Colorado Supreme Court Disqualifies Trump From 2024 Primary Ballot
In a 4-3 ruling, the Colorado Supreme Court has ruled that Donald Trump “is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution.” The ruling is stayed until January 4th, pending an sure to come appeal.
Read the Colorado Supreme Court decision disqualifying Trump for yourself here:
Colorado Supreme Court
In a historic decision Tuesday, the Colorado Supreme Court barred Donald Trump from running in the state’s presidential primary after determining that he had engaged in insurrection on Jan. 6, 2021.
The 4-3 ruling marked the first time a court has kept a presidential candidate off the ballot under an 1868 provision of the Constitution that prevents insurrectionists from holding office. The ruling comes as courts consider similar cases in other states.
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If other states reach the same conclusion, Trump would have a difficult — if not impossible — time securing the Republican nomination and winning in November.The decision is certain to be appealed to the U.S. Supreme Court, but it will be up to the justices to decide whether to take the case. Scholars have said only the nation’s high court can settle for all states whether the Jan. 6 attack on the U.S. Capitol constituted an insurrection and whether Trump is banned from running.
“A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution,” the decision reads. “Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”
The U.S. Supreme Court justices separately are weighing a request from special counsel Jack Smith to expedite consideration of Trump’s immunity claim in one of his criminal cases — his federal indictment in Washington on charges of illegally trying to obstruct President Biden’s 2020 election victory. Trump has denied wrongdoing.
The Colorado Supreme Court’s majority determined the trial judge was allowed to consider Congress’s investigation of the Jan. 6 attack on the U.S. Capitol, which helped determine that Trump engaged in insurrection.
Interesting. Probably correct.Report
Unfortunately, not likely to be upheld. Clarence Thomas has a family to feed.Report
I’m guessing it goes down 9-0.
The hacks will hate it for obvious reasons, and the non-hacks will recognize that it opens a can of rabid zombie worms.Report
Yeah, snark aside, it definitely seems pretty flimsy to this non-lawyer.Report
Yeah, opening the door to disqualifying people who try to overthrow an election might have consequences.Report
In a response to Vivek saying that he was pulling out of the Colorado primary and, indeed, all Republicans running for president should pull out of Colorado’s primary, the Colorado GOP tweeted this:
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I know we forget to talk about how stupid the Republican party is here from time to time but that’s the exact wrong response, and how you end up with untenable outcomes even for them, like Ramaswamy winning the state. As we know, Trump for all of his insanity, criminality, and personal flaws is at least actually electable.Report
Vivek couldn’t win a caucus in…
Um…
I can’t think of anything funny.
I will say that, last time, Ted Cruz won Colorado’s caucused primary because Trump’s team didn’t know how caucuses worked and they all left leaving Cruz’s team, who did know how caucuses work, behind… allowing them to unanimously agree that Cruz won and they gave him the state.
It was dumb.
Trump turned these lemons into lemonade.
Anyway, I don’t think that Trump would lose the caucus again. Unless, of course, he had his team leave the state leaving behind only Ramaswamy’s team. I could see that happening.Report
Are you sure they are smarter and more competent now than they were in 2016? It seems to me like its gone in the opposite direction with fewer veteran Republican operatives and more people there due to nothing other than personal loyalty to Trump.Report
He couldn’t win a caucus in your momus!
(waits for laughter)
(trapdoor opens, alligator comes out and bites off my torso)Report
That I laughed at, well done.Report
The GOP has been changing the rules since votes were counted in November 2020 because it’s easier for them to do then campaign on actual solutions to problems. This is just part and parcel for them.Report
I dunno, it seems like both the most practical and most moral stand to me.Report
CO GOP to CO Supreme Court: “Hold my beer!”Report
Eh, Colorado had caucuses as recently as 2016 (I wrote about going to the last one!).
They switched to primaries because… well, because caucuses are weird and the rules are obscure and require a lot more volunteers than primaries do (and *SPECIFIC* volunteers… you can just get election people to show up no matter what).
Granted, I thought that the primaries would last more than a single g-darn election…Report
Both have their issues because they basically both wind up being dominated by whoever can take time off from work to be involved. Less time is needed for a primary than a caucus, but not no time.
Vote-by-mail primaries would certainly help, although you run the risk of voting early for someone who drops out.Report
Eh, the primary takes little enough time that I don’t think that work has an impact on it. Leave 15 minutes early and take care of it on your way to work. It’ll take more time walking to and from your car to the voting place than it’ll take you to fill out your ballot and drop it off.
The caucus takes all evening. Eat something before you go. This means that only crazy people go to them.Report
Good, let the Republicans pay for picking their nominee.Report
I was curious on the logic the court used to make the determination.
As far as I can tell on page 9 it asserts three points:
1. The district court based determinations on portions of Congressional Report
2. The district court determined that Jan 6 was “insurrection” [quotes theirs]
3. The district court determined Trump “engaged in” [quotes theirs]
Just don’t see this withstanding the tiniest scrutiny outside of Colorado. I’m not sure Colorado has the power to declare ‘general’ insurrections against the United States a’la the Civil War… much less assert that someone ‘engage in’ a particular one without a trial and a verdict.
