any way into the Republican slot on any state once Trump is the nominee; she doesn’t get to just fall into line as a Republican standard bearer. She could conceivably do a third party run, but that seems like shooting her future career in the foot. Rather, the foreseeable result of Donald Trump not being on the ballot in blue states is a lot of blue state conservatives being very angry that they can’t vote for someone they like, plus the varied fallout of that anger.
posted by Going To Maine at 10:03 PM on December 19, 2023 [8 favorites]

Cue the most batshit red state governments declaring Biden off the ballot for ginned up insurrection charges.
posted by qxntpqbbbqxl at 10:18 PM on December 19, 2023 [2 favorites]

Note that the CO decision was based on "clear and convincing evidence", not "beyond a reasonable doubt". This is a civil case about Trump violating his oath of office, not a criminal case.
posted by ryanrs at 10:25 PM on December 19, 2023 [7 favorites]

I wonder whether someone like Roberts is planning to rule against Trump on the cases involving presidential immunity, whether J6 was obstruction, etc. There may well be 5 SCOTUS votes for allowing most of Trump's federal prosecutions to go forward.

If so, then the strategic question becomes: Is it better to overrule the CO Supremes now to build up SCOTUS's reputation for neutrality before ruling against Trump later? Or is it better to start using all the tools available to bury a guy known for revenge?

My sense is DoJ had a tipping point with Trump where they finally opted for the latter. Maybe SCOTUS will find itself in a similar position.
posted by airing nerdy laundry at 10:27 PM on December 19, 2023 [1 favorite]

Taking PO1135809 off the ballot could have the bonus effect of Republicans not voting in any of the down-ticket races, too. House and Senate races that were "close" go blue. Places like Fresno/Bakersfield in States like California could feasibly go blue as well...McCarthy retiring gives us seats in places that would normally not vote for Democrats.

None of this is good for democracy, but it could play out disastrously for the red team, and it would serve them right...
posted by Chuffy at 10:57 PM on December 19, 2023

Would you rather rule against:
- GOP primary candidate Trump
- GOP nominee Trump
- Self-Declared President-elect Trump
- Dictator Trump

(Or alternatively, rule in favor of Dictator Trump. That'd probably be fun ride for a while.)
posted by ryanrs at 11:00 PM on December 19, 2023 [3 favorites]

this comment from Raffi Melkonian made me laugh out loud for 30 seconds...

"Just deny cert and be legends"
posted by bruceo at 11:09 PM on December 19, 2023 [7 favorites]

So if the "surely this" scenario plays out, then what? DJT has to be convinced to release his delegates at the convention???
posted by kensington314 at 11:10 PM on December 19, 2023 [1 favorite]

Interesting times. Regardless of this court's open corruption, it would be a hard situation for any SC, and now it is double hard. About a third of the country support the insurrection -- that is civil war numbers. The right thing would have been to decide this in Congress and if I were the chief justice, I'd be pretty mad at Mitch McConnell.

If the court upholds the 14. amendment, as they should, they will all personally be under threat and a third of the country will be enraged. If they don't do it, faith in the judicial system will erode further.

I don't think anyone feels they owe Trump anything.
posted by mumimor at 1:18 AM on December 20, 2023 [8 favorites]

I don’t think she has any way into the Republican slot on any state once Trump is the nominee;

Surely the GOP would sue to have a nominee in states where Trump is disqualified, or worst case work out a way to put Haley or some other spoiler on the ticket as an independent. I don’t think removing Trump from the ballot in blue states necessarily hands EC votes to Biden.
posted by simra at 2:59 AM on December 20, 2023 [1 favorite]

I don't understand the American system very well, so help me out. Trump gets kicked off the ballot in deep blue states he wouldn't have won anyway. Deep red states kick Biden off their ballots. The remaining states leave the ballots untouched, and decide the election.

Isn't that essentially what happens anyway?
posted by GhostintheMachine at 3:09 AM on December 20, 2023 [7 favorites]

Rick Wilson of "The Lincoln Project" quipped/reported the self evident truth,

"Clarence Thomas just send a note to the Trump campaign with his Venmo information."

It's not clear to me on what standing the Supreme Court can rule on Colorado State Law? I'll find out soon enough, I know, but it seems what Colorado is doing is not wild and crazy.

Also, there's a central paradox to the US which is hard to grasp and that is what people/states/governments say vs. what they do. And often they are starkly at odds, yet the media environment is such that crazy-strong statements get made that have no basis in reality...
posted by From Bklyn at 3:15 AM on December 20, 2023 [2 favorites]

One aspect that hasn't been mentioned yet--if enough states start removing candidates off the ballot, for either legit or bogus reasons, you increase the possibility that no candidate will get the 270 electoral votes for a majority, which leads to a contingent election per the parameters set out in the Constitution.

If you think the electoral college is unfair by giving more power to small states, the contingent election for president is much more so: one state one vote, each state delegation in the House gets one vote. The running assumption is that Republicans would win a contingent election. I think Republicans would control 26 states currently, exactly the number needed to win, the newly elected House would hold the contingent election.

And of course, all this would happen in the House, which has struggled twice just to elect its own speaker in the current session.

It's unlikely, but it seems like yet another path that would lead towards deeper constitutional crises if it happens.
posted by gimonca at 3:38 AM on December 20, 2023 [8 favorites]

Surely the GOP would sue to have a nominee in states where Trump is disqualified, or worst case work out a way to put Haley or some other spoiler on the ticket as an independent. I don’t think removing Trump from the ballot in blue states necessarily hands EC votes to Biden.

I think this is right. The CO case removed Trump from the GOP primary ballot, but somebody's going to win that primary. (And in the unlikely-ish event that this somebody wins CO's electoral votes, the slate of electors they send to D.C. would be free to vote for Trump instead of DeSantis/Haley/whoever.)

...

I don't understand the American system very well, so help me out. Trump gets kicked off the ballot in deep blue states he wouldn't have won anyway. Deep red states kick Biden off their ballots. The remaining states leave the ballots untouched, and decide the election.

Isn't that essentially what happens anyway?

Only in the very broadest strokes. We don't know to what extent CO's ruling will start a trend (who knows; maybe SCOTUS will nip this in the bud), but the control of a state's courts is not perfectly correlated with that state's presidential voting patterns. Wisconsin, for example, consistently has popular vote margins on statewide races that are very close to 50/50. We are a crucial swing state. But our recent judicial election gave the liberals control of SCOWI. And if party chair Ben Wikler is half as good as he's reputed to be he will be scrambling to find some lawyers to bring a CO-like case to take advantage of that. Without WI, Trump will not have many plausible paths to victory.

...

It's not clear to me on what standing the Supreme Court can rule on Colorado State Law? I'll find out soon enough, I know, but it seems what Colorado is doing is not wild and crazy.

What CO did was not crazy at all. They did exactly what they should have done- what it was obvious on Jan. 6th that every state should have done.

Crazy or not, though, SCOTUS does have jurisdiction here. If I'm remembering correctly, SCOTUS has deferred to states on election cases that were decided on the basis of those states' individual constitutions. But I didn't think any of this case hinged on Colorado's constitution or any of its state law, though. It was decided on the basis of the U.S. Constitution. That's solidly in the purview of SCOTUS.
posted by a faded photo of their beloved at 3:52 AM on December 20, 2023 [14 favorites]

Also, if candidates get removed from the ballot, this could set up another series of lawsuits and challenges against state elections, legit or not, during the season between election day on November 5, 2024 and the electoral college itself on January 6, 2025. Basically, stress-testing of the Electoral Count Act and the reforms to it that were passed after the last January 6.
posted by gimonca at 3:58 AM on December 20, 2023 [1 favorite]

(And in the unlikely-ish event that this somebody wins CO's electoral votes, the slate of electors they send to D.C. would be free to vote for Trump instead of DeSantis/Haley/whoever.)

That's a "faithless elector" situation. This got me running back to double-check....Colorado does have a law requiring electors to vote for the winner in the statewide election. Supreme Court says Colorado can do this, there was a case involving the 2016 election. So in the unlikely-but-not-impossible situation where Trump is not on the ballot in Colorado but (for example) Nikki Haley wins the popular vote in the state, that's supposed to be 9 electoral votes for Nikki Haley.
posted by gimonca at 4:13 AM on December 20, 2023 [5 favorites]

Good! Now all we have to do is deport him to Russia.
posted by DJZouke at 5:03 AM on December 20, 2023 [2 favorites]

But does the Colorado "faithless elector" law actually prevent electors from voting for someone else? Or does it just punish them if they do? Because Trumpists aren't really concerned about breaking laws, don't know if you heard.
posted by rikschell at 5:04 AM on December 20, 2023 [6 favorites]

Just a reality check, this has been obvious since J6. That guy can't run again, he did a coup! We all saw it! He should have been in prison that night, right? Everything is broken.

