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I’m going by the New York Times from last month:
Is the New York Times wrong?
Ah, yes: the newspaper that had its baby journalists twittering about being in an unsafe space for BIPOC people because of an opinion piece published by the paper.
They considered that piece a "call for state violence", so I guess the same attitudes are behind "January 6th was an insurrection".
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And one or more states doesn't bother "passing legislation requiring a clean criminal record… on legally shaky ground," but just says "Trump's been convicted, so we're not putting him on the ballot; the Republican party can either submit a different name to go in their 'guaranteed spot' or else we leave it blank"? Sure, a court will probably rule that this is illegal and unconstitutional… eventually.(And who enforces that ruling, anyway?) But if you time it right, you can probably have that decision only come after the election, and then what? (Or, failing that, come well after ballots are printed and too close to election day to print new ones.)
The electors can elect whomever they want though, right -- so just throw a placeholder in there, mobilize the base (have rallys with him & Trump, etc to make the situation clear) and then the (Republican) electors throw their votes to Trump.
Calls for faithless electors to save democracy didn't work so well the last time, though. Hillary lost five of them, which she didn't need.
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No, the faithless elector laws are enforceable.
Out of curiosity: in what manner? Are the votes valid, but you go to prison? Might still be worth it.
In 14 states, the votes are void.
Has this been tested federally though? It seems like it would be a case where Trump would be 100% justified in having an alternate slate presented to Congress. (not that that would help, but y'know -- at this point not much would)
Yes
But in the (hypothetical) case where multiple slates get before Congress, and Congress says 'nah bro, we like Trump', what actually happens?
I note that it took 4 years for the SCOTUS to get around to this one...
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I'm not sure. The rule that states may not add additional qualifiers for federal office has some loopholes but some well-established precedent.
However, there's also been serious sets of legal challenges and a well-promoted campaign to argue that the 14th Amendment automatically disqualifies from the ballot anyone who 'participated in insurrection', by a vague and broad definition that includes whatever they think Trump has done.
I'd argue that they're wrong to do so, but I'm not sure what I think matters.
The 14th Amendment is rather quiet about how it's insurrection rule is to be enforced: it's not clear who actually gets the power to decide "insurrection" occurred. The federal courts? The states? Local officials setting up ballots?
Some of those options are better than others, but if you choose poorly I think you'll find "was overruled once by SCOTUS" to be grounds for finding "insurrection against the Constitution" in any case where unfriendly partisan officials are empowered to so decide. Obviously Obama's fake "recess appointments" in Noel Canning were a deliberate attempt (from a famed Constitutional Scholar!) to subvert the Constitution if you let Ken Paxton decide.
To be fair, it's not clear how the Constitution's eligibility rules would be enforced generally if someone nominated, say, a child who was obviously under 35. Birtherism runs a bit more into the Full Faith and Credit Clause, though.
All the amendments are similarly quiet. The idea that it is specifically the courts that are responsible for enforcing (say) the 1st amendment is quite recent. At the time of the founding, the dominant view was that all political actors were obliged by their oaths of office to act constitutionally - that legislators should not pass unconstitutional laws, presidents should veto them if they do pass, etc.
The same approach to section 3 of the 14th is that it is incumbent on everyone not to allow insurrectionists into office. Parties should not nominate insurrectionists, secretaries of state should not put them on the ballot, voters should not vote for them, presidential electors for insurrectionists should go faithless (the Constitution overrides faithless elector laws) and the joint session of Congress should object to the electoral votes if they don't. The job of the courts is then to handle the inevitable litigation when people disagree about whether Trump really is an insurrectionist. Obviously, this is bad and puts you straight in a constitutional crisis.
But America is already in a constitutional crisis. Either Trump is right and you are a country where elections are routinely rigged, or Trump is lying and you are a country where there are no electoral consequences for spamming false allegations of vote-rigging the way most politicians spam promises of other people's money and demanding criminal investigations of local election officials for doing their jobs, or Trump is delusional and you are a country which is about to elect a madman as chief executive.
This is scary, man. And I don't even live in America.
Even if this was a trilemma, it would not constitute a Constitutional crisis.
Elections being routinely rigged are bad, but not a Constitutional crisis. For it to be a Constitutional crisis it would have to set up a situation which at least apparently could not be resolved within the Constitution.
There being no electoral consequences "spamming false allegations of vote-rigging" is also not a Constitutional crisis. Electing liars is something which happens every election day, and claiming something different about this particular lie is blatant special pleading.
Electing a madman as chief executive is very bad but also not a Constitutional crisis.
It is possible for Trump to be wrong but neither lying nor delusional, thus, no trilemma.
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No, but that is a different set of criteria than who will appear on the ballot. For example, there's nothing in those requirements about having to get a certain number of verified signatures of support, which is a near-universal ballot access requirement. The suspicion is that a conviction will be used to prevent Trump from being on the ballot in at least some states despite him being eligible to be President if he was elected anyways.
Sure, but if those states are California, New York, Vermont, and hawaii, that disqualification is irrelevant.
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Dismayingly frequently.
Not about this, I believe, but since the history of the NYT being bafflingly brazenly wrong about things extends from over 90 years ago to under 2 days ago, it still feels weird to cite them as an authoritative source.
Of course, I certainly didn’t mean to imply they’re always right. But they don’t seem to be wrong about this.
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