I suppose the two-step dance is to cite the Proud Boys conviction for Seditious Conspiracy and then … Trump. But IMO you can’t dot dot dot Trump. You need a conviction for Seditious Conspiracy against Trump. Connect the dots and I’m fine with it. But you can’t OpEd your way to disqualifying candidates. Not without future iterations on this.Report
+1
Generally convinced this ruling will be a disaster if it stands, but it won’t stand, so we’re probably fine.Report
I also feel the Supremes will knock it down. We should know pretty quickly.
If they plan to knock it down they’ll grant the appeal and then blow the ruling to heck.
If they don’t want to knock it down they’ll probably just deny the appeal and leave the ruling to stand for CO alone. I just don’t feel the Roberts court would take the case and uphold it. That’d blow Trump off every ballot in the country.
Now there is some 4d chess reasoning that says the Supreme court justices are elite, establishment Republican’s by nature and they might jump at the chance to try and eliminate Trump as a political force in the party in a way that’d allow them to try to blame liberals for it to keep Trumps voters but I don’t see them thinking that they could do it and get away with it if Trump appointed justices have their fingerprints on the knife.Report
RE: I suppose the two-step dance is to cite the Proud Boys conviction for Seditious Conspiracy and then … Trump.
Trump helped them during the riot and was also ordering Pence to not validate the election.
The reality is Trump is guilty. Whether or not that’s been proven is less clear, but most of the civil war bunch didn’t get convictions for Sedition.
When the courts are reviewing this the defense being made isn’t that he didn’t engage in Sedition, the facts of what he did are not disputed.
The part the courts are thinking about is whether the AM on Sedition applies to the Presidency.Report
I think it’s unlikely to stand but your analysis of what the court is doing isn’t quite right. Appellate courts are deferential to lower courts on questions of fact (jurisdictions vary but I believe there is typically something like a ‘clear error’ standard, which is pretty high). It is very rare for an appellate court to remand on the basis of ‘trial court got the facts wrong’ and in this case the trial court determined that Trump is an insurrectionist. As I understand it, it also however held that section 3 does not apply to the POTUS. The Colorado Supreme Court says actually it does apply to POTUS, and based on facts established at district court it therefore bars Trump from the balllot.
What the appellate court is doing is reviewing whether the law was applied correctly. As CJ says below, it is an open question as to whether section 3 is self-executing or if it requires something like a criminal conviction or a statute passed by Congress (the parallel being statutes prohibiting Confederate officers and officials from holding office, which themselves were over time watered down). My guess is that at minimum a plurality of the justices of SCOTUS will say section 3 does in fact require something like that, meaning that the Colorado Supreme Court got the question of law wrong. But given lack of precedent it isn’t totally obvious that they did. For example, the Colorado Supreme Court raises the question of whether it could bar a person under the age of 35 or who is not a citizen from the ballot. It seems to me quite clear that it could, and an appellate court in doing so would likely rely on the factual determinations made at the trial court.Report
Yeah, as to how the courts work, I’ll defer… but I’m not seeing how a district court in Colorado is capable of making a finding of fact on whether Trump ‘engaged in’ ‘insurrection’ based on portions of congressional reports.Report
The full text of the case is available here:
https://www.nytimes.com/interactive/2023/12/19/us/politics/colorado-supreme-court-decision.html
There’s no possible way of summarizing the reasoning in the comments. I am skimming through it and the court does appear to address these and other questions head on. I’m not saying you have to agree with it, but at a basic level, CO election law creates a process by which the eligibility of candidates to run can be challenged, and that process was followed by the district court. There’s nothing inherently illegitimate about that. Based on the procedural history it looks like this was initially removed
to federal court by motion of Trump and the district court agreed but the federal court sent it back based on questions of standing. Whatever it is it ain’t an OpEd, and it clearly isn’t a district court trying to do something clearly out of bounds.Report
The SCOTUS fairly routinely holds that states have passed laws that exceed their authority.Report
Not exceed, but that are outside their jurisdiction. In this case SCOTUS absolutely will have the final say on interpretation of the 14th Amendment to the US constitution and that interpretation will control for state courts. However it would be quite extraordinary for there to be a holding that says state courts can’t adjudicate claims and actions under their own election laws, which is what this argument taken to its natural conclusion would require.Report
I prepared a response… but rather than bumble along in my own words, I found that Justice Samour’s dissent starting on p.146 and particularly the discussion of Section 5 (starting p.167) and the congressional legislation of 1870 and 1948 to be a much clearer, and presumably legally artful, articulation of what I was getting at above.Report
Hey, fair enough. I’m not saying anyone has to agree with the majority. I’m not even saying I agree with the majority. My objection is to characterizing what happened here as an OpEd legal conclusion or some kind of obvious political overreach from the bench.