This a hundred thousand million times.

I can't fathom how insanely stupid it is that, having successfully repelled an attempted coup, our civic and political institutions are just going to let him have a do-over.

And it seems very likely that the Supreme Court, the highest court in the land, will debase itself and it's reputation in order to give this fucking guy a second chance. Because everything sucks and no one's willing to stand up to this moron.
posted by RonButNotStupid at 5:24 AM on December 20, 2023 [22 favorites]

But does the Colorado "faithless elector" law actually prevent electors from voting for someone else?

In Colorado's case the offending elector and their vote were replaced by someone else.
posted by GCU Sweet and Full of Grace at 5:26 AM on December 20, 2023 [2 favorites]

Man this must drive Pete Rose crazy.
posted by MonsieurPEB at 5:30 AM on December 20, 2023 [17 favorites]

This is also the worst game of chicken ever. Republicans hate Trump but won't do anything about him because they'd rather score political points shedding crocodile tears about how unfair his takedown was while promising to avenge his political legacy. And Democrats don't want to give Republicans that opportunity and risk the optics of meddling with the election because Trump is first and foremost their fucking problem that they unleashed on the country and they need to take responsibility.

You'd think this is one of those times where an impartial and apolitical judiciary could swoop in, take the hit, and let everyone save face, but no. Republicans have already politicized the judiciary.
posted by RonButNotStupid at 5:41 AM on December 20, 2023 [8 favorites]

so they've got a very similar out to the one they used in Bush v. Gore.

They don’t need an out! They can literally do whatever they want! The law doesn’t matter because it’s all made up and the SCOTUS judges can rule however they want with no accountability!
posted by MisantropicPainforest at 5:42 AM on December 20, 2023 [14 favorites]

They don’t need an out! They can literally do whatever they want! The law doesn’t matter because it’s all made up and the SCOTUS judges can rule however they want with no accountability!

This. The majority opinion they hand down from Mount Olympus could be a half-finished crossword puzzle from the New York Times and it wouldn't change the legality.

You can't appeal SCOTUS. Every lawyer in the country could say they were wrong and it wouldn't matter. 5 of the 9 agreeing on something is what defines legality.

Up until a few decades ago (for some people) maybe there was a fig leaf that these were Serious People making Serious Faces and applying The Law in a way that was impartial. But that's just never been true. And we're at a crossroads where basically everybody is realizing that.
posted by howbigisthistextfield at 5:54 AM on December 20, 2023 [18 favorites]

The Supreme Court is very conservative but its not MAGA land. I honestly think they would love to take this opportunity to bar Trump from office nationwide and try to reclaim the Republican party from the barbarians. However, they're also not stupid (mostly). Republicans know they need the barbarian vote to win elections and if they stab Trump in the back then Republicans will never win an election ever again. Especially every single Republican who has enthralled themselves to Trump and the barbarian horde - at this point basically everyone.

The question to ask is can the liberal three convince two more Justices to excise the tumor and pray that Nikki Haley, Fox News, and the Koch Network win the day in the end? Cause that's actually what we're asking.
posted by Glibpaxman at 5:56 AM on December 20, 2023 [8 favorites]

So after thinking about this overnight, I've had two thoughts. First, I used to believe that the Supreme Court was at least somewhat impartial, or at least judged based on law and their best attempts to interpret that. It's actually rather depressing that I immediately assumed they are going to rule based entirely on their political opinion and the actual law won't come into play except as a fig leaf.

Second, I think if I'm an "old-school" republican, or if I'm a donor, I'm seizing on this as a gift from god to get rid of Trump once and for all without danger to myself. I think it's painfully clear that half of the republican establishment would love to be rid of Trump, but they don't know how to get off the tiger without becoming the next meal.

Every prior opportunity they missed because it would require showing some bravery and maybe losing their next reelection campaign. As a result they've had to smile and support every batshit crazy thing he says less they anger his supporters. But now! Now, it can all come down to 3 or 4 justices who never have to run for election. Justices who have very clearly demonstrated that they can do whatever they want without any repercussions ever.

If I'm a big-time donor, I'm reaching out to Thomas and letting him know that the money spigot will stay open. This is a new "outrage" I can use to replace abortion for the next 20 years. Honestly, it's even better than abortion because Trump is a) probably going to jail, and b) old and unhealthy enough that he's likely to die soon; I can run my future campaigns for years on the injustice of the thing and not actually having to risk getting him back in power again.
posted by Eddie Mars at 6:04 AM on December 20, 2023 [17 favorites]

What if the Supreme Court upholds the decision? Republicans risk nothing in a blue state like CO but get to turn Trump into even more of a national martyr and question the legitimacy of "democracy." Plus other states get to do it now, too.

I think some of you may be pre-celebrating a bit too soon.
posted by Christ, what an asshole at 6:05 AM on December 20, 2023 [2 favorites]

The Supreme Court is very conservative but its not MAGA land.
However, the money that is fueling the christian nationalist movement in the USA is very much MAGA, and those are the people who finance the worst of the wingnut justices.
posted by JohnFromGR at 6:58 AM on December 20, 2023 [5 favorites]

Second, I think if I'm an "old-school" republican, or if I'm a donor, I'm seizing on this as a gift from god to get rid of Trump once and for all without danger to myself.

That's what David Frum (The Atlantic gift link) is pitching.
posted by box at 7:15 AM on December 20, 2023 [1 favorite]

“Supreme Court Has Just 17 Days To Restore Trump To Ballot”—Countdown with Keith Olbermann, 20 December 2023

“What was most impressive about the actual decision written by the Colorado Supreme Court was that it attacked the issue from the outside in. Starting large and going small. Denying the state the right to preclude from its election a candidate that the constitution says is ineligible because he participated in an Insurrection would also, ‘Mean that the state would be powerless to exclude a 28-year-old a nonresident of the United States or even a foreign National from the presidential primary ballot in Colorado.’”

posted by ob1quixote at 7:21 AM on December 20, 2023 [7 favorites]

Places like Fresno/Bakersfield in States like California could feasibly go blue as well...McCarthy retiring gives us seats in places that would normally not vote for Democrats.

No, that is not feasible at all. Anyone familiar with that part of the Central Valley knows it's deep red down there, McCarthy won reelection last year with over 67% of CA 20. (It's the northern and mid-San Joaquin Valley that's fairly purple. Once you're down in the Tulare Basin, it's pretty much MAGAland.) People aren't going to start magically voting for Democrats just because their favorite Republican isn't on the ballot--they'll vote for the next R in line.
posted by LooseFilter at 7:31 AM on December 20, 2023 [6 favorites]

No, that is not feasible at all.

For what it's worth, McCarthy for all his feckless inability to run a party caucus in the House was a rather effective fundraiser. California's GOP will likely suffer quite a bit for it, and the more purple seats in the northern central valley and in Orange County are likely to be more in play without McCarthy than if he were still the Speaker.
posted by tclark at 7:42 AM on December 20, 2023 [1 favorite]

I've already seen several calls to remove Biden from the Florida and Texas ballots "due to aiding and abetting a migrant insurrection"...

Getting louder now, directly from the Lt Gov of Texas.
posted by JoeZydeco at 7:55 AM on December 20, 2023

Such calls would be far more credible if they also took up the morally consistent position of tearing down every statue of Sam Houston, and returning Texas to Mexico.

It would still be the wrong call of course.
posted by pwnguin at 8:01 AM on December 20, 2023 [6 favorites]

What if the Supreme Court upholds the decision? Republicans risk nothing in a blue state like CO but get to turn Trump into even more of a national martyr and question the legitimacy of "democracy." Plus other states get to do it now, too.

No. If the Supreme Court upholds the decision, Trump is out. The CO law used in the case says that you can't put someone on the ballot if they're not legally eligible to hold the office. The finding was that Trump is disqualified from being President by virtue of fomenting insurrection under the 14th amendment and so yes, he can't appear on the ballot. So if the Supreme Court upholds it, they're upholding that finding and thereby settling the question of whether Trump can be elected or not, period.* The view that this applies only to Colorado makes no sense. According to Colorado law as of yesterday, Trump cannot be President. If he is elected, is he then President of all the states except Colorado?

*And that's one that will have to be settled if Trump is elected next November. Surely there will be lawsuits at that point arguing that he can't take office. The Supremes are eventually going to have to say yes or no on this.

But, hey, I'm apparently just here to grandstand and oppress marginalized communities based on my privilege while I wait to eagerly go fascist at the first opportunity. So don't pay any attention to me.
posted by Naberius at 8:03 AM on December 20, 2023 [5 favorites]

“surely this”, Supreme Court edition.

