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PaperclipPerfector  11mo ago (text post)   29676 thread views

Culture War Roundup for the week of December 18, 2023

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The Colorado Supreme Court holds:

A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.

[recent related discussion, slightly older]

The Colorado Presidential Primary is scheduled for March 5th, for both parties. As the decision notes, January 4, 2024 is "the day before the Secretary’s deadline to certify the content of the presidential primary ballot)"; while the matter is open to further stay should federal courts intervene, such an intervention would itself determine at least the state presidential primary.

How are the procedural protections? From the dissent:

As President Trump, argues and the Electors do not contest, section 1-1-113’s procedures do not provide common tools for complex fact-finding: preliminary evidentiary or pre-trial motions hearings, subpoena powers, basic discovery, depositions, and time for disclosure of witnesses and exhibits. This same concern was raised in Frazier; the then-Secretary argued that “it is impossible to fully litigate a complex constitutional issue within days or weeks, as is typical of a section 1-1-113 proceeding.”...

Despite clear requirements, the district court did not follow section 1-4-1204’s statutory timeline for section 1-1-113 claims. The proceeding below involved two delays that, respectively, violated (1) the requirement that the merits hearing be held within five days of the challenge being lodged, and (2) the requirement that the district court issue its order within forty-eight hours of the merits hearing.

And the other dissent:

Thus, based on its interpretation of Section Three, our court sanctions these makeshift proceedings employed by the district court below—which lacked basic discovery, the ability to subpoena documents and compel witnesses, workable timeframes to adequately investigate and develop defenses, and the opportunity for a fair trial—to adjudicate a federal constitutional claim (a complicated one at that) masquerading as a run-of-the-mill state Election Code claim...

and

Even with the unauthorized statutory alterations made by the district court, the aggressive deadlines and procedures used nevertheless stripped the proceedings of many basic protections that normally accompany a civil trial, never mind a criminal trial. There was no basic discovery, no ability to subpoena documents and compel witnesses, no workable timeframes to adequately investigate and develop defenses, and no final resolution of many legal issues affecting the court’s power to decide the Electors’ claim before the hearing on the merits.

There was no fair trial either: President Trump was not offered the opportunity to request a jury of his peers; experts opined about some of the facts surrounding the January 6 incident and theorized about the law, including as it relates to the interpretation and application of the Fourteenth Amendment generally and Section Three specifically; and the court received and considered a partial congressional report, the admissibility of which is not beyond reproach.

Did the Colorado Supreme Court provide a more serious and deep analysis of the First Amendment jurisprudence, at least?

The district court also credited the testimony of Professor Peter Simi, a professor of sociology at Chapman University, whom it had “qualified . . . as an expert in political extremism, including how extremists communicate, and how the events leading up to and including the January 6 attack relate to longstanding patterns of behavior and communication by political extremists.”

He testified, according to the court’s summary, that (1) “violent far-right extremists understood that [President] Trump’s calls to ‘fight,’ which most politicians would mean only symbolically, were, when spoken by [President] Trump, literal calls to violence by these groups, while [President] Trump’s statements negating that sentiment were insincere and existed to obfuscate and create plausible deniability,”

There are interpretations here other than that of the Russell Conjugation: that stochastic terrorism is limited to this tiny portion of space, or perhaps that shucks there just hasn't ever been some opportunity to worry about it ever before and they're tots going to consistently apply this across the political spectrum in the future. They are not particularly persuasive to me, from this expert.

Perhaps more damning, this is what the majority found a useful one to highlight : a sociology professor who has been playing this tune since 2017.

If you put a gun to my head, I'd bet that this is overturned, or stayed until moot. But that's not a metaphor I pick from dissimilarity.

For those like myself to whom this seems like a big deal and worthy of a dedicated thread, I've created that thread, here

This seems like dangerous game to play. Biden could be easily disqualified from office by a sympathetic medical authority declaring him mentally unsound. Are we going to end up with future presidential elections determined by red and blue states' courts competing to eliminate the opposition from their ballots?

I think this is a stupid move from the Democrats.

In 2016, I could (somewhat) understand if some left-wingers were of the opinion that Trump was Hitler reborn and would lead the US into fascism.

In retrospect, these fears were exaggerated. Yes, putting illegal migrants into cages and separating them from their kids was bad, but not especially evil for an US president (my comparisons from recent memory are invading foreign countries under false pretenses (GWB), drone strikes (Obama), gitmo (mainly GWB), that Wikileaks farce (Obama, Trump, Biden)).

He already filled the supreme court, which cost the progressives Roe (which should have long been replaced by a federal law). The other damage (besides the White House becoming the laughingstock of the world) was his election denial.

If he is reelected in 2024, that will not be the end of US democracy. It might leave the Republicans in shambles eventually, but so what. If he loses, he will certainly lie that the election was Stolen again, but will probably not convince many new people that democracy was rigged.

If he claims that law enforcement is out to get him for political reasons, ignore that. Don't actually pass laws suspending the statue of limitations for US presidents so you can try him for some petty stuff which will mostly get him into the news again.

If he lies that the 2020 elections (which he lost in a landslide to a very meh opponent) were stolen, call out his lies. Don't make his point for him by banning him without the due process he would have in criminal court.

which he lost in a landslide to a very meh opponent

*in Paul Hogan's voice*

That's not a "Landslide", this is a "Landslide".

You did leave out the best part of the second dissent:

Thus, based on its interpretation of Section Three, our court sanctions these makeshift proceedings employed by the district court below...to adjudicate a federal constitutional claim (a complicated one at that) masquerading as a run-of-the-mill state Election Code claim. And because most other states don’t have the Election Code provisions we do, they won’t be able to enforce Section Three.

If enforcement of the 14th hinged on the cooperation of state judges, we'd still be in Reconstruction.

I find myself unconvinced by the majority opinion that Section 1-1-113 satisfies due process. Insurrection feels serious enough to merit criminal guilt, not just a civil judgment. On the flip side, I suppose that would be intractable. If Trump had personally murdered Pelosi on C-SPAN, what are the odds the trial would still be deadlocked?

It's funny, but I'm... not as optimistic about that portion of that dissent.

Hypothetical- this ruling is not contested. Instead GOP gives support to RFK jr.

In a state Biden would almost certainly win against Trump, he could conceivably lose to RFK jr thus depriving Biden of Colorado's electoral votes.

That's the "cognitive elite" at work.

Edit: holy crap, for the record, at time of writing I didn't know that @naraburns had already made effectively the same comment down thread. Also how am I only just now realizing that Nara Burns was/is an ExoSquad reference?

Edit: holy crap, for the record, at time of writing I didn't know that @naraburns had already made effectively the same comment down thread.

By the mouth of two or three witnesses every word shall be established.

Also how am I only just now realizing that Nara Burns was/is an ExoSquad reference?

Presumably you just haven't looked at my profile page or avatar in the last... 12 months? Prior to that, well, it is relatively obscure despite the cameos in 2018's Ready Player One (where both Marsh's Aerial Attack and Weston's Field Repair E-Frames make brief appearances).

By the mouth of two or three witnesses every word shall be established.

So say we all.

Presumably you just haven't looked at my profile page or avatar in the last... 12 months?

I'd seen the avatar but just hadn't made the connection because as much as I was into that shit when I was 13 I hadn't really thought about it since. Apropo, I was recently helping clean-out/de-clutter my mom's basement and came across a Rubbermaid tote full of my old ExoSquad and Dino-Rider toys which we're fixing up and repurposing into Christmas gifts for the eldest. I expect there's probably some collector somewhere cringing at the thought but come on... Kid's already big mecha fan, and actually has a pretty good track record of taking care of his toys.

Apropo, I was recently helping clean-out/de-clutter my mom's basement and came across a Rubbermaid tote full of my old ExoSquad and Dino-Rider toys which we're fixing up and repurposing into Christmas gifts for the eldest. I expect there's probably some collector somewhere cringing at the thought but come on... Kid's already big mecha fan, and actually has a pretty good track record of taking care of his toys.

What a fun Christmas gift! Fasa v. Playmates Toys was actually one of the first IP cases to catch my interest (you may remember how that ended); the Robotech/ExoSquad crossover toys (especially, the Veritech Fighter) occupy a really interesting place at the intersection of fandom and licensing.

I do remember how that ended *hat tip*

I also remember lusting after the ExoSquad "Heavy Assault E-Frame" that was essentially a "MadCat" from BattleTech with the serial numbers filed off. It wasn't till years later that I realized that ExoSquad and BattleTech (along with the associated MechWarrior and MechAssault video games) were separate properties.

Whoops, I'll delete mine.

No need, I was referring to my comment not yours.

"That's the "cognitive elite" at work."

vs.

"The "cognitive elite" strikes again!"

What happens in these states if Trump wins? They’re claiming that Trump is ineligible to be the president. Will we see some sort of president in absentia?

This seems like pretty naked secession behavior. Legitimately terrifying.

And just because we’re really beyond words meaning anything: how is this not “disrupting an official proceeding” -> an insurrection?

And just because we’re really beyond words meaning anything: how is this not “disrupting an official proceeding” -> and insurrection?

One of the reasons that I have been so insistent on all these legal attempts to prevent Trump from running is that they are setting precedents which will be astonishing weapons in the hands of a vengeful Trump presidency. What happens if they pull out all the dirty tricks and fail? The Colorado Supreme Court has now set the precedent that an official government body performing official duties can be charged in a trial that lacks basic legal protections (according to the dissent posted above). I don't think that was a good decision on their part for the extremely obvious reason that you've posted - they went and removed the barriers preventing a future Trump administration from charging them with those exact crimes!

One of the reasons that I have been so insistent on all these legal attempts to prevent Trump from running is that they are setting precedents which will be astonishing weapons in the hands of a vengeful Trump presidency.

No, they won't. The normal legal rules will be suddenly rediscovered and even strengthened if Trump is on the other side. One of the key things the progressives have done is maintain double standards like that. And they've done it so masterfully that not only can they do it when they're the judges, they can get supposedly conservative judges to follow them also.

Officials in Colorado and California (and more states to come soon, doubtless) can do this because they have the support of Blue Tribe, its captured institutions, and the consensus-generating machine that they collectively control and operate. A theoretical Trump presidency will have none of those things, and so cannot employ symmetrical tactics.

You might as well wonder why the BLM riots don't give Red Tribe a license to riot wherever they please. The answer is that Blue Tribe is the cultural umpire, and their statements on what is a riot, what a protest, and what an insurrection are dispositive. Likewise, you might as well ask why Blues get to flaunt repeated Supreme Court decisions at zero cost, or why Republicans can't use the FBI to hide their own scandals and spy on Democrat rivals. That's not the way any of this works. The power isn't in the rules, it's in the people interpreting them and building consensus around those interpretations. Two pounds of dynamite detonating in a national security facility is either terrorism or a harmless prank, depending on who the bomb belongs to.

California's Vice Governor has written the Secretary of State (and released the letter as a press-release) as follows:

Dear Secretary Weber,

Based on the Colorado Supreme Court's ruling in Anderson v. Griswold (2023 CO 63), I urge you to explore every legal option to remove former President Donald Trump from California’s 2024 presidential primary ballot.

I am prompted by the Colorado Supreme Court's recent ruling that former President Donald Trump is ineligible to appear on the state’s ballot as a Presidential Candidate due to his role in inciting an insurrection in the U.S. Capitol on January 6, 2021. This decision is about honoring the rule of law in our country and protecting the fundamental pillars of our democracy.

Specifically, the Colorado Supreme Court held in Anderson v. Griswold (2023 CO 63) that Trump’s insurrection disqualifies him under section three of the Fourteenth Amendment to stand for presidential re-election. Because the candidate is ineligible, the court ruled, it would be a “wrongful act” for the Colorado Secretary of State to list him as a candidate on that state’s presidential primary ballot. Furthermore, Colorado’s Supreme Court cites conservative Justice Neil Gorsuch to make their case, saying the following, “As then-Judge Gorsuch recognized in Hassan, it is ‘a state's legitimate interest in protecting the integrity and practical functioning of the political process' that 'permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.’”

California must stand on the right side of history. California is obligated to determine if Trump is ineligible for the California ballot for the same reasons described in Anderson. The Colorado decision can be the basis for a similar decision here in our state. The constitution is clear: you must be 35 years old and not be an insurrectionist.

There will be the inevitable political punditry about a decision to remove Trump from the ballot, but this is not a matter of political gamesmanship. This is a dire matter that puts at stake the sanctity of our constitution and our democracy.

Time is of the essence as your announcement of the certified list of candidates for the March 5, 2024, primary election is coming up next week, on December 28, 2023.

Thank you for all your work to make our state’s elections a shining example across the country and world and for your time and consideration on this urgent matter.

Best,

Ambassador Eleni Kounalakis (RET.) Lieutenant Governor

This seems clearly poised to grade the road for CA to follow CO's lead. And while this is initially just for the primary election, this is clearly laying the groundwork for removal of Trump (as the presumptive nominee) from the November ballot as well. It also sets CA on track for potential nullification of any actions taken by Trump in the event the 2024 election returns him to office.

California must stand on the right side of history.

I'm surprised to see this expression used unironically. How does future consensus opinion make an act morally right? But I suppose it's consistent with the idea that past actions can be judged by current moral standards.

As a small follow-up, I found this article interesting. Even though all justices on the Colorado Supreme Court were appointed by Democrats, three dissented in this case.

The four Colorado Supreme Court justices who ruled Trump ineligible for the White House under the U.S. Constitution’s insurrection clause and removed him from the state’s presidential primary ballot all attended Ivy League institutions or otherwise a top-ranked elite law school on the East Coast for law school.

The three dissenting justices, meanwhile, all graduated from the University of Denver's law school...

The "cognitive elite" strikes again!

If you put a gun to my head, I'd bet that this is overturned, or stayed until moot.

You miss a hundred percent of the shots you don't take. We're just warming up here, the election race has barely started! There's a whole year of this to go, and that's just until the election is "over".

Some obvious predictions:

  • Trump will be the Republican nominee.

  • Trump will not take office next year.

  • This will, again, be the "most secure election ever".

  • A year from now, public trust in the election, the courts, the media, the federal bureaucracy, and the federal government will be significantly lower than it is now. The pattern will hold for subsequent elections.

[EDIT] - To put it more plainly, the point of this isn't to keep Trump off the ballot. The point is that this is a way to hurt the outgroup without getting in too much trouble. If it actually keeps Trump off the ballot, fantastic. But the actual value is the incremental reduction in probability of an effective Trump administration, verses the predicted cost, which I'd imagine is perceived as negligible. What you are seeing here is Blue Tribe's institutional dedication to picking up pennies in front of a steamroller. And why not? Look at all these free pennies!

... I think this is insufficiently cynical/paranoid/worried.

As you say, the point is to do things perceived as hurting the outgroup without predicted cost of getting in too much trouble. But the people doing the perception and prediction are vast, and not all are wise or farseeing.

This doesn't matter! Trump didn't win Colorado in 2016, he didn't win the primary in Colorado in 2016. Even if it continues to the general election, there's no path to the White House that turns on Colorado. The standing and jurisdiction issues make this specific sort of challenge restricted to Colorado and a couple other (similarly unimportant) states, and the timeline means that even if someone started today to try to reflect the same processes backward, it wouldn't be able to hit for 2026, nevermind 2024.

But that's the sort of analysis that's somewhere between spherical-cow and infinite frictionless plane, assuming that one's enemies and even own side have not animating factor of their own. But the pebbles vote is the avalanche.

I linked to the past discussion on Baude and Pualsen's paper, not just because it's relevant, but because the court here endorsed its logic in the context of judicial review. But Baude did not limit to judicial review. Instead, their paper holds that every officer of the United States or state government with any power to review ballots has not just a power but a responsibility to unilaterally reject a Section-Three disqualified candidate. And that's the explicit text!

So to avoid further escalation, we do not merely need that every court and judge eventually deny or reverse this one ruling, but that everyone with the power to act on this chooses to put down particularly tempting and shiny weapon. Indeed, by the plain text of this decision, even if SCOTUS stays matters explicitly, the Colorado Secretary of State retains the power to reject ineligible candidates, as simple as can be. It's just the Secretary of State's determination, then, rather than being explicitly prohibited by court mandate from including Trump on the ballot. Unless and until a court issues an order explicitly requiring otherwise, there's only the often-broad limits of their powers under state law -- in the hands of people who can now, quite accurately, argue in the face of future lawsuits that they were not violating clearly established law. And that will remain the case after the primary, after the general election, and even after the election has been counted. In every state.