The CO courts tried to send it to the federal courts, the federal courts sent it back, and the CO courts reached a legally cognizable holding. It’s rare for me to say this but if we need to have handwringing it really should be about the guy creating issues that the courts have to adjudicate with laws written without anything like these facts in mind. No one needs to shed tears for any judges and it’s their job to deal with it but I doubt any of them relish being sucked into this kind of crap.Report
the guy creating disputes that the courts have to adjudicate with laws written without anything like these facts in mind.
Subtract him being popular, apply the normal rules, and he’d be in prison for multiple reasons/crimes.Report
It does amaze me how deeply this, what I call the “peasant mentality” is entrenched in so many people including self described liberals.
The facts are clear; A citizen has brazenly committed crimes including masterminding a violent attempt to overthrown an election.
And yet, to many pundits and opinion=-shapers, treating him like an ordinary citizen is “troubling” and “raises thorny questions” and “opens a can of worms”.
We are regularly told that the courts must grant deference and tiptoe gingerly around him because well, um, here is where they always seem to fall silent or just doggedly repeat something about it being “troubling”.
They do seem to have this idea that Certain People are really and truly above the law.Report
From the point of view of the Trumpists, 1/6 wasn’t an insurrection. And if the standard is lowered to the point where it is, then leaving the boarder open and BLM protests are too.
There’s an argument that Trump being so popular makes this a political issue, and we should be resolving it at the ballot box.Report
Heh, fair enough back at you… but if SCOTUS cites Section 5 and the Sedition act of 1948 as the main reason why the decision is overturned, then I reserve the right to say, “yes it was.”Report
Should that occur, and it may well as it would not be the first time SCOTUS adopted the dissenting opinion of a lower court, I will humbly acknowledge your powers of prediction. 🙂Report
The main reason to be skeptical that the SCOTUS would uphold Trump’s disqualification is that there are several difficult issues and the plaintiffs need to prevail as to all of them, while Trump needs only win on one. And the SCOTUS needs only address one issue to rule in favor of Trump.
Which is to say, you could be correct, but the SCOTUS might rule on some other issue for convenience, simplicity or public consumption. I think the advantage of your point is that it puts the onus on the legislature for not keeping the Enforcement Act of 1870 in place.Report
Agreed, I’m not really ‘predicting’ what SCOTUS will do once it gets thrown into the SCOTUS legal blending machine.Report
Section 3 is not the best example of legal drafting, and is open to serious debate as to its meaning. That said, as a dry, technical matter I think the majority’s reading is the most plausible one, for reasons best explained in an article by two conservative legal scholars, Baude and Paulsen. The analysis is too long, complex, and, frankly, dull to try to boil down here.
But saying in calm and rational times that the best reading of an unclear constitutional provision is “X” is one thing. Deciding what to do in disturbed and irrational times is another. We haven’t made much use of Section 3 in about 150 years. There is no history or practice or authoritative interpretation. And although I believe that Section 3 is self-executing in the absence of Congressional action, Congress surely can act and such action would provide useful clarification. In the absence of such history, practice, or authoritative interpretation before now, any attempt to apply Section 3 now, for the first time, even correctly, will inevitably be perceived by large parts of the country as pure partisan hackery and provoke strenuous resistance, possibly even civil disorder. Is mere legal correctness enough reason to unleash the dogs of war?
Being a judge is usually a cushy job, even for the diligent and hard-working. But sometimes it isn’t, and this is one of those times.Report
Just for the record, here it is:
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Debatable yes, but not unreasonable to say it applies to a President who after having “taken an oath to support the Constitution” , “gives aid and comfort” to those who had “engaged in insurrection”.Report
Prediction (also on the other thread): The SCOTUS will rule narrowly that state government cannot overrule whatever names a state party wants to put on its primary ballot. Probably 9-0 or 8-1. Neither side wants to open this can of worms.Report
I find it weird to keep hearing about this mysterious “can of worms”. I heard it when he was charged and am now hearing it again.
Like, allowing Trump to stand for election and take office “opens a can of worms” to allow any future defeated President (oh, say, Joe Biden) from using violence and force to coerce Congress in Jan 2025 into certifying him as President.
Its akin to how openly stating his intent to end democracy and install himself as a dictator is handwaved away as “colorful language” but charging him for crimes is “troubling” and “opens a can of worms”.Report
At the most basic level one can always avoid having the constitutionality of one’s candidacy subject to litigation by simply not intentionally attempting to foment a constitutional crisis while one is in office.
As a person who often sees and is afraid of opening cans of worms I’m just not seeing it here either. Eligibility to be on the ballot in a state really is within the normal jurisdiction of state law and state courts and I’m not sure what the alternative would be. Let anyone just run, even where clearly ineligible, then have the courts try to void it after the fact? That sounds like an even worse can of worms.
So there’s an open question of whether CO got the constitutional question right but this is hardly some crazy legislating from the bench stuff. Indeed it is exactly the venue that Trump intentionally has chosen to play his game.Report
“There are conditions under which a state legislature, or state election official, or state supreme court can decide to forbid a state party from submitting certain names for their primary ballots” is a hell of a potential can of worms. Is there a definitive list of things a state’s top election official can use to deny a person, or can it grow over time? What’s the due process for the person to defend him/her self? How to deal with the situation that one state says he’s an insurrectionist and banned (CO) and another says he can’t be banned (MN)? How is the relationship between national and state parties affected by this?