Surely v. This (2023)
posted by kirkaracha at 8:07 AM on December 20, 2023 [11 favorites]

Ha! I just had a thought. If I'm Trump, I'd be trying to make a deal behind the scenes.

Agree to have the SC rule that he can't be president, but also rule that he is immune from the pending cases against him. He stays out of jail and can continue having fun making speeches, raising money, and playing king maker. All the perks of being president (power, immune from jail) without having to do the actual job, which he clearly hated.
posted by Eddie Mars at 8:22 AM on December 20, 2023 [4 favorites]

Congressional Research Service, "The Insurrection Bar to Office: Section 3 of the Fourteenth Amendment"

Section 3 of the Fourteenth Amendment does not expressly require a conviction and historically, one was not necessary. Reconstruction Era federal prosecutors brought civil actions in court to oust officials linked to the confederacy, and Congress in some cases took action to refuse to seat Members. Section 3 of the Fourteenth Amendment was last used in 1919 to refuse to seat a socialist congressman accused of having given aid and comfort to Germany during the First World War, irrespective of the Amnesty Act. The congressman, Victor Berger, was eventually seated at a subsequent Congress after the Supreme Court threw out his espionage conviction for judicial bias.

Amnesty And Section Three of the Fourteenth Amendment

During the debate on Section Three, one Senator asked why ex-Confederates “may be elected President or Vice President of the United States, and why did you omit to exclude them? I do not understand them to be excluded from the privilege of holding the two highest offices in the gift of the nation.”

Another Senator replied that the lack of specific language on the Presidency and Vice-Presidency was irrelevant: “Let me call the Senator’s attention to the words ‘or hold any office, civil or military, under the United States.’”

posted by kirkaracha at 8:39 AM on December 20, 2023 [24 favorites]

I've been thinking about this for a while now: both the general notion of removing Trump from the ballot as an insurrectionist, and specifically the Colorado ruling. While I think Trump represents an existential threat to the United States, he has to be defeated at the ballot box or a combination of fast food and actuarial tables.

I acknowledge Trump's behavior on January 6 was very much an insurrection, and the Fourteenth Amendment provides the exact mechanism to address that. But we don't live in a world where January 6 is openly described by all Americans as an "insurrection." Because of this, it's going to be viewed as coming after Trump by at best a technicality.

Primarily it needs to be the former of. my prior options (the ballot box): the people of this country, progressive and old school conservative voting him out. Anything less emboldens the MAGA movement. They will talk about Trump was unjustly persecuted, and, by extension, how they themselves, the true heirs to the Founding Fathers, are being persecuted. If these un-American elites and "invent" charges and reasons to take out Trump, they can do it to any of these Real Americans. The only way to defeat this is for voters across the political spectrum to say "No!" This assumes folks on the right have the courage to do so, which, to this point, they have not.

The other risk is we continue this game of tit for tat. MTG has been describing any gathering of liberals with signs as an "insurrection." The GOP is impeaching the current president simply to level the score. The GOP, in order to stay in power, will give their representatives whatever fig leaf they need to both-sides this. I fear continuing down this path will get much worse.

As much as the rule of law should address this, I think the only way out is for everyone to agree this is not who we are, and reject it at the voting booth, and continue rejecting every claim and mis-truth offered as to why they were "again" wronged.

*Edited because I added a paragraph in the middle during the initial draft, and a reference became unclear.*
posted by MrGuilt at 8:47 AM on December 20, 2023 [5 favorites]

> "What if the Supreme Court upholds the decision?"

They won't.
posted by kyrademon at 8:48 AM on December 20, 2023 [2 favorites]

Primarily it needs to be the former: the people of this country, progressive and old school conservative voting him out. Anything less emboldens the MAGA movement.

The problem with this though is that in the eyes of MAGA anybody who doesn't vote for Trump is a disqualified vote. They're already calling for vote disenfranchisement for as many "not Real American" groups as possible. a priori an election that doesn't enshrine the appointed candidate is invalid.

I mean, I'm with you on concept. Let's do that. But also let's continue doing everything else possible.
posted by CrystalDave at 8:52 AM on December 20, 2023 [5 favorites]

[Using this ruling to remove Trump] what David Frum (The Atlantic) is pitching.

And on Slate, Lawrence Lessig is advocating that The Supreme Court Must Unanimously Strike Down Trump’s Ballot Removal, pretty much for the reasons given by MrGuilt above.

But if state officials from blue states can remove red state candidates, or vice versa, that state bears no cost. Instead, it gains a political victory. In the language of economics, the decision imposes an externality on the nation, which is exactly the kind of decision that states alone should not be making for other states. Such behavior is obvious to lead to a tit for tat and a breakdown of our entire electoral system.

posted by Artful Codger at 8:56 AM on December 20, 2023 [4 favorites]

The court is political, and always has been, because all laws and their applications are political. Being for or against equal and just application of law is a political viewpoint. There's centuries of jurisprudence on this. If anything equal application of the law regardless of political standing, class, race, etc. is relatively new and relatively radical. It's the position I support as the only just one, but it is absolutely a political position, and absolutely not one that all members of the court hold.
posted by Lentrohamsanin at 8:56 AM on December 20, 2023 [5 favorites]

I live in Colorado. As others have said, Trump was never going to win here and it is entirely possible this will be overturned by the Supremes (an interesting observation: in any sane system of juris prudence a Supreme Court justice appointed by the man whose case is before them would surely recuse themselves…)

But I’d be thrilled if Trump was not on my ballot, even if it was just symbolic. The man clearly and obviously attempted to overturn a free and fair election.
posted by teece303 at 8:57 AM on December 20, 2023 [5 favorites]

he has to be defeated at the ballot box

This is nonsense, he already has been. (Twice, but for the electoral college.) If he is allowed on the ballot in 2024 and is defeated again, he and his followers will simply deny that inconvenient fact, as they already have. QED by reality already.

There is no perfect defeat of Trump that should ever be preferred over the simple good of neutralizing the threat that he is. There is only effective and ineffective.
posted by LooseFilter at 9:01 AM on December 20, 2023 [48 favorites]

he has to be defeated at the ballot box

He was. Then he supported a violent insurrection to overturn that result. There are limits and consequences, even in a liberal democracy.
posted by Glibpaxman at 9:06 AM on December 20, 2023 [34 favorites]

Anything less emboldens the MAGA movement. They will talk about Trump was unjustly persecuted, and, by extension, how they themselves, the true heirs to the Founding Fathers, are being persecuted. If these un-American elites and "invent" charges and reasons to take out Trump, they can do it to any of these Real Americans. The only way to defeat this is for voters across the political spectrum to say "No!" This assumes folks on the right have the courage to do so, which, to this point, they have not.

This is extremely dangerous thinking. It's how MAGA wins. Their persecution complex is the fixed core of their being. No matter what we do, they will consider themselves the only true heirs to the Founding Fathers, and will proceed as if they were the most persecuted group in history. By refusing ever to compromise while you continually meet them halfway to assuage their feelings, you guarantee that we will inevitably live entirely according to their wishes. They know this. The strategy is working. The only way to fight back is to ignore their behavior entirely. Do not let their threats be part of the calculus of governance. Simply apply the law every time, in every instance.
posted by lefty lucky cat at 9:11 AM on December 20, 2023 [34 favorites]

The other risk is we continue this game of tit for tat. MTG has been describing any gathering of liberals with signs as an "insurrection." The GOP is impeaching the current president simply to level the score. The GOP, in order to stay in power, will give their representatives whatever fig leaf they need to both-sides this. I fear continuing down this path will get much worse.

This is an extremely disingenuous, both-sides view of the situation. Keep in mind that the January 6th insurrection's 'tit' was a response to the 'tat' of Biden winning the 2020 election fair and square.

What are we supposed to do when one side responds to election outcomes they don't like in increasingly violent and threatening ways? Allow them to do it in the hopes that they won't be more violent and threatening in the future?
posted by RonButNotStupid at 9:15 AM on December 20, 2023 [28 favorites]

The whole line of reasoning that doing something good will give the right the excuse to do something bad is based on the flawed premise that they will wait for an excuse.
posted by Horace Rumpole at 9:20 AM on December 20, 2023 [45 favorites]

They will talk about Trump was unjustly ...

I already don't give a fuck what they talk about. They will talk and it will be nonsense like always.

