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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Notes -
Reuters reports:
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.
I'm not sure if she's subject to recall, though. If she is, your struck-through text would still be accurate.
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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.
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That seems about the same tack that Bellows took, if a bit better thought out. The analysis in the decision is just:
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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:
Unfortunately, the next sentence is
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.
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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.
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