These are hard times, and it is difficult to find fun in this world, so you have to take your enjoyment where you find it and be grateful for it. This decision by the Colorado Supreme Court is simply delicious. I have no opinion whatsoever on the correctness of their judgment nor do I have any idea what the Supreme Court is going to do, but what I am sure is that no matter what the Supreme Court does it is going to infuriate Republicans. If the Court decides to save the Republican from themselves by declaring that Trump is not eligible to appear on the ballot for the presidency, Trump and the Republicans will go wild. If they decide that their originalist interpretations of the Constitution do not count this time even though they count whenever they want them to count, they will look like fools. This is a gift from heaven. Enjoy it.
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Hello! Not ALL republicans are unhappy: Cato Institute, for example.
https://www.cato.org/blog/agree-it-or-not-colorado-supreme-courts-opinion-disqualifying-trump-triumph-judicial
I am following Hasen (https://reason.com/volokh/2023/12/19/prof-rick-hasen-on-the-colorado-s-ct-trump-disqualification-ruling/) among others. Interesting times.
All the best, Professor Bob ….Rebecca
Just a question from someone completely ignorant of U.S. Constitutional Law.
Wouldn't Trump have to be found guilty of insurrection to be not eligible to appear on the ballot?
As for now, he is only accused of that and a person is innocent until proven guilty or so I
thought.
s.w.,
The Colorado Sup Ct ruling -- which the SCOTUS, I'm guessing, will likely overturn (but who knows for sure) -- is based on the Fourteenth Amendment's insurrection clause, which does not say that the person must have been convicted in court of insurrection, but rather that they "shall have engaged in insurrection...." It's section 3 of the 14th Amendment.
While the situation is amusing, I will be shocked SCOTUS doesn't overturn the decision. Given the low likelihood of the decision's success at preventing Trump from running in the primary, and its complete lack of effect on Trump's ability to run in the general, I just don't see much utility or upside to the decision. And I'm concerned about the issue driving a deeper, potentially violent, wedge between the right and the left in America. If the Democrats want to wake up the gun-nuts and reinforce the "Democrats steal elections" myth, then this is an excellent way to do so. Biden's dismal showing in the polls will only affirm the Right's conviction that the Democrats know they can't beat Trump "fairly", and so are now pushing legal shenanigans to steal the next election rather than identifying a viable candidate for the Presidency.
Also, and following up on s. wallerstein and LFC's exchange, opening the door for state courts to determine that an "insurrection" has occurred without a legal decision to that effect just encourages Republic states courts to hold that Biden or Obama or whoever lead an "insurrection" every time they win an election, because "voter fraud!"
Ridiculoussicculus,
I agree with what you say above.
Imagine if you were to see the headline "Maduro bans front-running opposition candidate".
Sure, Maduro is a dictator who holds elections that he is sure to win. That's how most Republicans will see Trump being banned, especially since he is leading in the polls.
s.w., I believe the trial court found that Trump did engage in insurrection but found that the presidency wasn't an "office" in the sense used in the 14th. The Colorado SC agreed with the trial court on the insurrection finding and reversed the "office" finding. They also referenced an appeals court decision by then Judge Gorsuch as on point.
LFC, much of what goes on at the national and international level is so much kayfabe. Any given Trump rally has a Raw/Smack Down vibe. If ones mentors/associates were Roy Cohn, Jeffery Epstein, and Vince McMahon...
I just heard that the rate on a shipping container out of east Asia to Europe has gone from ~$1,900 to ~$10,000 thanks to the grifters and God botherers in Palestine and Iran/Yemen. Also Egypt takes a serious multi-million dollar hit and the ships dump more CO2 into the atmosphere..
W/r/t S. Wallerstein’s question, as the opinion (Anderson v. Griswold) states, “[t]he [district] court found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three” and this finding was duly reviewed and affirmed by the Colorado Supreme Court.