I just watched an interview with Anne Applebaum and she pointed out that Berlusconi was banned from running for five years, by which point he was too old (it happens people), and his cult had deflated. Bolsinaro has been banned from running until 2030, by which time he will have had covid over 400 times, and have a tiny shrinking cult. So there's some international precedent for these populist weirdos just going away if you ban them.
posted by adept256 at 9:21 AM on December 20, 2023 [24 favorites]

There is little doubt in my mind that this SCOTUS will find an excuse to overturn if they can, but under the circumstances I am extremely curious to know what that strategy will look like.

The challenge for the Court here, as I understand it, is that “did Trump do an insurrection” is not even on the table for them. The lower court only punted on whether the Presidency was an “office” for purposes of the Insurrection Clause, and that’s the decision the Colorado Supreme Court has overturned on appeal. If I am misreading this I’d love someone more lawyerly to correct me, but it seems as if in this case Trump’s engagement in insurrection is presented as a finding of fact, and the question of law is whether a person so situated is excluded from the Presidency. If accurate, it seems to back the SCOTUS into a corner where they have to address the hard Constitutional question if they hear the case at all.

Thus if I’m a Justice who is inclined to shoot down Insurrection Clause issues for Trump, this is not the case I’d want dropped in my lap. Like many in this thread I initially supposed the Court might take the case and uphold on states’ rights to govern their own electoral process, but clarify that the general applicability of the Insurrection Clause is explicitly not addressed. I think even the liberal Justices might not want a ruling that could arguably force Trump’s removal from the ballot in every state, and even the conservative Justices might not want a ruling that suggests no conduct of any unknown future Presidential candidate could be considered disqualifying under the Insurrection Act.

On further consideration, it’s much easier to walk that middle ground by just not taking the case and hoping the next one, if any, presents a lesser dilemma. For a pro-Trump Justice, Colorado is already in the bag for Biden, so no big loss letting the decision stand. On the other hand, any SCOTUS ruling at all might lubricate eligibility challenges in other states at a time when a Trump supporter would rather that happen slowly if it has to happen at all.
posted by gelfin at 10:01 AM on December 20, 2023 [5 favorites]

Artful Codger: “Lawrence Lessig is advocating that The Supreme Court Must Unanimously Strike Down Trump’s Ballot Removal,”

I wonder if this means the Court ruled incorrectly in Shelby County v. Holder?
posted by ob1quixote at 10:01 AM on December 20, 2023 [2 favorites]

The SC does not actually need to vote on this, it just needs to refuse to look at the request at this time, allowing the CO court ruling to stand. Most SC requests are ignored so other than the news cycle, pretty easy to do.

Cmon, this is going to go in the shadow docket and they'll rule on a Friday at like 11:59 PM. No chance they punt on this.

under the circumstances I am extremely curious to know what that strategy will look like.

Why do they need a strategy? They just vote.
posted by MisantropicPainforest at 10:24 AM on December 20, 2023 [2 favorites]

on the one hand i have a more-than-vague sense that this ruling was a really bad idea — it treats law as if it were a set of relatively easily interpretable quasi-deterministic rules that govern over politics rather than something embedded in politics, the meaning of which emerges from the outcome of power struggles rather than disinterested textual interpretation — but on the other hand i basically never agree with lawrence lessig on any topic, specifically because of how he's a dummy dum clueless-head who often treats law as if it were a set of relatively easily interpretable quasi-deterministic rules rather than something embedded in politics, the meaning of which emerges from the outcome of power struggles rather than disinterested textual interpretation.

so i'm pretty wedged here.
posted by bombastic lowercase pronouncements at 10:24 AM on December 20, 2023 [2 favorites]

I wouldn't be surprised if SCOTUS declined to hear the case, tho I'm not sure what pretense would be used. That way the CO ruling stands and the court can make some 'impartiality' claim while supercharging the MAGA voters ire (and projectiles) in another direction, the other states can plausibly say "that's CO being all blueish...we don't have to follow", you dodge the bullet on the shitshow of lawsuits generated by every governor and legislator with an axe to grind (i.e. most all of them) because state SCs will be the final arbiter, and you leave your problem child damaged and hopefully not a problem for the people who are funding your lifestyle.

Of course, that's pretty much the end game for the US as we know it, because we won't be able to have anything like a free and fair election ever again with any party that aggregates enough power simply kicking the opposition of the ballot. We have any number of examples of how well this works out for a country going on right now.
posted by kjs3 at 10:28 AM on December 20, 2023 [4 favorites]

The challenge for the Court here, as I understand it, is that “did Trump do an insurrection” is not even on the table for them. The lower court only punted on whether the Presidency was an “office” for purposes of the Insurrection Clause, and that’s the decision the Colorado Supreme Court has overturned on appeal.

I saw the theory (here) that Judge Wallace in the Lower Court may have opted to both confirm the more controversial part of the rule (about Trump's debarment from the ballot on the grounds of citing insurrection) and avoid the unwanted MAGA focus which would have come from making a decision to actually remove him - by citing the whole nonsenseabout the President not being an "officer". Some deft parcel-passing that then left the Colorado SC with the simple task of just removing the nonsense and finding the harder ruling already done.
posted by rongorongo at 10:42 AM on December 20, 2023 [8 favorites]

I wonder if this means the Court ruled incorrectly in Shelby County v. Holder?

I'm not a USian, but wasn't Shelby County v. Holder a fed vs state issue, and this one (14th Amendment application) is what a blue state does to a red state (and vice versa) by blocking a federal candidate?
posted by Artful Codger at 10:49 AM on December 20, 2023

I'm not pouring out any champagne yet since I lived through Bush v. Gore, but I am curious what a situation would look like where SCOTUS upholds CO or just lets it stand without taking it up. Can folks correct my thinking here where it's wrong or incomplete?

1. CO decision stands through SCOTUS action or inaction.

2. Some number of states also yank Trump from the ballot over the next months, because of some combination of liberal electeds (secretataries of state, etc.) and liberal courts.

3. Hypothetically, enough Wisconsins and Michigans and Pennsylvanias pull Trump from the ballot that the Republicans can't get an electoral college win.

4. Republicans beg Trump to release his electors to someone at the convention in July.

5. Trump either agrees to, leading to a new general election candidate, or he refuses to, leading Trump to tank Republican chances at the election.

Is that . . . is that how it would work?

(FWIW I assume in real life SCOTUS looks at the likelihood of having to adjudicate this same question for Biden, and basically just says, "The Court can't go around choosing candidates, let's leave it to the people and the billionaires with the RVs.")
posted by kensington314 at 11:41 AM on December 20, 2023

My thoughts as a lawyer (non-practicing, but hey, I've got the schooling!) who is far from a con-law scholar:

1. In a very real sense, SCOTUS can decide whatever the hell it wants to here. Roberts is probably the only member of the Majority who gives even the slightest shit about the court's legitimacy at this point, and that's fairly negotiable. I fully expect this to be overturned on appeal. (But it'd be wild to be surprised here!)

2. SCOTUS also has a fair amount of room for a "legitimate" overturn here, particularly by reading that clause of the 14th as being specific to Confederates during the Civil War. That would be far from the wildest stretch of interpretation in con-law history (even though I think Jan. 6 should certainly qualify as "insurrection" by any definition.)

3. Yep, we're probably going to see some wild-ass legal theories thrown around from Texas and so forth in the wake of this in order to disqualify Biden. Those will also be overturned, and are predictable enough that they can provide SCOTUS with a fig-leaf of nonpartisanship in their opinion overturning this one.

4. This is going to be a fundraising bonanza for the GOP and Trump in particular, but so is every dumb thing that should in a just world get him laughed out of the race, so what else is new?

5. Fuck me, 2024 hasn't even started yet and I'm already tired of it.
posted by Navelgazer at 11:44 AM on December 20, 2023 [11 favorites]

The challenge for the Court here, as I understand it, is that “did Trump do an insurrection” is not even on the table for them.

Why not? They are bound by neither law nor logic.
posted by mr_roboto at 11:53 AM on December 20, 2023

Artful Codger: “I'm not a USian, but wasn't Shelby County v. Holder a fed vs state issue, and this one (14th Amendment application) is what a blue state does to a red state (and vice versa) by blocking a federal candidate?”

My sarcastic and legally unfounded point is either the federal government has an overriding interest in federal elections being run fairly in the several states or they don't. The court found as it did because Republicans wanted to discriminate against people they didn't think would vote for them. It didn't really matter what everyone could see with their own eyes.

