site banner
zataomm  11mo ago (text post)   5801 thread views

Colorado Supreme Court Thread

Link to the decision

I don't know to what extent there are established precedents for when a topic is worthy of a mega-thread, but this decision seems like a big deal to me with a lot to discuss, so I'm putting this thread here as a place for discussion. If nobody agrees then I guess they just won't comment.

11
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

The New York Times reports:

A state judge in Illinois ruled Wednesday that former President Donald J. Trump had engaged in insurrection and was ineligible to appear on the state’s primary ballot.

The decision by Judge Tracie R. Porter of the State Circuit Court in Cook County was stayed until Friday. Judge Porter, a Democrat, said the State Board of Elections had erred in rejecting an attempt to remove Mr. Trump and said the board “shall remove Donald J. Trump from the ballot for the General Primary Election on March 19, 2024, or cause any votes cast for him to be suppressed. ”

Emphasis mine, and fuck.

Well, it seems our short national nightmare is over.

Trump v. Anderson has been granted cert, with a timeline of :

The case is set for oral argument on Thursday, February 8, 2024. Petitioner’s brief on the merits, and any amicus curiae briefs in support or in support of neither party, are to be filed on or before Thursday, January 18, 2024. Respondents’ briefs on the merits, and any amicus curiae briefs in support, are to be filed on or before Wednesday, January 31, 2024. The reply brief, if any, is to be filed on or before 5 p.m., Monday, February 5 2024.

While not on the docket yet, that would put oral arguments on February 8th. Colorado's primary ballots were finalized today, and supposed to be including Trump; Iowa and New Hampshire finish their primaries before oral arguments are set, and Nevada's primary is the same day. It's possible, if not certain, that the Court will rule before Super Tuesday in March, but most Super Tuesday states will have their ballots finalized well before then, with corresponding potential for hilarity.

Notably, that is Trump's petition, rather than the Colorado GOP's.

Let's hope this has a better outcome, in the broad sense, than Dred Scott v. Sandford. In particular, I hope that if they do find for Trump, KBJ doesn't pen a dissent suggesting that the SCOTUS be defied.

In further "Trump's lawyers are idiots" news, Alina Habba had this to say:

I think it should be a slam dunk in the supreme court. I have faith in them. You know, people like Kavanaugh, who the president fought for, who the president went through hell to get into place. He'll step up.

I don't know what Kavanaugh's natural inclination was on how to handle this case. But I know now that he's very aware that any pro-Trump ruling will make it look like Trump called in a political favour from him. This is the kind of shit that loses winnable cases.

Horrifying. Context makes it a little better but definitely bad to imply any kind of debt owed to Trump by any of the justices. Not sure who Alina Habba is exactly though, she’s not one of the lawyers whose name appears on Trump’s petition to the court, all of whom surely want to kill her right about now.

Habba's been part of the team more involved in Trump's dumb (sometimes sanctioned-level-dumb) civil suits. So not exactly some rando, but still at the point where if she ran into the SCOTUS bar team in a dark alley she'd be having a bad time.

Habba most recently represented Trump in the NY civil fraud trial (which of course has been a disaster). She's terrible at her job:

In September 2022, U.S. District Court Judge Donald M. Middlebrooks dismissed a 2022 suit brought by Habba for Trump against Hillary Clinton, John Podesta, Jake Sullivan, Debbie Wasserman Schultz, and numerous other public officials, private citizens, and private entities that Trump sought damages against for alleged conduct surrounding the 2016 presidential election.[37] Dismissing all of Trump's claims, Middlebrooks concluded that Trump's complaint was not just inadequate in any respect, but rather was inadequate in all respects, and expressly reserved the right to consider sanctions against Trump's attorneys at a later date.[37][38]

Two months after issuing that decision, Middlebrooks sanctioned the Trump lawyers, including Habba, Michael T. Madaio, Peter Ticktin, and Jamie Alan Sasson. They were assessed $50,000 penalties, plus $16,000 to cover the legal fees paid by one of the defendants.[39] Later in January 2023, Middlebrooks ordered Trump, Habba, and her firm to pay $938,000 in legal costs for 31 defendants, including the Democratic National Committee, Hillary Clinton, and former FBI director James Comey.[40][41] The judge wrote about the lawsuit brought by Habba: "No reasonable lawyer would have filed it. Intended for a political purpose, none of the counts of the amended complaint stated a cognizable legal claim."

Mind, she is hardly alone. Most of Trump's lawyers are terrible.

Most of Trump's lawyers are terrible.

Not really surprising. Good lawyers have more to lose from being fired and blacklisted, and are smart enough to know that that's what will happen to them.

Trump has filed his petition to the Supreme Court asking them to review the Colorado decision. Lawyers writing briefs don't generally have the same opportunity for snark as judges when they write their opinions, so my favorite quote was:

constitutional speech protections should not turn on opinions from sociology professors

Which seems reasonable to me.

The brief contains a variety of arguments, some of which are stronger than others. One interesting argument I hadn't heard before is that while someone may be disqualified from holding office, they are still permitted to run for office. A bit hard to swallow in the case of a candidate counting on Congress to "remove the disability" after he gets elected to office, but, like I said, interesting.

The brief points out some deficiencies specific to the Colorado proceedings. Candidates are required to file a paper affirming that they meet the qualifications to be President, but the Colorado Secretary of State is not required to independently investigate this affirmation, and thus had no business doing so. A good point, but by now we have challenges across several states, so the Supreme Court is going to need to go bigger to resolve this issue.

The brief argues that the events of Jan. 6 were not an "insurrection", and even if it was, Trump did not "engage" in the insurrection. I agree with this, but my instinct is that the Supreme Court is not going to want to go so far as to make that determination.

The Supreme Court's two main options are unpalatable. They can:

  • Point out deficiencies specific to the Colorado procedure
  • Take up the case of Trump's eligibility themselves

The first doesn't go far enough, and won't resolve other states' cases, while the second goes too far, taking on more responsibility than the Supreme Court likes to have. For this reason, my expected outcome is for the Supreme Court to lean on section 5 of the 14th Amendment, saying that Congress and only Congress is able to determine eligibility for federal office. As @AshLael has pointed out, this is standard operating procedure for Roberts, he loves to write opinions which conclude by saying, in effect, "if Congress doesn't like this outcome, they are free to pass a new law to achieve the outcome they like."

Adam Unikowsky has a new article arguing pretty persuasively that the "holding office vs running for office" distinction is not going to fly. I don't think that's a conclusion that anyone here is going to resist very strenuously, but I thought it was a novel and intriguing argument and liked seeing it analysed seriously.

I don't think the "Not everything that is permitted is mandatory" part is very coherent. It would be a wonderful argument if there were clear statutory restrictions preventing insurrectionists from going on the ballot -- yet if such existed, we wouldn't be futzing around with these weird third- or fourth-degree restraints. Both Colorado's role and Baude/Paulsen position more generally is not that a state can block insurrectionists from the ballot, but that it must do so where any role to review qualifications exists. Unikowsky tries to shove this problem as if Thorton were the only limit, but Thorton is why Trump's lawyers argue this is clearly and egregiously wrong rather than merely incorrect.

The pragmatic argument is a lot stronger -- kicking this can down the road opens up a tremendous amount of worms, and heightens the risk of people literally marching on SCOTUS among far worse things -- but the pragmatic arguments give a lot of strong arguments toward either completely disqualifying Trump across the board, or completely limiting disqualification, and Unikowsky isn't making either of those arguments in context for Michigan.

((Separately, Unikowsky's aversion to clever solutions isn't as awkward as when coming from the emoluments clause fandom, but it's still pretty nakedly new given the man's role in Espinoza. Or, for that matter, when one examines how 'clever' this is, here.))

I think part of the argument is that Colorado does indeed have a statutory restriction preventing ineligible candidates from being on the ballot. You don't need to go the full Baude/Paulsen to say that Colorado is permitted to do so. One could easily imagine a Thomas opinion arguing that states have the right to put whoever they want on their ballot for any damn reason they choose (as a separate question to the issue of whether Trump fails the criteria they set).

But Colorado does not have a statutory restriction preventing ineligible candidates from being listed on the ballot, and the Colorado Supreme Court did not find one. In fact, it held that :

To that extent, we agree with President Trump that the Secretary has no duty to determine, beyond what is apparent on the face of the required documents, whether a presidential candidate is qualified.

Hence the emphasis on "“wrongful act” that runs afoul of section 1-4-1203(2)(a) and undermines the purposes of the Election Code", and why there's so much emphasis on what's implied for 1203 purposes. But it doesn't matter; this is a state law question, and SCOTUS isn't going to punt because of it, and it wouldn't matter if they did (even for Colorado, for reasons I'm not discussing publicly).

It just makes Unikowsky's argument really weak at a philosophy-of-law level.

Huh. I admit I've kind of brushed over the questions related to Colorado law specifically, so I guess I'm a bit lost as to where the SOS authority to disqualify candidates comes from exactly. All I can say in my defence is the citations of Gorsuch in Hassan v Colorado made me assume that there was some well established existing authority for Colorado to do that.

There was a lot more authority and clear case-law on the matter before a bunch of the Colorado election code was revised in the last decade, although its bounds had a limitation. But that's... about as much detail as I'm comfortable giving publicly.

The "holding" vs "running" argument is funny, but it really just kicks the can down the road -- Trump's probably hoping until votes are being counted for the general election, but Colorado specifically already has had recent lawsuits over Secretaries of State making orders related to election processes weeks before the election, and there's no reason it couldn't happen in the primary season, too.

Ruling specifically on Trump's eligibility as a matter of legal fact has the problem where it's both too much into political questions for a few members of the court, and simultaneously not enough to actually table the problem. The same approaches can and have migrated to other politicians, and as the emoluments clause fandom demonstrates, there's always some new fact pattern to bring.

Congress having to act would remove a lot of further legal gamesmanship, but I dunno how well it would appeal to most of the Court. At the simplest level, the approach Trump is advocating would not just allow but encourage a situation where a candidate was cleanly and clearly the winner of a state and then the House of Representatives reject that state -- and while I'd recognize some schadenfreude in a reversal, the spectre of Jan 6 isn't something that they're forgetting. Especially given the extent Baude/Paulsen and the lower courts here have rejected due process concerns or even argued that the 14th Amendment overrides earlier test in the Constitution, there's also a lot of really bad problems that could fall from Congress having the power to declare insurrectionists by law.

One interesting argument I hadn't heard before is that while someone may be disqualified from holding office, they are still permitted to run for office.

I think this is a non-starter; it was rejected in Hassan v. Colorado by the 10th Circuit Court of Appeals. In the person of Neil M. Gorsuch.

a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.

The brief contains a variety of arguments, some of which are stronger than others. One interesting argument I hadn't heard before is that while someone may be disqualified from holding office, they are still permitted to run for office. A bit hard to swallow in the case of a candidate counting on Congress to "remove the disability" after he gets elected to office, but, like I said, interesting.

Yeah I also found that argument interesting. You could kind of analogize it to a candidate that will be 34 at the time of the election but will be 35 by the time he takes office. Probably the cleaner and more coherent answer is just to say disqualified candidates get treated as disqualified until the disqualification is removed, but it's an argument worth making.

I'm a bit surprised he didn't try the argument that the Amnesty Act passed in 1872 was forward-reaching. I don't buy that argument either, but it seems at least as plausible as many of the others he has used, and it wouldn't really cost him anything to give it a try.

I also expect Roberts to look for a way to punt responsibility to Congress, but I don't know that he finds 4 supporters for that approach.

I'm not sure I fully understand the potential consequences for this decision - like, what are the odds that this decision will lead to some extremely bad outside side effects (like eg. armed protests, insurrections, civil war)?

I'm sketching this out, feel free to iron man, something like there are significant write-in ballots, they don't get counted, and as a consequence, the US sees organized armed revolt?

Maybe it's just me, but it seems like trying to prevent a populist candidate from running via technicalities is not the most effective option?

If there's something that is essentially a stolen election (e.g. no Republican on ballot in enough states to plausibly throw the election the other way, or different states putting different Republicans on the ballot, or states disregarding the popular vote and sending the other set of electors), very high. "You maniacs! You blew it up!"

If Trump is on the ballot, votes for him are counted in all states, and he loses, very low.

If Trump is banned nationwide and the Republicans choose someone else, and Trump being banned doesn't come about through some form of court-packing, and there's no major "Trump-Anyway" vote-split, very low (whoever wins).

If there's a "Trump-Anyway" vote-split, low.

If the court is packed to ban Trump, high to very high depending on method.

If Trump dies of natural causes and the Republicans pick someone else, very low (whoever wins).

If Trump wins... less confident about this one than the rest, due to having a poor finger on SJ's pulse these days, but I'll say low.

The ironman and steelman of worst-plausible-case are bad enough I’m not willing to discuss them openly. There’s options here, even if never genuinely implemented, where simple explicit proposal by high-profile actors would at best undermine both parties’s trust in federal elections and systems as a whole, and more likely drive open attacks.