IIRC, the CO secretary of state has to certify the ballots by Jan 5, 2024. No time for nuance. SCOTUS holds states can’t block access to primary ballots.Report
Per the decision the process for a challenge is set forth in CO election law. It’s also specific to CO and doesn’t control what happens in any other state. The CO secretary of state filed a motion to intervene which was granted, meaning they became a party to the case. The process was sped up and prioritized because of urgency around timing. I know a lot of this is technical lawyer stuff but it’s all pretty well laid out in the decision.Report
Chip, I’m going to start up in the clouds of principle and law, then descend to earth and then burrow into the brutal practicalities of blood, dirt and hell in answering you.
Principles: Floating up here in the clouds where the academics, moralists and judges stroke their chins the lofty principles aren’t terribly complicated to summarize though they’re, as I understand it (IANAL), devilishly difficult as a legal principle. The 14th bars people from running for office if they’re seditionists but there’s no mechanism for making that determination. If Trump had been convicted, either through impeachment or through a criminal trial, of those acts on Jan. 6th then this would be a much easier discussion but he hasn’t. Those trials are ongoing. The CO court system sort of tries him in absentia but this is a civil complaint.
The other principle is one of norms. A long-established norm in every state of the union has been “thou shalt not try and rat-fish thy opposing party’s candidates off the ballot.” The GOP has gone nibbling after this norm in a variety of tiny ways for decades but this CO court case is the whole ball game. The liberal justices on the CO court, by judicial fiat, are banning Trump from the ballot in CO. Why can’t conservative judges in other states ban Joe Biden or anyone else the Dems put up from their ballots? “They can there’s no law against it!” you retorted in the other thread. Yes, that’s right, there’s just the norm and our side is battering it right now.
Finally, there’s the core principle of what Trump stands for. We can ban Trump from the ballot but we cannot ban Trumpism. If Trump is defeated this way then every illiberal, monstrous, crooked and corrupt principle he stood for stands undefeated waiting only for a new, and likely more capable and clever, avatar to take them up.
Politics: We’re down at the tree line now. Political critters flutter and twitter. Across the grassy sward the voters tromp. The politics of this are, if anything, even more murky and troublesome than the principles.
It should be noted, here in the political world, that the libertarian, plutocratic, establishment dirtbag GOP has been looking for a magic switch they could throw to get Trump off the political scene without alienating his voters for something like eight years or so. Tada! Here it is!! Trump gets banned from the ballot by a bunch of liberal judges. The eventual GOP nominee denounces them with fire and brimstone from the stump while privately toasting the liberal idiots with all their rich buddies in private. The eventual GOP nominee gets an energized, furious base of Trump voters and all they have to do is cuddle up to Trump for his endorsement and they can charge into the election with a fully united and energized base. Meanwhile the left says “Ah yes, Trump is defeated. Biden didn’t give us everything we ever wanted so we might as well go back to sleep.” Why, why, why the fish why would we want to bestow this incredible electoral gift upon the Republican party???
The dirt: And now we’re down in the dirt and mud. Where the bugs squirm and the badger’s burrow. Beneath the ground the demons delve and murmur “Politics is war by other means” and other such copybook heading truisms.
Here in the brutal and practical realm of force and reality we look up at that norm that we’re breaking and then we look at the political scene that exists in the US today. There are more Republican governed states than there are Democratic governed states. The Congress is tilted republican by state delegation (which is how the constitution says the President is selected if the actual election process borks up). So this norm we’re hammering on, this machine we’re threatening to bust- if it busts then the GOP gets the presidency by sheer force of ownership of Governorships and congressional delegations. Do we want to fishing go here? No, we should fishing not! Not if we have a fishing lick of sense.Report
I don’t totally disagree with your sentiments, North, especially in the sense that Trumpism can only be defeated at the ballot box. But I do think there’s a real question of what the courts are supposed to do with a person whose entire political strategy involves creating novel questions of law. People that go around doing that will end up in court a lot, and the answers to the questions that person’s conduct raises will not always go in his or her favor. The courts can’t just never rule on anything and the entire situation is one of Trump’s own creation. Remember the CO district granted a motion from Trump’s side to remove the matter to federal court to address the constitutional questions. The federal court said there was a standing problem and sent it back which means the CO district court had no choice but to adjudicate these issues.
I know the GOP isn’t exactly overflowing with sense and reason but by running again Trump is the one demanding that these things be litigated.Report
I’m not an expert in court matters but they could have, perhaps, slow walked it to be judicious and let the election happen first which, I allow, is a kind of ruling in the absence of a ruling- or else they could have waited until the courts criminally trying Trump for Jan. 6th came to a conclusion. I just feel (but only feel- IANAL) that they should have gone slower to let the rest of the justice system catch up.Report
I hear you. The reason they would say they didn’t though is that, as Michael has noted elsewhere, the CO Secretary of State has to have the ballots approved and ready by Jan. 5. They needed an answer and the district court moved it up to get one for the people who as best as I can tell are in good faith trying to do their jobs.