Which just highlights bombastic lowercase pronouncements made a really great point above. I too have thought of the law as something separate from politics, but of course it's an expression of power, not a source of it. So it doesn't matter if the book does or doesn't say a dog can't play basketball. Either you can stop the dog or you can't.
posted by ob1quixote at 11:57 AM on December 20, 2023 [4 favorites]

Just occurred to me that if the SC rules that an "insurrection" actually occurred some other Republican politicians are gonna be in a tight spot.
posted by Glibpaxman at 12:01 PM on December 20, 2023 [3 favorites]

okay i actually read the lessig piece and i feel better now: i still have my vague sense that this judgment is bad, but also i'm once again comfortable declaring lawrence lessig to be a dummy-dum who doesn't understand that power determines law and not the other way around. key quote:

All this will be enough for the Supreme Court to see why there is no argument from absurdity that justifies stretching the words of the 14th Amendment to cover this extreme case [i.e. treating the president and vice-president as officers of the united states]. It also suggests the wisdom in the compromise of including “elector of President” in the list of excluded officers. For this language makes clear that the framers of the 14th Amendment — like the framers of the 12th Amendment — expected electors to exercise judgment. In this case, the framers decided simply to ensure that the people who would elect the president were not themselves insurrectionists. But if these noninsurrectionists themselves decided to support a candidate who was, that judgment, those framers plainly believed, was a judgment properly vested in them. Better that the college called into being for the sole purpose of selecting a president decide the matter than for sitting politicians or state officials.

to which i say:

lol the idea that electors exercise judgment died before george washington did and no one in the 19^th, 20^th, or 21^st century has ever taken it seriously, except as a dangerous glitch that must be barred through the establishment of faithless elector laws.
oh my god larry larry larry your hairsplitting is obtuse are you being fatuous on purpose an elector who is pledged in advance to vote for a known insurrectionist is not a noninsurrectionist. this would be true even if there weren't laws against electors violating their pledge to vote for the candidate they're pledged to vote for, since anyone who's in the position to become an elector will have made public statements in support of the person for whom they're supposed to vote.
oh but wait did you notice, larry, that colorado has laws against faithless electors and has in the past voided the votes of faithless electors?
under your reasoning the only way an elector could cast a valid vote for trump is if they hadn't pledged to vote for trump nor made public statements in support of trump.
come on, man. just, like, come on.

fuckin' lessig, man, lawrence fuckin' lessig. congratulations on successfully defending your title as the world's #1 illustrative example of why people who think law and source code are in any way similar should not be allowed to:

argue cases before the supreme court,
write for media outlets,
be near sharp objects.

this judgment is probably bad, but if it's bad it's not bad for the reasons lessig says it's bad.
posted by bombastic lowercase pronouncements at 12:02 PM on December 20, 2023 [3 favorites]

Oh, I don't know if it was mentioned upthread already, but here's a handy tracker infographic showing all of the current 14th Amendment-related lawsuits against Trump.

all the pretty colors
posted by 40 Watt at 12:12 PM on December 20, 2023 [6 favorites]

Some of these suggestions here totally disrupt precedent for how the general public views the election happening. Historically the presidential candidates are determined and funded at the national level. Is it being suggested that this would now be state-by-state candidacy, with Trump as the republican nominee in some states and Haley (for instance) in others? If Trump wins the national nomination but is excluded from some state ballots, would Haley then be automatically entered as the republican candidate in those states? How would this work at the electoral college level? Are those votes Haley's or Trump's? Can they be redistributed or didn't a bunch of states legislate against that? How does the national party fund and campaign two candidates: Vote for our guy he's great *offer void in CO, etc.

These aren't the interesting times I wanted to live in.
posted by beaning at 12:23 PM on December 20, 2023 [5 favorites]

an elector who is pledged in advance to vote for a known insurrectionist is not a noninsurrectionist

The biggest knock to that argument is that Trumpy hasn't officially been found guilty of insurrection (yet). The CO supremes may be correct in our eyes to have concluded that that's what TFG did... but that isn't the same. Red states will do the same to Biden, on the flimsiest of pretexts. Partisan states gonna partisan; you won't get to a consensus or conviction that way.
posted by Artful Codger at 12:23 PM on December 20, 2023

Just occurred to me that if the SC rules that an "insurrection" actually occurred some other Republican politicians are gonna be in a tight spot.

This kind of ripple effect is why I will be very surprised if the SC doesn't find some narrow way of making this go away.
posted by Dip Flash at 12:28 PM on December 20, 2023 [1 favorite]

Just occurred to me that if the SC rules that an "insurrection" actually occurred some other Republican politicians are gonna be in a tight spot.

I don't see any reason at first blush for SCOTUS to rule on Colorado's finding of fact in this case unless it's on a procedural fault with the proceeding itself. The Court can absolutely sustain this judgement by Colorado without binding any other states to follow and certainly without pronouncing the Colorado Court's finding of fact as holding any sway anywhere outside of Colorado.
posted by Navelgazer at 1:00 PM on December 20, 2023

Relevant: Lawsuit says Georgia's lieutenant governor should be disqualified for acting as Trump elector
posted by hydropsyche at 1:14 PM on December 20, 2023 [4 favorites]

The past seven years have taught me that there's not a hope in hell that events like the Colorado SC decision will matter, but it did allow me the slightest wee bit of wishful catharsis to add my name to the petition for my state to follow suit.
posted by Rykey at 1:16 PM on December 20, 2023

SCOTUS also has a fair amount of room for a "legitimate" overturn here, particularly by reading that clause of the 14th as being specific to Confederates during the Civil War.

Where is it limited to Confederates? Nothing in the text says that.
posted by kirkaracha at 1:43 PM on December 20, 2023 [1 favorite]

The Constitution was written and adopted by framers who as one of their goals wanted to check runaway populism of the Articles of Confederation. The framers put checks on the popular vote with the electoral college. The writers of the 14th Amendment foresaw the problem of insurrectionists returning to office and decided not to trust the voters to stop them.

The radicals who wrote the 14th amendment were not motivated by distrust of voters like the founders; they were motivated by distrust of Confederates. It's one reason they tried to penalize states that restricted the franchise (in Section 2, an approach that was basically moot.) They were the same people that would explicitly enfranchise blacks nation wide shortly after; they were aware that their insurrectionists were sectional elites who needed to be denied the levers of power to prevent being thwarted in moving forward.

The Civil War amendments were part of a wholesale reimagining of the country, one that didn't last much past 1876 but doesn't change their intent. Foner's The Second Founding is a recent book devoted to this, but people (especially Blacks) knew how monumental these amendments were at the time.

One of my pet peeves is the way "originalists" talk about intent of the framers but ignore the explicit (and generally much clearer and better documented) intent of the people who wrote the 13th, 14th and 15th amendments.
posted by mark k at 1:48 PM on December 20, 2023 [22 favorites]

The biggest knock to that argument is that Trumpy hasn't officially been found guilty of insurrection (yet).

The Senate voted 57-43 that IMPOTUS was guilty of inciting the January 6 insurrection at the Capitol, but they didn't get the supermajority needed to remove him from office.
posted by kirkaracha at 1:55 PM on December 20, 2023 [13 favorites]

What are the odds this crazy scenario happens.

1. The three justices nominated by Trump recuse themselves from this case.*
2. Ruling is a 3-3 tie. Opinion is issued in the courts name.
3. Colorado rule is upheld, but the tie doesn't set precedent.

It gives those on the right on the Supreme Court plenty of plausible deniability and doesn't really force any of them to look like they are deciding on the outcome they want instead of the facts. They assume Trump would lose Colorado anyway, so it doesn't change his chances of winning the general.

*I know, I know. I hear you saying, "They will never recuse! That would force them to recuse on all of the Trump cases!" I am sure they can come up with a weasel answer. The first one that popped into my head is, "As Trump nominees, we do not want the appearance of impropriety on this future election and how we might influence it with how we vote. As all other Trump cases occurred in the past, that influence would simply not be there."
posted by a non mouse, a cow herd at 1:57 PM on December 20, 2023

Where is it limited to Confederates? Nothing in the text says that.

And even if it were so limited, given Trump's love of the Confederacy and the presence of Confederate flags during the January 6th insurrection that he supported and inflamed, a better Supreme Court than this one would have no problem applying a hypothetically limited 14th Amendment to Trump.
posted by jedicus at 2:11 PM on December 20, 2023 [6 favorites]

> One of my pet peeves is the way "originalists" talk about intent of the framers but ...

"By the way, you know what the problem with originalism is? ... There's a school of thought called originalism about the American Constitution, which says that you have to take the Constitution only in terms of what it actually says. But you know what the Constitution doesn't say? It doesn't say that you have to take the Constitution the way the Constitution actually says. That is to say, the originalist position is self-contradictory because the originalist position is not actually in the Constitution." - Tim Snyder
posted by I-Write-Essays at 2:54 PM on December 20, 2023 [10 favorites]

FWIW, here in Michigan the state court of appeals ruled last week that the Republican Party can place whomever they want on the ballot for its presidential primary, regardless of whether they’re qualified for the office or not. That's been appealed to the Michigan Supreme Court, so I guess we'll see how that turns out following the CO ruling.