More specifically, it found that 01/06 was an insurrection, and that Trump engaged in it by his speechifying, which incited the crowd. While the Court did not discuss the issue of when where and how such a “crowd” is more properly considered a “mob of yahoos”, I will make that determination myself, in the positive.
The district court’s nonsensical determination that §3 did not apply to the office of the president was duly reviewed and reversed.
As Prof. Wolff notes, for a states-rights-federalism-original-textualist-windbag, reversing the Colorado decision will necessarily require a certain amount of hypocrisy. Did I say “hypocrisy”? Sorry, I meant to say, “subtle legal reasoning”. Not to say that this will stop the Supremes from doing just that—see, inter alia, Concepcion v. AT&T.
The “utility” of a published legal decision is of course that is forms part of the corpus of the law, whether or not it is ultimately overturned. And should Anderson be overturned, one useful outcome could be the death of the infantile notion that the Supreme Court is “above poitics”.
As for the idea that a mob of yahoos—SORRY, I meant to say, “the Grand Old Party”—should have been placated by never bringing the case in the first place, I submit that such “playing nice” by the Dems has helped to bring us to where we are today.
R & s.w., timidity in the face of fascism usually hasn't worked out well. the 14th Amendment is what it is and state courts are the proper venue. If the Supremes let this stand (unlikely but Capital may prevail) then an interesting state by state discussion may occur. Republicans have no need of excuses to lie, cheat, and steal and they have been doing a state undermining of democracy for decades now.
The Guardian (hardly pro-Trump) editorial about the Colorado ruling.
https://www.theguardian.com/commentisfree/2023/dec/21/the-guardian-view-on-trumps-legal-woes-in-colorado-he-needs-to-be-beaten-politically
My guess is that quite a lot of Republicans would be pleased if the Democrats or the courts somehow disposed of the Orange Jesus without their having to be seen to do anything. Vile as they are , even they must find the non-stop subservience that Trump demands degrading. One is reminded of Beria at Stalin's death. Every time Stalin gave some slight signs of life Beria would be vying with the others for sycophancy. As death approached ever closer he erupted in expletive-laden denunciations of the tyrant. Most of the leading Republicans must hate Trump just as deeply.
Someone emailed me Lawrence Lessig's piece in Slate, which makes arguments for why SCOTUS shd reverse the Colorado Sup Ct. I think the strongest one, as some commenters above have also said, is that this, if not reversed, could lead to a spiral of tit-for-tat decisions by state courts and throw the entire electoral system into complete chaos. That would conceivably threaten a meltdown to which the phrase "civil war" might indeed apply.
I have no illusions that the Colorado decision is a magic bullet (or that it will survive the SC) but to the notion that modeling good behavior will lead to Republicans not doing shenanigans I offer you Justices Neil Gorsuch and Amy Coney Barrett, to pick two out of numerous examples.
Republicans have already gamed the system in those states where there are courts that would exclude a candidate without cause so any such ban would be performative. As the states run elections, what Alabama or Oklahoma do will have no effect on elections in California or Massachusetts. Any problems in the Electoral College will be resolved by how the House elections went.
Anyway, Bush v. Gore was a judicial coup and we got crickets not a civil war.
aaall writes:
As the states run elections, what Alabama or Oklahoma do will have no effect on elections in California or Massachusetts.
Let's say you're a Democratic voter in California (which you are, as it happens). You have an interest in voting for Biden in California, of course, but you also have an interest in Biden's total vote -- his total popular vote -- because you would rather see him win the popular vote and not only the Electoral College. For one thing, a popular vote win conveys more legitimacy than an electoral-vote win alone. Also, you have a (principled) commitment, presumably, to people being able to vote for Biden if they want to, anywhere they happen to live.
Now let's say the Oklahoma Sup Ct rules, in retaliation for certain "blue" states not letting Trump appear on the general election ballot (shd the Colorado Sup Ct's reasoning stand, though its decision itself only applies to the primary), that Biden can't appear on the Oklahoma general election ballot. In a sense that injures (in a broad sense of that word) Dem voters in other states by reducing Biden's popular vote total, just as not letting Trump appear on the general (or primary for that matter) election ballot in Colorado or California or Massachusetts would injure (in a broad sense of the word) pro-Trump voters in "red" states by reducing Trump's popular vote totals.
