site banner
zataomm  11mo ago (text post)   5753 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.

I've been going over the Colorado decision and found this passage from the majority opinion shocking:

Although we do not find Griffin’s Case compelling, we agree with Chief Justice Chase that 'it must be ascertained what particular individuals are embraced by the definition.' 11 F. Cas. at 26. While the disqualification of Section Three attaches automatically, the determination that such an attachment has occurred must be made before the disqualification holds meaning. And Congress has the power under Section Five to establish a process for making that determination. But the fact that Congress may establish such a process does not mean that disqualification pursuant to Section Three can be determined only through a process established by Congress. Here, the Colorado legislature has established a process—a court proceeding pursuant to section 1-1-113—to make the determination whether a candidate is qualified to be placed on the presidential primary ballot.

This just... doesn't seem right. Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"? It seems like this would be challenged and lose, ironically, under the 14th amendment, which disallows States from setting up their own processes by which to deny citizens rights to which they are entitled under federal law.

I find the dissent’s attack of the Colorado law convincing apart from the issue you raise. Determining whether someone is an insurrectionist is either really simple (in the context of say Robert E Lee) or really hard (Trump or Biden). It seems we can either define insurrectionist narrowly (in which case the Colorado law applies but Trump clearly isn’t an insurrectionist) OR the Colorado law wasn’t intending to capture broad interpretations of insurrection since that would require extreme factual development / significant protection for the person accused of insurrection and tr statute requires a quick trial on a preponderance standard with limited discovery rights. So it is kind of heads Trump wins tails the Plaintiff loses.

There is another problem which is they are effectively claiming Trump is disqualified from office if he was elected. But they cannot know this because it would be possible for the house and senate to remove this disqualification before he began serving. Whether Trump is disqualified or not at the point in time that he would assume office is currently unknown. This would be similar to Colorado not allowing someone on the Primary who was aged 34 years and 11 months because they are not currently qualified even though they would be qualified at the point that they serve. Maybe there is Colorado case law where they already do this which would be strange but I assume cases would be decided allowing a person of such age onto the Primary ballot. The age issue is a stronger argument because we know someone will age whereas Trump’s situation is unknown but I think it is a compelling argument.

There has to be a presumption of one state or the other. I’d have preferred to go with “presumed innocent,” but still, it’s reasonable not to expect an act of Congress.

Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"?

But that is not what happened here. Here, Congress has not acted at all, and the issue is whether the bar is self-executing:

The Electors’ challenge to the Secretary’s ability to certify President Trump as a qualified candidate presumes that Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress

PS: Please note that I am not defending the decision. For both legal and policy reasons, IMHO no criminal conviction = no disqualification.

Congress has not acted at all, and the issue is whether the bar is self-executing

Congress has acted though, 18 U.S. Code § 2383 - Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

That's why I found this passage shocking; I take your point that if Congress hasn't set up any mechanism to enforce the amendment then it's reasonable to believe that it should be enforcable somehow, but it's much harder for me to swallow the argument that even when Congress does address the matter, the States can set up their own enforcement bodies. In paragraph 105 of the CO decision, the Court writes:

We are similarly unpersuaded by Intervenors’ assertions that Congress created the only currently available mechanism for determining whether a person is disqualified pursuant to Section Three with the 1994 passage of 18 U.S.C. § 2383.

Or are you saying "Congress hasn't acted" because the code doesn't say that § 2383 is "pursuant to the 14th Amendment" or some such language?

The problem with “self-executing” especially in this case is that it doesn’t require a conviction which brings up a huge problem in that if you can create a self-executing punishment (which would happen if the other parts are self-executing— jail time and fines are legal penalties) then you’ve done away with the presumption of innocence and the right to a hearing and to cross examine witnesses. A “finding of fact” that allows for criminal punishments is essentially a trail in absentia i can declare that you did in fact commit insurrection or give aid and comfort to one without the inconvenience of a trial and the right to examine and dispute the evidence, to cross examine witnesses, or present a defense.

It seems a bit of a stretch to suggest that a document that in several instances explicitly requires the state to presume innocence, limits the ability to search (hence warrants), forbids the state from requiring a defendant to incriminate himself, requires juries of the defendant’s peers, and otherwise makes the state jump through hoops before declaring someone guilty of a crime would suddenly be okay with striking someone from a ballot or fining them or jailing them based on a finding of fact.

Or are you saying

Again, I am not opining on the merits, but am merely referring to the claims made by the parties and judges. The quote is re an alternative argument raised by Trump (note its placement at the end of the section on self-execution, and after your original quote). And note this from one of the dissents:

My colleagues in the majority concede that there is currently no legislation enacted by Congress to enforce Section Three.

So, that is the claim of the majority. The majority does not argue, as you inferred they did, that states can establish a definitiin of insurrection different than that established by Congress.

Thanks for the quote. I'm really puzzled by both the dissent and majority's opinion on this matter. As the dissent writes after the line you quoted:

If any federal legislation arguably enables the enforcement of Section Three, it’s section 2383.

I don't understand why neither side considers section 2383 to "enable the enforcement of Section Three". That seems to be exactly what it does, yes "arguably", but the "argument" would mainly just point out that that section uses the exact same language found in the 14th amendment!

The dissent also says,

this is the only federal legislation in existence at this time to potentially enforce Section Three

My guess is that, because the statute provides for a criminal penalty and disqualification for public office, it might be a separate penalty as opposed to an implementation of the 14th A. The statute does seem broader than the 14th Amend, FWIW, since the 14th applies only to those who have taken an oath to support the Constitution, whereas the statute applies to all who engage in insurrection. Someone who violates the statute but who did not violate the 14th because he never took an oath can still be President, since the Constitution establishes the exclusive qualifications for the offices of President, Senator, Congressperson, etc (see cases annulling term limits on Congress).

@Gdanning I deleted my comment on the CW thread, would you mind responding here?

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