This sounds similar to the case here in Minnesota where it was ultimately ruled that they're a private organization and can nominate whoever it wants. But they were explicit and clear that once he was actually the nominee they could then take their shot at keeping him off the ballot.

Even if he only gets kept off the ballot in a couple of states, that's going to get a LOT of republicans to stay home (of course they're not going to vote for Democrats and they never will) and that will a lot of wonderful knock-on effects in those states.

The democrats here in MN have done a bang-up job at passing stuff that impacts people positively right eff'ing now. I can now use my indoor broccoli hydroponic garden to grow the cannabis everyone thought I was growing (and better still expunged all the convictions). My kid LOVES broccoli and this why I could have better varietals as fresh as fresh can be. And now school lunch is just taken care of. I can absolutely afford to pay for my kid's school lunches but I hated all the anxiety around having to remember and manage that stuff when I was a kid and now it's just free for every kid in every public school by law. There are a bunch of other things they did that I'm forgetting or haven't heard about but those two are big standouts for me.

If a bunch of conservatives stay home for this next election cycle it'll mean even more good things for my state. I have to hope that would have regional and national ripple effects as well. It might start to get a feeling that the GOP isn't going to win among conservatives will keep enough of them to stay home to have a real effect on Federal offices too.

Whew! Brought that back around to on topic. I thought that was going to be a derail too!
posted by VTX at 3:36 PM on December 20, 2023 [3 favorites]

perhaps it's a failure of my imagination or a mark of my naivety, but out of everything discussed, the least likely thing i see is that not having Trump's name printed on the ballot next to the (R) leads to lots of Trump voters sitting it out. wouldn't they just write him in?
posted by glonous keming at 5:35 PM on December 20, 2023 [2 favorites]

The really hardcore cranks, yes. The less engaged voters aren't paying enough attention to care.
posted by VTX at 6:03 PM on December 20, 2023

Yep, so that's my other bizarre scenario I came up with in my head.

1. Trump is not on the PRIMARY ballot in CO. R Delegates go to whomever wins.
2. Which doesn't really matter, because the RNC can choose the candidate anyway? (I think, first vote you are supposed to honor the winner of your state, but after that all bets are off. RNC/DNC both have that option.)
3. Trump gets the nom (which it is looking like he will), but Colorado won't put him on the general election ballot.
4. Bear with me on this, as it is almost not certain to happen, but I think we are sketching some things out? Anyway, by some bizarre possibility (Boulder gets hit by a comet because of their solar research affecting time-space, etc.), Trump wins Colorado in the General on write-ins.

Does Colorado just.... not certify? What happens to those Electoral Votes?

All of this is not pleasant.
posted by a non mouse, a cow herd at 6:08 PM on December 20, 2023 [2 favorites]

An ineligible candidate who gets the most votes doesn't win - they're ineligible. The winner is the eligible candidate with the most votes.
posted by GhostintheMachine at 6:18 PM on December 20, 2023 [14 favorites]

An ineligible candidate who gets the most votes doesn't win - they're ineligible. The winner is the eligible candidate with the most votes.

Common sense would say that this is true. Legally, I am expecting fights.

This is currently (and, hopefully forever), academic.
posted by a non mouse, a cow herd at 6:47 PM on December 20, 2023

> I'll be quite curious to see how originalist arguments will be made that the words don't mean what they mean based on what they meant when they were written.

lessig's take does this, i think. like, it's an interpretation that is stupid and wrong but also it's a totally convenient easily-reached tool for shutting the conversation down without opening up additional worm-cans.
posted by bombastic lowercase pronouncements at 6:55 PM on December 20, 2023

you know what though i look at that list of disqualifications — being under 35, being from somewhere else, wanting to overthrow the government of the united states — and i realize that the odds are better than even that i'd wholeheartedly support a candidate who was disqualified for all three reasons at once.
posted by bombastic lowercase pronouncements at 6:59 PM on December 20, 2023 [2 favorites]

are you saying i should be certain that i'd support any candidate who was under 35, not from the united states, and who wanted to overthrow the government? if so, i can't really go there with you. like, if nothing else i try to reserve certitude for special occasions.
posted by bombastic lowercase pronouncements at 7:13 PM on December 20, 2023

Musing that homegrown elderly law and order types have made such a hash of things that even a young foreign rebel might be a relief — distasteful and understandably shocking though we may find it — is a not a discourse to be ashamed of, though a comment originalist might prefer a good hector regardless of the outcome of Tongue v Cheek (2023).
posted by Ice Cream Socialist at 7:59 PM on December 20, 2023 [2 favorites]

Keep in mind the January 6th insurrection's 'tit' . . .

i wish people would stop coming up with clever euphemisms and just use trump's name to refer to him
posted by logicpunk at 8:01 PM on December 20, 2023 [3 favorites]

SCOTUS also has a fair amount of room for a "legitimate" overturn here, particularly by reading that clause of the 14th as being specific to Confederates during the Civil War.

The wording of the second Amendment is entirely specific to owning and using muskets, but SCOTUS is happy to help gun owners buy automatable assault weapons and massacre swathes of innocent people with them — weapons that were never made or even conceivable of in the late 1700s.

I mean, our Supreme Court judges are corrupt as hell and entirely unaccountable to the public, and they will come up with whatever rationalizations they want and need to in order to let Trump off the hook again, but let's be honest at least that the idea that the wording of the 14th limits it to people who fought in the Civil War is absolutely laughable.
posted by They sucked his brains out! at 9:02 PM on December 20, 2023 [6 favorites]

I'll be quite curious to see how originalist arguments will be made that the words don't mean what they mean based on what they meant when they were written.

As an English major, this is why I fucking hate (some? most?) lawyers.
posted by kirkaracha at 9:09 PM on December 20, 2023 [1 favorite]

Luttig made a good point about a third possibility: The Court could just deny cert and wait to see what happens. Trump not being on the Colorado primary ballot doesn't really matter, assuming the Republicans even end up having a primary in Colorado. They have been talking about doing a caucus instead, after all.

I can definitely see the appeal from the Court's perspective, since so much of the country will be incensed no matter how they decide the case and there's a good argument that the situation is not ripe for a decision. Since it's just the primary ballot, there's a decent argument to be made that it's just intra-party bullshit unless and until Trump becomes the Republican nominee, not a federal question at all.

There's no reason, in principle, that a party can't let anyone, regardless of eligibility for office, appear on a primary ballot if state law allows it. Conversely, there's no reason that state law shouldn't be able to restrict the assistance of candidates on the ballot based on their ultimate eligibility if they see fit, since primaries are run with public resources.

The downside, of course, is that in the likely event that Trump is the eventual nominee there will be much less time to litigate the issue before the ballots are finalized for the general election. Of course, that may not be much of a downside to the justices that enjoy taking bribes, as there will be a lot more time to collect their gifts and favors than there will be if they do take up the case now. There's not a lot of time between now and January 4th.
posted by wierdo at 4:10 AM on December 21, 2023 [1 favorite]

wouldn't they just write him in?

“Probably,” he says while sitting on his hands to avoid reflexively steepling his fingers in a transparently Burns-esque fashion.
posted by gelfin at 5:38 AM on December 21, 2023

The downside, of course, is that in the likely event that Trump is the eventual nominee there will be much less time to litigate the issue before the ballots are finalized for the general election.

My understanding is that my county's Board of Elections is moving towards "on-demand" ballot printing, which will eliminate printing and sending 200 ballots to a district with a turnout in the high-teens on a good day, then shredding the unused ones. While the statutory deadlines still count, there's a lot less of a technical reason for them here in the 21st Century.
posted by mikelieman at 5:39 AM on December 21, 2023

Lawrence Lessig's take on this is so bad it's making me revisit everything I've ever agreed with him about.
posted by thecaddy at 6:37 AM on December 21, 2023 [3 favorites]

'll be quite curious to see how originalist arguments will be made that the words don't mean what they mean based on what they meant when they were written.

As an English major, this is why I fucking hate (some? most?) lawyers.
posted by kirkaracha

Law appears to me to be almost entirely about debating the meaning of prior law. That's...the gig.
posted by tiny frying pan at 6:37 AM on December 21, 2023 [1 favorite]

Oh we already discusssed the Lessig thing, my bad. At any rate, his argument falls apart because of course the presidency is an office under the United States; the literal definition of president is "an official who presides over a meeting" or "a presiding officer of a body". Section 1 of Article II specifies that the president "shall hold his Office during the Term of four Years!" Like this is just deliberately trying to misunderstand the brief like the lower Colorado court did.