To have, potentially, a lot of Dem states barring the Repub candidate from the ballot while a lot of Repub states bar the Dem candidate from the ballot can't be good, istm, for the health of an already very imperfect democratic system, notwithstanding that the Repub candidate himself is a threat to democracy.
Here's the link to Lessig -- not that I agree w all of it but certain pts are substantial, I think:
https://slate.com/news-and-politics/2023/12/supreme-court-trump-ballot-removal-colorado-wrong.html
OTOH Laurence Tribe, among others, seems to disagree w him. But I think the persuasive point here is political, not legal. Btw Bush v. Gore occurred in a different environment, so I don't think it's indicative of what cd now happen.
The size of the popular vote alone conveys absolutely no advantage, legitimacy, or whatever. Lessig's (and your) beef is with the Founders and the folks who gave us the Fourteenth Amendment. Abraham Lincoln managed to govern and prosecute a civil war with less then forty percent of the vote in the 1860 election.
The Constitution requires that the president be a natural born citizen who is at least thirty five years old and who, having taken the oath of office under that Constitution, hasn't engaged in an insurrection against the United States. Section Three is self executing and doesn't require a criminal conviction, merely a finding by the relevant authorities of each state based on the constitutions and laws of those states.
Unless the Democrats were to win at least a two thirds majority in both the House and the Senate, the only check on Trump should he win and regardless of the size of his vote would be impeachment which would only require a simple House majority and a two thirds majority in the Senate. We have recently found out that much of what were took for granted with our governance were merely easily shattered norms.
While some folks worry about how this or that looks, Republicans have been busy engaged in a state by state ending of democracy. In Wisconsin and North Carolina the Republican legislatures gerrymander a permanent majority and should a Democrat get elected governor that legislature strips the governor of his powers.
We are still in the sixth party system which followed the decline of the New Deal coalition in the 1970s neoliberal heel turn. The 2000 coup by the Gang of Five Supremes was an inflection point within that system and consistent with the arc of Movement Conservatism in consuming the Republican Party (James Burnham was fond of noting that who says A must say B). The coup was consistent with both Gingrich's and Roves's plans for a permanent Republican majority. Absent that coup we are in a different time line.
Off topic but of possible interest:
Looking for something else, I ran across a set of recent -- but pre-October 7th -- articles on I/P in a journal called Frontiers in Political Science.
The introduction (link below) is open-access. (Not sure whether the individual articles are.) One of the authors of the intro, Ian Lustick, is fairly well known (as academic political scientists go, that is).
https://www.frontiersin.org/articles/10.3389/fpos.2023.1247990/full
The premise of the project seems to be to analyze the then-current (pre-Oct. 7) situation in terms of a sort of "one-state reality" that already exists -- not sure how much sense the phrase made or makes, but whatever...
I agree with Samuel Moyn (except that he left out the scare quotes for US "democracy.")
https://www.nytimes.com/2023/12/22/opinion/trump-colorado-ballot-ban.html
The Colorado ruling was 4-3, and the merits of the case were never considered by a jury.
When the courts start engaging in kicking people off the ballots calling them insurrectionists, it's going to tend to be leftists, socialists, communists, anyone who actually seeks fundamental structural changes to the design of the political system in order to make it fairer and more democratic that will be most targeted.
If this is really a democracy, let the people decide who should hold office. Let them hear the best arguments for the candidates you support and why the alternatives would be inadequate or objectionable.
"Trump disqualified for insurrection? Under 14th Amendment, it’s happened before"
https://www.washingtonpost.com/history/2023/12/20/insurrection-14th-amendment-history-trump/
"If this is really a democracy, let the people decide who should hold office. Let them hear the best arguments for the candidates you support and why the alternatives would be inadequate or objectionable."