I’m also not sure that waiting really helps. Imagine Trump wins the primary, then gets convicted of something. What do they do with the result? Throw it out? Have a redo? Maybe CO law provides for that but maybe not and any outcome is going to result in assertions of conspiracy or unfairness. I don’t see how the judiciary can afford to blink in the face of an intentional attempt to create these damned if you do damned if you don’t scenarios.Report
(Personally, I see switching to caucuses as the most elegant of a host of dumb, dumb, dumb inelegant options.)Report
None of Trump’s federal trials will be underway, much less complete by primary time.Report
Maybe we need to delay the 2024 election until Trump’s legal messes are sorted out.Report
Or maybe we should put our endemic liberal inclination to go looking for a referee or teacher or Papa or Mama or SOMEONE* to pat us on our collective heads and say “You were right all along, I’ll just make this all go away” and instead defeat the mother fisher at the ballot box a second and even more resounding time which would actually make him go away. We won the first time which was the hard time. Compared to that the second try should, by all reason, be easier.
*And yet it’s on the right where all the theists live. Weird.Report
Sure, the ballot box is a good tool, but why should it be the only one?
The Civil Rights Act envisions citizens filing lawsuits to protect their rights, and interested parties on both sides of the aisle have never been shy about using the courts to advance their cause.Report
See all the rest of my previous comment.Report
Chip! Good news!
Report
Now this I think is a stupid idea.Report
Actually, more than just referring you to my previous comment I will specifically ask:
There are more red governors than blue governors and if the Presidential election system breaks down then appointing president falls to congress which, by delegation, also has more Republican than Democratic members.
So explain to me, again, why it’s so great we’re jumping up and down on this norm that is basically a fence across a path that leads to republicans appointing the next resident of the White House? Surely you are not one of those fishing “heighten the contradiction” idiots?Report
Disqualifying a candidate from a state’s ballot doesn’t automatically toss the election to the Congressional delegation.
The Jan 2025 Congress can accept Colorado’s electors and just go ahead with certifying the vote.
And I see this in all apsects, from the rarified theory all the way down to the dirt level, that there is a benefit to speaking the truth openly and applying pressure where we can, when we can.
Trump is an insurrectionist who conspired to overthrow a free and fair election
We need to keep repeating that simple truth.Report
Sure but, say, if a large number of states reciprocate and retaliated it wouldn’t take much to derail the election process and then Congress is who it falls to. Likewise, by raw or positional count, the GOP controls more electoral votes in this kind of standoff. So in any scenario where both sides start banning the others candidate from ballots the outcome ends in a Republican President.Report
What was stopping red states from banning Biden yesterday?
Nothing. Nothing has changed in that regard, no flood gates have opened, no cans of worms or boxes of Pandora have been opened.
The MAGAs have been working furiously since November 2020 to stack state elections boards with toadies, to game out ways in which governors or legislatures can handpick slates of electors, in short, they have been trying every tool imaginable to thwart the free and fair elections which don’t turn in their favor.
No matter which way the Colorado court ruled, or how SCOTUS rules, this will continue.
Nothing the Democrats can do will change their zeal and commitment to installing a dictator.
We have no control over them.Report
There was a norm not to (not a law, a norm) and now a liberal Court is knocking that norm down. You honestly don’t think that would enable them to more easily escalate?Report
no, it doesn’t. the GOP has been escalating for the better part of 40 years. Don’t like the current president but have an open SCOTUS seat due to death? Refuse to hold hearings until your guy wins. Care more about power then the good of the nation? then when your guy is rightly impeached for engaging in an insurrection, don’t convict him and automatically bar him from office again. Don’t like the fact that the House Speaker decided not to crater the economy by working across the aisle on the debt ceiling? Fire him.
This is all just the recent part and parcel of the GOP’s willingness to burn everything down to stay in power. Even here in deep blue Mississippi, the GOP would rather throw 61,000 kids off Medicaid for paperwork work issues then accept the medicaid expansion that blue states will mostly pay for, in the midst of having the lowest workforce participation rate of any state and the highest maternal mortality as well.
They could have deescalated at numerous points. They didn’t and won’t. Time to switch up our tactics.Report
To… tactics that give the advantage to them? Boy howdy that’ll show them!Report
De-escalation would be making the gov less powerful so it’s less important who runs it. Making it more powerful means your side needs to fight harder to make sure the correct people are running it.Report
There’s no longer even lip service paid to moral reasoning, but your side’s extremists can’t even recognize practical reasoning.Report
Just keep iterating the game. Where does this lead?Report
A restoration of norms, of course.