The more intermediate case ‘just’ destroys conservative trust in the judiciary. Either SCOTUS punts, lower courts defy rulings, or procedural gamesmanship drives through changes faster than they can be seriously reviewed for lawfulness. This doesn’t even necessarily require Trump be off the ballot: stupid gimmicks like prefixing his name with ‘felon’ wouldn’t even need to work to have a massive social impact

The good news is that there are off-ramps still available, some under no one’s control but fate.

What's the difference between an ironman and steelman?

At least as I've seen it colloquially used in the ratsphere, iron is 'softer' than steel, sometimes with the implication than iron is something present in nature (if rare), while steel is mostly man-made. Might be derived from DoD framing of increasingly higher-order languages.

I think major violent unrest is pretty unlikely. My expectation is that the Supreme Court will make a definitive ruling one way or the other and Trump will either be on the ballot everywhere or nowhere (and if nowhere, then the GOP will successfully organize to replace him with DeSantis or Haley). No matter what happens some people will be pissed off, but they will bitch and moan and get over it without drawing any significant amount of blood. I could see irate Trump supporters throwing the election to Biden via write-in campaign that splits the GOP vote though.

If violent protest were to occur, I would expect it to be in response to Trump being imprisoned rather than because of the 14th Amendment issue.

Maybe it's just me, but it seems like trying to prevent a populist candidate from running via technicalities is not the most effective option?

"No trying to overthrow the government" is not a technicality.

"No trying to overthrow the government" is not a technicality.

I read through the 14th amendment and thought this was pretty much cut and dry myself. However, after discussing it with my SO, there is the problem that he has not been convicted of anything yet. Also, even if we were to say "Giving Aid and Comfort" -- well, explicitly he hasn't given money or legal aid to them, right?

So, in a court of law, is there sufficient condition met for the man to be excluded by 14th Amendment prior to him being convicted of this? It seems the Supreme court would probably throw all these out on straight constitutional grounds, no?

If he is convicted, though, whole different story. No questions, 14th amendment excludes him outright.

As I've said previously, I find it completely implausible to suggest a criminal conviction is required to apply section 3. That would mean that Jefferson Davis and Robert E Lee were not barred by it.

I’m of the opinion that conviction is sufficient, but not necessary.

It would be obvious that a convicted insurrectionist was ineligible, just as it would be obvious for an enemy general or president. Since neither is true in this case, we ought to pick some sort of threshold in between.

Basing it on a lawsuit is…alright, I guess. It might or might not have worked for Lee or Davis, depending on whether a local judge or jury corrupted the process. That’s not easy to avoid. It leaves me inclined to rely on a national-level decision for national-level candidates. Maybe for lower-level ones, too?

It’s a thorny problem, and I sympathize with the Colorado judges; they were definitely not happy to be in this position.

The problem is that Colorado law requires invalid candidates to be removed from its ballots. It gives a timeline and procedure for making this happen via a lawsuit and a judge. As you observe, if Trump had been convicted (say, after his impeachment), the suit could just cite that.

Since he wasn’t, though, the Colorado court is in a bind. They are required to make a decision, which means they need someone to make a finding of fact. But other states are not necessarily so bound. I think this makes it really hard for the Supreme Court to affect other states. Finding that Colorado’s law violates due process, for example, would just leave us back where we were before they banned him.

Funny, I have the diametrically opposite interpretation of potential consequences.

Throwing someone in jail because they committed a crime - that sounds like punishing an individual for their actions (which, while unpopular, I would predict would be more acceptable to Trump supporter). So I would not expect any kind of violent unrest - just some moaning etc....

While, if a candidate is prevented from showing up on a ballot despite popular support? I predict that would be interpreted more like attempting to penalize a large swathe of the electorate for their political leanings and sensibilities (as opposed to penalizing an individual). And I would expect that interpretation to galvanize folk, whether or not they'd vote for the individual, and lead to protests and potential violence

The Guardian reports:

Supreme court justice Clarence Thomas must recuse himself from ruling on Donald Trump’s eligibility for the 2024 presidential election, a prominent Democrat said Sunday, warning that the leading Republican candidate is seeking to become a “political martyr” as he pursues a second presidency. Maryland congressman Jamie Raskin was speaking ahead of the nation’s highest court stepping in to adjudicate recent state rulings in Maine and Colorado that struck the former president from the general election primaries under the US constitution’s 14th amendment insurrection clause....

“Anybody looking at this in any kind of dispassionate, reasonable way would say if your wife was involved in the big lie in claiming that Donald Trump had actually won the presidential election, had been agitating for that and participating in the events leading up to January 6, that you shouldn’t be participating,” Raskin told CNN’s State of the Union.

“He absolutely should recuse himself. The question is, what do we do if he doesn’t recuse himself?”

ProPublica thinks they are running an effective pressure campaign on Clarence Thomas because they have succeeded in moving the NYT and WaPo editors from "convinced that he should resign" to "really, really convinced that he should resign," but they haven't actually changed the mind of anyone who wasn't already convinced.

The question is, what do we do if he doesn’t recuse himself?

I mean, he already knows that the numbers are not there in House or Senate to use impeachment, and the numbers are not there in the House to pack the court (reasonable assumption being that 100% of Republicans would oppose this, even if they could get all the Democrats behind abolishing the filibuster for legislation), and yet I notice that he didn't actually answer his own question with a "we can't do anything".

NB: Besides the "I am a lunatic" and the "he is a lunatic" options, there is also the "he is trying to sound like a lunatic for free publicity and/or safety vs. primary" option.

I think the "free publicity" point is no small part of things, but I think there's a lot of options that are still open, and Raskin's not stating those options outright less because they don't exist, and more because there are bigger benefits from the ambiguity and from crowdsourcing innovation.

Reuters reports:

Maine on Thursday disqualified Donald Trump from the state ballot in next year’s U.S. presidential primary election, becoming the second state to bar the former president for his role in the Jan. 6, 2021, attack on the U.S. Capitol. Maine Secretary of State Shenna Bellows, a Democrat, concluded that Trump, the front-runner for the Republican presidential nomination, incited an insurrection when he spread false claims about voter fraud in the 2020 election and then urged his supporters to march on the Capitol to stop lawmakers from certifying the vote. "The U.S. Constitution does not tolerate an assault on the foundations of our government," Bellows wrote in a 34-page ruling.

The decision can be appealed to a state Superior Court, and Bellows suspended her ruling until the court rules on the matter.

Brave decision from Bellows. Her decision is of course subject to judicial review whichever way it went, but as an elected official she faces potential blowback. Maine is blue, but not very blue. Never mind. Turns out the Maine SoS is chosen by the legislature.

Her fellow Maine Democrat Jared Golden has come out against her decision, saying that Trump should not be disqualified without a criminal conviction. However I think that Golden is clearly wrong here. As Ilya Somin points out, none of the confederates disqualified under section 3 had been convicted of crimes relating to their actions in the civil war.

Never mind. Turns out the Maine SoS is chosen by the legislature.

I'm not sure if she's subject to recall, though. If she is, your struck-through text would still be accurate.

How do you square with Griffin?

By saying that Salmon Chase sucked. Griffin's case was not only wrongly decided, I don't even think it was a sincere attempt to apply the law correctly.

In Griffin's case, Chase said that section 3 was not self-executing. But the year before, in Jefferson Davis' treason trial, he said that section 3 prohibited further punishment of confederates beyond disqualification. I think both of these positions are wrong, but more importantly, they flatly contradict each other.

It's also very clear why Chase would have been motivated to make logically inconsistent rulings that both happened to decide issues in favour of former confederates. He was a politician, he wanted to be President, and he wanted the Democratic nomination. Admittedly he had already missed out on the 1868 nomination by the time Griffin's case rolled around, but I don't see any reason to think he had given up on his ambitions.

Sure, you can just throw out precedent as insincere but well once you go down that road a lot of things start looking insincere.

First, there is ambiguity whether in the Davis case Chase ruled in the manner you describe. There is at best hearsay that Chase thought the amendment self executing in the context of Davis and that was never settled (eg there was never an opinion).

Second, it again ignores the distinction (that we see often in US law) between laws that restrict government action (ie providing more freedom to the citizens) and laws that restrict citizen action (ie laws that restrict freedom). We generally give more latitude to the first and less to the former because we generally think government inaction shouldn’t deny properly bestowed rights while at the same time believing that unclear rules shouldn’t prohibit someone from exercising rights they may have. That is, in Davis the 14th amendment could arguably be viewed as a right protecting people whereas in Griffin it is stripping people of the right and therefore it could be self executing in one and not the other.

This provides a legal harmonization of the potential conflict between the two different cases. That is the better approach compared to just saying “Chase is full of shit.” Now it doesn’t mean Chase is right. But given that it is the to my knowledge only relevant near in time case on topic it seems like we should give it a lot of weight.

That seems about the same tack that Bellows took, if a bit better thought out. The analysis in the decision is just:

On this point, I find Griffin's Case 11 F. Cas. 7 (CCCD Va 1869) to be unpersuasive. It is not binding in Maine, does not assess whether states can enforce Section Three without Congressional authorization, and has been discredited. See, eg Anderson, 2023 CO 63, 103; Amicus Br. of Constituional Law Professor Mark A Graber 7-8 (Dec 14, 2023).

Ilya Somin addresses the gravity of civil liabilities compared to criminal penalties. He suggests that sometimes, a short prison term might be preferable to substantial civil damages. And he is approaching a really good point when he writes:

There are situations where the consequences of civil liability are so grave that the civil-criminal distinction may seem artificial, as when defendants end up paying enormous damages that force them into bankruptcy. A short prison term might be less painful than that.

Unfortunately, the next sentence is

But Section 3 disqualification isn't one of those cases.

I say "unfortunately" because he was on the verge of an important conclusion. His analysis goes beyond simply stating, as a fact, that the criminal standard of proof is different from the civil standard of proof, and actually explains why the legal system makes such a distinction. He even points out that in some cases, a light criminal punishment would be preferable to a harsh civil punishment. And yet, for some reason, his analysis stops there, just saying that "disqualification isn't one of those cases" where we really need to really think about what standard of proof is appropriate.

So, instead of just stating, without evidence(!), that "disqualification isn't one of those cases", let's think about the importance of Section 3 disqualification. If you become the nominee for one of the two major parties in the US, a reasonable estimate would be that you have a 50% chance of becoming President. How much time would you be willing to spend in jail to get that kind of chance? For me personally, I have basically no desire to be president, and even so I would be willing to spend, say, 6 months in jail, for the salary and pension alone (N.B. I am poor). Actual ambitious people would probably be willing to give up a lot more.

From the perspective of the American voter, not being able to vote for their preferred candidate is a big deal. This is the kind of statement for which no proof should be necessary, but as an attempt at proof I will offer the time and energy Americans dedicate to voting each election year. That behavior seems like sufficient demonstration that it is really important to them.

I do get it, we have to have standards in legal matters because we can't just let every judge and jury make decisions based on their own idiosyncracies. But rather than falling back on the claim, "well, disqualification is not really a punishment, because no one has the right to be President of the United States", I would suggest taking a second to think about what this concrete case of disqualification means, both to Trump and to his supporters. It is actually, to quote President Biden, "a big fucking deal", and should be treated as such.

Dismissing the severity of disqualification without deeper analysis underestimates its substantial impact on individuals and the democratic process. It deserves the same rigorous debate and consideration as any severe legal sanction.

Every eligibility criteria is meant to be enforced against candidates with the public support to actually win. To only bar candidates that would lose anyway is no barrier at all. Yes, disqualifying a popular candidate is a big fucking deal. But so is the US constitution.

Suppose Barack Obama were running for a third term right now, and leading in the polls. Would you flinch at disqualifying him anyway?

Also, the historical record is pretty unequivocal. Ex-confederates who actually won elections were disqualified following the passage of section 3, without criminal convictions.

My point is not that we should ignore the Constitution if a candidate is 29 years old, a born Frenchman, or is running for a third term. What I'm saying is that, rather than trying to divine the appropriate standard of review based on criminal and civil law, let's think about this concrete case. Nobody in 1865 was disputing that the "insurrection" of the 14th amendment applied to the Civil War; in fact, it's safe to say that if by any quirk of interpretation the amendment didn't apply to the Civil War, it would have been re-written until it did apply to that case. So it's really crystal-clear that the disqualification provision applied to those who "engaged in" insurrection by being part of the Confederacy.

In contrast, there are a lot of people who think that the 14th amendment's "insurrection" is not properly applied to the events of January 6th, and that even if it was an "insurrection", Trump did not engage in it. The man literally said, "everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard." Just as I, an honest person, can see why many believe that the phrase was empty BS after Trump spent months claiming fraud on the thinnest of evidence, an honest person on the other side should also see why the application of the 14th amendment to Trump is nowhere near as clear-cut as it was to Civil War participants in the 1870s.