There's reason I compare this to the independent state legislature theory.

I was hesitant to talk about this publicly, for the same reason that I've been hesitant to talk about some of your drone stuff privately, even though it's a very interesting and important topic. But where there was a minor risk that public conversation might at least go different directions than Baude and Paulsen's papers, if not larger ones, a court case going to SCOTUS overwhelms any risk I or we could present.

I don't think people are stupid enough to try this, even with 50 Secretaries of State and a few thousand relevant electoral officials. It doesn't take many snake eyes, and I've been wrong before, though.

Oh, hell. That is definitely worse than I expected.

And that’s not even the worst part! There’s implications to the Baude argument that even today I’m totally unwilling to post in public clear text, even past what’s already happened and is being discussed.

And we have our first moron volunteer!.

This will, again, be the "most secure election ever".

I still can't get over the American Pravda aspect of this. Why not just say, "yeah, it wasn't great, but Covid was a tough time and we did our best"? Would anyone have thought worse of election officials and leadership if they did so? The ridiculous claim that it wasn't just good, but actually the bestest and most beautiful election ever just serves to further undermine trust in institutions. Insisting on phrasing it that way feels more like point deer, make horse than a literal claim about the quality of the election.

This and a handful of other threads over the last couple months have got me thinking about doing another Inferential Distance post on "trust" and "credibility" because it's becoming increasingly clear to me that there are a lot of people who seem to think that it's something that can somehow be arbitrated or imposed. The New York Times is a "Credible Source" because [reasons]. Appeals to academic consensus are "credible" because [reasons].

The idea that credibility and trust are resources that can be acquired, expended, and undermined just doesn't seem to factor into liberal thinking.

The idea that credibility and trust are resources that can be acquired, expended, and undermined just doesn't seem to factor into liberal thinking.

They believe, apparently correctly, that they have a set of institutions sufficient to manufacture and maintain credibility indefinitely no matter what they say, as long as they back each other up. The NYT can say whatever it wants and it will be credible -- just ask NPR, CNN, the Washington Post, whatever nonprofit NYU just spun up, etc. Whatever Fox News (or the New York Post or the Washington Times) says is "not credible" because "Faux News". The ground truth is too hard to reach and so never enters into it, at least for a majority of those paying attention at all.

This is exactly what I'm talking about.

You and I clearly have fundamentally different (and functionally incompatible) understandings of what the word "credibility" means.

What does credibility mean to you?

What I'm getting at is that to answer that question is an effort post in itself because it is clear that my concept of "credibility" is very different from that of many other posters.

If it's published in the NYT, a sufficient number of people will believe it or act as if they believe it. That's "credibility".

I still can't get over the American Pravda aspect of this. Why not just say, "yeah, it wasn't great, but Covid was a tough time and we did our best"?

I don’t know, when Burger King changes their french fry recipe, do they say it’s pretty good or do they proudly announce that it’s “the best ever” even if it’s a minor change in oil made for cost saving reasons? It seems extremely standard for every change made by some organization to be ‘the best ever’, because the alternative is that it isn’t the best ever, which means there’s been a decline. Yeah, perhaps service declines during coronavirus were inevitable across the board, but they weren’t usually advertised as such. Who can forget major hotel chains announcing that they were now only changing sheets every other day to ‘fight climate change’ or ‘reduce the spread of covid’ rather than to save money?

The processes changed, sure, but to have officials go on TV and say yeah we’re pretty sure it’s going to be a fair election but it might not be the fairest yet seems unlikely, even if the political climate isn’t as heated as it was in 2020.

Fair enough, I don’t disagree. I think a lot of government is interesting in that voters are theoretically both the shareholders and customers.

Domino's explicitly admitted that their pizza sucked. I found their advertising compelling and thereafter purchased Domino's pizza for the first time in a long time. It was true, they did make it better!

Sometimes, it's actually better to just tell the truth, if for no reason other than establishing credibility.

Still sort of think the low end delivery stuff sucks. I think I prefer grocery aisle pizza over Dominos plus relatively cheap to fix them up and add flavor (garlic, jalepenos etc) to your own taste.

I think that still fits with her narrative. They only admitted it sucked after they changed it. They didn't say their new pizza sucked

It’s probably based off some narrow technical claim from an agency that is true. For example I’m guessing the number of electronic voting machines with no paper trail has decreased. So if you have a bunch of things you have been trying to improve and they have all improved since the last election and are the best they have ever been then you can claim it is the most secure ever. There might be other things that you don’t measure that have been going in a negative direction but because they aren’t part of the improvement plan they don’t exist.

Trump will not take office next year.

Pedantically, assuming "next year" means 2024 this would be true even if Trump wins. The President does not assume office until January the year following the election (2025).

Trump can also not take office due to legitimately losing the election.

"Legitimately" according to who? I am sure that no matter how Trump is prevented from taking office, it will be entirely legitimate according to the New York Times and Blue Tribe generally. There will definately be wild accusations of election fraud. I'm going to wager that many of those accusations will be provably false, and none of them will be provably true. @ymeskhout will definately continue his series of impeccably accurate posts documenting these arguments and their lack of validity, as he should.

But it seems to me that the election is already illegitimate, and it will simply grow more illegitimate as this batch of escalations accumulate and ripen in the public consciousness. The gamesmanship has swamped any legitimacy the process might have had, and that trend will accelerate over time as the escalation spiral evolves.

What fraction of an electoral college vote is this novel legal theory worth, in practical terms? What fraction was it worth for the Press to systematically lie about the Hunter Biden Laptop story? What percentage was it worth for the FBI to assist in coordinating that lie? For the FBI to illegally spy on a presidential candidate? For Blue Tribe and the Democratic party to actively encourage and provide cover for large-scale, organized political violence? And so on, and on, ad nauseum.

Nor is there a remedy for these breaches, and the only available response is to find an escalation of your own. There is no agreement between the sides on what the rules actually are, no unified scale to measure escalations objectively. There will never be an agreement that what the other side did was justified by one's own side going too far; it's Russell Conjugations all the way down. Even if there were, the other side would simply agree and then add another escalation for good measure. When Red Tribe starts bombing things and murdering judges, no Blue is going to point to Ayers and Davis and say "well shucks, you got us there". It's going to be different, because it's always different when the outgroup does it. And likewise for Red Tribe, of course.

When Red Tribe starts bombing things and murdering judges, no Blue is going to point to Ayers and Davis and say "well shucks, you got us there". It's going to be different, because it's always different when the outgroup does it. And likewise for Red Tribe, of course.

They won't, though. Red Tribe is just going to quietly go extinct.

They won't, though. Red Tribe is just going to quietly go extinct.

Blue tribers keep saying this, but it's also the blue tribers who are the ones facing a "fertility crisis" not the red. As a general rule, if a couple has two or more kids the question is not "do they go to church?" it is "what church do they go to?"

Increasingly it’s what synagogue or mosque they go to, and that’s only amplified in Europe.

The blue tribe reproduces memetically, not genetically. As long as they control the schools and the media they can keep converting red children into blue adults.

How many red tribers do you know that don't own a television set, homeschool their children, forbid their kids from watching modern movies, and advise their daughters against going to college? Hardcore fringe Christian fundamentalists, maybe. Everyone else is perfectly happy to send their offspring to Caesar for their education, then make a Pikachu face when they come back as Romans.

The blue tribe reproduces memetically, not genetically.

Not in a rational bio-determinitsic world they don't. Funny how quickly the narrative changes once it becomes a threat to blue egos.

As for the rest aggressively vetting any movie or show before letting their kids see it and some level of home or private schooling describes the vast majority of parents I know.

Like I said, 2020 opened a lot of eyes and I suspect that the growing recognition of this fact is why we've seen so much batttle-space preparation around the topic of home-schooling and school choice.

Then some of those kids either go to college, or go to a larger city, and become blue tribe, or some sort of lib (and by lib, I mean not a Red Triber who thinks they're a super oppressed group of people who need to commit violence to survive. They still might vote for Republican's, but they just grill and don't care if their neighbors are gay.)

As long as Red Tribe kids have Youtube or any sort of access to the global Internet, we can win them over, even by such simple things as, "oh hey, the people I were told are terrible human beings who must be destroyed seem normal and have some of the same interests I do," aka, why random beauty bloggers on Youtube who are lesbians probably did more to advance gay marriage among say, rural Nebraskans under 25 than any politician, school, or normal form of entertainment.

Then some of those kids either go to college, or go to a larger city, and become blue tribe, or some sort of lib...

...and they wont make any grandkids.

Meanwhile the future will continue to belong to those who show up.

Also, projecting much?

Where do you think so many new Blue Tribers come from? Red Tribers hand their kids (especially daughters) over to them from K-16.

It's a bit early to tell, but I don't think they do. 2020 opened a lot of eyes and is a big part of why "school-choice" has become such a nakedly partisan topic.

And then they re-elected the Loudon County school board this year. Turns out that the media just has to play down the unpopular things Democrats are doing and eyes close right back up.

More comments

Trump will not take office next year.

Biden's poll numbers are shocking. I know: don't put too much faith in polls and it's pretty early to start counting. But, Biden's numbers are really shit. Trump might actually win.

That'll be a wild ride. But of course, many Democrats will work hard to """secure""" the election in a way that resembles a conspiracy between media organizations, federal law enforcement and major tech companies to prevent Trump from winning.

Biden's poll numbers are shocking.

It is entirely possible that votes for Trump will be adjudicated invalid in multiple states.

It is entirely possible that the "controversy" over his eligibility will result in a significant shift in voter behavior against him.

It is entirely possible that he will be in jail come election day.

It is entirely possible that the "controversy" over whether he should or should not be in jail will result in a significant shift in voter behavior against him.

It is entirely possible that he will be murdered between now and election day.

Little things add up.

Agreed on all points. Something as little as poll numbers shifting in a few swing states as we approach the election will flip the results.

I'm just against people easily dismissing Trump having any chance of victory. If the election were held today and people voted strictly by poll approval ratings, Trump would probably win. I get that is not a very strong statement, but it isn't nothing. He's not obviously going to lose.

He has better odds than the election he won.

Genuinely, it is hard to come up with anything to say that isn't already immediately obvious to any casual observer. My main reaction is that after all the sturm und drung about our sacred democracy, the people that want this are doing everything in their power to destroy the remaining legitimacy of Our Democracy. Of course, this thinking is about on par with the elephant in StoneToss.

Second is that I can barely contain my contempt for the legal profession and all of its fake pseudo-philosophizing. Hundreds of pages. They wrote hundreds of pages on this. Does anyone believe that hundreds of pages were necessary to arrive at this conclusion? Whether you think January 6 was an "insurrection" that disqualifies Trump or not, it's pretty obvious that you view isn't going to be based on careful line-item reading of endless history and text. In writing so extensively on the topic, the justices clarify that they're just liars concocting elaborate explanations for doing what they want to do anyway.

Finally, I would predict increased potential for violence, and it sure does seem like the people in charge are pushing the envelope, but after 2020 and its fallout, it's hard to imagine the American right doing much other than the elephant from StoneToss routine.

My main reaction is that after all the sturm und drung about our sacred democracy, the people that want this are doing everything in their power to destroy the remaining legitimacy of Our Democracy.

How does one define "democracy"?

There was this essay I read about a year or so ago and have not been able to find again, that keeps coming to mind as various things I read keep reminding me of it. I've even been tempted to try writing up a reconstruction (with what "steelmanning" I can) and posting it here for discussion.

The essay mostly referenced Rousseau, particularly his "general will" concept, and distinction from the "popular will," to argue that not only are elections not a sufficient condition to have a democracy, they're not important to democracy — practically unnecessary — and too much emphasis on them is a major threat to democracy. The tl;dr of the whole thing was to essentially define "democracy" as single-party rule by an intellectual vanguard of technocratic elites who do what they think is best, no matter what the voters want, and treat all elections as merely advisory and non-binding; and that "populist" politicians who campaign on doing what their constituents vote for, and then — even worse — try to actually do it once in office — in other words, what most people think "representative democracy" means — are the greatest threat to "democracy."

it's hard to imagine the American right doing much other than the elephant from StoneToss routine.

Exactly. Like @The_Nibbler said above, "Red Tribe is just going to quietly go extinct."

In what way does the observed evidence differ from what we would see in a world where these officials genuinely care about and want to preserve democracy, and genuinely believe that the Constitution has been violated and that this is the appropriate legal remedy?

It feels like your bottom line is 'My opponents will lie and cheat to beat Trump' and therefore it doesn't matter what actually happens in reality, if it's something that hurts Trump then the explanation must be lying and cheating.

That's the type of totalizing philosophy that can't actually learn from new evidence or predict things with a causal model. It should be avoided wherever possible.

I think in the eyes of a lot of the public there’s no plausible charitable reading of “they removed a major candidate (who pretty much has the nomination at this point) from the ballot in absence of a conviction for a crime.” This is a red line for any country that wants to claim the mantle of “real democracy” — that candidates even the ones the elite disagree with — have the right to run in a free and fair election. I don’t see how anyone who planned to vote GOP in any form is going to be okay with losing the election where their nominee Isn’t on the ballot.

So what’s being created here is a scenario in which the only result that the public can be sure that there was no interference in is “Trump wins.” If Trump loses, the GOP and MAGAs are not going to simply say “maybe next time,” because the reason they think the6 lost is the denial of their right to a fair and free election. It’s going to make the aftermath of 2020 look very tame. At least in 2020 we were holding a fair election where everyone who was running was on the ballot, the laws were mostly followed, and while there’s plausible theories of fraud, it wasn’t overt. I expect that there might well be attacks on state governments and election officials, possibly riots or other forms of violence because that’s generally what happens when people belief that their government has betrayed democracy.

Trump has only been barred from the Republican Primary ballot in CO. Absent a new ruling in a new court case, he will still be on the General Election ballot in CO, and people there are welcome to vote for him.

  • -10

If the finding of fact used to bar Trump from the primary is that Trump participated in an insurrection to a degree that makes him ineligible to run in a primary, what logic overturns that for the general election? How can the same facts mean you can’t run for the nomination, but that running for the actual office is okay? If he’s unable to run for the nomination he must also be ineligible for the general.

AFAIK they made a ruling on the primary ballot, and that's it. That logic might also apply to the general ballot, but they'd have to make a separate ruling for that to actually happen, and they could just not.

One obvious line of attack would be for Republicans to take a straight party-line vote to impeach (as if a ham sandwich, which prosecutors can famously charge with anything) any and all accessible current office holders who might run on the other side under (Trumped up, one might say) charges of "insurrection" against the Constitution and demand that states remove them from ballots too.

But I don't think that is a good idea, nor are they currently well-enough aligned together to actually pull it off, probably for the better.

There won't be much in the way of riots because the US Government has demonstrated it has the tools to successfully crush and then punish rioters. Turns out all the riots that weren't crushed and where the rioters didn't see serious consequences were because the government, for reasons of its own, wanted those riots to have more effect. The GOP and MAGAs will suck up the loss because they have choice but to do so or be imprisoned without fanfare.

In what way does the observed evidence differ from what we would see in a world where these officials genuinely care about and want to preserve democracy, and genuinely believe that the Constitution has been violated and that this is the appropriate legal remedy?

That removing the front runner from the ballot and attempting to imprison him is third world banana republic behavior.

What would be the appropriate response from the courts if Obama tried to run for a third term? What if he was really popular?

The issue at hand, which I don't think most of the comments here are addressing, is that a significant number of politicians, lawyers, etc believe that President Trump is disqualified from being on the ballot in the same way that Obama is disqualified from the ballot. They mostly come to this conclusion by looking at the January 6th report.

The most significant thing is that the court ruled that the January 6th report could be admitted into evidence and is being used as fact. The Supreme Court of the United States cannot contest that as it is a state-level decision, and the USC decides matters of law, not fact.

The cries that this is anti-democratic is missing the point. Restrictions on our elections are intentionally anti-democratic, but our books are full of them. Term limits, age limits, etc. This suits me, as I much prefer to live in a Republic than a Democracy.

The most significant thing is that the court ruled that the January 6th report could be admitted into evidence and is being used as fact. The Supreme Court of the United States cannot contest that as it is a state-level decision, and the USC decides matters of law, not fact.

The Supreme Court can certainly rule on state-level issues in its capacity as an appellate court from a State's highest court. That the January 6th report is admissible is a matter of law, not of fact. Furthermore, while appeals courts are indeed supposed to defer to trial courts as to matters of fact, this deference is not absolute --- and when it comes to the US Supreme Court, the deference is basically as much or as little as they care to give.