If "president" was removed from the first draft of the the amendment, it's because it was redundant, not because it wasn't supposed to apply to people who get elected to that office. (And regardless of whether or not Trump gets convicted of something insurrection-adjacent, there's no question that he violated his oath of office and therefore cannot serve again, but this point is preaching to the choir.)
posted by thecaddy at 6:51 AM on December 21, 2023 [2 favorites]

Are you telling me they're going to rely on desktop printers on the day? Oh boy.
posted by adept256 at 7:03 AM on December 21, 2023

a non mouse above touches on an interesting point. I mean, as a technical matter, when you cast a ballot for a presidential candidate in a general election, you're not casting a ballot for that candidate; you're casting a ballot for some other guy who are themselves casting a vote for that candidate. This particular technicality is so abstracted as a practical matter that in most jurisdictions it's actually hard to figure out who that guy is, but it is still the letter of the law as to the ridiculous way we do elections.

So the thing is, there's an argument to be made that any name can be on the ballot as long as they have a 14th-amendment-qualified elector*, and that that elector can win, but that they themselves are prohibited from casting a ballot for their designated candidate at the electoral college.

Anyways, that's how I might argue if I were a strict textualist. Or I might even go one step further: the plain text of the amendment prohibits certain individuals from holding public office. It doesn't prohibit states from putting them on ballots, or people from voting for them, or even electors casting their votes for them. It merely (merely!) prevents their ever actually holding that office. What do you do if the voters elect someone who is ineligible? Dunno. Arguably, the same situation could arise non-nefariously if the candidate dies between the election and nomination: a dead person can't be president**, and sucession rules come into play for presidents, not electees.

Of course, eligibility to be President is completely independent of a state's listing a candidate on the ballot, and Colorado can do, to a certain extent, as it pleases. There were 1,212 candidates for president in the 2020 election. Only 21 of those (which is more than appeared most places) were on the ballot in Colorado. Identifying a major-party nominee as nonqualified for ballot access would be a gutsy move but it's not unthinkable.

*Apropos, it's really, really weird that an amendment crafted in the mid-nineteenth century talked about electors as if the office were significant. 'Cause even by that point electors were utterly irrelevant and the fiction that they were trusted with any sort of independent responsibility had been more-or-less dispensed with.

**Although, as Air Bud would have it, there's no law saying a dead person can't be president. Administering the oath of office would be kind of difficult though.
posted by jackbishop at 7:04 AM on December 21, 2023 [1 favorite]

“The thunderous, wondrous, revenge-packed 14th Amendment to the Constitution,” Lucian K. Truscott IV, 20 December 2023
posted by ob1quixote at 8:15 AM on December 21, 2023 [9 favorites]

McSweeney's take on the wording of the 14th amendment.
posted by a non mouse, a cow herd at 8:25 AM on December 21, 2023 [7 favorites]

The strict textualists will note the Constitution never once mentions 'Trump' by name.
posted by mazola at 8:57 AM on December 21, 2023 [5 favorites]

Truscott:

Trump could be denied his presidential pension because it was during his time in office that he instigated an insurrection against the country and the Constitution to which he swore an oath. He should not benefit from his service in office after that.

Can't see that happening but presumably that would also include SS protection, his state funded office, healthcare and everything else that flows from having been president.
posted by Mitheral at 10:12 AM on December 21, 2023 [7 favorites]

From a comment on the Truscott post (links added):

First, the 14A is not the only legal authority regarding disqualification from public office for engaging in insurrection. There is a federal statute, originally passed in the 19th century, but passed again in its current form in 1948 (and well supported by the 14A):

18 U.S. Code § 2383 - Rebellion or insurrection
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.
“Any office” is pretty explicit in terms of not excluding the president. And second, I have not heard a single reason expressed as to why the authors of the 14A would have excluded the president as an object of that constitutional provision. It’s inconceivable that this would have been the intent. And if there is any doubt as to whether the president is an “officer” of the US government, we can refer to that regularly cited, go-to authority on con law, the Federalist Papers:

Federalist 69, ¶13:
The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince.

posted by kirkaracha at 12:55 PM on December 21, 2023 [4 favorites]

Presumably [being denied benefits that normally accrue to ex-Presidents who aren't insurrectionists) would also include SS protection

That will remove a big headache for the Bureau of Prisons.
posted by carmicha at 1:50 PM on December 21, 2023

I heard on some TV channel, not clear about which, that the judges in Colorado are being threatened. This all needs to be stopped and the rule of law enforced. I don't have any veneration for the current Republican Party, but they should be effing ashamed of themselves.
posted by mumimor at 2:21 PM on December 21, 2023 [4 favorites]

That will remove a big headache for the Bureau of Prisons.

I would expect any theoretical prison sentence to be monitored house arrest for logistical reasons. I'm not even sure that would be the wrong call even if it would be disappointing. If Trump ever sees a sentence I mean which I'm dubious about.
posted by Justinian at 5:31 PM on December 21, 2023 [1 favorite]

I heard on some TV channel, not clear about which, that the judges in Colorado are being threatened.

Social media users posted justices' email addresses, phone numbers and office building addresses. "This ends when we kill these f--kers," a user wrote on a pro-Trump forum.
https://www.nbcnews.com/politics/donald-trump/colorado-justices-face-flood-threats-disqualifying-trump-ballot-rcna130720

Also from the CO Secretary of State: “I filed it because I’m the secretary of state. I did not bring this case,” Griswold said. “Within three weeks of it being filed, I received 64 death threats and over 900 non-lethal threats of abuse. I stopped counting after that.”
https://www.huffpost.com/entry/colorado-secretary-of-state-jena-griswold-trump-ballot-violence_n_65832c31e4b03e698a11c794
posted by CheeseDigestsAll at 7:43 PM on December 21, 2023 [3 favorites]

I would expect any theoretical prison sentence to be monitored house arrest

I hope that the best way to protect TFG while he serves his sentence(s) will be isolation at either Guantanamo or the Florence, Colorado SuperMax, where he could be housed with the rest of the traitors and terrorists.
posted by carmicha at 9:42 PM on December 21, 2023 [4 favorites]

Can someone explain to me why the people making these death threats aren't being arrested? That's still illegal, right?
posted by Eddie Mars at 5:32 AM on December 22, 2023 [7 favorites]

Cops love magahats.
posted by GCU Sweet and Full of Grace at 5:48 AM on December 22, 2023 [7 favorites]

if the supreme court affirms the colorado decision, that is functionally the same as agreeing trump engaged in insurrection, effectively removing him from the ballot in every state. i doubt that will happen but would luv to see the ensuing

One fact that stands out to me is that the Colorado courts affirmatively found that Trump did engage in insurrection. I don't doubt that SCOTUS will try to find a way to minimize the impact of this ruling, and IANAL, but unless that decision says that Colorado got its facts wrong -- and if memory serves me correctly, SCOTUS decisions rarely do so -- the ruling that Trump engaged in insurrection would still stand. Not that it would matter in any practical sense.
posted by Gelatin at 6:00 AM on December 22, 2023 [1 favorite]

Can someone explain to me why the people making these death threats aren't being arrested?

Per comment above, the CO Sec of State said, “Within three weeks of it being filed, I received 64 death threats and over 900 non-lethal threats of abuse. I stopped counting after that," so how many people do you think are employed by Colorado law enforcement, who can actually follow up on this staggering amount of threatening behavior? Maybe if they went after a few in a really high-profile way it could be a deterrent, but then maybe they are recording, sorting and tracking individuals within this set of behaviors, identifying those who appear to be the most dangerous and/or most likely to act...I don't know, I'm not in law enforcement, but your question assumes that if they are not doing the obvious thing that you want to see, then they are doing nothing--and that's a pretty big assumption. And I don't think any law enforcement unit has the resources (human or otherwise) to start tracking over a thousand people just because they mouthed off electronically.
posted by LooseFilter at 6:19 AM on December 22, 2023

FBI looking into surge in threats against Colorado justices who ruled Trump can't be on primary ballot

“The FBI is aware of the situation and working with local law enforcement,” the agency said in a statement to ABC News. “We will vigorously pursue —investigations of any threat or use of violence committed by someone who uses extremist views to justify their actions regardless of motivation.”

“The Secret Service is aware of the comments made by Mr. Schneider, and as a matter of practice, we do not comment on matters involving protective intelligence,” a Secret Service spokesperson told The Daily Beast. “We can say, however, that the Secret Service investigates all threats related to our protectees.”

posted by achrise at 6:42 AM on December 22, 2023 [4 favorites]

I do so dearly love people who confuse "hung" and "hanged."
posted by GCU Sweet and Full of Grace at 7:01 AM on December 22, 2023 [10 favorites]

Shouldn't Trump be indicted for that as well? I'm not on X, but I hear that what he is spending time on these days, apart from echoing Hitler and Mussolini at rallies, is doxing people from the judicial system all over the US and calling for violence towards them.
(I had heard about that thing with Judge Engoron's clerk, but wasn't aware that Trump is doing this all over the place).