I love the next scene, where Napoleon’s dogs heroically drive off Snowball.Report
Maybe, maybe not. But at least my sides extremists don’t run my sides political apparatus.Report
We all understand that the original lawsuit was filed by ‘registered Republicans and unaffiliated voters’… right?Report
Filed by? Sure. Decided by? Well…
I’d say that we are a little unclear on the concept.Report
Look, I think this is unlikely to stand on grounds of how the CO SC interpreted section 3. But I still don’t understand this math. GOP president engages in unprecedented actions and conspiracy to change the outcome of an election he lost. GOP primary voters say those actions merit his removal from the CO primary ballot and take action under CO election law to do so. CO district court says this is a federal question. Federal courts say no it isn’t so CO courts reach a holding on the merits. Somehow I am supposed to read this as a major overreach/misstep by the Democrats? The GOP and Trump in particular did it to themselves.Report
Please understand: I am *NOT* telling you how to read this.
I am telling you that it is being read.
And we’re back to the whole “death of the author” thing.Report
How it is being read by who? People on the internet? I’d like to think we have pretty well established at this point that takes that get ramped up on social media do not always perfectly align with actual sentiment. Trump himself is proof of that.Report
Not just people on the internet. Let’s look at how the WaPo sold it. This is copied and pasted:
It’s not about “who brought the case”. It’s about the outcome of the case.
Hell, just look at who lines up where on the cheerleading thing (and whether they’re object level or one of the two or three meta- levels).
Heck, even now, a handful of people who felt good about this yesterday have started feeling less good about it today. Oh, it was sweet on the tongue but it is bitter in the belly!
Report
Do you think that the on the fence voter in, say, Georgia or Michigan, is going to be thinking about this the day they are casting their vote in November? Even in the unlikely event the decision holds up I don’t.Report
Do you think that the on the fence voter in, say, Georgia or Michigan, is going to be thinking about this the day they are casting their vote in November?
Even if they are, it’s not entirely obvious to me it will be an unmixed blessing for him.
I mean, I’m not saying I have any deep insights into the mindset of the hypothetical future Michigan swing voter, but I’m not sure making the Jan 6 insurrection the pivotal issue of the election is necessarily gonna play out all that well for Team Trump.Report
My point is more that I doubt this is going to do anything to the salience of that issue one way or the other. I think on balance what that hypothetical voter does is going to be driven far more by what they were paying for gas and groceries in the last weeks of October than anything else.Report
Yeah, agreed, that’s way more likely.
But even if you assume the alternative scenario, and think the election is gonna hinge on this, I have no idea why you’d also just assume it’s good for Trump.Report
and think the election is gonna hinge on this
The argument, as I understand it, is not that it’s going to “hinge” on this.
It’s that, once again, it’s playing out that “the establishment” hates Trump. And Trump can say “I hate the establishment! And they hate me! Who are you going to support!”
And there is a weird group of voters out there in key states who find this moving enough to vote and every time something like this happens (because this won’t be the only thing like this that happens), it makes his assertions that “they are out to get people like us!” a little more persuasive.
It’s not that any given thing with be the thing that the election hinges on.
It’s that this is another pebble in the pile.
“It’s just a pebble!”, you can argue. You would be right.Report
It’s that, once again, it’s playing out that “the establishment” hates Trump. And Trump can say “I hate the establishment! And they hate me! Who are you going to support!”
Last time they supported the establishment. Right?
No, I’m not saying, “Everything is fine and there’s nothing to worry about.”
I’m saying, “This is not a convincing mechanism for questions about Trump’s involvement in the Jan 6 insurrection to play in his favor politically.”Report
If Hillary Clinton was historically awful at this, there’s nothing to worry about. It’s not that Trump was good at this, it’s that she was bad at it and all it takes is a semi-competent opponent to defeat him.
Biden has proven to be semi-competent.
But I remember what one of my buddies told me in November 2020: “Ah, this was just an election to see if you wanted his 2nd term to be right next to his 1st one or not.”
I don’t know that playing the whole January 6th card over and over again will result in it being obvious that Trump shouldn’t be elected again.
At the very least you should talk about Abortion and… well, maybe not Ukraine and Israel… but Abortion and maybe the environment.Report
If Hillary Clinton was historically awful at this, there’s nothing to worry about.
I remember well common defenses that Clinton supporters (such as myself) offered of her during the election.
Things like, “Oh, sure, she has high unfavorability but that’s all just because everybody knows her and has priced in years of partisan attacks, so it’s not a real liability. She’s already at her floor,” and, “It’s really obvious that all these scandals are just partisan nonsense, so they won’t move any voters.”
How’d that work out for us?Report
Well, then we just have two main questions:
How’s Trump doing, compared to 2020?
How’s Biden doing, compared to 2020?
If Trump is in a worse position today than he was in 2020, then that’s a good indicator.
If Biden is in a worse position today than he was in 2020, then that’s a good indicator.
The only thing to worry about is if any given event moves the needle for either guy.