So, just like we have different standards in civil and criminal cases, we need to think about what we're really trying to achieve with the 14th Amendment's insurrection clause. It's not just about the law; it's about making sure everyone, including honest Trump supporters, can trust and accept the outcome. Right now, there's a big gap between the two sides. We need to bridge that by understanding the why behind the law, ensuring the process is fair, and making the outcome something people can believe in, even if they don't like it.

Let's say that instead of saying "I find that the appropriate standard is the balance of probabilities, but I also find that the higher standard of clear and compelling evidence has been met", the Colorado trial judge had said "I find that the appropriate standard is clear and compelling evidence, and I find that it has been met".

What's different in that world? I expect Trump's supporters would still be angrily decrying the ruling just as loudly.

Yes, even if the judge went with "clear and compelling evidence" instead of "balance of probabilities," Trump supporters would still be up in arms. But here's the thing: it's like if your Uncle Barry was making the decision. Uncle Barry might genuinely be the fairest guy in the world, but if people don't know him, they are not going to trust his judgments, fair or not. And your average American doesn't know anything about the Colorado legal system or how they reached their conclusion. But they've heard about Congress and the Supreme Court their whole lives. These bodies carry weight. They're like the household names of American justice. So, if a ruling comes from them, even though some percentage of people will just never be persuaded, for another portion, they at least recognize that the judgment is coming from a place they recognize and understand.

To answer your question for me, personally, I'm not really a Trump supporter, but I do currently think that the process by which this disqualification happened was unjust. But if the SCOTUS takes this case and, concretely, Roberts and Gorsuch vote to uphold the Colorado Supreme Court's decision, that would bring me a lot closer to accepting that Trump at least has gone through a legitimate process leading to disqualification. I don't always agree with those two but I do have massive respect for both of them.

I think we've reached a point of broad agreement then. While I think the rulings that Trump is ineligible are correct, I also think that this is an issue that absolutely needs to be taken up and settled definitively by the Supreme Court (and indeed, every decision on the topic has basically begged them to do so). I don't expect the rest of the country to simply accept a ruling from Colorado as the word of god.

As far as individual justices go, I think there's a pretty decent chance that Gorsuch and Roberts end up on opposite sides of this issue. Gorsuch has pretty strong "apply the law as written" attitude that is going to make it hard to persuade him of arguments like "this one part of this one amendment is not self executing in this context, despite nothing in the actual law saying that". Roberts on the other hand could very well buy an argument like that. His overriding philosophy is that the court should avoid becoming itself a participant in the political process, and he has shown himself willing to embrace some pretty advanced mental gymnastics in service of that goal. I can very easily see him effectively saying "Hey congress, if you want this to happen, pass a law."

Yes, I agree with your assessment of Gorsuch and Roberts, which is why if they do agree I could pre-commit to following whatever they say as both wise and respectful of the relevant laws as written. Not sure what I'd do if they disagree but again I think you're right, Gorsuch is more likely to apply the law with strict correctness while Roberts will look for the decision that is best for the political system overall. My heart is with Gorsuch but I think I'd have to go with my head and favor Roberts.

More comments

Copy of the decision and press release here.

To be fair, the relevant law requires the Secretary of State to do this adjudication within a specific (tight) timeline after receiving challenges in certain formats, which were filed by other people. Trump argued that Bellows should have recused herself given the long-standing objections she's publicized, but he's Trump (or Trump lawyers), so that doesn't mean it was possible.

To be... less charitable, the opinion does not read like a surfeit of either procedural ("As discussed on the record, due to a technical difficult suffered by the Rosen Challengers, a Dropbox link provided to the parties before the hearing and containing many of the Rosen Exhibits was inoperative.... This delay does not amount to a Due Process violation. There is no requirement under the APA that evidence be shared prior to an administrative hearing.") or legal caution.

SCOTUSBlog reports:

Lawyers for Colorado’s Republican Party came to the Supreme Court on Wednesday, asking the justices to overturn a ruling by that state’s highest court that would leave former President Donald Trump off Colorado’s primary ballot in 2024 because of his role in the Jan. 6, 2021, attacks on the U.S. Capitol. Lawyer Jay Sekulow told the justices that the Colorado Supreme Court’s decision “presents a constitutional crisis, national in scope.”...

In a motion filed simultaneously with his petition for review, Sekulow asked the court to decide the case by March 5, 2024 – Super Tuesday, when 16 states and one territory will hold their primary elections – or, at the latest, by the end of the court’s current term.

On Thursday the voters who filed the Colorado lawsuit urged the justices to act on the party’s appeal even more quickly. Telling the justices that “voting in Colorado happens mostly by mail and will begin for in-state residents once the ballots are mailed out on February 12,” the voters asked the justices to decide the case by Feb. 11, “so that voters in Colorado and elsewhere will know whether Trump is disqualified before they cast their ballots.” To ensure that the dispute is resolved quickly, the voters also encouraged the justices to set a deadline for Trump himself to seek review of the Colorado Supreme Court’s decision.

This whole subject reminds me that I’ve long thought it would be a good change for the president to be appointed by state legislatures on a weighted majority-of-majorities basis, with a weighting system based on census data. So much of the issues with American politics are because congress has zero accountability to the states’ governments themselves, only to individual voters to some extent.

In general, direct elections to the federal level could be done away with as much as possible. It’s inefficient and confusing for people not only to elect 3+ levels of representative but then to do so in multiple forms (eg bicameral states, and congress itself for both senators and reps).

Recentering more politics around the states makes state politics more important and means that any president with a more radical plan is likely to be supported by a large ground-up movement in state houses across the country, instead of Trump being a one man band whose movement largely begins and ends with him.

My understanding is that basically the reason we don't do that anymore is that as the federal positions mattered more, the state legislature elections turned into proxy elections for the federal positions and the state issues were getting ignored. If you're going to have an indirect system for selecting the federal positions, you would probably want to either (1) keep it separate from state elections or (2) decide to go even harder on giving power to the federal government (so it doesn't matter as much if the state legislatures aren't governing).

How about (3) - go back on giving all power to the federal government? If most issues are state or local issues, because the federal constitution's short allowlist is respected, you pretty much have to pay attention to non-federal candidates.

That ship sadly sailed

It’s not just that past precedence and the current Overton window has caused it to sail, but in the modern world I do not even believe it’s possible.

Technology has made the world a smaller place. Having this big federal government that can manage all these global forces has become necessary.

What some scientist mixes up in a lab will come to hurt you on the other side of the globe. Along with all the wealth Americans got useful from global trade.

I’m trying to think of what America could be if it didn’t have a big federal government managing all these policies and my best guess is like Argentina which was largely locked out of global trade due to their currency being awful. Also poorer because modern industry scale abilities is much higher than a few million person state which they haven’t hit that scale. Poor in nominal terms but everyone does say it feels wealthier on the ground.

On the flip side, the federal system enabled some states (eg Florida, Georgia) to show that the covid restrictions were nonsense. That is, despite the world getting smaller local control still allowed for so called different laboratories enabling a better outcome compared to a bet it all on black approach.

All we need is a slightly sane judiciary branch to revisit Wickard v. Filburn. From there most federal laws would be rightly determined to be unconstitutional.

I think if we just took the takings clause seriously that would be better than overturning Wickard. And honestly, the judiciary is starting to take takings more seriously b

I made a post on here about a year ago proposing a sort of elaborate version of how state legislatures could appoint national representatives.

https://www.themotte.org/post/167/smallscale-question-sunday-for-november-6/27482?context=8#context

Congratulations you've accidentally reinvented the electoral college.

Sure, and I think that was a better system. But even the originalists don’t seem to want to restore core aspects of American democracy like limiting the vote to property owners. $500,000 would be a good starting point.

500k of what kind of property? If you do total net worth then you get into a situation where registering to vote becomes more complicated than doing your taxes, and more intrusive, and you need an entire government agency just to keep track of year-to-year eligibility. Not to mention that you end up further entrenching the current gerontocracy since most young people won't be eligible between student loan debt, lack of equity in their homes, and lack of significant retirement savings. Speaking of which, you then have to deal with the complicated business of trying to determine the present value of defined benefit pension plans.

If you do it the old-fashioned way and limit it to what's listed on the tax rolls then you end up having varying criteria for various parts of the country, with no consistency whatsoever. For instance, the kind of person who owns in most parts of the country probably rents if they live in New York. $500k may seem reasonable based on whatever housing market you're familiar with, but in a lot of the country it's ridiculous. Here in Pittsburgh one of the most desirable suburbs is Upper St. Clair. The school district ranks among the best in the state, and there's no shortage of large homes. If you tell someone you live there they assume you have money. Except most of the people who live there don't really have money, at least not serious money — most of the residents are typical upper-middle-class professionals who live in 4 bedroom. 2,000 square foot homes built in the 70s. You pay a premium to live there over more working-class (in relative terms) suburbs like Bethel Park or South Park, but not that much of a premium. Most of these houses cost significantly less than 500k.

I don’t even expect property ownership. I think honestly being a net tax payer would be good enough for me.

Is it annually or over your life?

I’d personally say over the last 10 years. Being able to do so in most cases simply means a modicum of personal responsibility and good decision making. It also would tend to give a person stake in the continued success of the country. If you’re on the dole, getting more money or less required hoops to getting on the dole is your main concern. If you have a job and pay into the system, you are more inclined to want the productive parts of society to continue and even improve so that you can get more done.

I’m just thinking let’s say you are a relatively upper middle class person. Have a 401k of around 900k-1m invested conservatively. You are at retirement. You on net paid taxes for 35+ years. But now, your investment income of 50-70k pa is going to have a pretty small effective tax rate. And you draw SS. All of a sudden, net-net you are taking in more than you pay despite being a productive taxpayer for decades.

I like the ten year window idea. It largely (though not entirely) solves the above. Of course making it a non-annual test increases complexity.

largely off topic, but are you suggesting withdrawing 5-7% per year from the 401k? (50-70k/1M). 4% is generally the "safe rate of withdrawl" I see quoted.

More comments

No voting on filing a loss seems fair.

Most counties already have records of owner occupiers of houses based on the tax system. It’s not that hard to restrict the franchise to people with provable residence and property, and it in general shows a degree of future orientation, good decision making, maturity, etc.

In many parts of the country it mostly shows that they had the good sense to be born at a time conducive to buying, or they have extreme FOMO, or that their parents had the good sense to shuffle off the mortal coil and pass down the house.

Except for all the people with guns, gasoline, matches and the numbers that will raise some rather heated challenges to the minority of feudal wannabes trying to take away people's right to vote.

Solving antifa behavior is actually really easy if you're willing to let the police beat them, and the underclass that expects permanent disenfranchisment from this policy already thinks they live in a brutal plutocracy anyways.

Attempted tyrant behavior like stripping voting rights from everyone but property owners would be quite easily solved - few things would bridge divides across the political spectrum as much as unifying against that. It'd be in the ballpark of attempting to end age of consent laws or make Aztec paganism the mandatory state religion in terms of unpopularity. Take away the ballot box, the bullet box is next, and guns are a whole lot cheaper and widely distributed than land.

More than that, it's aligned interests. The places I've lived where I was renting and planning on only living there a few years, you better believe I didn't give two shits about the future of the place. Owning a home really changes the incentive structure.

I think people forget that democracy is a technology that improves upon what came previously -- violence. Instead of fighting and some dying, we can just count the fighters on each side and declare a probable winner without bloodshed. If the counting is a proxy for potential fighting power, whom should be counted? Men (because men do almost all the fighting) and landowners (because non-landowners have no incentive to stay and fight). Women's suffrage was a turning point in the republic, because it turns out you can just vote yourself other people's wealth.

It only changes the incentive structure up to a point, though. Places where I've rented I haven't hesitated to bitch about every problem because it's the landlord's responsibility to fix and not mine. For example, years ago I rented an apartment that had a powder room downstairs and a full bath upstairs. One day the toilet in the powder room wouldn't stop running, and my cursory examination of the internal mechanism revealed no obvious malfunction that I could easily remedy. So I shut the water off at the valve, called the landlady, and insisted she fix it. She sent her husband over and I showed him the problem, and he had a plumber come out to give an estimate. I have no idea how much the repair cost, but it was evidently enough for the husband to try to talk me out of getting the work done. He didn't see what the problem was since there was a perfectly operational bathroom upstairs. Realistically, he was right — I rarely used the downstairs bathroom to begin with, being forced to go upstairs in times when I otherwise would have used the powder room was only a trifling inconvenience, and I would have paid the same amount for the place if it hadn't come with a powder room to begin with. Nonetheless, I insisted that he get it fixed. He ended up redoing the whole powder room because he had evidently planned on doing that when I moved out but decided that if he was sending a guy in there he might as well get everything done now if I didn't mind. If that had been my house I probably just would have shut the water off and procrastinated fixing it until it was convenient for me.