Playing cute games like accepting a partisan document as "fact" and then telling the US Supreme Court that it is beyond their review only works if SCOTUS plays along.

I wish we could amend Article 14 and change it to "convicted of insurrection in a court of law" or something like that. Most restrictions to office are ones that can be resolved by a simple glance at a birth certificate or official register.

By "I wish we could" I mean that the political will to come together and amend the Constitution no longer exists and I do not expect it to ever exist again. It is ironic that an article intending to defend against insurrection might be a cause of one.

In that reality, Democratic officials wouldn't have spied on the Trump campaign, instigated the Russian collusion hoax, rigged Hillary's primary, indicted Trump over Stormy Daniels, or changed election law to keep him from winning re-election. Even if the people behind those decisions are not sitting on the Colorado bench, it doesn't entitle them to unlimited benefit-of-the-doubt.

In what way does the observed evidence differ from what we would see in a world where these officials genuinely care about and want to preserve democracy, and genuinely believe that the Constitution has been violated and that this is the appropriate legal remedy?

In that world, this isn't an unprecedented step, and many people are regularly kept off the ballot, and members of both parties are vigorously prosecuted when they are found to have broken the law.

Unfortunately, that's not the world we live in, so I don't think there's anything principled at work here.

In that world, this isn't an unprecedented step, and many people are regularly kept off the ballot, and members of both parties are vigorously prosecuted when they are found to have broken the law.

So it's not the case that committing any crime at all makes you ineligible for the ballot. A convicted felon can run for and be elected as President, nothing in the Constitution against that.

The statute being cited in this case is specifically about officers of the state committing insurrection.

Are there past presidential candidates who arguably committed insurrection while officers of the state who you think should have been prosecuted in this way? Who are they, and what did they do?

You can say that Jan 6th wasn't actually a big deal, or wasn't Trump's fault, those are both reasonable positions. But the Senate being evacuated in the middle of certifying electors because a mob has stormed the building and is roaming the halls clashing with security and stealing things from Senator's offices is actually a really unusual thing that hasn't happened a bunch of times before.

Whether or not you think it rises to the level of insurrection, the argument 'if people were being fair we would have seen tons of prosecutions like this before' doesn't actually hold water, because things like this haven't happened tons of times before.

Are there past presidential candidates who arguably committed insurrection while officers of the state who you think should have been prosecuted in this way? Who are they, and what did they do?

Yes - Barack Obama and Joe Biden, who arranged for the surveillance of the President Elect and ginned up a fake scandal involving Russia in an attempt to take back the Presidency despite losing the election. There's a much clearer and easier case to be made for those two being directly involved than there is Trump with January 6.

Are you saying these actions (which I disagree about, but that's not important at this step) amount to insurrection?

Is your claim that they planned to use these charges to stop him from taking office in 2016, and somehow maneuver that to themselves staying in office instead?

That claim doesn't make any sense to me, even if they somehow succeeded in getting the Congress to impeach over that, Pence would have become president. There's no clear path from any of that to an overthrow of the entire order of succession.

Or are you saying they did that in an attempt to make him lose the next election so they could win it instead?

Because, that may be scummy and improper, but it's not insurrection. Lying and doing unethical things to win an election is very bad, but it's also very common, and the most it could amount to is election fraud. If you are legitimately winning an election, it's not insurrection.

Are you saying these actions (which I disagree about, but that's not important at this step) amount to insurrection?

No, but I am saying that they are actually closer to insurrection than anything Trump did. At no point did Trump deceive a court in order to acquire a fraudulent warrant, for instance.

Is your claim that they planned to use these charges to stop him from taking office in 2016, and somehow maneuver that to themselves staying in office instead?

Their plan was to sink the Trump presidency. Ideally they would have been able to get Pence down too and the entire election nullified, but they didn't actually succeed. Instead, they settled for simply sabotaging his term through the Mueller investigation, which we now know was completely fraudulent from the beginning.

Also, just to be clear, I don't think that this amounts to insurrection. But it is far, far closer to insurrection than anything Trump did during his time in office.

So, there's a difference between 'You think these actions were closer to insurrection than anything Trump did, therefore you find it unjust that only Trump was punished for insurrection' vs 'The prosecutors in question thought that those actions are closer to insurrection than anything Trump did, therefore their choice to only punish Trump for insurrection is intentional malice.'

Can you grant that, even if it's motivated reasoning or driven by propaganda and disdain, many of your opponents really and truly believe that Trump committed insurrection?

Because if so, that's sufficient to say that they are being honest (even if not fair/just) in prosecuting Trump for things they believe to be insurrection, but not prosecuting others for things that we all agree are not.

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Given how wide the "gave aid or comfort to enemies" line is this seems to be mainly an argument for every state to remove their political opponents from the ballot every election. For instance, Biden would be disqualified due to the Iran deal.

Negotiating an international treaty is not what that phrase means even if one thinks the treaty was a bad one.

That would be an insane interpretation.

Now the Iran-Contra deal is a little closer, but the intent wasn’t betrayal or treasonous.

For instance, Biden would be disqualified due to the Iran deal.

Only given an evenhanded adjudicator. That's not how this works, as @FCfromSSC points out above. It's double standards all the way down.

Trump had been unfairly prosecuted for much longer than that. I do not view 1/6/21 as the start of something different, I view it as the continuation of dirty tricks.

One of those tricks being letting the mob in on purpose to make Trump look bad.

Correct, my model is that if they weren't lying and cheating, I wouldn't see them lying and cheating. Charitable models are all well and good, but sometimes, you can simply see that people are lying and cheating and this is the base truth of the matter. What happens in reality will substantially impact my position on whether they're lying and cheating, but it will be based on whether they're lying and cheating, not whether I could come up with an incredibly implausible explanation for how they're actually very honest and doing their duty.

If I'm paraphrasing correctly, your point was 'why spend hundreds of pages pretending to justify your actions with evidence and legal theory when you were just going to lie and cheat to get this outcome no matter what'.

That doesn't sound like someone who has carefully read through the entire document and carefully considered every argument and weighed it against legal precedent and come to the conclusion that this is lying and cheating. It sounds like someone who has decided that they don't need to bother doing that analysis because they've already concluded it's lying and cheating in advance of considering that evidence.

That's not 'seeing them lying and cheating', that's interpreting things to be 'lying and cheating' before actually demonstrating that to be the case.

But correct me if I'm wrong about your process here.

(And if your point is just 'anything that is unusual/unlikely on baserate priors and also disadvantages Trump will be interpreted as lying and cheating because my prior on that is already high and thus it's the highest-probability explanation I have for rare events like these,' then that could be a reasonable position but you'd need to state it and argue for it explicitly)

That doesn't sound like someone who has carefully read through the entire document and carefully considered every argument and weighed it against legal precedent and come to the conclusion that this is lying and cheating.

Correct, I didn't read hundreds of pages of dissembling. There is no careful weighting required to arrive at the conclusion that no insurrection occurred. I am familiar with January 6, I have read the Amendment in question, and that suffices. I also have not actually read every scholarly work of scientology prior to concluding that it's probably a load of shit.

I have no particular affinity for Donald Trump, but I have a great deal of contempt for dishonest lawyers attempting to make convoluted arguments to avoid plain meanings.

This whole quagmire could be avoided if republicans simply let go of Trump and supported someone not so old and so indicted, but they love marching into a trap.

  • -23

Completely wrong.

It isn't Trump the person that is getting the ire of the security establishment/power elite, but the policies he is claiming to represent and desires to implement. It doesn't matter who the actual person is - any politician advocating for the positions he holds and that his base requires of any prospective leader will immediately end up in the exact same position with more spurious charges. Giving up on Trump sends the message that their concerns can be ignored and brushed over for the sake of petty excuses that don't matter at all for the left. Joe Biden and Hillary Clinton both have committed far more egregious crimes and problematic behaviors when compared to Trump, but nobody cares because they are fighting for the security establishment/power elite. Letting these facile concerns determine the candidate just means admitting that they will never, ever get their concerns addressed.

It isn't Trump the person that is getting the ire of the security establishment/power elite, but the policies he is claiming to represent and desires to implement.

Policies like First step act and Platinum plan? "Take the guns first, due process later"? Running up trillion dolar deficits?Maybe dems are angry because Trump was stealing from their playbook.

Giving up on Trump sends the message that their concerns can be ignored and brushed over for the sake of petty excuses

Then why is Ann Coulter for dropping Trump and nominating DeSantis? Or Massie?

Joe Biden and Hillary Clinton both have committed far more egregious crimes and problematic behaviors when compared to Trump, but nobody cares because they are fighting for the security establishment/power elite.

Sure, but that doesn't mean that Trump is innocent. Half of the prison population could be less guilty than those two for all I know.

Voters want what they want.

Hillary Clinton was the 2nd most disliked presidential candidate since modern opinion polling was invented. By some estimations she's practically the only Democrat who could have lost to Trump in 2016. This counterfactual "they should have picked someone else if they wanted to win" may be generally true for either or both parties for many elections.

But voters want what they want, and the Republican ones overwhelmingly want Trump by huge margins.

"Pick a different candidate if you want to win because your frontrunner is wildly unpopular" and "pick a different candidate if you want to win because your frontrunner is likely to be disqualified and/or imprisoned" are superficially similar but practically very different kinds of advice.

Trump only started leading by huge margins this primary after getting indicted. Glenn Beck and Tucker Carlson seeded a retarded narrative that americans should rally around Trump to somehow teach democrats a lesson.

That's not a retarded narrative. The second-best way to prevent the Democrats from engaging in dirty tricks is to demonstrate that those dirty tricks backfire.

Nominating Trump isn't a backfire. He's a divisive candidate and he wasn't a great president (better than Biden, but that's not saying much).

That isn’t a retarted narrative. Politics in America are coalition politics. You need to protect your flanks and even at times protect idiots in your flanks because if you they don’t vote you lose elections 49-51 instead of winning 51-49. Of course Trump isn’t exactly the flanks.

Further, everyone on the right believes pick your candidate Vivek, Desantis, even Liz Cheney would suddenly face the same treatment if they were the nominee. The only way to protect your movement is to rally around the flag.

Sure these are warfare arguments but politics has the same dynamics. In battle you either work as a team or our slaughtered as individuals.

I'd have preferred if they'd showed some spine instead, but Carlson in particular is a weathervane, not a keel.

What is the appropriate reaction to the leader of the party you prefer being politically persecuted? Set Trump aside for the moment, just imagine a country that you have no knowledge of or material stake in. If you heard that the former President had been indicted in a fashion that most members of that party thought was illegitimate, would you be at all surprised to hear that this created a backlash and hardened support for that candidate?

Ah, so people won't protest Republican voters from voting for their preferred candidate, so long as those people approve of that candidate.

Why not simply say "Vote for the Democratic candidate" instead? Because even if they dump Trump and pick Nikki Haley, or Vivek Ramaswamy, or A.N. Other, there is going to be "Literally Hitler!" reaction to whoever it is - or at least, Super Suppressors:

From the leader of the insurrection to a billionaire-turned-governor from North Dakota, the GOP’s large candidate field — down to seven candidates — features a wide array of figures, all of whom are antagonistic toward voting and democracy to varying degrees. No one skips out on suppressing the vote, all the way down to your average GOP voter suppression policies, like photo ID requirements.

There we go - don't vote for any of them, just vote for good old Joe, Republican voter, and we won't stop you exercising your right to vote!

Ah, so people won't protest Republican voters from voting for their preferred candidate, so long as those people approve of that candidate.

They won't protest Republican voters from voting for their preferred candidate, so long as that candidate doesn't have some very specific disqualifying infractions.

From the leader of the insurrection to a billionaire-turned-governor from North Dakota, the GOP’s large candidate field — down to seven candidates — features a wide array of figures, all of whom are antagonistic toward voting and democracy to varying degrees. No one skips out on suppressing the vote, all the way down to your average GOP voter suppression policies, like photo ID requirements.

Maybe the Republicans should stop supporting voter suppression if they don't want Dems to complain about it? Expecting the opposition party to like your candidates is a bridge too far (notably, we're not quoting anything the GOP says about Dem candidates), but nobody is trying to get Haley or DeSantis (or RFK Jr.) disqualified.

  • -17

See, your bit about voter suppression is precisely why I don't believe the blah about "just select a decent guy, for crying out loud". Why are you jumping to "of course the Republicans suppress voters" rather than "Yeah, some on the Democratic voting side do go overboard about that"?

No matter who is selected, there is going to be "If they're Republican, they're fascists".

I mean, you can believe what you like, but as I said, asking your opponents to not criticize your publicly acknowledged policy positions is a bit silly. Of course, the GOP doesn't call it voter suppression for the same reason Dems don't call it illegal immigration, but it doesn't change the fact the GOP is on record being in favor of making it harder to vote.

No matter who is selected, there is going to be "If they're Republican, they're fascists".

The analog here is the GOP talking about how Dems are socialists planning to destroy the American way of life, i.e. normal political marketing. It might be nice if people spoke in less hyperbolic terms, but the fact that they aren't isn't indicative of much.

  • -10

Of course, all of this is operating under the presumption that the Democrats' concern that the GOP has become increasingly illiberal and authoritarian is baseless hysteria. If it's not, then saying "if they're Republican, they're fascists" is not only predictable, it's fairly reasonable.

Like, say, if one of the more senior Republicans attempted a procedural coup and incited a mob to attack Congress. And then the entire party decided to go along with it and purged everyone who didn't follow suit.

It's not just the criticism, it's the ratfuckery. We're talking about constant escalation. You think it's a uniquely anti-Trump phenomenon but that doesn't seem plausible to people who've observed nothing but continual escalation this side of the millennium.

I've been here the whole time. Until 2014 or so I was a Republican.

I'm going to need you to be more specific about "ratfuckery", because my experience over the past 23 years has been an ever-escalating right-wing persecution complex at the same time as they've become increasingly underhanded and unhinged.

It's funny reading this post claiming the right has been ever-escalating their persecution complex, just two posts down from you gasping about how every republican is an insurrectionist.

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Maybe the Republicans should stop supporting voter suppression if they don't want Dems to complain about it?

The voter suppression narrative is BS that, where falsifiable, is falsified. It’s the democrats version of the kraken.

Not sure what you mean by that. GOP politicians are on-record as being in favor of targeted discouragement while GOP legislatures have been slapped down for passing targeted voter ID laws and contriving to re-disenfranchise felons in Florida (mentioned in the link above). That's to say nothing of things like suspicious patterns in polling place closures.

What is true, as near as I can tell, is that there isn't solid evidence for voter suppression efforts having a decisive impact on any particular election (anyone cares about). Partly this is because voting suppression tends to provoke short-term backlash, partly because more egregious efforts have been struck down, and partly because they're most likely to be implemented in already solidly red areas where they don't matter that.

But that's not a very strong defense. Regardless of how effective their efforts have been, the GOP continues to be openly supportive of making it harder to vote.

Or Democrats could, "simply," not invent novel legal theories to prosecute their political enemies. What's Game Theory predict if one side defects while the one side does not?

I think you end up with a situation where every GOP politician gets prosecuted on Novel Legal Theories until the GOP as a party quits nominating candidates

... that the other side will eventually defect, like Democrats are doing now.

I called that any form of trust-based equilibrium was toast way back when Reps stole a Supreme Court seat. I cannot overemphasize what an effect that event had in re-framing what politics was about and what the Republicans were like for politically engaged Dems who weren't already maximally cynical.

At the time I hoped that Democrats would defect in ways that merely rebalanced the court to correct for that theft, and let things return to a stable equilibrium otherwise. But, no, touching the court was considered beyond the pale by the highest levels of the Democratic party, so instead it's the lower levels of the party defecting in various corners in a decentralized way.

New hope is 'defeating' Trump would be enough to pacify those elements and get back to equilibrium. Not holding my breath though.

  • -21

I called that any form of trust-based equilibrium was toast way back when Reps stole a Supreme Court seat. I cannot overemphasize what an effect that event had in re-framing what politics was about and what the Republicans were like for politically engaged Dems who weren't already maximally cynical.

It goes both ways. McConnell refused to hold hearings on Garland because republicans had been convinced that democrats will never, ever deal with them honestly- and this prediction seems to have been true- by events occurring prior to Scalia’s death.

Reps stole a Supreme Court seat

Democrats did it first. Then act like wounded victims when the perfectly obvious response occurs. Explicitly told by the chief Republican what the consequences will be.