On the other hand, isn't Trump himself daily increasing the chance that he goes to jail, rather than into something softer, like house arrest? It is a true spiral of doom -- he seems to be betting his life and livelihood on fascism.
posted by mumimor at 7:50 AM on December 22, 2023

he seems to be betting his life and livelihood on fascism.

That bet has paid off his entire life, and he realizes even his tiny pea brain that his attorneys can probably drag any cases against him out in court until he's dead.
posted by Rykey at 9:02 AM on December 22, 2023 [4 favorites]

"They said you was hung!" "And they was right."
posted by kirkaracha at 12:19 PM on December 22, 2023 [1 favorite]

Having read the entire thread, and acknowledging the various possibilities for some judicial skullduggery, I still have serious doubts that the conservative dominated SCOTUS will be prepared to risk its power, maybe even its existence, by letting Trump off the leash, to go full tyrant in his dotage.

They understand that nobody will be safe if Trump gets back in.
posted by Pouteria at 12:23 PM on December 22, 2023

> "They understand..."

Here is where I start to question your assertion. Up to six of them demonstrably do not understand this on any fundamental level, and at least three have been rapturously working on unchaining as many leopards as possible in the blissful assumption that whoever's face gets eaten, it will surely not be theirs.
posted by kyrademon at 12:54 PM on December 22, 2023 [6 favorites]

Their overall track record on Trump cases suggests they are not so oblivious to the dangers.

They have not been his best friend so far.

The cynic in me says that, whatever judgement they come to, they will protect their power before they will protect him. He is nearly a spent force, via age and health status alone. They, especially the newer appointments, potentially have decades on the bench. They will not risk that.
posted by Pouteria at 1:22 PM on December 22, 2023 [1 favorite]

MOST of them have not been his best friend... for his hail-Mary legal attempts any competent law student would have laughed out of court. Those judgements were absolutely not being made on the grounds of, "It would be dangerous to let this man be president again."

This is a very different subject with very different issues at play, and I do not at all expect their past rulings against him to be predictive on that basis.
posted by kyrademon at 2:14 PM on December 22, 2023

The biggest knock to that argument is that Trumpy hasn't officially been found guilty of insurrection (yet).
The Senate voted 57-43 that IMPOTUS was guilty of inciting the January 6 insurrection at the Capitol, but they didn't get the supermajority needed to remove him from office.

This is wrong, or at the very least extremely misleading given the context of what it's responding to. It's like saying "The jury voted seven to five that OJ was guilty of murder, but didn't get the unanimity needed to send him to jail."

A two-thirds majority is what's needed to convict. There's no explicit separate requirement for removal from office.
posted by Flunkie at 2:44 PM on December 22, 2023 [3 favorites]

Cops love magahats.

Cops are magahats. To a person.
posted by Lentrohamsanin at 2:44 PM on December 22, 2023 [3 favorites]

"By the way yt , you know what the problem with originalism is? ... There's a school of thought called originalism about the American Constitution, which says that you have to take the Constitution only in terms of what it actually says. But you know what the Constitution doesn't say? It doesn't say that you have to take the Constitution the way the Constitution actually says. That is to say, the originalist position is self-contradictory because the originalist position is not actually in the Constitution." - Tim Snyder

This is not the problem with Originalism, and in my opinion it actually cedes ground that should not be ceded to Originalists.

The root problem with Originalism is that the meanings of much of the Constitution, like those of essentially all text ever written, are not unambiguously determined by the text itself. People can and do reasonably disagree over them; they are not mathematical formulae.

This results in the functional problem with Originalism: Mere assertions, posing as unassailable facts, that the Founders meant exactly what I want them to have meant.
posted by Flunkie at 2:55 PM on December 22, 2023 [8 favorites]

Flunkie: People can and do reasonably disagree over them; they are not mathematical formulae.

Even math gets ambiguous when you apply it to the real world.
posted by clawsoon at 4:48 PM on December 22, 2023

I wish I were as optimistic as all the people predicting that Trump will pass away anytime soon. Any regular person with his lifestyle would’ve had it catch up to them long ago but in this matter as in all things Trump-related, negative consequences are for other people. Dude is going to be here F-O-R-E-V-E-R.
posted by The Card Cheat at 2:32 AM on December 23, 2023

you have to take the Constitution only in terms of what it actually says.

Parenthetically, the word -- and concept of -- "Immigration" does not appear in the US Constitution, since the Original Intent of the Framers was the Open Borders they enjoyed. They never delegated any authority to regulate where Free People travel and reside.

Thus, all Federal "Immigration Law" is unconstitutional -- if you claim to be an Originalist.
posted by mikelieman at 3:01 AM on December 23, 2023 [8 favorites]

> Related: Secret Service Probing John Schneider’s Call for Biden to be ‘Publicly Hung’

i’m not sure the united states has ever had a publicly hung president, aside from lbj of course

on edit: this is yet another reason why it’s so tragic that the supreme court stole the presidency from al gore.
posted by bombastic lowercase pronouncements at 8:33 AM on December 23, 2023 [3 favorites]

Dude is going to be here F-O-R-E-V-E-R.

Remember when we said this about Kissinger? Where is he now?

I'm not inclined to wait and I want him to be around for his whole world to get torn apart (fingers crossed!). I hope he gets to see his worst fear come true, that history will remember him as a loser.
posted by VTX at 9:13 AM on December 23, 2023 [2 favorites]

I do so dearly love people who confuse "hung" and "hanged."

I also enjoy hearing political commentary from people who are still struggling with one-syllable words. It’s why I am still on Facebook.
posted by ricochet biscuit at 11:00 AM on December 23, 2023

If Trump lives as long as Henry Kissenger did we'll get to enjoy his company for another 23 years.
posted by The Card Cheat at 11:50 AM on December 23, 2023 [2 favorites]

why would you say that
posted by tiny frying pan at 4:22 PM on December 24, 2023 [11 favorites]

Maine kicks Trump off the Ballot for Role in Jan. 6 Riot (NYTimes). The Secretary of State made the decision today after hearing arguments a week or so ago. Appealable to the state's Superior Court within 5 days.
posted by nobody at 4:20 PM on December 28, 2023 [6 favorites]

I gotta question re all the Trump legal issues swirling around, not least whether he is guilty of insurrection for inciting the Jan 6 attack: if you're running out of time to have these issues properly settled before the courts, then why not delay the presidential election? Isn't justice a more important principle than.... well, habit?
posted by Artful Codger at 7:43 AM on December 29, 2023

The Constitution says presidential terms are 4 years. That's not a "habit". Extending Biden's presidency would be unconstitutional.
posted by hydropsyche at 8:08 AM on December 29, 2023 [4 favorites]

Thanks. One way or another, there are constitutional questions to be resolved.
posted by Artful Codger at 8:19 AM on December 29, 2023

What is a constitution other than a habit of deferring to a particular document? :-)

...although, given the fragility of presidential systems in general, with the exception so far of the US, perhaps continued rigid adherence to this particular habit is wise.
posted by clawsoon at 8:49 AM on December 29, 2023 [2 favorites]

The backlash is under way. Missouri Secretary of State Jay Ashcroft (son of US AG John "put some clothes on those damn statues" Ashcroft) has plans to throw Biden off the ballot in his home state in retaliation for the actions of Maine and Colorado.
posted by CheeseDigestsAll at 5:47 AM on January 6

Jay Ashcroft: "If Democrat [sic] states are saying we're not going to let these Republicans run, you bet you're going to see the same thing happening from Republican states"

Since "these Republicans" engaged in insurrection, which is why they aren't allowed to run, if Jay Ashcroft knows of any Democrats who also engaged in insurrection, he damn well should exclude them.
posted by mikelieman at 3:07 PM on January 6 [2 favorites]

if Jay Ashcroft knows of any Democrats who also engaged in insurrection, he damn well should exclude them.

The theory that they put forward is as follows: The United States is being invaded by a hostile army of migrants at the southern border. All Democrats are working to facilitate this invasion; they are therefore participating in insurrection.
posted by mr_roboto at 6:21 PM on January 13

I doubt Jay Ashcroft will try that argument in court before a judge as opposed to before the cameras. That sounds lime sovcit level stupid legal theories. What’s next bird law?
posted by interogative mood at 7:32 PM on January 13 [3 favorites]

Have you seen our Supreme Court? They literally use witch trials as precedent.
posted by mr_roboto at 2:27 PM on January 15

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