This is a relatively minor example, but with homeowners these little decisions compound more than you'd think. When I was looking to buy I noticed that there was almost a direct correlation between how long someone had owned a house and how much work needed to be done. For instance, there were several houses I looked at that were built in the '60s and being sold by the original owners or their families after these owners either passed away or went into assisted living. Almost all of them hadn't been updated since the '60s, except for essential stuff like heating and plumbing (and often this was only barely good enough; one house I was told that the only problem with the roof was that there was a leak in '96 but they patched it an it hadn't leaked since. This was in 2016 so even if the roof was relatively new in '96 it would have been due for a replacement soon, and I doubt the roof was new when it started leaking). If a homeowner only plans on leaving in a coffin, it's hard to convince them that they need to spend large sums of their already limited incomes on purely cosmetic upgrades, like new kitchens, bathrooms, flooring, etc. In other words, they're more concerned with keeping the dwelling habitable than in enhancing the value of the property.

I didn't literally mean the apartment you live in. I meant the neighborhood/city/region/state/country (I was purposefully vague about the scope).

You're talking about things that affect you. Of course you care about the condition of your literal apartment when you can force the landlord to fix it free of charge. But people passing through generally aren't lobbying for long-term infrastructure improvements of the town.

I don't know if that's necessarily true, though. Places like New York City have a lot of long-term renters. On the other side of the coin, a lot of the poorest ghettos have long-term renters who won't leave the neighborhood unless rising prices force them out. Conversely, it's trendy on the east coast for outdoorsy types to move out west for a few years just to see what it's like. Sure, some of these people rent, and some of them stay long-term, but a surprisingly large number of them buy houses and sell them a few years later. When interest rates were low anyone with the cash on hand would buy, and a lot of people made out like bandits when they sold a few years later and bought less expensive houses back east with cash.

The other thing is that most people aren't particularly engaged politically, regardless of whether they buy or rent. When was the last time you attended a meeting of your local government? Unlike watching C-Span you can actually address the board, and they might take your opinion into consideration. They also almost always happen in the evening, except maybe in big cities with full-time politicians. I've attended several over the years for various reasons. They're only ever busy if there's some controversial item on the agenda, and even then it's rarely busier than a busy voting precinct. On an average night, there's usually only one or two spectators.

Owning a home really changes the incentive structure.

Sure, it leads to rent seeking.

because it turns out you can just vote yourself other people's wealth.

Indeed. We in the big cities vote ourselves the provincials wealth by limiting housing construction. Very good for me personally but hardly good for the economy overall.

it turns out you can just vote yourself other people's wealth

What stops the enfranchised elite from voting themselves other people's wealth (e.g. enclosure)?

More than that, it's aligned interests. The places I've lived where I was renting and planning on only living there a few years, you better believe I didn't give two shits about the future of the place. Owning a home really changes the incentive structure.

I hear this and it's such a strange concept to me. I live in an expensive west coast city. The people I know with close ties and care about the place are locals who, for the most part, have parents who own houses because they got into the market so long ago, and they can't imagine ever being able to afford to buy instead of renting. The people who own houses are either the aforementioned older generation or the people who moved here for high-paying jobs and can actually afford to buy into the market, but will happily hop off to some other city if the opportunity presents itself because the cost of owning a home just isn't a big deal to them. Obviously, I'm generalizing and a lot of people fall into neither group, but those two are very common in my experience and make me quite suspicious of claims that "landowner" is a remotely good proxy for "cares about the local government".

If you own a home, you can sell it, but the price you get is (to a first-order approximation) the prosperity of the surrounding area. A renter just picks up and leaves and gets nothing no mater how well or poorly the area is doing.

Data beats theory. Unless you’ve observed otherwise yourself, @token_progressive is the only one providing (anec)data here

Then I'll say the opposite as @token_progressive: In my experience, a) the homeowners I know explicitly state that they plan to stay in their house for a long time b) the renters I know explicitly state that part of the reason why they wouldn't take a mortgage to own a home is because they don't want to be tied to one place and finally c) the homeowners I know, even if they end up selling their house, do in fact stay mostly in one place and are very invested into a tight-knit community there while d) the renters do in fact end up travelling somewhere else very often. Mind you that I very clearly belong to the second category.

But I'm not living in an ultra-expensive large american city, merely in a moderately expensive middle size city.

It is truly one of the silliest parts of American constitutional history that one of the core mechanisms of its executive has been so subverted that the original intent has been rendered illegal and basically nobody cares.

The real question is how do you make something like it resist parties.

The fact that the electors had no other purpose than that ultimate decision probably fated them to servility regardless. Maybe they should have made them senators. Or a high court of sorts. So as to maintain a functional requirement that they be discerning and virtuous men, as intended.

The real question is how do you make something like it resist parties.

With approval voting, or at least a Condorcet method. Duverger's Law isn't the only force leading to partisan politics but it's a pretty overwhelming one.

I know right?

This whole subject reminds me that I’ve long thought it would be a good change for the president to be appointed by state legislatures on a weighted majority-of-majorities basis, with a weighting system based on census data.

That's effectively what the Electoral College was originally.

Adam Unikowsky has a very good article going through all the potential outcomes from the all-but-inevitable SCOTUS case reviewing this decision and helpfully assigning a subjective probability to each one. The numbers aren't important, but it's a useful exercise to consider the various options the justices will face and the consequences that will flow from whatever judgement is reached.

I think there will be less appetite than he suggests for a procedural dodge that doesn't resolve the core issues. There is a clear and compelling need right now for clarity that only the Supreme Court can provide, and I think a clear majority (maybe excepting Roberts) will accept that responsibility - and besides, all of the various available dodges are pretty ugly. Accordingly I put the chances of both a clear reversal and a clear affirmation higher than does.

I agree with him that the single most likely outcome is probably a reversal on the basis that Trump's behaviour did not constitute engaging in an insurrection. But I also think it's very possible that many of the Republican justices will be willing to sign on to the Baude/Paulson analysis in full. There's obviously instinctive resistance to the idea of going against public opinion, but logically any eligibility criteria is meant to be applied in the face of popular will - if they were not, then normal democratic processes would be enough.

The sky won't fall if Trump is found ineligible. We threw fifteen(!) politicians out of parliament because they were constitutionally ineligible a few years ago and while it caused a bit of drama, the world kept turning. Retaliatory actions may be attempted but they will need to get through the courts too, and if they do so successfully, they will be justified.

Care to wager? SCOTUS need only say “the law is not self executing; congress passed a law saying what insurrection is, Trump wasn’t found guilty, therefore he is eligible.”

That is of course the prudential thing to do. The Baude argument is and remains silly.

I don't bet with internet strangers. And even if I did, I already predicted that the most likely outcome was that SCOTUS will say Trump is eligible. So I'm not sure what the terms of the bet would even be.

I think the best reading of the law is against Trump. But partisanship and public pressure both clearly make it in the self-interest of the conservative justices to rule for him. And while I'm not so cynical as to think self-interest always rules the day, in the words of Jack Lang, at least you know it's trying.

Even if Trump is found eligible though, I am very sceptical that it will be on the basis that section 3 is not self executing. The legal argument that it is seems very strong to me.

Trump didn't engage in insurrection. He's certainly not the best steward of American democratic norms, but he's not an insurrectionist. The 14th Ammendment refers to actual insurrection such as raising armies and waging war. It was made right after the Civil War when there were a lot of actual former insurrectionists whose actions bear no resemblance to Trump's.

Maybe a dumb argument but for a Trump to do insurrection wouldn’t it have to be on Jan 7? It’s weird to be doing insurrection while you are potus and against yourself.

Unimportant point, but Trump remained President until Jan 20.

The more substantial point is that as President, Trump was not the whole of the law or of the government's authority. The Jan 6 insurrection was not against him.

A contemporaneous-with-section-3 definition of "insurrection" in Webster's dictionary was "[a] rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state."

If that were the standard Jan 6 were to be judged by, it clearly qualifies. The crowd openly and actively opposed the execution of the law certifying the election result.

A contemporaneous-with-section-3 definition of "insurrection" in Webster's dictionary was "[a] rising against civil or political authority; the open and active opposition of a number of persons to the execution of law in a city or state."

Are there any protests that don't meet that standard? CHAZ certainly qualifies.

I'd be surprised if less than half of politicians (at any given level) didn't cross that line every year. Heck, the Cards Against Humanity people would qualify with their anti-border-wall stunt, even if their lack of oath makes the point moot.

Most wouldn't. A bunch of uni students chanting "Biden Biden you can't hide, we charge you with genocide" cannot plausibly fit within that definition. CHAZ on the other hand I think was indeed an insurrection.

You may then ask if a Democrat who provided "aid or comfort" to CHAZ participants could be judged ineligible for office, and my answer is yeschad.jpg.

Are there any protests that don't meet that standard? CHAZ certainly qualifies.

CHAZ does, and some of the BLM stuff does, but your average "holding signs in a public space and shouting slogans a lot" doesn't.

The wording there means "attempting to stop the law being enforced". Saying you want the law to be something different than it is (which not even all protests do) is not a revolt.

Jan 6... is arguable, because they weren't preventing the execution of all laws in any significant volume, just one law in one building (I don't think, for instance, that they intended to stop DC cops from arresting murderers in DC), but they definitely were obstructing that one thing. On the other hand, I can't see a reading where Trump "openly" supported Jan 6, since he did not actually tell them to invade the Capitol. You can argue that he covertly supported it, but that's just the word: covert.

The crowd believed in their heart of hearts that the execution of the law would have been a betrayal of that same law, due to systemic, blatant, obvious, and inescapable corruption of the election process. They believed they were fighting a coup because the President who speaks their tribe’s language said so, and everyone else in a position of power acted like an entrenched regime trying to hide something smelly.

What would the proper response have been from the protest crowd, if that were indeed the case? What should the President’s response have been? And what could have kept any successful anti-coup action from being ruled an insurrection by the annals of history?

There's certainly instances where violent insurrection is defensible or even noble - Myanmar, for example. But I don't think you can abstract away from the reality that Jan 6 was not in fact such a case. The casus belli of this insurrection was a brazen lie.

It's deeply unfortunate that many people chose to believe the self-serving narrative of a deceitful loser. But those people are obligated to live with the consequences of their actions in the real world, and the rest of us are not obligated to join them in their delusion.

I believe you go to far assuming that everyone believes Jan 6 was not justified. I don’t believe I’m the only one here who considers it a good and proper day. Jan 6 needed to happen. To me Jan 6 wasn’t even really about making Trump potus. I don’t think you realize how much anger built up in a lot of us after feeling like we had been lied to for a year on a host of issues (including mostly fiery peaceful protest) that it felt really good to see those people deal with a mostly peaceful protest.

Now an insurrection being just would still make it an insurrection (though I disagree it was that)

The legal arguments seem incredibly weak.

First, you need to define “what is an insurrection.” The amendment is silent on that. Next, you need to determine whether the proposed candidate in fact engaged in an “insurrection.” The amendment doesn’t specify the process, standard, or who gets to answer that question.

It would be an incredibly weird provision that takes away both the right of voters and the right of a candidate to seek office yet doesn’t answer these very basic questions.

Indeed, it is hard to square with the 14th amendment’s own guarantee of due process (ie we acknowledge the importance of due process except here where we will let a county clerk decide unilaterally based on whatever standard he or she likes that someone is an insurrectionist). All the more so in the context when the 14th amendment was adopted — do you really think the north wanted to give the southern states carte blanche to strike whomever they wanted from the ballot without due process of law?

Those are the infirmities before the question is even answered whether the article even applies to the presidency (there is a strong argument it doesn’t since the provision specifies, inter alia, electors but is silent on the presidency). And then there is the still procedural question of even if the amendment is self executing absent congressional action did congress act and therefore occupy field (which again arguably yes since it defined insurrection and provided a process / penalty for the crime).

All of those questions are before you get to the merits (ie did Trump engage in an insurrection, were Trump’s statements protected by the first amendment).

That is, the argument advanced in toto is betting on hitting an inside straight flush (ie it has to win on numerous arguments; rebuttal on one). The infirmity of that legal position heavily suggests the argument is bogus and prudentially SCOTUS needs to nip this in the proverbial bud on procedural grounds.

First, you need to define “what is an insurrection.” The amendment is silent on that. Next, you need to determine whether the proposed candidate in fact engaged in an “insurrection.” The amendment doesn’t specify the process, standard, or who gets to answer that question.

It would be an incredibly weird provision that takes away both the right of voters and the right of a candidate to seek office yet doesn’t answer these very basic questions.

This argument runs headlong into the problem that many constitutional provisions are vague and imprecise, and yet carry force in themselves. I guarantee that however difficult it might be to decide what is and is not "insurrection", it's a whole lot harder to define what is and is not "due process".

This is a consistent problem with many of the arguments made against the Colorado ruling. They don't work out-of-sample.

Indeed, it is hard to square with the 14th amendment’s own guarantee of due process (ie we acknowledge the importance of due process except here where we will let a county clerk decide unilaterally based on whatever standard he or she likes that someone is an insurrectionist). All the more so in the context when the 14th amendment was adopted — do you really think the north wanted to give the southern states carte blanche to strike whomever they wanted from the ballot without due process of law?