You may be right that this broke something important in American politics. I'd say both parties did it and wouldn't particularly single out the Republicans as being at fault.

Changing the filibuster rules and staling a Supreme Court seat are not remotely comparable.

  • -10

And yet they are compared.

Why do you think they aren't comparable and /u/TIRM does?

Escalation is not a great move for the country, even if it makes you personally feel good.

I'm sure Republicans can point to Bork and say it "really" started there. There a million other slights and violations of norms in the past.

Using smaller violations of norms in the past is never a good reason to justify larger ones now since, using the same logic, the other party can retaliate in an even bigger way.

The person you are arguing is on the record that they consider false rape accusations a legitimate political tactic. I don't think "escalation is bad" is going to persuade them.

The person you are arguing is on the record that they consider false rape accusations a legitimate political tactic.

Is that true @guesswho?

I think this is referring to this sequence

ymeskhout Trump got hit by two gag orders from two different judges [...] So with that out of the way, how does it apply to Trump? Judge Chutkan's order restricts him from making statements that "target" the prosecutor, court staff, and "reasonably foreseeable witnesses or the substance of their testimony". [...] Discrediting witnesses is harder to draw a clean line on, because again there's a gradient between discrediting and intimidating. I think Trump should have the absolute and unrestricted right to discuss any of his charges and discredit any evidence and witnesses against him.

guesswho I'm not sure why it's important to discredit a witness in the public eye, instead of at trial where you're allowed to say all those things directly to the judge and jury. Especially in light of the negative externalities to the system itself, ie if we allow defendants to make witnesses and judges and prosecutors and jurors lives a living nightmare right up until the line of 'definitely undeniably direct tampering', then that sets a precedent where no sane person wants to fill any of those roles, and the process of justice is impeded. [...]

sliders1234 [...] Girl who you had a drunken hook up texted you the next day saying how much fun she had with you last night. You ignore her text. 2 weeks later she claims rape. It’s in the newspaper. Suddenly your name is tarnished. Everyone in town now views your condo building as feeding money into your pocket. Sales slump. Now do you see why this hypothetical real estate developer would have a reason to hit back in the media? He’s being significantly punished (maybe leading to bankruptcy) without ever being found guilty in the court of law. Of course Trump has motivations to hit hard against the judge and prosecuting attorney. The more partisan they appear the more it makes him look better and get the marginal voter.

guesswho [...] I guess what I would say is that 1. that sees like a really narrow case [...] 2. I would hope a judge in that case wouldn't issue a blanket gag order [...] 3. yeah, there may have to be some trade-offs between corner-cases like this and making the system work in the median case. [...] I'm open to the idea that we should reform the system to make it less damaging to defendants who have not been convicted yet, but if we are deciding to care about that then these super-rich and powerful guys worrying about their reputations are way down on my list under a lot of other defendants who need the help more urgently.

That technically counts as "considering it fair that a defendant can be bound not to disparage a witness against them in a sexual assault case, even if the defendant is a politician and the rape accusation is false". But if that's the exchange @FCfromSSC is talking about it seems like a massive stretch to describe it that way.

Nope. It was on reddit, under his old handle, and about Kavanaugh. I don't have a link, though, so if he's willing to deny it, feel free to disregard as you please.

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No idea what they're talking about.

I'm sure they'll link something from 4 years ago but who knows what. It's all very tedious.

You were off by a year.

Being removed from a primary ballot in one state is much, much, much smaller than losing a Supreme Court justice.

  • -14

The stated reason for being removed from the primary ballot is that CO does not believe Trump is eligible to hold the office of POTUS. If the GOP nominates Trump, notwithstanding CO's lack of participation, for President, the same logic mandates that CO refuse to list Trump in the November election as GOP nominee. This isn't just about the primary, and claiming otherwise without further argument/support is either ignorant or malicious.

That seems like a logical conclusion, but the courts don't run on logic and everything about this case so far has run on obscure legal theories and precedents rather than logic.

Most specifically, there's nothing about this finding in this case that causes him to be barred from the general ballot, even if it makes sense that he should be based on this finding. AFAIK, there would still have to be a separate hearing and a separate judgement and a separate ruling in order to make that happen.

Maybe that's what will happen, maybe not; the USSC looks to be getting involved, so a lot could change between now and then. But either way, it's something that hasn't happened yet, so blaming people for doing it when they haven't is untoward.

It's not a "logical conclusion" - it's the actual holding of the CO Supreme Court. The relevant language is this (at pgs. 8-9):

We hold as follows:

• The Election Code allows the Electors to challenge President Trump’s status as a qualified candidate based on Section Three. Indeed, the Election Code provides the Electors their only viable means of litigating whether President Trump is disqualified from holding office under Section Three.

• Congress does not need to pass implementing legislation for Section Three’s disqualification provision to attach, and Section Three is, in that sense, self-executing.

• Judicial review of President Trump’s eligibility for office under Section Three is not precluded by the political question doctrine.

• 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 abuse its discretion in admitting portions of Congress’s January 6 Report into evidence at trial.

• 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.

• President Trump’s speech inciting the crowd that breached the U.S. Capitol on January 6, 2021, was not protected by the First Amendment.

The sum of these parts is this: President Trump is disqualified from holding the office of President under Section Three; because he is disqualified, it would be a wrongful act under the Election Code for the Secretary to list him as a candidate on the presidential primary ballot.

(bolding added for emphasis)

The chief holding is that, under Colorado's interpretation of federal law, Trump is disqualified from the office of President. The result of that finding under the facts of the case at bar is that Trump is disqualified from the primary ballot. However, the underlying holding is already sufficient for the CO Secretary of State to subsequently keep Trump off the November, 2024 ballot, as well as for the CO state government to claim nullification of any action by a future second Trump administration. It would require a second case affirmatively overturning this case in order for Trump to be placed on the CO presidential ballot in 2024.

The logic of the case must therefore hold that he is not eligible for the general in Colorado

What number of states removing Trump from the primary ballot will count for you as being larger than losing a Supreme Court Justice? What number of states removing Trump from the general ballot will count for you as being larger than losing a Supreme Court Justice? Set a goal post in the here and now, before we get to the culmination of this trend, so that we can look back and gauge whether they ended up escalating or not.

What number of states removing Trump from the primary ballot will count for you as being larger than losing a Supreme Court Justice?

I don't know, maybe 500?

Given that doing that would pretty much guarantee the Republicans a landslide win for whichever candidate they run instead and also for the Senate and House, this would have basically zero negative impact on their political aspirations and instead probably help them a lot.

Whereas, a Supreme Court seat is probably the most influential and consequential position in the entire government, it's the holy grail of political footballs, it's why you turn out to elect your side's president even if you find him tiresome or awful and don't really care who governs beyond that.

  • -11

Whereas, a Supreme Court seat is probably the most influential and consequential position in the entire government, it's the holy grail of political footballs, it's why you turn out to elect your side's president

Big oof. You're not going to convince anyone that it's not an escalation unless 500 states remove Trump from the ballot. The fact that you think this is even a plausible response is pretty indicative of bad faith, since you're all up and down this thread saying, 'Don't worry, it's just one, and it's just a primary,' to now see that you actually think that it being literally all of them for the general election would be totally fine. Like you've pre-planned an execution of the Law of Merited Impossibility.

Becoming a banana republic is clearly an escalation compared to parliamentary tactics/heresthetics.

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I called that any form of trust-based equilibrium was toast way back when Reps stole a Supreme Court seat. I cannot overemphasize what an effect that event had in re-framing what politics was about and what the Republicans were like for politically engaged Dems who weren't already maximally cynical.

I think you can over-emphasize its importance. The political tit-for-tat and flouting national norms goes back a long time. But I would politely suggest anyone looking to the Garland -> Gorsuch -> Kavanaugh arc of the Supreme Court as the only relevant history is either misinformed, or using deeply-motivated history.

As some examples:

The modern history of contentious Supreme Court Justice Nominations really starts with Robert Bork.

Clarence Thomas and Brett Kavanaugh (and perhaps even Amy Comey Barrett) were subject to far more contentious nominations than anything Democratic appointees have ever been subject to.

Bush v Gore probably did more than any other case to convince the public that the Court is a political actor.

The Roberts opinion affirming the Constitutionality of Obamacare probably comes second.

Looking past SCOTUS: Russiagate pee tape accusations and George Floyd had a far more radicalizing effect on the Left than Garland being denied a seat.

Politics is of course a two-way relationship, but if we were to arbitrarily tally up norms broken in the last 30 years (or 40, or whatever), I think it would generally be the left breaking more of them. A lot of the Right's exceptions would be contained to Bush's actions over the Iraq War, with many of Trump's actions being broadly disdained by the GOP. (They wouldn't even let him declare an emergency to build a border wall.)

Clarence Thomas and Brett Kavanaugh (and perhaps even Amy Comey Barrett) were subject to far more contentious nominations than anything Democratic appointees have ever been subject to.

The difference being that those are names of 3 Supreme Court justices.

Yes, the Democrats did reject one Republican nominee 35 years ago. But he was rejected after an open and pulib hearing and vote, and then the next Republican nominee that replaced him was unanimously approved. Reagan still filled his seat.

The issue is not that Garland had a contentious hearing, or even that he was not confirmed at his hearing. The issue is that he had no hearing and no vote, the Republicans just pretended he didn't exist.

There has indeed always been acrimony and fighting over SC seats, and using the rules to ratfuck the other party wherever possible.

But this one went beyond the established rules in a way that was genuinely surprising/baffling/outraging to people at the time. A big fight with lots of mud slinging and feet dragging was expected, what happened was just weird

And as such, I really do believe it expanded the borders of what types of ratfucking and acrimony could be reasonably entertained.

  • -10

If he had a hearing but they never were going to vote yes would that have satisfied you?

If they then went on to unanimously elect Obama's next nominee, which is what happened in the Bork case, then sure, that would be fine.

Bork's rejection was unprecedented and for fundamentally political reasons. You can argue why you think it was justified, but that's not the relevant question: we're talking about the long-escalating fight over norms. As such:

But this one went beyond the established rules in a way that was genuinely surprising/baffling/outraging to people at the time.

This was also true of Bork's hearing. Everyone admitted he had one of the finest legal minds of his generation and was immeninently qualified to sit on the Supreme Court. (It is the ultimate irony that it was Biden who lead the push against Bork at the time, and has had to deal with the consequences.)

I don't doubt that Republicans' treatment of Garland was an escalation, although I quibble with some of these details. (I always hear it said that it was appaling that the GOP never even held hearings -- but I don't think, if they had voted no after some show trials, that it would really have helped anyone feel better.)

I'm also not arguing here that Democrats are uniquely bad and Republicans have never fouught back. But in the modern context I don't think the Garland nomination is this uniquely radicalizing moment. Probably in the top ten. Maybe it cracks the top five.

I always hear it said that it was appaling that the GOP never even held hearings -- but I don't think, if they had voted no after some show trials, that it would really have helped anyone feel better

If they had voted 'no', and then unanimously voted yes on Obama's nest appointment, as is what actually happened with Bork, people would have felt a lot better.

No one is particularly attached to Garland in particular, they're attached to the seat.

They wouldn't have voted yes on Obama's next appointment. They made it clear that they wanted the seat, not to slight Garland specifically.

I'm not saying Republicans didn't really do anything provocative. I'm saying that the specific is irrelevant.

when Reps stole a Supreme Court seat

Stole from whom, exactly? Who did that seat belong to? Because from my recollection, the Senate, that august body of 100, decided through its rules that they didn't like the nominee enough to even bother voting on him. And it is the Senate that gets to decide who sits on the court. If the seat is said to belong to anyone, or any group, it surely belongs to the Senate, and they did with their property exactly what they wanted done with it.

Stole from whom, exactly?

The president gets to nominate SC justices. Customarily (see @guesswho's remark about trust), the Senate almost always accepts them, even when the president is from an opposing party. It has rejected them on occasion (or nominees have been withdrawn when it was clear they were headed for rejection). Garland was neither rejected nor withdraw. McConnell simply refused to hold a hearing or consider the nomination.

Yes, in theory, the Senate can do whatever it wants. In reality, what McConnell did was extremely unusual, compounded by the handling of ACB's nomination making it clear that his arguments with respect to Garland were unambiguously in bad faith. If you keep mashing the defect button, don't be surprised when your opposition starts Noticing.

The president gets to nominate SC justices

And nobody is arguing that this was disrupted.

In reality, what McConnell did was extremely unusual, compounded by the handling of ACB's nomination making it clear that his arguments with respect to Garland were unambiguously in bad faith.

It was perfectly usual, in that it was the usual escalation that can be traced back to Bork, at the very least. This was thirty years of chickens coming home to roost, and was perfectly in line with previous escalations from both sides.

If you keep mashing the defect button, don't be surprised when your opposition starts Noticing.

YES! THAT IS EXACTLY WHAT HAPPENED! Except it was the Republicans who finally Noticed, and truly defected rather than be played for chumps.

You still haven't answered the question. To whom does the stolen seat belong? From my perspective, it belongs to Gorsuch, because he's the one who the Senate confirmed.

All of these problems are directly downstream from 17A, by the way.

And nobody is arguing that this was disrupted.

I am. I'm arguing it. Obama nominated a candidate and McConnell sat on it for a year.

it was the usual escalation that can be traced back to Bork, at the very least

Bork always gets wheeled out as the excuse, but it's total bullshit. Bork was rejected (unusual but far from unprecedented) and replaced with... another Reagan nominee. Who was confirmed. In other words, what we'd expect to happen. If McConnell had specific issues with Garland as a nominee, he should have held a hearing and voiced them. Of course, he didn't, because he didn't have a problem with Merrick Garland. He openly declared he wasn't going to consider any nominee.

You still haven't answered the question. To whom does the stolen seat belong?

The seat doesn't 'belong' to anyone because it's not a piece of property, but by long-standing American political norms it was Obama's prerogative to fill the seat. Word games and playing dumb about idiomatic use of the word 'stole' can't duck the GOP's flagrant breach of trust.

Except it was the Republicans who finally Noticed, and truly defected rather than be played for chumps.

That would imply that the Republicans weren't defecting constantly, when in fact that was pretty the standard playbook since the end of the cold war.

Obama nominated a candidate and McConnell sat on it for a year.

So what?. Obama nominated someone and sent the nominee to the Senate. The Senate didn't confirm the nominee, and made it clear he wouldn't be confirmed at all. It was Obama's prerogative to nominate someone, and he could have withdrawn the nomination and tried someone else, but chose not to in order to make people like you think that it was somehow stolen.

The seat doesn't 'belong' to anyone because it's not a piece of property, but by long-standing American political norms it was Obama's prerogative to fill the seat.

It doesn't belong to anyone, and it was not stolen. The President nominates, the Senate fills. There's no reason why the Senate must consider any nominee, and may reject or refuse to consider any of them as they please. This is called the separation of powers, and while it hasn't had a good time of things, there are still some places where it is relevant.

Your political norms are just that, norms, not law, not even rules, and certainly not constitutional directive. They were broken when Bork was rejected on ideological grounds, rather than competency grounds. That was the first major escalation, and it has gone back and forth since then. Other norms were violated and are no longer normal. Of course the latest round is more significant than the original offense, that's why it's escalating.

That would imply that the Republicans weren't defecting constantly, when in fact that was pretty the standard playbook since the end of the cold war.

Better than implying it's only Republicans defecting, when it is clearly tit for tat. I'd be much more sympathetic to the Democrats if it wasn't their party who reduced the Senate threshold for nomination in order to appoint dozens of Obama judges, but I understand they did that in order to get around disagreements from the minority who would not confirm those judges. To get hoisted by your own petard is shameful enough, there's no need for further griping.

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Yeah and the august body that is the Colorado Supreme Court decided that Trump is ineligible, what’s your point? Both actions are ‘legal’ (albeit in the latter case for now).

Because from my recollection, the Senate, that august body of 100, decided through its rules that they didn't like the nominee enough to even bother voting on him.

... No, that's not what happened.

It's exactly what happened. The Senate chose not to vote on one nominee, which is their right. All 100 members voted on the rules for that session, and all 100 members voted on who would lead them. The leader followed those rules and simply chose not to vote on an undesirable nominee.

You didn't answer my question, though. From whom was the seat stolen? To whom did it belong? You seem to think Obama was entitled to it, that YOU were entitled to it, but I'd rather hear you speak for yourself.

FWIW I have a similar feeling. The Supreme Court seat was a major move, and just because I have benefitted from it doesn't change the reality of how serious it was. Much of this feels downstream of that.