Eric, in what country do you live?
aaall,
I don't quite understand your objection to what Eric says above.
If you were a bit less cryptic at times, you might convince more readers.
s.w., in the U.S. the "people" as a whole don't decide very much. The Constitution gives the few hundred thousand folks in Wyoming the same representation in the Senate as the ~40 million in California. State and federal legislative bodies are elected by district which districts are gerrymandered in several states and the House of Representatives so the voters often don't choose who represents them so much as vice versa. and then we have the quite undemocratic Electoral College.
If one has ever campaigned, knocked on doors, made phone calls, etc. one learns that few people have a comprehensive grasp of history and civics - so much for Eric's concept of folks making informed, reasoned decisions.
The media. for the most part, cover politics as a horse race. Who's up, who's down, what the hell is policy and who cares anyway? 2000 was who would you want to have a beer with, 2004 was covering a flat out lie, 2016 was emails. The ability to submit copy on deadline trumps knowledge and intelligence.
Then there is turnout - Australia fines folks who don't vote and turnout is high - NSM here..
If you can get the WWE in Chile, watch Smack Down or Raw and then watch a Trump rally - his delivery and the general vibe. Much of our public discourse is so much kayfabe.
aaall,
Thanks. I understand your point of view.
Voting is now obligatory in Chile and you can be fined if you don't vote. That law isn't always enforced, but it keeps voter turn-out high, around 84% in the plebiscite a week ago.
When you consider that some people are out of the country, others are sick or even in the hospital and that if you're over 200 kilometers from your assigned voting place, you are exempted from voting (you have to go in person to a police station to prove that you're over 200 kilometers away), you can see that almost everyone votes if they're threatened with a fine.
Interesting article, Gaza is terrible but small potatoes:
-+
https://www.haaretz.com/middle-east-news/2023-12-22/ty-article/.premium/the-anti-houthi-coalition-reveals-the-gap-between-the-u-s-and-its-mideast-partners/0000018c-9210-dfd0-a5af-fbf546bd0000?utm_source=mailchimp
s.w., one other factor is time. When I can read generally I can keep up but sometimes one has to focus. If that involves financial matters, Gaza is not a factor. Folks have families, jobs, lives. Watching CNBC (I like the ticker) and reading Barrons, etc., the only Mid-east thing that I bothered with was commerce being diverted around the Cape and the five-fold increase in container charges out of Shanghai.
Interesting to see that hostility to democracy, or at least dismissiveness of it, spreads beyond the Republicans.
If anon.'s comment is directed against the Colorado Supreme Court decision, then it is misdirected. The 14th amendment, article 3 is not anti-democratic. (I leave to one side the question of whether it is "self-applying or needs to be applied, as some have argued, via article 5, by Congress.)
aaall,
I live in a country where Democrats routinely use the courts to get Green Party candidates knocked off ballots.
Eric, a Montana court found that the Republican Party gave the Greens a $100,000 contribution to aid its signature gathering and tried to conceal the donation. When some folks found out that Republicans were funding the Greens they requested that their names be removed. In North Carolina, Democrats challenged the petitions. This is perfectly legitimate as petition fraud is common. Harlan Crow has contributed to Cornel West. The Green Party tries to run in swing states for a reason. Cui bono isn't always the case but it's where to start. Never forget this:
https://www.nbcnews.com/news/world/guess-who-came-dinner-flynn-putin-n742696
No, DZ, my comment wasn't directed against any court ruling anywhere. It was directed at some remarks on this thread on this blog.
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Is there no way to block comments like the one from "Pedro Santa Cruz"?
The last thing we need here is that rubbish.
Hi David Zimmerman,
Have a good Christmas. For everybody else who isn't spam a good Christmas too.
It could be worse--like a fund raiser from Ted Cruz.
And to you, SW.
And also to all you non-spammers.
" For everybody else who isn't spam a good Christmas too."
Ditto! BTW, checked out Doran on you-tube. The pic has him sitting in front of one monitor :-)!
Happy B-Day, Prof Wolff.
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