The southern states already had, and had executed that right. The constitution says that states get to allocate their electoral votes however they decide. Southern states used that power to remove Lincoln from the ballot. Constitutionally you don't even need to have an election to choose your electors, so it seems absurd to suggest there is a constitutional right to stand for election.

Due process rules do not apply to political eligibility because political eligibility is neither life nor liberty nor property. And if it is, you have to square with the fact that it is routinely denied to e.g. naturalized citizens without process or recourse. Again, the argument does not work out of sample.

Those are the infirmities before the question is even answered whether the article even applies to the presidency (there is a strong argument it doesn’t since the provision specifies, inter alia, electors but is silent on the presidency).

I think it's very telling that none of the judges on the Colorado Supreme Court endorsed the trial court's ruling that section 3 does not apply to the presidency - not even any of the three dissents. And the trial judge herself went out of her way to emphasize the doubt she had in the conclusion. It's just really tough to argue that the person who holds the office of President of the United States is not an officer of the United States.

And then there is the still procedural question of even if the amendment is self executing absent congressional action did congress act and therefore occupy field (which again arguably yes since it defined insurrection and provided a process / penalty for the crime).

Has this argument even been made by Trump's team? I don't remember anything about it in the Colorado ruling, but admittedly I skimmed parts.

That is, the argument advanced in toto is betting on hitting an inside straight flush (ie it has to win on numerous arguments; rebuttal on one). The infirmity of that legal position heavily suggests the argument is bogus and prudentially SCOTUS needs to nip this in the proverbial bud on procedural grounds.

I agree that there are many potential reasons to deny that Trump is ineligible, but I also think it's very telling that so far none of the judges saying that Trump cannot be disqualified can agree on why not.

Southern states used that power to remove Lincoln from the ballot.

At the time, the state did not print ballots; parties did. There was no "the" ballot to remove Lincoln from. You didn't typically fill out your ballot for president, but deposited a pre-printed one.

Ballots named the electors, which is probably why the 14th amendment disqualifies electors. In these southern states, there weren't electors publicly declaring Republican support, so the party didn't print ballots in them.

The southern legislatures could have directly chosen the electors, but that is not the process they used.

It's just really tough to argue that the person who holds the office of President of the United States is not an officer of the United States.

This argument seems plausible to me. Perhaps Gorsuch would go for it.

Thanks for the correction!

I agree that there are many potential reasons to deny that Trump is ineligible, but I also think it's very telling that so far none of the judges saying that Trump cannot be disqualified can agree on why not.

A full mischaracterization of what the other side is saying. They are saying that there are many steps to declaring a person ineligible, and the Colorado case has failed at many of those steps. Firstly they have failed to define insurrection. Secondly they have failed to define it in a way that does not encompass protected 1st Amendment speech. Thirdly they have failed to deal with due process regarding convictions. Fourthly....

It is even worse than that. One of the dissents when going through 1st, 2nd, etc specially mentioned this as something that suggests “maybe the Colorado process wasn’t the right one to adjudicate this mess.”

I guess what really bothers me about this whole thing is that I understand “damn the consequences” when the law is clear. I don’t understand the same attitude when the law is at best slightly on the other side and more naturally heavily on the other side

I don’t have time to respond to everything but a few points:

  1. It is true that frequently the constitution is indeterminate. But there is a difference between government cannot abridge your ability speak (a prohibition on the government) and another that the government can rather arbitrarily prohibit you from running for office (a prohibition on both a person and the public). We generally require more effort by congress to curtail rights as opposed to the opposite because in the US freedom is the presumption.

  2. The idea that due process (and for that matter equal protection) don’t apply to political office ignores the arguments that we protect political rights for more than pretty much any other rights. See the famous footnote in Carolene Products. Could the government decide that anyone who supported BLM is ineligible to run for government on a whim without even rational basis review?

  3. One of the dissents did in fact raise the question of whether it applied to the office of the presidency (along with a bunch of other questions). This formed part of the dissent’s argument that it wasn’t self executing. Read closer before making sweeping statements.

  4. You are assuming that if dissent X argues A and dissent Y argues B that they are disagreeing. No. It could easily be that they are making a separate argument as to why it doesn’t apply. Having more than one compelling argument isn’t a bad thing.

Yeah, 1000% this.

They might even punt as to what specificity of criminal conviction could support exclusion from the ballot (e.g. does it have to be exactly insurrection or could it be a related crime) but that as Trump hasn't been convicted of anything, that question isn't before the Court.

There is a clear and compelling need right now for clarity that only the Supreme Court can provide

Not quite only the supreme court—if they can get the votes, Congress can suspend the whole issue, in this and all future cases, as the amendment says as much.

This is beautiful in its simplicity, and the Right Thing To Do for the sake of America. But woe unto the Democratic senator or congressman who voted to remove Trump’s disability if Trump actually wins the 2024 election.

the Right Thing To Do for the sake of America

Why?

The reason why a Trump supporter would favor it is obvious, but what is the case for forgiveness from someone who thinks Trump is guilty?

For the sake of upholding due process

We're not talking about process; we're talking about Congress voting that Trump's insurrection is no long disqualifying, i.e. short circuiting the matter.

The chance of reciprocation is rather high. If you interpret it broadly, while allowing large amounts of leeway to any courts to strike people down, which seems likely to be what's needed in order to remove Trump, you'd probably also be able to do that to all sorts of other people. Republicans have already threatened to try to remove Biden from the ballots, and there's no reason to think that this wouldn't reach to other offices, if that all works. It would be far worse for maintaining trust in the institutions than the status quo, as bad as the status quo is.

It would be far worse for maintaining trust in the institutions than the status quo, as bad as the status quo is.

Worse for Trump supporters, maybe, but they're not the only ones with low institutional trust.

There's a procedural problem -- even someone that thinks Trump is guilty of at least something substantively illegal might not believe that a State can presume this without a full and fair trial on the merits.

True! Good point.

I'm slightly surprised no one has tried to call such a vote yet.

It seems very unlikely to get the required 2/3 vote in both houses. A substantial majority of the Senate voted to remove Trump for the same behavior only a couple of years ago, after all.

I agree it's unlikely to succeed. I'm just surprised no one has seen advantage in proposing it yet.

Probably, everyone is happy with the status quo. Even though it doesn't really make sense you can come up with a rationale why both Trump supporters and Trump detractors in Congress/Senate both don't want such a resolution. Trump detractors in the houses don't want it because their supporters would be unhappy they supported it (perhaps irrationally). Trump supporters in the houses don't want it because having the Colorado Supreme Court railroad Trump and then having the Supreme Court smack them down is good strategically. Maybe it would be good for Trump supporters if a vote was put forward, Trump supporters could support it but the vote still failed.

I know, I really hope it's going on behind the scenes.

With all due respect to Australian democracy, were any of those 15 removed frontrunners to an election of the executive and/or leaders of the opposition?

Australia is a little different compared to the US. That a province can cast out some leaders tells us nothing about whether the imperial core can do the same thing.

As AshLael said, one was the leader of one of the parties in the ruling coalition.

The analogy is not very exact, though, because the results of the dismissals weren't "oh hey, your opponent wins by default", they were either "next person on your party ticket takes the seat" in the Senate cases, or "have a new election" in the HoR cases (and in all of the new elections the same party - and in some cases the same person, having resolved the eligibility problem in the meantime - won again and kept the seat). There were only two cases where the same party didn't hold the seat afterward, one because the guy was found to be eligible but resigned anyway, and one because the disqualified person had run as an independent and thus had no party.

This is very different from "a major party is not allowed to contest X position, opponent wins by default".

Should also be noted that the CW is significantly more subdued here in Oz.

This is very different from "a major party is not allowed to contest X position, opponent wins by default".

That's not what is on the table. It perhaps feels that way to Trumpists, because Trumpism is populist movement and thus first and foremost a cult of personality.

Most of the time, even senior party figures are largely replaceable. If a couple of senior senators got disqualified from either party, people would care infinitely more about the replacement process than the people ejected (they're not even necessarily unpopular - as has often been noted, Congress has terrible approval but people like their guys - but their supporters just aren't attached enough to stand by them if they got into real hot water). In the case of Trump, his followers regard him as irreplaceable and are hostile to even considering alternatives. As such, the possibility that he performed some disqualifying act feels like total disenfranchisement even though the GOP still gets a nominee (who probably fares better) (plus the Supreme Court, ~half of Congress, half the state governments, etc...).

If Trump is disqualified, Biden will not win by default either. There will still be a Republican presidential nominee, and that person will have a similar chance of beating Biden.

... that depends a lot on the timeline and processes.

August 30th is the last day for a major party to fill a vacancy in Colorado, for one example. One of my frustrations with Unikowsky's analysis is that he's talking about things in the frictionless spherical plane sense. Forget the hard questions like whether Gorsuch goes hypertextual a la McGurt or not; the difference between an instant denial of cert, a GVR-with-direction, a reversal, and a request for briefings is a big deal, even assuming that they'd all result in the exact same conclusion eventually.

Yeah, I think the Supreme Court will be rather more mindful of the practical impact of a non-decisive ruling than Unikowsky is.

Not for the case of him winning the (overall) primary and being disqualified in the general in some states.

In addition to the culture war itself being more subdued, Australia's geographics and economics make give the different factions a lot more inertia, and make disruption a good deal less direct to those impacted. Forget COVID: the recent fishing restrictions would have been gotten a Bundy-like in the United States.

Could you explain how Australia’s geography and economy has such an impact on its politics?

The most immediate controlling characteristic is temperature: you can have a temperature swing of twenty degrees farhenheit going thirty miles inland, in a country that's already pretty toasty throughout its spring, summer, and early fall. Which has never had a surfeit of fresh-water rivers. So a majority of the population lives almost exactly on the coastline, and more than a third live in Sydney or Melbourne. On the east, inland settlement was driven by tapping a single massive aquifier; on the west coast, it mostly wasn't.

This has lead to a massively urbanized population, spread across a handful of major cities.

Americans tend to think of Australia in the same way Europeans think of America. Where Brits think of the various states like taking a half-hour train ride to London, Americans think of the various territories as states like the American southeast. But driving from Adelaide to Perth is a longer trip than going across all of Texas, it's got the same scope of planning requirement, and if you're in Perth, it's your mode of comparison (going north is worse!).

Ok, economics. Work in the country is heavily bifurbicated, with resource extraction and agriculture providing a vast majority of economic exports along with a nature tourism industry, and then on the other side the finances/state agency/urban service sector. Manufacturing used to span the gap a bit, but it collapsed over the last couple decades, even more so than American manufacturing did. Construction kinda tries, but doesn't really.

((There's some policy stuff that augments this; the backpacker visa being one of the most obvious to outsiders by providing a massive labor force of mobile non-voters who get changed out every few years; among other things, they're why the rural/far-suburban service sector is a non-actor in politics.))

As a result, rural areas have basically no political (the National party has been a joke for a long time) or cultural (except as villains) importance, while urbanized voters face strong economic and environmental pressures toward communitized interests.

One was the leader of the National Party and the Deputy Prime Minister.

So high profile and scandalous, but not to that exact level?

The equivalent to the NP would be one of the major factions in a major party, so it's as if they did it to Ted Cruz or Elizabeth Warren. Still think it would be a major escalation and a very ill omen, but it doesn't seem to be on the level of doing it to Trump somehow.

Probably the more controversial aspect was that several Senators were replaced by people who then defected to other parties.

What’s supposed to happen if an ineligible candidate wins a state?

Let’s say a write-in candidate wins due to a generational gap. Turns out the last Silents were the only thing holding back fascism, and now Hitler has the plurality in Colorado. What gives?

  • Votes for an ineligible candidate aren’t counted.
  • Votes for an ineligible candidate are counted, but electors are bound to choose the highest eligible count.
  • As above, but electors aren’t bound at all, and can pick Hitler anyway.
  • Electors are bound to pick the highest count, regardless of eligibility, but the US Senate won’t sign and certify votes for ineligible candidates.
  • As above, but the Senate certifies the results; ineligibility only matters after tallying the final result.
  • As above, but the seat gets filled by the VP instead of the Presidential runner-up, since this is “the case of the death or other constitutional disability” from the 12th amendment.

This is a genuine question. Article II doesn’t say anything about faithless or stupid electors, and it certainly doesn’t say anything about the state population picking a dead man. If there’s something in the 14th or in the 12th, I missed it.

That is the fundamental problem with Democracy. People love to bring up the list you crazy/awful/incompetent dictators but The People can also be just as crazy/awful/incompetent and often are.

How does the saying go? Democracy is the worst form of government, except for all the others?

It depends a lot on the specific state and situation.

Colorado, specifically is one of the few states with a tested faithless elector statute that not only prohibits an elector from submitting a vote against the state's popular vote count, but swaps them for someone else who will. In Colorado, this selection is made by the other electors: the question of what happens if every elector defies state law is so-far untested. Not all states have such statutes, or their statutes may only fine (rather than replace) faithless electors.