It should be apparent by now that Garland was not the middle-of-the-road moderate he was painted as in the media. Nothing stopped Obama from nominating someone more palatable to the Senate.

That's true, but it's immaterial to the gamesmanship of refusing to confirm a justice. The people doing it weren't seers predicting the future, they were changing precedent around confirmation as a political trap card.

Who do you imagine the congressional/senate GOP would have approved of? It’s clear they wouldn’t accept anyone who didn’t appear likely to reverse Roe, which was obviously the red line.

I think they would have approved Neil Gorsuch.

Obviously Obama didn't want to nominate Gorsuch, which was his prerogative as President. But it's obviously untrue that the Senate would have rejected any possible nomination.

I don't think that's clear, and if that's the case, the obvious political move would be to nominate somebody who leans conservative on most issues except Roe to reduce the expected payoff of the gamble they were taking.

It’s only a major move because we don’t actually live in a rule of law land at that level. Realistically words should have meaning but “living constitutional theory” meant the SC could just do whatever they want and act as a legislative body.

The GOP didn’t do that. The Dems created a whole philosophy that turned the SC into more than it was suppose to be. The GOP didn’t make the SC the supreme legislative body.

We can reach back as far as we want to figure out who the real villain is but, realistically, it's just an escalation of what's been going on forever. The Warren Court was another major episode/era of course, but there have been more.

I just think it'd be foolish to not recognize how angry this move made Democrats and how it may have changed their approach. Many of them called for far more aggression in the aftermath.

This is useful if one recognizes that moves can also make republicans angry and change their approach. Specifically, it is useful in that it shows you that the escalation spiral cannot be halted or controlled by the available levers of social policy, with disaster the likely outcome.

Likewise, it is useful if one does not recognize the above. In that case, it is useful in that it cements a narrative that Republicans are the bad guys, by promoting the unspoken norm that it's only an escalation when Republicans do it.

Neither the Dems nor the GOP did that. The Supreme Court has been supreme since 1803, and it's always been calvinball because it can't not be.

That's a whole different issue. I am all for punishing the dems, but I don't think you'll end up doing that by nominating Trump.

He who wants to own the libs must take care not to get owned by the libs.

I have a lot of doubt about Trump's ability to win in 2024, but I can't think of any better option for Republicans to run. Who do you think the Republicans have who would have a better chance of winning the general election than Trump does? Haley slightly outperforms him against Biden in swing states according to a recent poll, but for me that's an "I'll believe it when I see it" kind of thing because to me Haley seems pretty devoid of charisma* and every single President since maybe George H.W. Bush has had at least some level of charisma, whether it's the Clinton and Obama "cool young guy" thing, the George W. Bush "down-home guy you can imagine having a beer with" thing, the Trump "funny macho troll" thing, or the Biden "cantankerous old guy who's willing to talk a bit of shit" thing.

But maybe I'm overrating charisma, or underrating how much of it the non-Trump Republican candidates have.

*Which is not entirely her fault, I think. It's just that to the viewer's ape brain, her combativeness works less well because she is a woman than it would if she were a man.

I have a lot of doubt about Trump's ability to win in 2024, but I can't think of any better option for Republicans to run.

I can't either, but that is itself an indictment of Trump, Trump-Ism, and the Trump-Ist Republican Party. It's been eight years since Trump started his takeover, and there is no credible successor to his role. There is no political, or even peripheral non-political, figure who is sufficiently loved and respected by the majority of MAGA Republicans to rally behind. Without Donald Trump, the whole idea collapses. Donald hasn't selected and groomed a successor, the party hasn't hyped up anyone who matters half enough to pull it off, his followers haven't congregated and selected someone. Desantis isn't Trump, Haley isn't Trump, Cotton isn't Trump. Essentially everyone else has taken sides against Trump at some point. The best pick might be one of his kids, but I'm not sure any of them have the gravitas to pull it off, and Don hasn't done nearly enough to build them up on their own.

It seems like "picking a successor" is very low-hanging fruit that isn't very often picked in US politics. Or am I missing some good examples? Is there an argument that Reagan did that successfully with H.W., and then H.W. did that successfully with George W., as part of an intentional plan, or is that typically taken to be happenstance and situational maneuvering?

It seems like planning your successor, if you are a popular president, is a really easy and obvious thing to do. But I guess the issue is getting everyone else on board with that. There's a lot more demand for the Office of the Presidency than there is supply...

Who do you think the Republicans have who would have a better chance of winning the general election than Trump does?

I think the answer to that question is basically 'Anyone else on the stage at the Republican debates'.

It's not as if voters need to like a candidate in order to vote for them, polarization is too high for that to matter. Either side could run a sack of potatoes with an 'R' or a 'D' sewn onto it and get 45% of the vote (and this isn't even irrational, which party's priorities the candidate will be a conduit for has a much greater impact than variance in individual competence/character).

The problem with Trump is the same as the problem with Clinton - the other side hates and fears him so much that running him drives up turnout on the other side. Anyone who doesn't do that will likely have a better electoral outcome.

Democrats did that with Fetterman. Maybe he really did have stroke issues but now that he’s woken up I don’t mind him as a politician as he’s pissing off progs on multiple issues including Israel. He’s basically declared himself as not having the woke mind virus.

Hates Ticktock and thinks it’s ruining the young (sounds kind of maga). https://www.msn.com/en-us/news/opinion/fetterman-argues-tiktok-is-warping-young-peoples-views-on-israel-hamas-started-this/vi-AA1lNkWO

I don’t have a problem selling US Steel to Japs but also Maga protectionism. 98% of merger arbs go thru (witness X) if it dips on these concerns there is likely a trade.

https://www.theguardian.com/us-news/2023/dec/19/john-fetterman-vote-block-us-steel-sale

Anti-immigration

https://www.msn.com/en-us/news/politics/is-john-fetterman-changing-or-were-progressives-mistaken-about-him-yes/ar-AA1lLlBd

Some of these might be things Sanders would support but not woke.

I think the answer to that question is basically 'Anyone else on the stage at the Republican debates'.

Spoken like a man who wants a democrat in the White House in 2025. Nobody else can get elected because everyone else sucks. Haley is a neocon pipe dream. DeSantis blew his load too early. These people can't overcome the demographic advantages of Democrats after decades of unrestricted importation of democrat voters.

Donald is the only proven loser amongst them in a presidential election, though. It’s not that criticism of them isn’t valid, it’s that much of it applies to Trump (who will preserve most ‘neocon’ foreign policy to the extent that it exists) and again, Trump isn’t a guaranteed winner either.

Trump is harder on China, on immigration, on NATO, than any neocon I've ever heard of, or any other politician in my lifetime. You can't make me believe that there's anyone else like him, it that he'd like anyone else, and you certainly can't make me believe that any of the more palatable Republicans can match his willingness to defy the uniparty.

At least, not until I see it for myself from someone else.

A quick glance at Commentary doesn’t suggest that Trump is tougher on China than the neocons. Of the major neoconservatives most other than Max Boot (who completely renounced neoconservatism years ago, hates Bibi, considers the Iraq/Afghanistan wars major mistakes now etc) are harshly anti-China. Commentary is literally publishing articles claiming the Chinese government is training the Iranian revolutionary guard, for a neocon that’s tantamount to calling for a declaration of war lmao. Kristol is tough on China on Twitter. Podhoretz was highly critical of Blinken’s ‘outreach’ efforts to China over the summer, aligning with Trump.

Podhoretz

None of those people have even tried to get elected once. Not even as dog catcher. Trump ran for president in 2000, at least, and intended to get elected.

They are not politicians, they are pundits, and I don't care to compare politicians to pundits.

Talk is cheap. They can say all these things, but will oppose any concrete actions against China.

... why can Trump overcome that supposed demographic advantage, again?

Because he motivated nonvoters in ways unseen in decades.

The problem with Trump is the same as the problem with Clinton - the other side hates and fears him so much that running him drives up turnout on the other side. Anyone who doesn't do that will likely have a better electoral outcome.

I believe this is now fully baked in for all Republican candidates. Haley gets GoodGuy points at the moment because she's a loser that has zero chance of beating Trump. If she were nominated, she would immediately be a Nazi, dangerous to our sacred trans children and innocent asylum seekers. Normal, completely ordinary policies from a decade ago are now treated as signs of literal fascism. We're going to need a long period of de-escalation before a Republican winning the Presidency isn't treated like a reason for riots.

I mean yeah the rhetoric is always going to be that whoever is on the other side of the ballot is pure evil, that's just campaigning.

But what matters is how much the voters viscerally feel that rhetoric to be true, and how motivated they are by it. I absolutely do not believe that Democratic voters would be equally motivated to hate and turn out against any other candidate the way they are for Trump, there's a long shared trauma around the Trump name at this point that other candidates lack.

I sort of feel like maybe there's a blind spot here among the anti-democrat crowd, where they believe (or need to believe) that Trump is pretty normal and unremarkable and everything the other side tries to throw at him are lies and exaggerations. And that's a perfectly reasonable position to take, but I think it can blind people to teh fact that the other side does not feel this way, and actually believes and feels the things they are saying about how much of a unique and horrible threat he is.

If you believed that your opponents believed that Trump was perfectly normal and unobjectionable, then the only conclusion you could reach is that the other side is happy to lie outlandishly and histrionically about whoever is heading the GOP in order to get power, and the entire act in insincere from the highest halls of power to the lowest level voter. And it feels like some people are coming to that conclusion, implicitly or explicitly.

But as usual for cases like this, what's actually going on is that the other side doesn't believe what you believe, and is actually acting pretty normally in ways that you would recognize and probably do yourself, if you did believe what they believed.

Disagreements about matters of fact are a far more common and parsimonious explanation than one half of the country suddenly diverging from human nature to become elaborate liars larping every moment of their political engagement for a decade.

the only conclusion you could reach is that the other side is happy to lie outlandishly and histrionically about whoever is heading the GOP in order to get power

I remember that Mitt Romney was going to bring back slavery, tortured his dog, and never paid his taxes.
I remember when MAGA chuds tried to lynch a Black actor in Chicago and people who expressed doubts about it were outlandishly and histrionically accused of being pro-lynching. Then the accuser laughed it off because he never believed in the first place, it was just effective "rhetoric" for someone who treats every conversation as a struggle session, and every conversation partner as a victim to be insincerely manipulated.

And that's a perfectly reasonable position to take, but I think it can blind people to teh fact that the other side does not feel this way, and actually believes and feels the things they are saying about how much of a unique and horrible threat he is.

People are perfectly able to convince themselves of ideas by motivated reasoning when the idea is convenient for them to believe. "Lying" is probably the closest word we have to this. Or maybe "motivated reckless reasoning" or some such.

Okay, so they aren't mostly liars. The ones in the media actually are, but the typical sort-of-engaged voter is not.

But, this means they are something more insidious than a liar. They are people who easily let themselves be convinced that [current republican candidate] is an existential threat to democracy, a dogwhistling cryptofascist, etc, etc. They may not be lying, but they so thoroughly selectively lack skepticism that they let bad news headlines convince them that Mike Pence electro-shocks gay children.

Yes, you and them disagree about matters of fact, and at least one of you is wrong.

I myself am not an optimist, I suspect that they are wrong, you are wrong, and I am wrong about most of our beliefs on all of these topics. We simply don't have the level of truth-preserving information channels it would take to expect to consistently do better than that as a society.

I absolutely do not believe that Democratic voters would be equally motivated to hate and turn out against any other candidate the way they are for Trump

Sure, but Republican voters are also probably not going to be equally motivated to turn out for any other candidate the way they are for Trump.

The thing is that bonus Trump voters in guaranteed red states aren’t worth anything, while less Biden voters in purple states are.

Boosting voter turnout in Wyoming or Arkansas is worthless for the GOP.

Perhaps.

My impression is that Republicans are motivated by a sense of crisis around a pervasive culture war that seeps into every nook and cranny of life and lies behind every public and private institution. The election was stolen by a hundred different election officials and a thousand collaborators covering for them, teachers are transing your kids and teaching them to be Marxists, immigrants are pouring over the boarder and taking your government services, etc. A diffuse, broad crisis that requires decisive and far-reaching leadership to combat.

Whereas I think Democrats have very much focused their own sense of crisis around Trump specifically, claiming that he personally is a threat to democracy and decency and needs to be defeated at all costs.

My impression is that removing Trump from the equation dissipates the sense of crisis and urgency felt by the Democrats, but not that felt by the Republicans.

Republicans may not love the new nominee, but they'll be driven to vote for him out of the fear of the ongoing existential crisis anyway, in the same way that Democrats are historically unenthusiastic about Biden but are turning out anyway to vote against Trump.

I could of course be wrong, but that's my sense of the field.

Of course, all Republicans are "fascists", but do you truly not see a difference in the tenor and hyperbole over Trump?

I do think a different candidate would be much harder for the Democrats to attack in this way. Trump makes it easy because he is an obviously narcissistic prick.

Of course, all Republicans are "fascists", but do you truly not see a difference in the tenor and hyperbole over Trump?

Not really, no, just the effects of increased polarization driven by other factors, mainly social media. I absolutely think the polarization would be no less with any other Republican.

I think replacing Trump with DeSantis would immediately result in the rhetoric being that it's even scarier, that it's Trump-but-competent, that Project 2025 is still a danger to Our Democracy, and so on. Maybe they couldn't whip up the populace quite the same, I don't know, but the attempt would exist and I would still expect riots if any Republican wins in 2024.

Yeah, the attacks on DeSantis in 2020–2021 made me realize that whoever the Republicans nominated, they'd be attacked mercilessly by the media.

It's somewhat sad that people seem to have forgotten the pandemic so quickly. I view DeSantis as a hero for what he did in Florida.

It truly is amazing the collective amnesia

Exactly correct - the rhetoric will be like that no matter who is on the ballot, that's what campaigning is like these days, but it won't actually energize Dems to get out the vote if it's not aimed at Trump, meaning it's an advantage to Reps.

*Which is not entirely her fault, I think. It's just that to the viewer's ape brain, her combativeness works less well because she is a woman than it would if she were a man.

I remember when some people ran with this idea, trained actors to perform a gender swapped Hillary Trump debate, and it did not turn out the way they had assumed it would.

Haley seems like a mirage. There hasn’t been constant attacks against her and her record isn’t great. Vivek is right that she is corrupt.

She is a trap.

Trump goes down in the polls if he's found guilty, which he very well may be. Nimrata Haley is complete trash (pro war and anti anonymity), DeSantis is the obvious right choice.

DeSantis is the obvious right choice.

If I had pearls, I'd be clutching them right now 😁

Vote for DeathSantis? The monster responsible for turning Florida into such a fascist state, representative organisations issued travel advisory warnings to LGBT+ and BIPOC people about visiting there?

Why, even I - white-skinned as I am - might be in peril because I speak with an accent!

Travel to all areas of Florida should be done with extreme caution as it can be particularly unsafe for people of color, LGBTQIA+ communities and individuals who speak with an accent, and international travelers. Due to unconstitutional legislation signed by Governor Ron DeSantis and supported by Legislative Leadership, every county in Florida poses a heightened risk of harassment, possible detainment, and potential family separation based on racial profiling.

In Florida, routine daily activities for those who cannot immediately prove United States Citizenship and lawful residency at all times may result in devastating consequences. These consequences include arrest for operating a vehicle, no matter the state you are from, reduced access to healthcare services, and compromised safety. Exercise extra caution if you are over 6 weeks pregnant due to restrictions on reproductive health services*.

It is recommended to consult with a licensed attorney if you fall into any of the above mentioned groups before traveling to Florida in order to assess the level of danger you may encounter in being searched, questioned, and/or arrested.

Since we dast not venture into the Heart of Darkness that is Tallahassee and parts east, west, north and south, you suggest that the beast who dens there is fit to be considered as leader of the great nation of the United States of America? Gasp! Swoon! Amaze and alarm! 🤣

(*Call me an out-of-touch dinosaur, but I can't honestly imagine pregnant travellers deciding that hey, since I'm visiting Disney World, might as well fit a spur of the moment abortion in while I'm here!)

It doesn’t matter. Yes, NYT journalists would care as much, but your average ‘moderate’ undecided blue-leaning voter doesn’t think DeSantis is near as much of a fascist as Trump and it seems highly unlikely the press can replicate 9 years of anti-Trump messaging in the year before an election, even at maximum effort.

your average ‘moderate’ undecided blue-leaning voter doesn’t think DeSantis is near as much of a fascist as Trump

"Not as much" is not the same as "not a fascist".

but your average ‘moderate’ undecided blue-leaning voter doesn’t think DeSantis is near as much of a fascist as Trump

What are you basing this on? Is there polling on this?