Does this move the needle?Report
I wouldn’t assume that either. Trump is really ridiculously unpopular. From our side of things the problem is that so is Biden but it’s not like the broader public is walking around with this sunny, complete benefit of the doubt disposition towards Trump.Report
I believe what the federal judge said was none of the parties had standing to pursue the case in federal court. Which is different than saying there’s no federal issue.Report
From what I read, it’s simply that not all defendants consented to removal to federal court, which is required for that type of removal. The Colorado Secretary of State did not agree to the removal.Report
At least one of our side’s extremists isn’t on track to be our party’s Presidential nominee.
Again.Report
I agree that Trump being taken off the ballot creates some escalation risk, but consider that failing to escalate can, in some cases, increase the risk of other side escalating.
Trump and his cult tried to overthrow the government. If things had gone slightly differently that day, the mob might have broken into the chamber before Congress could be evacuated, and then several people (including Pence) would likely have been killed, and the House could have been coerced into certifying the election for Trump. I don’t know what would happen after that, but it wouldn’t be good.
Trump and his allies (which includes essentially the whole of the Republican Party at this point) are willing to destroy the United States rather than accept a fair loss. If Democrats and the Courts don’t do anything to stop them, or even make it costly to keep trying, they will just keep trying until they succeed.Report
Trump ain’t winning Colorado.
Or, at least, he *WASN’T*. This was a silly and stupid stunt, only a hair less silly than California’s given that it’s *POSSIBLE* for Trump to win Colorado, in theory.
They’re keeping a guy off the ballot that wasn’t going to win the state.
It was a hollow, callow, stupid gesture.Report
Some people would say that the flood of violent threats by his supporters shows why the ruling was correct.Report
Would you say that “you shouldn’t protest against judges” is a norm that we would be better off having?Report
“Protest”.
Would these be “mostly peaceful” protests?Report
Of course! You shouldn’t judge a movement by the opposition’s false flag actors that have been embedded in it, should you?Report
I’m not saying they are.
I’m just telling you how people are seeing it.Report
They’re not seeing it as “sauce for the goose”?Report
Exactly. It was extremely unfair of the CO Supreme Court to decide Trump was engaged in the Jan 6 insurrection that was perpetrated by Antifa crisis actors who were entrapped by the FBI!
Wait, what?Report
Well, then. We all agree that the CO Supreme Court made the right call and that anything bad that follows from this is something that ought not to have happened.Report
How did you get from, “The tide of death threats being addressed to the judges who ruled against Trump are false flags!” to, “Nothing bad will follow from this?”Report
Oh, the former was a reference to Chip’s assertions that a significant amount of the damage done in the mostly peaceful riots was done by right-wingers. I was mocking that. (And, yes, any immediate assumption that anything that reflects poorly on a team must have been orchestrated by the other team.)
As for the latter, when I play this out over and over in my head and iterate it a number of times, I get to a handful of different Schelling points and they are all negative. There are ways off this track, it seems to me, but they all involve changing what is under our locus of control rather than getting/forcing others to change what is under their control.
Which, it seems to me, ain’t gonna happen.Report
There is a vast difference between “protesting Judge’s rulings” and “making death threats against them personally”.
That’s especially true in a world where we’re trying to take all threats seriously because of school shooters and the like.
We’re in terrorism territory. The people making threats need to be arrested.Report
I’m sure that any and all death threats have been passed along to law enforcement where they will appropriately investigated.Report
The people making threats need to be arrested.
Or at least, removed from the Colorado ballot.Report
Well, Colorado does have a history of hollow, callow, stupid gestures.Report
All salient points James and I also agree that a muscular response to Trumps’ transgressions and misbehaviors is necessary. Where I disagree is the premise that this is a sensible, muscular response.
As InMD noted this case was brought by anti-Trump republicans and then the final judgement was rendered only by Democratic appointed judges. That is a terrible response. It’s a bunch of losers, who- let us not forget- caused this entire mess in their party in the first place, asking the courts to help them seize their party back against the wishes of its overwhelming majority. And it’s only Democratic judges handing down the decision. It’s a bad choice and it plays to the strengths of Trump and Trumpians.
I approve of, and whole heartedly endorse, the relentless ratcheting court cases that are methodically tightening the noose around Trump and his cronies every day. They are slow but they’re solid and they play to our strengths. I grant that they well may not complete their good work by election day but those are the difficulties. Being the good guys is hard but if Biden wins election then Trump and his movement will be eviscerated and these cases will relentlessly, and morally strangle his movement.
Banning Trump from the ballot is like throwing a punch at a dim witted 300 lb muscled brute who called you a name. It is a response, sure, but it moves the conflict into a realm where the aggressor has the advantage. It plays to their strengths. All constitutional principles aside, and there’re many, I do not like playing to Trumpians strengths.Report
LOL. Given Trump’s preferred legal strategy, that means Biden is president for life.Report
People that go around doing that will end up in court a lot, and the answers to the questions that person’s conduct raises will not always go in his or her favor.
Especially as the process allows them to make a large number of motions and run the case up and down the appeals ladder for a long time. The court system is ill-equipped to handle cases that aren’t cut-and-dried on a hard schedule like elections.