Electors are transmitted to the Senate by the executive branch of their states: for Colorado, they literally meet in the Governor's office, and the Governor sends the notice out. There's some (afaik) untested space for fuckery here.

The US Senate then receives and certifies the electoral vote. Historically, Senators could object to these individual, but as of 2022 it requires 20% of the Senate, and the Vice President has no serious authority... by statute. There's some !!fun!! questions about how much the statute actually binds Senators, given matters like nuclear option, but it's a schilling point and if they had 50% of the Senate they'd probably just use the rules as-is.

I think that your last point is correct. Assuming state law does not prohibit it, an ineligible candidate can win electoral votes, but cannot hold office. So it would go to their VP, assuming that person is eligible themselves.

In other words, President Ramaswamy is not an impossible prospect.

Let’s say a write-in candidate wins due to a generational gap. Turns out the last Silents were the only thing holding back fascism, and now Hitler has the plurality in Colorado.

That can’t happen. Colorado won’t count unapproved write-ins. You can write ‘Mickey mouse’ on the ballot, it’s just an abstention.

Seems kind of ill-advised that they're calling attention to the system being, "you can vote for whoever you want, as long as they're one of the state-approved choices". Then again, everything about this seems ill-advised, but here we are.

First off, I don't believe the 14A prohibits Trump (at least not on the facts as they stand today).

That said, the 14A was adopted by the voters and controls. You can vote for whoever you want but you cannot vote for people that a supermajority has not deemed eligible.

The same could be true for voting for Arnold or for a 30 year old.

Seems kind of ill-advised that they're calling attention to the system being, "you can vote for whoever you want, as long as they're one of the state-approved choices".

Why? It's entirely in line with things I've been seeing for years now.

I recently saw someone on Tumblr trying to ground some of the more extreme left-wing fears by arguing that the worst case for a "Trump dictatorship" is that we become… Hungary. And I was reminded of something else I had seen recently — a screenshot of a Keith Olbermann tweet that presented exactly that as the horror scenario to be avoided at all costs: that we're still under threat of the end of Our Democracy and becoming an 'authoritarian' state "like Hungary or Poland." Yes, this was before the recent Polish election. Some undemocratic "authoritarianism" that was, huh?

What's wrong with Hungary, anyway? The answer I get, when I push back and get people to dig down, is that guys like Orbán aren't supposed to win no matter how popular with the voters.

Roger Kimball, in discussing Colorado, made a point similar to yours:

In fact, what they have just voted to preserve is not democracy but “Our Democracy™.” Here’s the difference. In a democracy, people get to vote for the candidate they prefer. In “Our Democracy™,” only approved candidates get to compete.

Well, for years I've been seeing people, from Curtis Yarvin to random YouTube comments, all make the same point about how you can't just let people "vote for the candidate they prefer," and all giving the same example why. So I looked to see if anyone had explicitly made that same connection in this case. The closest is Joe Matthews at Zócalo: "The Case for Taking Trump Off the Ballot." Just like banning the AfD, removing Trump is what "defensive democracy" demands.

To paraphrase Yarvin in a Triggernometry interview, we saw what happens when you let the people vote for the candidate they prefer without limiting it to approved candidates… 'in early-1930s Germany.' We can't ever risk "repeating the mistake Weimar Germany made when they let Nazis take office just because a plurality voted for them" (as one YouTube comment put it). If you don't limit the options to "state-approved choices" and let people vote for whoever they want… they'll vote for Hitler. Never Again. Never again can the masses be allowed to choose their own leaders unguided. If we are to be a democracy, then "democracy" must be defined as something other than that. (Like 'democracy is when elites enact the Rousseauan "common will" — as determined by a technocratic intellectual vanguard — whether the masses like it or not; and therefore the greatest threat to Our Democracy is a "populist" who will do the unthinkable and give the voters what they want.')

Matthews:

Blocking candidates or parties from elections doesn’t come naturally to democratically minded people. Nor should it—it’s a despot move. Autocracies and dictatorships routinely maintain and extend their power by blocking opposition figures from standing for office, such as when the Chinese government banned pro-democracy candidates in Hong Kong’s 2020 vote.

But then…

It is also why it makes sense for people around the world to examine how Germany, where the Nazi party took power through elections, reckons with those who threaten its democracy.

Or, from Tumbler user Eightyonekilograms:

I mean, I didn’t say there was an actionable strategy. Actually I’m pretty sure there isn’t one: for a societal system based both on laws and implicit norms (which they all are), you have to stop someone like Trump— someone who has no shame and no regard whatsoever for the law or the norms— before he gets any power. By the time you get to the point we’re at now, it’s way too late: all the options are bad. Either you disqualify him, which is flagrantly undemocratic and will be seen and reacted to as such, or you don’t, and now you’ve set up a ghastly incentive gradient. If there’s no punishment (whether legal or electoral) for attempting a coup, then there’s no reason not to try over and over again until you succeed. Which is not theoretical, it’s exactly what we’re observing now: Trump knows that punishment is unlikely, so he feels free to say he’ll be a dictator on day one, the Heritage Foundation isn’t even bothering to be secret about assembling the “Project 25” team that will put an end to that pesky democracy, etc.

(Emphasis in original)

So, yes, you do have to "save democracy from itself," even if that requires "undemocratic" measures like Colorado has taken.

Or so goes the argument.

I think Yarvin’s argument ignores the various problems that come with the government having control over the elections to the point of being quite able to create its own lists of approved candidates. In almost every case, it leads to a nearly complete one-party system in which the people have very little control over the government. Even the modern American two party system is somewhat like this — the voter has a choice between two major candidates for office, one of whom will certainly win, and his choice is constrained to one of those two (even when minor candidates appear, they cannot win) meaning that you have two very similar candidates who agree on major issues. Allowing a more true democracy in which anyone can run with a reasonable chance of winning whether he’s fascist or libertarian or socialist or Falange gives the voter a real choice. Yes there’s a chance of voting for Hitler. The thing is that a system in which there are lots of candidates running is harder to game for control.

Allowing a more true democracy in which anyone can run with a reasonable chance of winning whether he’s fascist or libertarian or socialist or Falange gives the voter a real choice.

all possible choices having reasonable chance at winning is not required (ones hated by population should definitely not have a chance to win)

In almost every case, it leads to a nearly complete one-party system in which the people have very little control over the government.

And I've seen more than one person argue that this is not a bug, but a feature, as it were. In particular, there's the half-remembered essay drawing on Rousseau as to why real democracy is exactly that, just so long as the one party is led by technocratic experts who are best at divining the "common will"; and then there was a commenter at Rod Dreher's TAC posts many years ago who liked to argue that the highest and purest form of actually-existing democracy is Japan's "dominant party" system whereby the Liberal Democratic Party and the permanent bureaucracy are basically one entity, all real political competition occurs between factions within the party, mostly out of view of the public, and voting is reduced to a sort of "Yelp review" general feedback on quality of governance, serving mainly to prevent Chinese-dynastic-cycle-style disaster.

gives the voter a real choice.

But the question is: should the voter have a real choice? The entire argument here is that this is a bad thing, that it's bad for Our Democracy™.

Yes there’s a chance of voting for Hitler.

And we said Never Again. "Never" means never. What about the view that any chance of electing Hitler is too big a risk?

The thing is that a system in which there are lots of candidates running is harder to game for control.

And, again, the argument is that that's a bad thing; that the "gaming for control" is actually necessary for Our Democracy™.

The thing is that if democracy is so dangerous that it must be stage managed and the candidates must be within 1σ of the correct opinion, then democracy is a failed idea. You’re saying so more or less yourself in suggesting that the idea form of democracy is one in which voting is merely to tell the rulers whether or not they like them. Why bother with the fig leaf of voting if the people voting get no choices? At that point, just have an autocracy of one sort or another and dispense with the voting.

then democracy is a failed idea.

Only depending on how you define “democracy.”

You’re saying so more or less yourself in suggesting that the idea form of democracy is one in which voting is merely to tell the rulers whether or not they like them

Not my argument, but the view of someone who went by the handle “Ken’ichi” on TAC’s now-lost pre-Disqus comments sections.

Why bother with the fig leaf of voting if the people voting get no choices?

There’s actually several answers to this. And a note: it’s not no choices, it’s limited choices — at the very least, a “thumbs up” vs. “thumbs down.”

First, as noted, there’s the “dynastic cycle” argument. Perhaps the most classic of fall-back “motte” arguments for democracy is the “you can vote the bums out” argument. That is, that people have a way of expressing serious displeasure with the Establishment other than outright rebellion. It lets people unhappy with the system vent their displeasure, rather than letting it fester, hidden, until it explodes out. It lets the ruling elite know that they need to do something to avoid losing the Mandate of Heaven — whether that’s making reforms moving in the direction of the voters, or “educating” the masses until enough of them understand that the unpopular thing the government is doing is really for their own good, is for skilled experts to decide.

Which leads into the second reason — feedback is important. There’s a classic problem institutions can fall into, which is often illustrated in a greatly exaggerated form in fiction via the villain who “shoots the messenger” when brought bad news. When people downplay or omit “bad news” in reporting to superiors, said superiors end up with an overly-rosy picture of circumstances, and will end up failing to act until the disastrous reality comes crashing through the information bubble. You don’t want to become Visser Three.

Third, there’s the utility of elections as a civic ritual, through which we collectively enact our shared citizenship and identity. Consider this Psyche piece by Emilee Booth Chapman, this Rich Harwood essay, and this Graeme Orr essay (hosted on the Australian Parliament’s webpage). From that last:

Lawyers and government officials prefer to think in terms of analytical classifications or normative goals rather than messy things like culture. Figure 3 offers a diagram which I discuss with my students in the law of politics. It shows the various answers to the question 'Why do we have elections?' The diagram groups together the different concepts through which we can understand electoral democracy, and the goals that might drive regulation.

The top two quarters of the diagram are by far the dominant strains in official and academic thinking. Officially, we think about elections either as instruments of government or as triumphs of liberal democracy. Yet when you talk to the media, or follow conversations at parties, the bottom half of the diagram rears its head. The elections as charade view is a cynical, outsiders' counterpoint to the idea of elections as integrity mechanisms. My theme today however occupies the neglected other quadrant. It is the idea of electoral democracy as a 'secular ritual'.

…

Don't get me wrong. Each of these perspectives is vital to encapsulate the ideal of free and fair elections. However, we—especially academics, bureaucrats, politicians and judges who study or shape the electoral process—rarely address elections from the experiential dimension. There are exceptions. Some historians have focused on early elections as communal events.6 Sociologists also sometimes consider the colour and meanings of wider political practices, like public demonstrations. In recent years, two insightful professors of politics, Ron Hirschbein and Stephen Coleman, have explored the rites and experiences of voting in the US and the UK.7

The study of electoral systems however has largely lacked this dimension. It has been fixated on the outcome of electoral democracy and not on the journey. It concerns itself with 'purposive goals' rather than the 'latent function' of elections, to quote from Professor Jean Baker.8 We purport to know a lot about elections, through abstractions, book learning and through quantitative studies of voter behaviour and electoral statistics. We do so without sufficient concern for knowing about the electoral experience, let alone how systems and rules shape that experience.

Cocooned in these instrumental and liberal analyses, we forget that elections are nothing if not grand social events, events whose configuration shapes our experience of electoral democracy. Elections are giant rituals. They are recurring political masquerades and festivals. Each election itself is then made up of lots of what I call 'everyday rituals': campaign activities, balloting, declarations of results, investitures. They are events whose rhythms, patterns and activities are either set or contoured by law and administrative institutions.

That experiential and social function of elections, of reinforcing the nation’s collective identity in the hearts and minds of the people, can remain even as their function as instrumental competitions for power is reduced; it does not go away just because the menu of options presented to the voters is sharply constrained. (And the abstract of Ora John Reuter’s “Civic Duty and Voting under Autocracy” seems somewhat relevant here as well.)

Fourth, there’s the resolution of conflicting values. We have here essentially two propositions in tension:

  1. We live in a “democracy.” Democracy is what makes our system legitimate, and democracy is the only legitimate form of government

  2. We can’t just let whatever person a plurality of the voters want have actual power in the government.

One way to resolve it is, as you note (and as I, personally, would also prefer), to reject #1. But another way is to note that they are contradictory only if you define “democracy” as “the voters get to elect who they want.” Thus, another way to resolve it is by saying that the “democracy” that legitimates our way of life must therefore mean something other than that. Such as the appeal to Rousseau’s “general will.”

I’m really going to have to recreate that essay, aren’t I?

