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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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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.

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