That was one of Trump’s legal strategies all through his business career: “I can afford to drag this out in court longer than you can stay solvent enough to hire attorneys.”Report
Related article from WaPo about the other times the 14th has been used:
This is the first time the provision has been used to bar a presidential candidate from appearing on a ballot, but it has been invoked in the past to remove elected officials from office — most recently last year.
A county commissioner in New Mexico was removed from office in 2022 after a judge ruled he had engaged in insurrection in the U.S. Capitol attack on Jan. 6, 2021. The former commissioner, Couy Griffin, lost an appeal.
The clause disqualifies from public office anyone “who, having previously taken an oath … to support the Constitution of the United States” has then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” The text doesn’t specify who is supposed to enforce it or when it should be invoked — whether before or after an election — so the responsibility has fallen to different bodies. Griffin was disqualified in state court, but historically, the U.S. Congress has used it to prevent elected members from being seated.
Two of those instances highlight the inconsistency of the clause’s application: the last time it was used successfully prior to 2022, nearly a century ago against antiwar lawmaker Victor Berger (who was not, by any standard definition, an insurrectionist), and when it was applied against former Confederate officer Zebulon Vance — who, like Berger, was allowed to waltz back into office once the political winds had shifted in his favor.
https://www.washingtonpost.com/history/2023/12/20/insurrection-14th-amendment-history-trump/Report
ya know, one wonders what is in the House Select Committee om January 6th’s records that might allow this challenge to be brought to Republican Congressmen currently doing things like leading the House Judiciary Committee.Report
For everybody who’s complaining about how CO Supreme Court decision is anti-democratic and disrespects the will of the voters, I’ve got some bad news about Donald Trump.Report
Amid all this talk of “norms” and “cans of worms” I think the most valuable norm which is being broken is allowing a violent insurrectionist faction to become a legitimate party, and the worst “can of worms” is to let this become the new norm.
As Jaybird might point out, if Jan 6 is the new norm where a defeated President can whip up a murderous mob to coerce Congress into overturning the results of the election, what is the next iteration of this game in Jan 2025?Report
Like this is actually, from that perspective, a tit-for-tat defection against repeated defections on the part of Trump and the GOP against liberal democracy.
On those grounds, I think it’s totally fine, and really don’t get why JB is complaining about it in these terms.
My worry (which I think mirror’s North’s) is that it places a lot of pressure on state courts and state election laws that they were not really built to handle, and that this is actually a choice of battlefield that favors the GOP. I’m actually surprised we haven’t seen a torrent of challenges to Biden’s eligibility on the grounds that he’s, say, providing aid and comfort to enemies of the United States by opening the border, and am not serenely confident that when that happens, there won’t be state courts ruling against him.
Worse, while state courts that do rule against him are unlikely to tip the election, any precedent that we get stuck with here also applies to Congressional and state elections, where there aren’t any Blue or Purple state EVs to save us.
SCOTUS basically can’t not rule on this, and if they let it stand, I’m not sure how they let it stand without opening the door for those shenanigans, nor do I trust anyone to the right of Roberts (which is still a majority) to want to keep the door on those shenanigans closed.Report
“I think it’s totally fine, and really don’t get why JB is complaining about it in these terms.”
If you want to move into playing an iterated-dilemma game where tit-for-tat defection is considered morally acceptable, hey, that’s fine, but I remember you and a whole bunch of other people telling us that tit-for-tat defections were morally transgressive because what we saw as “defection” was in reality just balance being restored.Report
Huh?Report
what we saw as “defection” was in reality just balance being restored.
Yes, that’s what we keep pointing out. A violent mob whipped up by Trump in an effort to overturn a free and fair election is, in their eyes, simply the rightful order being restored.Report
I endorse Pillsy’s comment here unreservedly.Report
I am just thrilled that we’re finally all in agreement that nobody cares about this “democracy” crap.
We can finally move on.Report
How do you think we should properly demonstrate that we care about democracy when one of the major candidates for office has already tried to overthrow it once?Report
Well, “putting it up for a vote” ain’t on the table.Report
Well, “putting it up for a vote” ain’t on the table.
Yes, that is, in fact, a feature of our Constitutional order, which provides multiple mechanisms to prevent people who try to overthrow democracy from being (re-)elected, including Section 3 of the 14th Amendment.
You like game theory, so it should be obvious why.Report
One of the things the original Constitution was not set up to handle was insurrection and rebellion.
Which is where the 14th Amendment come in.
The logic of them was to prevent future insurrectionists from resuming power once the insurrection failed.Report
Yup. I think there are conditions under which barring a candidate (including Trump) from running because of Section 3 would be totally fine.
I just think state courts deciding on their own without a criminal conviction to base their ruling on is really not it.Report
“How do you think we should properly demonstrate that we care about democracy when one of the major candidates for office has already tried to overthrow it once?”
If this is so obviously the case then it doesn’t seem like it would be hard to find evidence worthy of criminal indictment and then make a case in court that a jury found persuasive.Report
I think criminal conviction is the right standard and have said as much elsewhere.Report