Nimarata, not Nimrata. Two a's.

Three As, actually.

How do I get that wrong. I should delete my account in shame.

The problem with DeSantis is that his record of legislation, rhetoric, and stunts is 'evil' enough by progressive/Dem standards that once they were educated about him in the General election, he might drive up Democratic turnout at the polls almost as much as Trump does.

What the Republicans should do if they want to win is put up some boring bog-standard fiscal conservative. Run Mitt Romney again or something. Republicans won't be excited about him, but it's not like they're going to vote for a democrat.

Political pundits have been wondering for years how Democrats have such low approval for Biden and really don't want him to run, yet also turn out to vote for him and his party consistently and plan to support him 100%. The cause for this unusual state of affairs is the hatred and fear of Trump, serving as a rallying point to turn every election cycle into a crusade. No Dems are going to step out of line or tolerate their friends doing so while a second Trump term is on the table.

Take away that rallying point, and the whole thing could collapse. Dems could remember how much they are uninspired by Biden, and not show up to the polls. The long-expected fight for the soul of the party between the old-guard classical liberals and the young progressives, which has been suppressed by mutual hatred of Trump for most of a decade, could finally boil over into open conflict in the middle of an election, ensuring an easy win and Congressional landslide for Reps.

There's been lots of talk over the last 7 years about how Trump and MAGA represent a major realignment for the Republican party, and how the chaos of that realignment has fractured and weakened the party in ways that turned expected wins into losses. Democrats are also long-overdue for such a realignment, Republicans just need to get out of the way.

Mittens had binders full of women and was a high school bully and corporate buzzsaw (and today he'd probably be tarred with buying up homes to charge them high rents).

Sure, all of which is a lot less sensationalist and a lot less motivating than 'literally a fascist, literally a rapist, going to end democracy as we know it'.

I think it'd be good for the country to have a centrist like Mitt Romney in charge just so that everyone can calm down for a bit.

The worry for Republicans, and why they won't nominate a centrist, is that centrist Republicans have completely caved to globalist pressure on core issues like immigration, Covid lockdowns, and LGBT celebration.

I agree with you that the media will lay off any Republican who defects on core issues. Want to cut taxes for the rich and start a couple new wars like George Bush? No problem. Want to stop illegal immigration and shut down youth gender transition? Jihad.

But we actually had Romney as a candidate and he was smeared as a misogynistic devil, "vulture capitalist", etc. The mildest possible Republican was the presidential candidate and it didn't matter. They'll be just as hysterical in their smears. Then, years later, they'll reminisce about how Republicans used to not be so bad, like Romney.

I think it'd be good for the country to have a centrist like Mitt Romney in charge just so that everyone can calm down for a bit.

No. Blues do not get to veto Red leaders by threat of violence or institutional destruction. They have broken the social contract. They have to lose, and the correct play is to either hold position or escalate until that happens.

They have to lose, and the correct play is to either hold position or escalate until that happens.

What if they can't lose. What if we "escalate" as far as we can, and still get crushed utterly?

Trump is probably the most centrist candidate, if you look at actual polling on the issues. He's only "not centrist" in that he dissents from the nondemocratic "Washington Consensus" established by entrenched by would-be technocrats, bureaucracy, and special interests.

That's a great point. Trump is a dissident, not a radical. It's okay to be conservative as long as you are part of the blob. (Witness, the rehabilitation of George W. Bush). Being a dissident is never allowed.

I agree with you that the media will lay off any Republican who defects on core issues.

They won't lay off. They didn't lay off Romney himself last time he ran. They want a "moderate" Republican to run so they win either way, but they'd still rather win big with the Democrat.

They didn't lay off Romney himself last time he ran.

It's an issue of scale isn't it? The media treatment of Romney (binders full of women!!!) was stupid, but it never approached anything like what we're seeing now. It's like the difference between conventional and thermonuclear weapons.

Our current president said to a largely-Black crowd at a campaign rally that Romney would put them "back in chains".

The spectre of Republican fascism is exactly what Democrats use to keep their internal realignment from happening. It's a useful idea for the people running the party, and will be employed against any Republican who runs. Go talk to regular Democrats, they might be worked up against Trump specifically, for the moment, but they also bemieve that most if not all Republicans are complicit, and just as dangerous. (Remember in 2012 that Joe Biden campaigned by saying Mitt Romney would put black people back in chains.)

At this point elections aren't about persuading mythical moderates, but turnout. A Romney Republican would lose for the same reason that Romney lost: he couldn't excite the base to vote. A lack of enthusiasm can be made up for by machine politics getting out the vote, but it's fairly obvious by now that Democrats are far more advanced than Republicans here.

The ground is already laid for DeSantis or Ramaswamy to be declared as fascist, existential threats. (Aside: in high school one of my history teachers proudly displayed posters saying "RESIST THE FASCIST BUSH REGIME," which she breezily claimed were of historical interest and thus not political.) The only Republicans who won't be so castigated are anti-Republicans like Liz Cheney or Adam Kinzinger. (And even then... -- remember how John McCain used to be quite friendly with John Stewart and the Daily Show, until he ran for president, and then became was suddenly an extremist with no charity afforded?)

One clear pattern of the last 5 election cycles is that Democrats have shown they are much more willing to turn out for any D on the ballot than Republicans for any R. The primaries were rigged against Bernie from the start, but he still dutifully tells his people to vote against the bigger evil. Trump wins his primary handily, and a swarm of Republican officials declare that they won't support him, or are only voting under duress.

Voter turnout surging on the left when Trump runs suggests that it does matter who the GOP runs, though. The average purple state moderate isn’t in perfect lockstep with the NYT or Washington Post approved opinion.

Of course for the left DeSantis and Haley will be fascists, just like Bush and Reagan and Romney before them. But that doesn’t mean blue turnout will be as high as it is when Trump is on the ballot. The gamble is, of course, because red turnout will be lower too.

Liz Cheney would be a fascists if the GOP moved to her. All her dad’s sins could be brought up as a sign of her fascism. The neocons would reunite around her. Half the right would probably agree with the left that she’s a fascists.

Not sure on McCain. I just think Cheney would be an easy target for fascism claims once she’s no longer a useful idiot ally.

Run Mitt Romney again or something.

What DeSantis is today, Romney was twelve years ago. This is a dishonest request, because after Romney I can't ever trust Democrats to tell the truth about a republican candidate. They're going to go apeshit over all of them, even the Mormon former Massachusetts governor.

The long-expected fight for the soul of the party between the old-guard classical liberals and the young progressives, which has been suppressed by mutual hatred of Trump for most of a decade, could finally boil over into open conflict in the middle of an election, ensuring an easy win and Congressional landslide for Reps.

Isn't this basically what already happened in 2016? You're predicting the show we've just watched. It wasn't until after Trump's win that Democrats got their shit together and whipped their ranks into line.

They're going to go apeshit over all of them

This is very much not my recollection of that election, what are you talking about?

Like, they made a big joke out of 'binders full of women', but that's the normal tomfoolery every campaign gets up to (remember Swift Boat Veterans for Truth?). Obviously they weren't going to say that their opponent is cool and good actually, but I don't think the rhetoric was anything like what's being lobbied against Trump, and the Dem voters certainly didn't have the same visceral hatred and existential dread about him.

So I'm not really sure what you're referring to.

Romney did pretty good in that election, winning more of the popular vote than Trump did in 2020, and that was running against a historic and widely loved incumbent.

This is very much not my recollection of that election, what are you talking about?

/

The current sitting President of the United States, then VP campaigned against Romney by claiming he would put African-Americans back "in chains". Romney was campaigning against hormonal birth control, somehow. Romney's VP pick faced attack ads that had him wheeling grandma off a cliff. Ann Romney was a repeated target of pretty shitty media coverage that conveniently intersected with her multiple sclerosis. People were absolutely sure Romney-Ryan were going to ban gay sex, somehow! The IRS leaked NOM donation records that just conveniently happened to have his donations included, and just so happened to get delivered to the HRC.

Harry Reid famously and falsely claimed that Romney'd paid zero taxes on the floor of Congress, and after it had been widely distributed, widely believed, and at cost proven wrong, then years later said he had no regrets because "he lost, didn't he"!

Yes, like I said, campaigning.

This is all markedly less vitriolic and existential-threat-invoking than 'literally a fascist, literally a rapist, literally the agent of foreign powers, will end democracy as we know it'.

I think DeSantis' problem is that he is also a charisma vacuum. If he wants to have a credible chance to win the general election, he needs to spend the next few months figuring out how to look like something other than a fairly geeky guy who has a nasally voice and is a bit anxious when engaged in public speaking, doing stuff like looking down at his notes a lot.

I'm not trying to negatively judge DeSantis as a person when I say the above, but all that stuff is important to the voter's ape brain.

I think he should lean into it. Yeah I’m pretty boring. Yeah I’m a bit awkward. But what I am is pretty damn competent and will do things that make your life better. Look at what I’ve done in Florida.

People might appreciate the authenticity. Ron might not be the person you want to have a beer but he would be the kind of person you’d want your daughter to marry.

Ron might not be the person you want to have a beer but he would be the kind of person you’d want your daughter to marry.

I doubt it. He's a slimy, dishonest, power-seeking lawyer.

That said, I am fine with a political leader being a slimy, dishonest, power-seeking lawyer. I don't have to find someone even slightly appealing on a personal level to prefer their policies. Trump is a piece of shit in his personal life, but I still like him better than quite a few honest and decent men.

People say he seems to have a real genuine relationship with his wife.

The one he cheated on with a porn star?

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Not sure how much this will really matter. I feel like as long as I have been paying attention to elections there have been screwups by the major parties that should have had them disqualified from major state ballots. Every time ... nothing happens. They are still on the ballot on election day.

However, if its a third party, and they don't cross every t and dot every i then they get kicked off the ballot in a heartbeat, and the courts will drag their feet on fixing it until the election has passed. The Libertarian party routinely spends a bunch of resources just being on the ballot in all fifty states. And if you have ever paid attention to any of their insider politics or complaints, there is almost always a new state law somewhere that has raised the requirements for third parties to be on the ballots. If there is one thing that republicans and democrats can agree on, it is that they dislike third parties.

I feel like as long as I have been paying attention to elections there have been screwups by the major parties that should have had them disqualified from major state ballots.

Republicans are not barred from the General Election ballot in Colorado.

Trump is barred form the Republican Primary ballot.

Republicans will still be on the Republican Primary ballot in Colorado, no party is being kept off of anything.

And Trump will still win the Republican Primary and be teh candidate, and nothing in this ruling says he won't be on the General Election ballot in Colorado.

(and of course, it wouldn't matter if he wasn't since he was never going to win Colorado, but in terms of the symbolism that's not a thing that's currently happening)

... But yeah, the two party duopoly absolutely conspire against third parties, and it's bad. Not too bad, though, since first past the post voting pretty much guarantees a two-party system at a macro level anyway, even without the thumbs on the scale. We need something like Approval voting to make third parties viable in single-winner elections.

  • -15

nothing in this ruling says he won't be on the General Election ballot in Colorado.

Extrapolating just a little bit, if Trump is ineligible according to the 14th Ammendment, they'd have to keep him off the general election ballot.

I feel like as long as I have been paying attention to elections there have been screwups by the major parties that should have had them disqualified from major state ballots.

Republicans are not barred from the General Election ballot in Colorado.

I should be more clear: it is always specific candidates that fail to meat some standard and should been off the ballot. Often times it is hilariously because they accidentally made the ballot requirements too strict in their continuing efforts to fuck over third parties, and they forgot to exempt themselves from it like they normally do. It is always the R or D next to their name that saves them.

Trump is barred form the Republican Primary ballot.

And I'll reiterate my point: I think it is unlikely to actually happen. I'm about 90% certain that Trump will be on the primary ballot in Colorado come election time. I will take a small token bet of 80% odds to that effect.

... But yeah, the two party duopoly absolutely conspire against third parties, and it's bad. Not too bad, though, since first past the post voting pretty much guarantees a two-party system at a macro level anyway, even without the thumbs on the scale. We need something like Approval voting to make third parties viable in single-winner elections.

First past the post voting guarantees a two-party system. It does not guarantee that those two parties must be the democrats and republicans. The laws and regulations do that.

I'd be happier with approval voting, but likely not by much. I'm not a huge fan of democracy anyways. Making democracy more efficient seems less important to me than making sure democracy can't vote on things I actually care about.

And Trump will still win the Republican Primary and be teh candidate, and nothing in this ruling says he won't be on the General Election ballot in Colorado.

I think this is not quite correct. It's true that the instant case is about the Colorado primary ballot but the underlying rationale is that Trump is ineligible to be President and people who are ineligible to be President also cannot be primary candidates. I would be surprised if candidates who are ineligible for the presidency could be on the General Election ballot.

I mean yeah that makes logical sense to me, but so far this whole thing has been running off complex legal minutia rather than common sense. No idea how the law works, how it will work by the time of the general election, how it will be interpreted and applied, etc.

I've searched and not found any analysis of this question so far, I expect those articles will come out over teh next few days and we'll know more.

Anything can be justified by a state of exception: Next time, there will be a some new reason why some other Republican can't be allowed on the ballot. (When one is allowed on the ballot, it will be "proof" that Republicans can still run, all those other Republicans were just unique exceptions that don't count.)

The Soviet Union had freedom of speech. It was in their constitution. There were just a lot of exceptional circumstances.

When we get to N=2 I'll start considering whether the pattern you're talking about exists.

Two through seven.

I don't understand how a court can ban him from the primary ballot. Isn't it up to the Republican Party?

You can have primaries or caucuses (collectively both are often described as primaries). Caucuses are run by parties, primaries by the state ‘on behalf’ of the parties. Colorado has primaries. If they had caucuses, the court wouldn’t have been able to do this (although their rationale suggests Trump could be barred from the actual presidential ballot for the same reason).

I really, really wish that it were, it's insane that the government is involved in primaries.

But that is in fact how it works, the two main parties sort of appropriate the infrastructure and machinery of the electoral system of many states, and end up subject to legislation by those states thereby.

I think this is a huge conflict of interest for our Democracy, and that primaries should be purely private affairs managed by teh parties among their own members. But unfortunately that's not how it works.

I think it matters in the sense that legitimacy matters. If we’re really going to deny opposing parties the right to be on the ballot then it’s really stretching the truth to claim that we hold fair and free elections. And in my view the only legitimate reason that a group that files to be on the ballot should be denied is that they’ve been convicted of a felony within the last 5 years.

Elections are already widely distrusted, with a sizable chunk of the GOP believing that Biden did not win fairly. This is not going to restore their trust in ballots. And when a big enough chunk of the electorate doesn’t believe they’re being allowed to compete fairly in elections, they abandon elections for more direct action.

If we’re really going to deny opposing parties the right to be on the ballot

Just to clarify, you understand that he's barred from the Republican primary ballot, not the General Election ballot, right?

  • -17

You understand this rationale will later be used to keep him off the ballot in the general election?

It might. Things are happening fast.

There is zero argument that the general is different from the primary so if he runs for the general the court would need to make the same holding.

Do you think this meaningfully changes anything? Some judges just appointed thenselves arbiters of who can and can't run. Now we're quibbling about specifics.

They are the arbiters of the thing they ruled on. That's their job.

To me there is a double jeopardy problem. Trump was already tried for this shit and wasn’t convicted by his peers (ie the senate).

This particular problem isn't one; double jeopardy doesn't apply to impeachment.

Are we sure? I don’t think it has ever been litigated but seems to me the whole impeachment and conviction process is clearly modeled after a trial. Trump was basically tried on these facts and acquitted.

It is not a slam dunk by any stretch but an interesting issue to think through

Stronger claim against Smith since there facing imprisonment.

And in my view the only legitimate reason that a group that files to be on the ballot should be denied is that they’ve been convicted of a felony within the last 5 years.

That seems like one of the least legitimate reasons to deny access to the ballot. "Convicted of a felony" is just another way of saying "the people currently in power, some of whom have explicit allegiances to other political parties, have determined that they think you really, really suck."

If we're going to restrict ballot access based off anything, it should be popularity, based solely on the idea that spending ballot space on someone who is unlikely to win is a waste of resources.

At least a conviction requires a trial by jury. Biden can order the Justice Department to indict anyone he wants, indictments are not convictions.