“The people” never actually rule directly. Even in the “direct democracy” of Athens, the assembly was a small minority of the population of the city-state. The Iron Law of Oligarchy ensures that a society is always run by an elite class, even a democratic one. The difference, then, is to whose benefit do they rule? In past and present “undemocratic” societies, the argument went, the ruling class pursues only their own narrow class interest — under hereditary rulers, the government serves only the interests of hereditary aristocrats; under a military junta, the government serves only the interests of military officers; under a plutocracy, the government serves only the interests of wealthy “capitalists,” and so on. A democracy, then, is when the ruling class instead pursues the good of not only their own class, but of society as a whole — Rousseau’s “general will,” which is the best interest of the country as a whole, and thus definitionally never wrong.

My “steelman” analogy here is to consider individuals who need a “representative” to act on their behalf. Children, the senile, the mentally ill, and so on. What makes a parent, a legal guardian, a representative with “power of attorney,” a good representative? Well, one who acts to their own personal benefit, to the expense of the person they’re representing — one who embezzles funds, for example — is definitely a bad one. This is analogous to the “non-democratic elites” outlined above

But consider the opposite end. I’m reminded here of Bill Cosby’s “chocolate cake for breakfast” stand-up routine. If your kids answer the question of what they want for breakfast with chocolate cake, should you give them what they want? If a schizophrenic wants a doctor to open up their skull and remove the CIA mind-control chip beaming thoughts into their head, does a good guardian start looking for a brain surgeon?

No, a good representative acts in the best interest of the person they represent. A good representative respects their clients wishes… so long as it isn’t against their best interests. Here, the analogy to the overly-permissive parent or guardian is the sort of politician people like the essayist denounce as a “populist” (with or without the “authoritarian” modifier), and you or I might call genuinely democratic. Someone who enacts the popular will — which, per Rousseau, is just another “particular will” — instead of the “general will”. (As I once saw it put, the difference is that the “popular will” is the will of The People (plural) while the “general will” is the will of The People (singular).)

Note that there’s not a strict binary. It’s not “let your kids have chocolate cake or ice cream for breakfast” vs. “you dictate entirely what your kids will have for every meal, they get no choice at all.” You can let them pick which breakfast cereal they might want, or between pancakes and waffles, between oatmeal or French toast, and so on. You can give them a constrained choice among a menu of acceptable meal choices. Even an institutionalized schizophrenic, or an elderly person with senile dementia, has rights to some measure of choice around their activities, circumstances, treatment, and so on; but only when it’s not counter to their own best interests.

Hence, a “stage managed” “defensive democracy” with a strictly limited menu of choices for an electorate who, between public choice theory “rational ignorance” and Marxist “false consciousness”, don’t always know what’s in their own best interest, nor which potential representative is most skilled at determining what that societal best interest is.

Fifth, in line with above definitions, it’s also because they don’t see themselves as “an autocracy.” Even as he began the Roman Empire, Augustus didn’t see himself as ending the Republic, but as saving it, taking the emergency measures needed to end a disastrous civil war, and changing institutions so as to “fix” them and keep them “alive” despite increasing failures. Only centuries in hindsight did the scale of the transition become clear. And even then, there remained reasons why all the Caesars, no matter how much of a monarch they were in practice, used the title of Imperator and not Rex.

Which leads to point six, perhaps the most cynical one. Even if there had been in Rome an alt-Augustus who had wanted to kill the Republic and establish a monarchy, his best path for doing so would be pretty similar to that of the actual Augustus. It makes for an easier transition to preserve the surface forms of the old regime, even as you hollow them out and transfer actual power into the new forms. After so much “your vote matters,” it’s best to make sure any realizations that no, it actually doesn’t, spread through the population as slowly as conditions allow.

So, to tl;dr summarize, in answer to your question “why bother with the fig leaf of voting?”:

  1. It lets people safely vent their displeasure with the government, rather than start organizing for a violent revolution.

  2. It lets elites know how unhappy the masses are well before armed rebel bands begin making their way toward the capital.

  3. Even when it has little practical effect, it serves a psychological and social role as a communal secular ritual.

  4. Because at least some (probably most) of the people pushing this actually think they’re “saving democracy from itself” ̉— that is, they’re trying to salvage some workable definition of “democracy” while also avoiding what they consider the unacceptable failure mode of “populism.”

  5. And because even those who aren’t will still find the “fig leaf” makes the de facto transition to an autocracy go down more smoothly with the masses.

That said, I’m with you on finding “just have an autocracy of one sort or another and dispense with the voting” personally preferable.

I'm here for the argument that pure democracy should be allowed to run rampant and let the chips fall where they may. But it seems to me that you'd need to amend the constitution first. Even ignoring section 3, there's a bunch of eligibility requirements in there. And every eligibility requirement is intended to be enforced in the face of the public will - after all, a restriction that only bars people that would lose anyway is no restriction at all.

To just ignore the constitutional rules that already exist would be no different to deciding the second amendment doesn't matter and it's fine to just ban guns.

Eh. Oklahoma IIRC doesn't allow write-ins at all, and comes damned close to not allowing third-party candidates either -- last time I looked, the requirement was that they had to gather petitions with signatures of 3% of the voting population to get on the ballot. (I recall an old SSC open thread where someone from Romania was complaining about how strict the election laws were there, where it took signatures from 1% of the voting population to get a new party on the ballot. When even ex-Commie-Block countries have more liberal election laws than your state does, that says something.)

Personally, if I was in charge, I wouldn't allow write-ins either (having preprinted ballots that can be scanned by machine is a good thing), but I wouldn't have any requirement other than "the candidate meets whatever eligibility standards (min. age etc) are set for the office and pays a fee to cover the share of costs printing the ballots attributable to adding his entry."

(having preprinted ballots that can be scanned by machine is a good thing)

I'm a big fan of hand-counting paper ballots, personally. Election counts are an absolute petri dish for conspiracy theories, so the more analog and impossible-to-even-theoretically-game the system is, the better.

Oh yes, nothing about this stunt was a good idea. But ‘write ins have to be approved’ was intended to solve the possibility that Elvis or Mickey Mouse would win an election somewhere. It’s facially reasonable to require a write in candidate to be registered and meet basic eligibility standards.

At least in theory, it was also supposed to promote the more serious write-in candidates, and to provide a method to enforce Colorado's sore loser law (although that law probably can't be applied to Presidential candidates).

Jacobin: Instead of Taking Trump Off the Ballot, Democrats Should Run a Better Candidate

Liberals have taken to saying that “democracy is on the ballot.” There’s a grain of truth there. There’s a powerful strain of authoritarianism on the Right, manifesting in contexts ranging from January 6 to the laws in various red states that make it harder to vote. Ron DeSantis’s Florida, for example, engaged in a truly grotesque and disturbing crackdown on ex-felons who registered to vote. But the complicated truth is that, even if they aren’t nearly as bad in important ways, liberal technocrats harbor their own kind of deep distaste for the unpredictable messiness of democracy.

Some liberals may feel that the Trumpist version of authoritarianism justifies trying to take the man who is, unfortunately, currently the leading candidate for the presidency off the ballot. In effect, they think democracy needs to be saved from itself.

But this is misguided for several reasons. First, as mentioned, it’s extremely likely to backfire in the 2024 election. Second, even if the Supreme Court overturns the Colorado ruling — and any that may be coming down the pike in other states — and it thus sets no legal precedent, the attempt to simply exclude a popular opponent from the election entirely may well set an informal political precedent right-wing authoritarians will follow in the future.

Finally and most importantly, this is all a huge distraction from a point that should be blindingly obvious. Is Joe Biden a deeply unpopular incumbent? Are his wars unpopular? Are voters dissatisfied with his economy? Would they prefer someone younger, whose cognitive condition is in less doubt? Is there a significant danger that Donald Trump will beat him next fall if the two men have a rematch?

If anyone's been following the leftier side of American Twitter recently, there's been a lot of squabbling and sniping between liberals and lefties lately, with main topics being "Is the Biden economy actually good?" (which, of course, also serves as a proxy for whether Biden is good or not) and "Is Trump such a threat that the left just has to grin and swallow everything Biden admin has to offer, including lockstep support for Israel, compromises of immigration etc". Both can be clearly seen in this article, even if it has also received a lot of pushback, mainly from those saying that the Dems should, in fact, push for both, ie. Trump off the ballot and a better candidate than Biden.

There’s a powerful strain of authoritarianism on the Right, manifesting in contexts ranging from January 6 to the laws in various red states that make it harder to vote.

This stuff is genuinely infuriating. Say what I will about the J6 rioters, they weren't driven by "authoritarianism", they literally just thought they won and were being cheated. Likewise, say whatever anyone else will about telling people to bring their ID when they go to the polls, it's not "authoritarian".

In Britain, voter ID backfired on the conservatives because all young people had ID but old people (who are always more conservative) didn’t always. I don’t think it’s a good move for the US right to push, penniless Guatemalan illegals aren’t voting in any numbers, why would they?

When you create a system that it is hard to know whether person X voted, how we can make definitive statements about the propensity of group Y to vote?

It's impossible to know which candidate person X voted for, but it's easy to find out whether or not person X voted.

In America, at least.

Well it’s possible to know that person X was recorded as voting. That is different from knowing they voted.

I think it's a holdover from the old reality that Republican voters had a higher propensity to vote, so lower turnout advantaged them. That seems to have flipped on its head in the Trump era, so now low turnout helps Democrats. But the policy preferences of the two parties have not yet adjusted to reflect their narrow self-interest.

It's also an outgrowth of the specific dynamics of southern politics.

In at least some circumstances it can probably long-term engineer the electorate in a more conservative direction; adults with no drivers license probably do skew liberal because they're urban, and it does serve to prevent voting by out of state students(although what level of concern that is I don't know).

People in the hood have a drivers license, though, so do hispanic migrants in Queens. The kind of affluent Manhattan libs who don’t have licenses have passports anyway. So do almost all naturalized immigrants since they usually travel abroad to see family at least occasionally.

Plenty of the underclass gets their license yanked because they can't stay sober or won't pay their tickets IMO; to the extent these people vote they're not partisan republicans. One of these days I'm going to write a lengthy post on my time among the underclass, but my recollections include an absolutely huge number of underclass males whose dui's and unwillingness to pay traffic fines lost them their licenses and who hated the Texas GOP but were inconsistent voters and didn't necessarily trust the democrats either. Suppressing these people from voting is probably a positive for the Texas GOP. So is preventing out of state students from declaring themselves Texas residents to vote in Texas elections.

Of course I don't support the franchise for students or the underclass anyways, but I'd imagine the median Texan adult who doesn't have a license doesn't have one because they lost it, not because they don't want one. This is a population with voting patterns that lean blue but are easy to suppress.

Does the median adult with a revoked license really vote? The things that correlate with a revoked license like being young, male and underclass also mean a very low voting propensity.

And AFAIK most voter ID rules would accept a license that was revoked as a still-valid document for identification purposes, even if not for driving ones.

Median is less important than marginal if you're trying to nudge elections. If there are 100k low propensity voters that theoretically would support my opponent, shifting the number who actually vote from 25k to 12.5k is still a win even though the median group member was staying home either way.

Whether or not this is decisive or who it actually favors in practice: v0v

No, but when they do vote they don't vote R because petty criminals(which these people are) don't like republicans for obvious reasons. And they're not necessarily going to hold on to their licenses, or readily have access to them, because they're driving around without one anyways. Yes, you need an ID, but this is a group that's selected for being not very good at managing their lives and making long term plans, otherwise they'd be normal working class people. They also move a lot, and you can't get a license reflecting your new address(and it has to match) if it's suspended.

Texas has the lowest voter turnout rate in the country. Nobody really knows what a Texas with above-average or even average voter turnout would look like, politically, but best guess is it would be light blue- although that's not certain. It could be California, it could be North Dakota. The Texas GOP is basically guaranteed a trifecta under the current system, so they're loathe to allow it to change unless they know for a fact it would improve their odds(eg expanding rural early voting), and we don't have direct democracy without going through the state legislature first. Turning Texas blue hinges on raising voter turnout(probably selectively) and cutting off an avenue to do that is worth the political cost.

I’ve heard it said that Republicans are getting ready to nominate the only person who can lose to Biden, and Democrats are getting ready to nominate the only person who can lose to Trump. Obviously, a bit overstated, but it feels true. Sensible people in both parties would love to get away from their party's likely presidential candidate, but the Republican experience over the last seven years basically proves that it’s hard to do in the real world.

But yeah, it’s nice to see someone acknowledge that if there were any responsible adults involved, both parties would be taking seriously the major deficiencies in their candidates, rather than just spending their time and energy trying to make the other party’s candidate look worse.

Newsweek reports that we have more volunteers:

Republican lawmakers in three swing states have announced their plan to remove President Joe Biden from their state ballots.

Aaron Bernstine of the Pennsylvania House of Representatives, Cory McGarr of the Arizona House of Representatives and Charlice Byrd of the Georgia House of Representatives released a joint statement on Thursday announcing their plan to remove Biden from the 2024 general election ballots in those three states.

