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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.

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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).

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