"Convicted of a felony" is just another way of saying "the people currently in power,

Welcome to the Prison Abolitionist movement, we have pamphlets.

If 'convicted of a felony' is enough reason to be kept in prison and used as slave labor for your entire natural life, it's enough reason to not be on a Primary ballot.

I'm perfectly happy saying it's not enough reason for either of those things, but I will be a stickler about consistency on this one. Anyone who wants to treat the law and courts as reliable arbiters of Justice on a Monday had better do the same thing on a Tuesday, or else expect a finger-wagging.

  • -12

Barring someone from running for office is not necessarily a lighter punishment than putting someone in prison. When you bar an individual from running, you are not only punishing that one person, but you are also punishing an unbounded number of people who would have otherwise voted for him.

Additionally, different kinds of transgressions disqualify you from different kinds of privileges. It's entirely consistent to say that plagiarism disqualifies you from professorships but not from playing professional baseball, while placing insider bets disqualifies you from playing professional baseball but not from being a professor. Similarly, one can be okay with murderers appearing on the presidential ballot while they sit in prison, provided they are popular enough. It would be entirely consistent to believe that committing murder disqualifies you from not being in prison, but that the only thing that disqualifies you from being on the ballot is not being popular enough to make your appearance worth the overhead.

(That said, I have a very dim view of the law and courts and have generally pro-prison-abolitionist views, so there's that.)

Isolated demand for rigor.

Right, that's what I should have said. They're applying an isolated demand for rigor on the concept of 'convicted of a felony' when it's their guy getting convicted.

No, I'm questioning why "convicted of a felony" should be connected to "should not appear on a ballot". I firmly believe that criminal background should have no implication on political privileges. Typically this comes up in the context of voting rights for felons (which is left-coded) but I believe the exact same thing when it's a right-aligned cause.

In fact it's not connected to appearing on a ballot, convicted felons can get elected to any office they want.

There's a specific narrow provision about Officers of the State being barred from election if they commit the specific crime of Insurrection, which is what's being used here. I think it dates to the Civil War or something.

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Increasingly, it appears that the establishment also dislikes second parties.

Much as with the whims of the Pope as discussed below, “the constitution” is fake because it can be made and has been made to say whatever SCOTUS wants countless times throughout history depending on the temporal political whims of those in power. None of this (some adherence to ‘the constitution’) matters because it has never mattered.

The more interesting question is what SCOTUS will decide is more politically desirable. My guess is they’ll reverse the decision. Not doing so would be an interesting gambit. But I also think it would be very bad for the right, not only because it’s possible nobody other than Trump can beat Biden now, and because Trump will still be a primary candidate in many states, messing up the whole process, but because in a grand irony I don’t think American conservatives have any real insurrection in them.

If Trump is barred there will be no civil war, no great five million man March to Washington. Maybe a few militia rallies, perhaps even some minor terrorism (though I consider a serious thing quite unlikely), and endless gnashing of teeth and wailing online. But in the end Republicans will go home. They have too much to lose, and amusingly as the retirees-on-museum-trip vibe of Jan 6 showed, they don’t even have the willpower to LARP as real revolutionaries, let alone to do it.

The constitution matters. Yes, people will blatantly work around it, but they do at least need to feel that they can make a token effort, and, as long as they're not the supreme court, they need to think they have SCOTUS on their side. It at least acts as a deterrent, even if it can be bulldozed over in the long run.

The Colorado Presidential Primary is scheduled for March 5th, for both parties. As the decision notes, January 4, 2024 is "the day before the Secretary’s deadline to certify the content of the presidential primary ballot)"; while the matter is open to further stay should federal courts intervene, such an intervention would itself determine at least the state presidential primary.

Crazy how the dates just happened to work out that way, huh?

Not sure what you mean? The ruling says that it gets stayed until at least Jan 4th, and that stay gets extended if it gets appealed. Trump will 100% appeal, so in practice the court has already decided that its decision will not go into effect and that Trump will appear on the Colorado primary ballot.

Crazy how the fed's scheduled rate cuts just seem to fit into the election so neatly too. Just so lucky!

What about that time they announced a vaccine to a pandemic the week after the election?

I'm sure we can keep going for a while.

This level of control should be a huge wake-up call. Being able to attack your political enemies is one thing - to be able to coordinate action among the courts, the media, and the scientific establishment (including the PR and R&D outfits of the most powerful Pharma companies in the world) to the level where your deployed at day level granularity is fucking insane.

My position has been and remains that it's really stupid that the government has any interaction with primary elections at all.

The government should oversee the General Election, and that's it. Any organization or individual can put whatever names they like onto the General ballot, using any method they want to arrive at those names; the government should have no say or complicity in that process whatsoever.

That said, it's kind of funny to me that it looks like the sequence of events here was (as far as I can tell, not a lawyer), there was an earlier trial to see whether the board would consider these actions to be insurrection, the Republican side successfully argued 'well maybe it was insurrection BUT the constitution doesn't apply to teh President so it's ok' and that earlier court agreed, now a higher court says 'WTF no the constitution does apply to the president, so if you found that it was insurrection then he is off the ballot.'

I don't know whether Trump had his personal legal counsel involved in that earlier trial, but it just feels humorously in line with all the other stories about his lawyers being awful and doing really stupid and reckless things.

Did the Colorado Supreme Court provide a more serious and deep analysis of the First Amendment jurisprudence, at least? "The district court also credited the testimony of Professor Peter Simi, a professor of sociology at Chapman University ...

The Court's discussion of the First Amendment issue runs from page 16 to page 32 of the opinion. I don’t know if that analysis is correct, but it is disingenuous to imply, as you do, that it nothing more than a citatiin to the testimony of a single witness.

116-132, but it's also over 2100 words, and nearly 13,000 characters. I quoted from the end of it.

I can give more examples -- the reference to Schneck is another low-point -- but I didn't think I needed to fisk the entire thing lest people think Colorado judges are short-tongued.

Right, 116-132.

Nevertheless, your implication that the Court gave short shrift to the First Amendment issue is, again, disingenuous.

Why is the citation to Schenck a low point? It is cited only for the principle of "the importance of context in holding that “the character of every act depends upon the circumstances in which it is done.” They didn't cite it for its holding. Courts do that all the time; hence the common explanatory note, "overruled on other grounds."

To be clear, I am extremely skeptical that Trump's speech was not protected under the First Amendment, because incitement is a very narrow exception (though I note that none of the dissenters raised that issue, unless I missed it). But your criticisms of the Colorado court's First Amendment analysis are completely unconvincing.

Why is the citation to Schenck a low point? It is cited only for the principle of "the importance of context in holding that “the character of every act depends upon the circumstances in which it is done.”

It's exceptionally unclear if that principle remains good law, not just in the awkward question of what extent Schenck was overruled (technically Brandenburg only explicitly overruled Whitney v. California), but in the sense that exact and literal text is part of the central holding of Schenck. It might get read out less often, but it's as core the famous line:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

More recent cases have been highly limited in the extent they have accepted such expansive reads, but even in the specific context of Brandenburg and Davis that cry for Circumstances was recognized as permitting widely restrictive limits on speech based on whatever Current Thing was, given the extent WWI and WWII and anti-communism had twisted past precedent.

But more deeply than that, if you're trying to write an opinion on a controversial subject, and you've got a claim you think blindingly obvious, you should be able to pick a precedent that isn't a byword for bad and motivated law, whose central holding applied broadly to speech we generally permit, and who you don't have to worry about (and fail to!) note as overruled on other grounds.

  1. That specific language from Schenck remains good law. See, eg, Boim v. Fulton County School Dist., 494 F. 3d 978, 984 (11th Circuit 2007); Satawa v. Macomb County Road Com'n, 689 F. 3d 506,517 (6th Circuit 2012).
  2. Your entire criticism seems to be that they cited Schenck, but that is a meaningless claim,because the court clearly did not rely on Schenck.
  3. More importantly, I agree that their free speech analysis is incorrect, but not because they cited Schenck, and certainly not because they engaged in only a limited discussion of the issue, as you falsely implied.

If only you applied this same level of scrutiny to the Colorado judges as the poster you're criticizing.

  1. As I said, " I am extremely skeptical that Trump's speech was not protected under the First Amendment, because incitement is a very narrow exception."

  2. What level of scrutiny do you imagine that to be? OP's claim (which was that the First Amendment analysis by the court was superficial) does not pass even a minimal level of scrutiny.

"the character of every act depends upon the circumstances in which it is done."

Sure, and Schenck itself holds that the circumstances of distributing anti-draft pamphlets yields a character akin to shouting "fire" in a crowded theater. I don't find this line of logic very convincing because some partisan actors will come along and deem anything "un-American" (flag burning?) as inherently insurrectionist.

Subverting American policy for financial gain of your son is insurrectionist behavior therefore Biden is ineligible to run.

Does the primary ballot allow write-ins? What happens if he's not allowed on the ballot, but wins anyway from write-ins?

Primary doesn't really matter, the issue is that the same kind of reasoning would apply in the general election if Trump is nominated.

True. And even though colorado is just one state (and I think not even that much of a swing state, unlikely to ever vote republican) it could provoke a pretty bad constitutional crisis if a majority of states follow suit. What happens if all the state supreme courts block Trump from the ballot, and yet there's a clear "will of the people" from a majority writing him in? That's a recipe for civil war...

If I'm reading the Colorado Secretary of State rules correctly, he would have to file a Notice of Intent for Write-in, which the Secretary of State must evaluate and can only list as an eligible write-in candidate if the submitting agent is truely eligible. The opinion and a few dissents both make clear that these rules apply to Presidential elections, with at most some quibbling about how much of the terms for qualifications apply to non-write-in candidates :

Fourth, I am not persuaded by the majority’s reliance on sections 1-4-1205 and 1-4-1101, which govern the requirements write-in candidates must satisfy before being certified to the ballot. See Maj. op. ¶¶ 37, 62. Like major party presidential primary candidates, write-in candidates for the presidential primary must file a “notarized . . . statement of intent” and submit to the Secretary “a nonrefundable fee of five hundred dollars . . . no later than the close of business on the sixty-seventh day before the presidential primary election.”

The majority opinion's logic would hold that Secretary of State should (and must!) refuse to list Trump as a write-in candidate; votes for an ineligible write-in "will not be counted".

It's... not clear when the Notice of Intent must be filed. The Colorado Secretary of State page says 67 days before the date of the election (December 30th?), but the statute says 85, which would be... December 17ish. I'm not sure if the difference arises because the law has changed since 2022, or what.

How much that matters varies. The actual selection of a candidate doesn't have statutory (well, technically, the state law requires "Each political party shall use the results of the election to allocate national delegate votes in accordance with the party's state and national rules.") or Constitutional procedures, and Colorado's GOP have long been ground zero for fuckery on those matters.

The state's GOP have 37 (out of 3,469) delegates, but even before this opinion, the state GOP was threatening to move to a caucus system. It'll be an absolute clusterfuck, though, especially given the already-fraught results after 2016.

If you put a gun to my head, I'd bet that this is overturned, or stayed until moot.

The ruling is absurd, but the Constitution is pretty clear that states get to decide how their elections are run, including their national elections. The only Constitutional caveats are that Congress can weigh in on Article I elections (legislators), and that the states must be structured in a republican way (i.e. representative democracy). Here are the (partial) instructions for Article II elections:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

If Colorado's legislature (or its sometimes-mouthpiece, the state court) says Trump can't be on the ballot, then Trump can't be on the ballot, and from a Constitutional standpoint, that's the end of the story. One Constitutional way out I see here is maybe a Fourteenth Amendment complaint of some kind, but the conservatives on the court are likely to be leery of that, and the progressives on the court will simply refuse to rule in Trump's favor no matter how much they may need to torture logic to get there.

My primary hesitation is Chief Justice Roberts. He is a pragmatist to the core, and may just oppose the chaos that would result: a likely domino-effect of progressive states using this ruling to (definitely) eliminate Trump from their ballots and (possibly in the future) even eliminate conservative candidates through bog-standard abuse of process. I could see Roberts relying on "The United States shall guarantee to every State in this Union a Republican Form of Government" from the Constitution with precisely the intent of preventing political chaos, but in doing so he would do pretty direct harm to the plain language governing Article II elections.

I'm less acquainted with any federal election statutes that may apply, but prima facie I would bet cautiously against this being overturned--on grounds that Roberts, as an establishment man, may find his distaste for Trump encouraging him to affirm the strength of Article II. This would be a victory for establishment Republicans as well as a victory for Trump haters. But I can imagine Roberts imagining the electoral chaos of an affirmation, because that result would make the 2000 and 2020 elections look tame by comparison; faced with such a vision, he could very well flinch. So I would expect Trump's team to work that angle hard--assuming there are any competent lawyers remaining who are still willing to represent him.

I agree with this analysis. States have plenary power about how to portion out electoral college votes, so it's really difficult for me to imagine what a SCOTUS intervention could look like.

The ruling is absurd, but the Constitution is pretty clear that states get to decide how their elections are run, including their national elections.

That's not really the way "judicial federalism" works, though. Yes, states have a lot of leeway in how they run elections, but this state is specifically appealing to the text of the federal Constitution in order to rule that he is ineligible. The fun history here to really drive the point home is that there are a lot of state Constitutions that have clauses that are word-for-word identical to the federal Constitution. Suppose that for some clause (not necessarily the one here), State A has a word-for-word identical clause in its state Constitution, but State B does not. Perhaps both states' Supreme Courts rule that that clause means X. Now, SCOTUS jumps in and says, "No no no, in the federal Constitution, that clause does not mean X." Well, State A's Supreme Court can (and some have in various cases) go back to the same issue and say, "Well, even if that clause in the federal Constitution doesn't mean X, we think that the same clause in the state Constitution means X." This has happened plenty of times. State B, on the other hand, has no such luck. The only thing they had to appeal to in this extremely sanitized hypothetical was the federal Constitution, and SCOTUS simply outranks them when it comes to interpreting what the federal Constitution means. [EDIT: Right after submitting, I realized that linking to this book is a good cite for an example of how this has definitely happened, concretely.]

"Judicial federalism" can work the other way, too. There are sometimes cases in the federal courts that turn on an interpretation of state law (or state Constitution). There have also definitely been examples where the federal courts essentially punt the question back over to the state Supreme Court, saying, "Yo! You guys need to tell us what your law means."

In this case, I don't believe Colorado has an equivalent-to-Section-3-of-14A in their state Constitution; they are purely interpreting the federal Constitution. As such, I don't think there's any reason why an appeal can't be made in the federal courts. There is a substantial federal question here, specifically that of interpreting the meaning of Section 3 of 14A of the federal Constitution.

[EDIT EDIT: Realize now that I should have read further in the comments; I was totally scooped. Oops.]

Parties are private organizations, though. They can just disregard the Colorado primary in deciding which candidate to back in the general election, can't they?

Parties are private organizations, though. They can just disregard the Colorado primary in deciding which candidate to back in the general election, can't they?

It's an interesting question! It depends on what you mean by "back," and also on how each state handles the primary process. I'm not familiar with Colorado's primary election laws so I don't have a direct answer for you, but in general states do not assemble their general election ballots based on what political parties want, but based on how relevant procedure (including primary elections) dictates.

For example, even if, say, Ron DeSantis won the Republican primaries generally, and the Party decided to back him, he could in theory still be excluded from some state ballots for, say, failing to get the right paperwork filed on time.

The Colorado GOP was already threatening to go to a caucus system before this; there's near certainty that they'll try to do so now. The federal GOP's rules normally hold that :

Any statewide presidential preference vote that permits a choice among candidates for the Republican nomination for President of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state’s delegation to the national convention in either a proportional or winner-take-all manner for at least one round of balloting...

And that his choice must be made before October 1st of 2023:

No material changes to the manner of electing, selecting, allocating, or binding delegates or alternate delegates or the date upon which such state Republican Party elects, selects, allocates, or binds delegates to the national convention shall be effective if made or adopted after October 1 of the year before the year in which the national convention is to be held. Where it is not possible for a state Republican Party to certify the manner and date upon which it holds a presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention in effect in that state on the date and in the manner provided in paragraph (f) of this rule, the process for holding the presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention shall be conducted in the same manner and held upon the same date as was used for the immediately preceding national convention. If it is not possible to hold a presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention upon the same date as was used for the immediately preceding national convention, then delegates or alternate delegates shall be elected or selected by congressional district or state conventions pursuant to paragraph (e) of this rule.