While their letter says that they plan to or are in the process to "introduce legislation", it's not clear from a quick search if they've done so, or even what that legislation would look like, nor how it would, in their words, "allow ALL candidates to be on the ballot in all states". It's far from obvious that they could get legislation through their respective legislatures within the necessary time period before the general election, or even at all: of the three states, only Georgia has a Republican governor, and it's unlikely Kemp will jump onto this particular grenade. The trio don't even have a particularly coherent theory for why and what disqualifying specific act applies.

So this is grift, and a publicity stunt, and dumber.

On the other hand, unlike Colorado or California, all three are states that matter: there are election models that treat them as swing states, not background temperature and a joke. It's a good thing that a lot of people talking about fucking with ballots hasn't caused problems in recent years, and that there aren't far-more-dangerous attacks that these games make more prominent.

nor how it would, in their words, "allow ALL candidates to be on the ballot in all states"

Presumably some sort of tripwire where the law amounts to "if you deny Trump we deny all Democrats, but if you back down we will too". Of course, this depends on the Democrats both having an overall-unfavourable result from tripping it and being sufficiently pragmatic to back down, which seems unlikely.

It would also depend on their proposed law not getting invalidated or stayed near-instantly, while the Trump disqualification didn't apply. Which isn't a huge possibility band, but it's a lot wider than the chance of their law lasting once past.

Fucking hell. I saw @IGI-111’s comment, and thought about saying “that’s ridiculous, there’s no fig leaf for disqualifying Biden.” Then I remembered the fig leaf never really mattered. But I wasn’t expecting volunteers so fast.

Is this about Hunter? No, it’s about “insurrection” at the southern border. That doesn’t even make sense. At least if they’d have to pass legislation, it means they don’t have a Colorado-style process for removal, I guess.

I continue to be disappointed that no one involved in this election is going to face real consequences for their grandstanding, up until the point where the whole edifice collapses.

I have some for your reading pleasure.

Biden supported and gave encouragement to BLM riots which among other things included CHAZ.

Biden knew the renter moratorium was unconstitutional. His advisors told him as such. The SCOTUS said this is illegal but since you told us you are ending it we will let you end it in an orderly fashion. He then said “fuck it — I will extend it and hope it will take months or years to overturn what I knew was against the constitutional Order.

Biden conspired with others in the Obama administration to frustrate the peaceful transmission of power to the Trump administration from by trying to sabotage that admin via the bureaucracy including Biden suggesting trying to trap Flynn using the laughable Logan act (has some similarity to Trump — sure in theory he was exercising what is facially a legal authority but the local authority could say that was pretext).

Biden knew the renter moratorium was unconstitutional. His advisors told him as such. The SCOTUS said this is illegal but since you told us you are ending it we will let you end it in an orderly fashion. He then said “fuck it — I will extend it and hope it will take months or years to overturn what I knew was against the constitutional Order.

None of this is particularly correct. The Supreme Court initially ruled on the moratorium in July of 2021. But that was re the moratorium imposed the previous September, by the Trump Administration. And, as noted in the only opinion issued at that time, the concurrence by Kavanaugh, the argument was not that it was unconstitutional, but that "the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium."

More broadly, this is exactly how Presidents should behave: if they think a particular action is in the best interests of residents of the US, they should take that action, even if there are arguments, even strong ones, that the action might be overturned by the courts. Because unless there is existing binding precedent, the only way to know for sure is to get a final court decision on the merits (or, in this case, a preliminary injunction that is not stayed). That is exactly what Trump did re the "Muslim ban" -- as each iteration was struck down, the admin kept narrowing it until they came up with a version that withstood judicial scrutiny. There is nothing wrong with that.

The only exception is when the argument for legality is frivolous, which this one was not, given that the final vote in the Supreme Court was 6-3.

There's a lot of detail about that June of 2021 concurrence that you're glossing over, here.

This is the concurrence in its entirety:

JUSTICE KAVANAUGH, concurring. I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. See Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014). Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U. S. 1301, 1304 (1976) (Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.

... to be more explicit.

JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE BARRETT would grant the application.

So what? What is your point?

At the risk of tl;dr'ing an old effortpost:

  • With a very small number of exceptions not relevant here, it is unconstitutional for the federal government to act ultra vires.

  • ((There are also separate due process, takings clause, and procedural reasons it was also unconstitutional, raised by the AAR plaintiffs, which are fairly compelling; these are also unconstitutional, if not the central focus.))

  • Biden should have known that the attempt would be rejected in the courts, and made clear that he was running this policy to exploit the time period for the justice system to react. There's some fun philosophical questions about whether he genuinely believed Lawrence Tribe in the same way that Trump might have 'genuinely' believed Dominion conspiracy theories, and both of them are politicians with brains made of playdoh. But by any meaningful definition of the word "knew", he knew both that it was unconstitutional and would be found unconstitutional.

  • The balance of equities for a stay overwhelmingly favors a government actor over economic interests of private individuals. This is often hilariously misguided -- the refusal to recognize financial costs under the premise they'd be renumerated after a successful completion of a case a sick joke -- but the only one that seriously recognizes and favors the interests of AAR was the likelihood of success on the merits.

  • Worse, Biden should have known that he only got the time he did from SCOTUS because, and I quote the justice giving the deciding vote: "the CDC plans to end the moratorium in only a few weeks, on July 31". The Biden administration stated this, explicitly! Nice letterhead, official paperwork, everything, June 24th.

  • And then on August 4th, decided fuck it, we're doing it anyway. Pretty literally: when I said the final order had its serial numbers filed off, I wasn't exaggerating.

Yes, I get it, you had a conversation with someone at the time where you nitpicked into oblivion how the Supreme Court technically never issued an order to the federal government. If someone had said that Biden had defied an explicit order from the Supreme Court, you might even have a point. But instead, you're trying to nitpick:

Biden knew the renter moratorium was unconstitutional. His advisors told him as such. The SCOTUS said this is illegal but since you told us you are ending it we will let you end it in an orderly fashion. He then said “fuck it — I will extend it and hope it will take months or years to overturn what I knew was against the constitutional Order."

He knew, by any degree of knowledge that can resist a schizophrenic in a crappy suit. His advisors told him -- he lost Tushnet -- and that one advisor said the opposite is no defense when Guiliani was trying it. SCOTUS said it was illegal, if perhaps taking a slightest bit of effort to read the tea leaves. And Biden said fuck it.

More comments

The only exception is when the argument for legality is frivolous, which this one was not, given that the final vote in the Supreme Court was 6-3.

6-3 is what we would expect to be the worst outcome a democrat could get. Maybe 7-2 if they put something the kraken tier in front of the justices, but two judges are dem partisan hacks with room temperature IQs and one of them understands her job well enough, and that it’s to explain how the democrats’ agenda is what the constitution really means, no matter how you have to torture the words.

Obama was overruled 9-0 in Noel Canning, including by both justices he appointed.

That's fair, but in turn it seems like an argument in favor of hydroacetylene's claims: while the 9-0 ruling did go against Obama, it was far less aggressive than conservatives argued in the concurrence, or that the lower court held.

Lol. And if the members of the majority are partisan hacks? You do know that that is a common refrain from those on the other side, right? Here is a hot take for you: None of them is a partisan hack; rather, they have different jurisprudential philosophies (which is why they were chosen after all).

I'll give you the other 5, but c'mon. Alito is absolutely a partisan hack.

What is your evidence for that claim?

I'm not going to go through every example of it, but the man just obviously talks and thinks like a politician, all the time. Eg, The simplest difference involves respect for precedent: Justice Thomas "gives less weight to stare decisis than a lot of other justices." It is, "in its way, a virtue of his jurisprudence," Justice Alito says. "He sticks to his guns." . . . The disadvantage of this approach, Justice Alito says, "is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule."

Look at Alito's reasoning here. It is not legal reasoning. It's political reasoning. He's not saying "this is what the law demands" or "it's important to follow consistent principles". He's saying "this is how to maximise your own influence". And he constantly says things like this.

More comments

If your claim is that eg Alito or ACB has goals other than consistent jurisprudence, I won’t disagree with you, but Roberts and Gorsuch slap down republicans frequently enough in a way that dem appointees never do to their side that it’s fair to say republicans don’t have a majority of partisan hacks.

I will continue to hold that Ketanji Jackson Brown is a partisan hack whose jurisprudential philosophy is ‘anything the DNC says is right, one of their words will overcome 10,000 of the constitution’s’ in the absence of evidence of a semi-consistent philosophy. You don’t really see that on the republican’s side; Thomas has disagreements with con inc and is more than willing to slap the hand of Republican administrations. There aren’t 6 judges that back blatantly illegal moves by Republican admins; you sometimes see one or two, but not the same two.

If your claim is that eg Alito or ACB has goals other than consistent jurisprudence

My claim is literally the exact opposite.

The only exception is when the argument for legality is frivolous, which this one was not, given that the final vote in the Supreme Court was 6-3.

The obvious counter-argument there is a claim that partisan justices gonna' partisan, and the breakdown has no bearing on frivolity as opposed to politics.

Well, couldn't one therefore argue that the decision has no bearing on the validity of the law, either way? So, your argument clears Biden, does it not?

Yeah, none of those things count. I don’t think Watergate would have counted, and that was leading a government arm in actual crimes against Americans. Trump’s stunt may or may not have counted, but without a conviction or even a criminal charge, there’s no way.

Yeah, none of those things count.

The text of the Fourteenth Amendment specifies "insurrection or rebellion against" the Constitution of the United States. Conspiring (within the Executive Branch) to issue orders that violate its plain textual explicit separation of powers (which SCOTUS ruled those orders did) sounds at least as plausibly in violation as Trump "raising an army."

(Although this would probably effectively rule out any incumbent president running for re-election, to which I probably say yeschad.jpg)

I believe "the same" refers back to "the United States", not to "the Constitution". It makes no sense to speak of rebellion against a constiution, and barely more sense to refer to giving aid and comfort to enemies of the Constitution. And of course the original public meaning of the clause was that it meant rebellion against the US.

I would note, however, that your interpretation would be very bad for Trump; given that the J6 rioters were attempting to stop a Constitutionally prescribed procedure, the argument that they were rebelling against the Constitution is stronger than the argument that they were rebelling against the US.

This is exactly my point. In fact, I think the case against Biden is cleaner in that the eviction order was one of the most brazen “I know it’s illegal but I don’t care” moves done in decades.

Trump may very well believe that laws were broken and therefore his action on Jan 6 was actually consistent with his oath to take care that the laws are faithfully executed. Biden has no such excuse.

Trump’s stunt didn’t either. The constitutional provision was pretty clear that it was referring to raising an army and starting a war, not a badly planned protest that turned into a riot which may or may not have been a coup attempt.

Those are to my mind the same category as J6. Why do you think they are different or don’t count?

The sad part is they couldn't even find a good "insurrection" to allege. Hunter Biden's dealings with China? Come on. Can't they argue that Biden in some way encouraged the protesters who block traffic to fight climate change? Or the people who graffiti'd the Lincoln memorial in support of Palestine? Everybody hates those guys, why not go ahead an call it an insurrection?

Seriously, encouraging blocking traffic is a more plausible "insurrection"?? They used Hunter presumably because the clause refers not only to insurrection, but also to those who have "given aid or comfort to the enemies" of the US.

Look, obviously, I agree that it’s ridiculous, but I like that it has a parallel to Trump’s encouraging the mob who rioted at the capitol. Could one of the people held up in traffic have been a government official on their way to an important meeting? So the protesters were interfering with a government function.

If you want to bring an example, you’d be better off talking about the Hatfield courthouse.

But these politicians don’t want a good example; this is the same ‘highlight the contradictions’ approach from a lot of other movements, without the sympathetic media or academic facade

Surely intent matters, which is why those are not parallel cases.

Edit: Moreover, the claim is that the protesters were attempting to prevent the winner of the election from taking power, hence at least arguably engaging in insurrection. They were not merely interfering with a govt function. I think you might be conflating the criminal charges with the 14th Amendment issue.

Yes, good call, I was confusing the criminal cases about interference with the current case.

Because those would be mutually disqualifying.


What is this place?

This website is a place for people who want to move past shady thinking and test their ideas in a court of people who don't all share the same biases. Our goal is to optimize for light, not heat; this is a group effort, and all commentators are asked to do their part.

The weekly Culture War threads host the most controversial topics and are the most visible aspect of The Motte. However, many other topics are appropriate here. We encourage people to post anything related to science, politics, or philosophy; if in doubt, post!

Check out The Vault for an archive of old quality posts. You are encouraged to crosspost these elsewhere.


Why are you called The Motte?

A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.


New post guidelines

If you're posting something that isn't related to the culture war, we encourage you to post a thread for it. A submission statement is highly appreciated, but isn't necessary for text posts or links to largely-text posts such as blogs or news articles; if we're unsure of the value of your post, we might remove it until you add a submission statement. A submission statement is required for non-text sources (videos, podcasts, images).

Culture war posts go in the culture war thread; all links must either include a submission statement or significant commentary. Bare links without those will be removed.

If in doubt, please post it!


Rules


Recommended Posts And Communities

Recommended Realtime Chats