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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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Trump has filed his petition to the Supreme Court asking them to review the Colorado decision. Lawyers writing briefs don't generally have the same opportunity for snark as judges when they write their opinions, so my favorite quote was:

constitutional speech protections should not turn on opinions from sociology professors

Which seems reasonable to me.

The brief contains a variety of arguments, some of which are stronger than others. One interesting argument I hadn't heard before is that while someone may be disqualified from holding office, they are still permitted to run for office. A bit hard to swallow in the case of a candidate counting on Congress to "remove the disability" after he gets elected to office, but, like I said, interesting.

The brief points out some deficiencies specific to the Colorado proceedings. Candidates are required to file a paper affirming that they meet the qualifications to be President, but the Colorado Secretary of State is not required to independently investigate this affirmation, and thus had no business doing so. A good point, but by now we have challenges across several states, so the Supreme Court is going to need to go bigger to resolve this issue.

The brief argues that the events of Jan. 6 were not an "insurrection", and even if it was, Trump did not "engage" in the insurrection. I agree with this, but my instinct is that the Supreme Court is not going to want to go so far as to make that determination.

The Supreme Court's two main options are unpalatable. They can:

  • Point out deficiencies specific to the Colorado procedure
  • Take up the case of Trump's eligibility themselves

The first doesn't go far enough, and won't resolve other states' cases, while the second goes too far, taking on more responsibility than the Supreme Court likes to have. For this reason, my expected outcome is for the Supreme Court to lean on section 5 of the 14th Amendment, saying that Congress and only Congress is able to determine eligibility for federal office. As @AshLael has pointed out, this is standard operating procedure for Roberts, he loves to write opinions which conclude by saying, in effect, "if Congress doesn't like this outcome, they are free to pass a new law to achieve the outcome they like."

Adam Unikowsky has a new article arguing pretty persuasively that the "holding office vs running for office" distinction is not going to fly. I don't think that's a conclusion that anyone here is going to resist very strenuously, but I thought it was a novel and intriguing argument and liked seeing it analysed seriously.

I don't think the "Not everything that is permitted is mandatory" part is very coherent. It would be a wonderful argument if there were clear statutory restrictions preventing insurrectionists from going on the ballot -- yet if such existed, we wouldn't be futzing around with these weird third- or fourth-degree restraints. Both Colorado's role and Baude/Paulsen position more generally is not that a state can block insurrectionists from the ballot, but that it must do so where any role to review qualifications exists. Unikowsky tries to shove this problem as if Thorton were the only limit, but Thorton is why Trump's lawyers argue this is clearly and egregiously wrong rather than merely incorrect.

The pragmatic argument is a lot stronger -- kicking this can down the road opens up a tremendous amount of worms, and heightens the risk of people literally marching on SCOTUS among far worse things -- but the pragmatic arguments give a lot of strong arguments toward either completely disqualifying Trump across the board, or completely limiting disqualification, and Unikowsky isn't making either of those arguments in context for Michigan.

((Separately, Unikowsky's aversion to clever solutions isn't as awkward as when coming from the emoluments clause fandom, but it's still pretty nakedly new given the man's role in Espinoza. Or, for that matter, when one examines how 'clever' this is, here.))

I think part of the argument is that Colorado does indeed have a statutory restriction preventing ineligible candidates from being on the ballot. You don't need to go the full Baude/Paulsen to say that Colorado is permitted to do so. One could easily imagine a Thomas opinion arguing that states have the right to put whoever they want on their ballot for any damn reason they choose (as a separate question to the issue of whether Trump fails the criteria they set).

But Colorado does not have a statutory restriction preventing ineligible candidates from being listed on the ballot, and the Colorado Supreme Court did not find one. In fact, it held that :

To that extent, we agree with President Trump that the Secretary has no duty to determine, beyond what is apparent on the face of the required documents, whether a presidential candidate is qualified.

Hence the emphasis on "“wrongful act” that runs afoul of section 1-4-1203(2)(a) and undermines the purposes of the Election Code", and why there's so much emphasis on what's implied for 1203 purposes. But it doesn't matter; this is a state law question, and SCOTUS isn't going to punt because of it, and it wouldn't matter if they did (even for Colorado, for reasons I'm not discussing publicly).

It just makes Unikowsky's argument really weak at a philosophy-of-law level.

Huh. I admit I've kind of brushed over the questions related to Colorado law specifically, so I guess I'm a bit lost as to where the SOS authority to disqualify candidates comes from exactly. All I can say in my defence is the citations of Gorsuch in Hassan v Colorado made me assume that there was some well established existing authority for Colorado to do that.

There was a lot more authority and clear case-law on the matter before a bunch of the Colorado election code was revised in the last decade, although its bounds had a limitation. But that's... about as much detail as I'm comfortable giving publicly.

The "holding" vs "running" argument is funny, but it really just kicks the can down the road -- Trump's probably hoping until votes are being counted for the general election, but Colorado specifically already has had recent lawsuits over Secretaries of State making orders related to election processes weeks before the election, and there's no reason it couldn't happen in the primary season, too.

Ruling specifically on Trump's eligibility as a matter of legal fact has the problem where it's both too much into political questions for a few members of the court, and simultaneously not enough to actually table the problem. The same approaches can and have migrated to other politicians, and as the emoluments clause fandom demonstrates, there's always some new fact pattern to bring.

Congress having to act would remove a lot of further legal gamesmanship, but I dunno how well it would appeal to most of the Court. At the simplest level, the approach Trump is advocating would not just allow but encourage a situation where a candidate was cleanly and clearly the winner of a state and then the House of Representatives reject that state -- and while I'd recognize some schadenfreude in a reversal, the spectre of Jan 6 isn't something that they're forgetting. Especially given the extent Baude/Paulsen and the lower courts here have rejected due process concerns or even argued that the 14th Amendment overrides earlier test in the Constitution, there's also a lot of really bad problems that could fall from Congress having the power to declare insurrectionists by law.

One interesting argument I hadn't heard before is that while someone may be disqualified from holding office, they are still permitted to run for office.

I think this is a non-starter; it was rejected in Hassan v. Colorado by the 10th Circuit Court of Appeals. In the person of Neil M. Gorsuch.

a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.

The brief contains a variety of arguments, some of which are stronger than others. One interesting argument I hadn't heard before is that while someone may be disqualified from holding office, they are still permitted to run for office. A bit hard to swallow in the case of a candidate counting on Congress to "remove the disability" after he gets elected to office, but, like I said, interesting.

Yeah I also found that argument interesting. You could kind of analogize it to a candidate that will be 34 at the time of the election but will be 35 by the time he takes office. Probably the cleaner and more coherent answer is just to say disqualified candidates get treated as disqualified until the disqualification is removed, but it's an argument worth making.

I'm a bit surprised he didn't try the argument that the Amnesty Act passed in 1872 was forward-reaching. I don't buy that argument either, but it seems at least as plausible as many of the others he has used, and it wouldn't really cost him anything to give it a try.

I also expect Roberts to look for a way to punt responsibility to Congress, but I don't know that he finds 4 supporters for that approach.

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