But there's a few very broad exceptions, and even before touching the exceptions there's going to be serious arguments that the Colorado primary system no longer is a "vote that permits a choice among candidates".

Whether they can functionally assemble it, and whether some new principle will apply after they have done so, are exercises for the terrified viewer.

The Colorado GOP was already threatening to go to a caucus system before this; there's near certainty that they'll try to do so now.

To what end? Assuming they had the caucus system in now and Trump were to be win the nomination (regardless of if he won in CO's caucus or not), the same reason for stripping him from the primary roster is also true for the general election roster.

It just kicks the can down the road til the (deadlines for the) general election. Which is kinda a joke, but it's also kinda not.

There's one extent where the decision doesn't matter, because the Colorado primary and even general vote doesn't matter, and steps made here on the primary ballot will be swamped by actions taken for the general ballot here and elsewhere.

But there is absolutely an army of progressive twitterati champing at the bit, from Whitehouse or the White House on down, to take the acceptance or even delayed denial of an appeal -- which is discretionary! -- as evidence that the conservative side of the court -- did you know that Gorsuch is the justice assigned to the 10th Circuit, which includes Colorado? -- has been utterly compromised and is willing to sell out the Constitution to defend and promote the unlawful and doomed campaign of a monster, an insurrectionist, and a Republican. Punting at least avoids attacks on the 'shadow docket'; having months rather than weeks buys a lot of opportunity to have genuine arguments or, in the best case, to produce a per curiam opinion.

((Unfortunately, I think a lot of legal eagles are only considering it in these frameworks, while worse risks bubble under the surface. And there are probably a good many more tactics going on that I am not aware of or able to consider with five minutes of a novice's thought.))

The Colorado GOP was already threatening to go to a caucus system before this; there's near certainty that they'll try to do so now.

And that's what they have said in response to Vivek:

You won't have to because we will withdraw from the Primary as a Party and convert to a pure caucus system if this is allowed to stand.

The Republican Party: "The Colorado Supreme court has made their decision, let them enforce it."

Would be amusing, but I doubt they have the gumption.

U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) ruled that states can't add additional qualifications for Senators and Representatives. The same rules should apply to Presidential elections. And Colorado is pretending that Trump is disqualified by the 14th Amendment, not exercising its discretion to exclude whoever they want.

U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) ruled that states can't add additional qualifications for Senators and Representatives. The same rules should apply to Presidential elections.

I doubt this simply because Article I gives Congress a say in the election of Senators and Representatives. Article II doesn't. But you may be right.

And Colorado is pretending that Trump is disqualified by the 14th Amendment, not exercising its discretion to exclude whoever they want.

They're definitely saying this now, but they're saying that Trump's Fourteenth Amendment disqualification can be litigated (very broadly, see this comment) under the state's election laws. This creates a fact/law question (leading to the Fourteenth Amendment problems I tagged but should have pondered at greater length) that SCOTUS seems likely to want to avoid, but... hard to say. It would be interesting to know how far the Colorado court is willing to go to keep Trump off the ballot, but depending on how quickly SCOTUS remands (assuming they do), we may get to find out.

There are 14th Amendment due process arguments, as noted at length in the dissents, though in turn there's been serious efforts to promote the view that there is no liberty interest in a ballot slot. Somin at Volokh argues this sort of perspective -- I don't know how much to trust him given his refusal to interact with the First Amendment component of this whole debate, but it's not plainly laughable.

Another argument would be US Term Limits, which holds that the Constitutional requirements for other offices (Senators and Representatives) are exclusive. That said, US Term Limits was limited to Senators and Representatives, and Thomas' dissent was both legendary and pretty well-recognized; I don't think it'd be likely to be successful.

I think the most plausible appeal would be to focus the self-executing theory. It's an incredibly expansive and aggressive read -- not as bad as the independent state legislature theory, but closer than I'd like. That's a matter of law (so SCOTUS can review it, unlike the 'facts' of what exactly Trump was alleged to have done, or the squishy interpretation of insurrection), it's a federal Constitutional question, and it punts on the ugly questions around due process.

Of course, Trump's lawyers are clowns, so we've got that as an additional problem.

Yeah, looking at this after sleeping on it, I'm less satisfied with my analysis than I was. In addition to being a pragmatist, Roberts has a tendency to aim for narrow, technical rulings, and if he can remand this in a way that (as you say) "punts on the ugly questions" I could see him pushing for that route. I agree that US Term Limits is a bad fit simply because we're in the wrong Article with this case. But the fact/law distinction on the question of insurrection potentially tees up the Court to either do Trump or his opponents a huge rhetorical favor, no matter the legal result.

I wouldn’t worry about changing your mind. It seems like a few people dunked on you with what you now agree are better arguments. On new debates having wrong arguments is part of a process of getting to what you later believe are better arguments.

For old issues (Ukraine, Hunter’s laptop, etc) I hate when I get sucked into debates because the issues have already been litigated and sides staked. For new debates you are working thru the arguments that will be made and my gut says your argument will be the one made in favor of the ruling so it did need to be expressed.

If the court decides for Trump on the grounds that the clause is not self-executing, they can simply vacate the rest of the findings. This seems like a Roberts thing to do... though finding that the Colorado Supreme Court can do as it likes with elections and he won't second-guess them ALSO seems like a Roberts thing to do.

Of course, Trump's lawyers are clowns

Personally, this seems extremely distasteful when anyone who has touched Trump with a 39 and a 1/2 foot pole has been un-personed. "Only these clowns managed to show up" usually makes me root for the 'clowns'

Presuming but not concluding that's true, it might make things more sympathetic, but it doesn't make it any less of a circus. And this stuff is too important to say "sorry you got outmaneuvered, we'll give you a mulligan and a handicap on the next one".

I'd be curious if Section 5 of the 14th Amendment ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.") indicates that Congress, and not Colorado, is responsible for its enforcement. But it doesn't feel like a slam dunk argument.

Having now read the dissent by Samour I actually do think this is a slam dunk argument.

I'm very unconvinced by Samour's argument. He says sure, the 13th and 15th amendments are self-executing despite featuring the same "Congress shall have power to enforce this article by appropriate legislation" language. And sure, the 14th is self-executing when used "as a shield". But it can't be self-executing when used "as a sword" by a state because that would violate the due process protections of the 14th amendment (which also lack enabling legislation in respect to presidential eligibility - but these parts are self-executing in this context for some reason). It feels very strained, exceptions built on exceptions.

He also has the problem that his argument proves too much. In my view most of the various legal arguments offered in Trump's defence run into the problem that they would also allow Jefferson Davis to become President. That was true of the "officer of the US" position the district court took, and it's true of Samour's dissent here. Davis is the central case of what section 3 is for, so any interpretation that is so permissive as to allow him to become POTUS is akin to an interpretation of the 1st amendment that says you have freedom to believe in whatever religion you want as long as it's Catholicism.

There are Federal crimes related to slavery though: 18 U.S. Code § 1583 - Enticement into slavery. This is more than just a gotcha; we're talking about punishments here, and I don't really see how the 13th amendment can be self-executing with regard to charging, trying, and punishing an individual for holding someone else in involuntary servitude. So if we imagine a case where a slave sued his enslaver who held him in bondage after 1865, sure, the court would rule that the slave could no longer be held, but without further legislation, they couldn't really specify a punishment for the slave holder. Presumably the slaveholder could then be sued in civil court for damages by his slave. I think in that case the 13th amendment would prevent the slaveholder from using "this man is my slave" as a defense.

Getting kind of far afield here, but the overall point is that the difference between sword and shield actually is important; if the Constitution establishes a specific punishment, then it makes sense to believe that it is up to Congress to establish a procedure for determining to whom that punishment should be applied.

On the other hand, I don't have much to say in response to your point about Jefferson Davis. It's a good point.

This argument only makes sense if you consider disqualification from public office a punishment. But if it is, it's a punishment that is arbitrarily applied to every naturalized citizen, with no recourse or due process. Elon Musk can never be President because he was born in South Africa, and therefore his loyalty cannot be trusted. Doesn't matter if his record is spotless, doesn't matter if he has had no jury trial, doesn't matter if the American voters trust him, he cannot be President. An irreversible and unappealable "punishment" for the crime being born in the wrong place.

Rather I think it makes sense to say that punishment for slavery or insurrection would need to be legislated and to be subject to a criminal trial before a term of imprisonment can be applied. But disqualification is not a punishment - it's simply a judgement about who can be trusted to hold public office. Those who are too young an inexperienced, those who may hold split national loyalties, and those who have shown themselves to be oath-breakers are judged to be unacceptable risks by the constitution. It's got nothing to do with "fair", and there is no right to hold public office.

I'm not confident on it, but I think Davis-as-President would have been subject to Section 14 and 15 of the Enforcement Act of 1870, during his lifetime, if a bit of a clusterfuck given the attorney general component (and judicial) making it a bit of a race.

If you are interested in the counter-argument, check out the discussion in the Court's opinion, starting at paragraph 90 (page 51 of the pdf), on whether section 3 of the 14th amendment is "self-executing"

If this were a state court interpreting a state constitutional provision, then I think you would be right. However, if the case is decided based entirely on a state court’s interpretation of the federal constitution, can’t the Supreme Court tell them their interpretation of the federal constitution is wrong and remand the case?

However, if the case is decided based entirely on a state court’s interpretation of the federal constitution, can’t the Supreme Court tell them their interpretation of the federal constitution is wrong and remand the case?

Yeah, this is correct, I should probably have waited to post until after I'd gotten some sleep.

If you read the decision, the Colorado Supreme Court is not basing its case entirely on the federal constitution, but rather saying that Colorado statutory law provides a judicial remedy for voters seeking to remove a disqualified candidate from the ballot, and further that they are removing Trump from the ballot in holding that Trump is so disqualified. But there are two prongs to that--a question of fact, and a question of law. On the question of law, SCOTUS isn't going to hold that insurrection doesn't disqualify, but they could (even though supposedly appellate courts don't like to revisit findings of fact, they often do) hold that Trump has not actually been proven guilty of insurrection (the Due Process/Fourteenth Amendment question I mentioned but didn't elaborate upon).

The question then becomes, how far is the Colorado court willing to go, on remand, to keep Trump off the ballot anyway--but as others have pointed out, by then the issue may be moot.

If Colorado's legislature (or its sometimes-mouthpiece, the state court) says Trump can't be on the ballot, then Trump can't be on the ballot, and from a Constitutional standpoint, that's the end of the story.

That can't be right; if that were the case, the court would not have spent 16 pages addressing the claim that Trump cannot be removed from the ballot based on speech which is protected by the First Amendment.

Sorry, it would have been more precise to say "if Colorado's legislature says Trump can't be on the ballot, provided they haven't done anything unconstitutional in the process (e.g. racial discrimination or whatever)..."

In morning's light I am less satisfied with the rest of my analysis, though. The legal question of insurrection (and whether and how it may be disqualifying) is at least plausibly separable from the factual question of insurrection, though. So it will be interesting to see what happens.

So it will be interesting to see what happens.

I am skeptical that the First Amendment analysis will survive; the bar is extremely high for incitement to riot.

I don't disagree, but it's not obvious to me that the Court needs to reach the First Amendment question, which sometimes (though certainly not always) means that they won't. The First Amendment question is substantial to the question of insurrection, and however this ultimately plays out I would expect SCOTUS to prefer a procedural holding over a substantive one. So I expect the Fourteenth Amendment to play a more decisive role than the First--but you may be right!

I have given up prognosticating re what basis justices will rule on, but I am guessing that there wont be a single majority opinion. But of course the court might limit the issues presented from the get-go.

There are numerous deficiencies in the Colorado ruling both substantive (did Trump commit insurrection, how does the 1st and 14th interact) and procedural (is the 14th self executing, does it even apply to the president, even if self executing what kind of protections are provided to office seekers).

SCOTUS will rule on the procedural grounds because they don’t want this to become a tool to remove candidates from the election (eg maybe a state says that Biden gave comfort and aide to say the BLm riots and that is an insurrection). It would be easy to say Congress has to provide enabling legislation and while not entirely clear the closest thing to enabling legislation (1283) hasn’t been met and so unless and until that has been satisfied this provision won’t apply. I suspect even Kagan will join (or perhaps even write that opinion to help give it legitimacy). It can be politically neutral (eg we never get to the question of whether Trump is guilty of the underlying crime).

This is but another example though of the left’s hatred of Trump destroying institutions.

and (possibly in the future) even eliminate conservative candidates through bog-standard abuse of process

Coming out to an election near you this winter. If states reign supreme, what’s to stop any state from stripping literally all of their political adversaries from their ballots? Why would they stop at national elections for that matter? All they need is a governor and a stacked court.

If states reign supreme, what’s to stop any state from stripping literally all of their political adversaries from their ballots?

I have heard many people argue that the current two-party system of "Republicrats" is already doing precisely that. Have you ever tried to run for public office? It's not always and everywhere completely insane, but certainly it can be a time-consuming and expensive process. Party machines grease the skids for you, so legislation is typically written with those machines in mind. But that means, if you are a political adversary of the dominant parties, then the laws on the books are overwhelmingly likely to work against you.

Fortunately, in many places Republicans and Democrats exist in small enough numbers that unaffiliated voters can occasionally drive legislation that places limits on the excesses of partisans seeking to strip their adversaries of electability. This is the most likely practical result: states that go overboard in stripping adversaries will face an angry uprising from independent voters. But in places with entrenched one-party rule, this is less likely to pose a meaningful threat.

More expansively: the main thing preventing this from happening in the past has just been good old-fashioned civic virtue. But the news media, education systems, etc. have been beating the "burn it all down" drum long enough that many, maybe most Americans now think that destroying their opponents is more important than finding a way to coexist with them.

I do agree States get to run their elections but in this case the State Court is citing constitutional law to remove him. Couldn’t the SC just rule that you can remove him but you can’t remove him for the reason you picked and claim Trump didn’t do an actual insurrection.

At the end of the day I would assume it’s the Supreme Court with ultimate authority to rule if he violated section 3 of the 14th amendment which would open the door for the SC for a narrow ruling that he was not in violation.

I do agree States get to run their elections but in this case the State Court is citing constitutional law to remove him.

Yeah, in morning's light I'm thinking about the difference between the law of disqualification versus the factual question of insurrection. SCOTUS isn't going to rule that insurrection isn't disqualifying, but if they do rule that (e.g.) insurrection requires some kind of criminal conviction then on remand Colorado will need to find a different excuse. But in a way that turns into a gift for Trump, who would then get to walk around saying "the media lies, SCOTUS itself cleared me of insurrection," which... well, I don't know. It would be nice if the Republican Party would just toss him out in the primaries, then this would all be moot, but that seems less and less likely to happen.

This is why AI will not threaten lawyers' jobs. lawyers have to deal with the unexpected, like this, which means reevaluating and reassessing the law in new ways.

Copius Maximus - just plugin the 'unexpected.'

It will be more clever than both of us in ~6 months.

We shall see. I’ve been playing with AI and law. It hasn’t been great so far.

Why can't an AI reassess/reevaluate the law? My local model of SDXL can make a lion-eagle hybrid, lion-dragon hybrids and even lion-refrigerator hybrids let alone DALLE. It can put together weird, unexpected combinations of words to make an output.

Reassessing and evaluating is just advanced interpreting, which AI can do.

My local model of SDXL can make a lion-eagle hybrid, lion-dragon hybrids and even lion-refrigerator hybrids let alone DALLE.

Can it? I've been struggling to generate a few good-looking winged centaurs recently. The AI's keep wanting them to be horses.

I have noticed that nearly every AI I try is bad at making centaurs. The centaurs that the AI produces are almost always just horses, or sometimes a man riding a horse. I suspect it's because the AI is overcorrecting for unlikely results (there are no actual photographs of half man half horses in training data since they don't exist) so the AI doesn't want to produce a half horse half man hybrid creature.

They also tend to make mermaids have two tails (a la the starbucks logo) rather than one tail like everyone imagines.

Winged centaurs seem to be very challenging, I had to follow self_made's prompt otherwise I get pegasi or winged people riding winged horses. My SD (Protovision if you want to be more specific) centaurs have more of a classic chad look compared to DALLE's more 'racially ambiguous' style. Might be Bellerophon rubbing off into them.

/images/1703067356438224.webp

I had to change the DALL-E 3 prompt to "Centaur man with wings" instead of winged Centaur, which produces pegasi, but it can do it consistently.

https://ibb.co/vD4Kx3r https://ibb.co/sqgpMp6

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