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zataomm  11mo ago (text post)   5751 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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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.

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