Whether courts can disqualify presidential candidates under Section 3 of the Fourteenth Amendment is a legal *and political* minefield that the U.S. Supreme Court will now have to navigate
Please give more consideration to the relevance of Marbury. The doctrine of judicial review gets established, but the trade-off is acceptance of partisan power politics never anticipated by the framers and the naming of “the political question” as a definite basis for disqualifying standing. Still, the rhetorical critique of Jefferson and Madison for their denial of Marbury’s fundamental rights as well as the disrespect of legal actions by a sitting president serves as an authoritative warning or reminder on political decorum, the importance of civility, especially obeying necessarily inferential rules of the game. Trump’s disingenuous denials of the results of the 2020 election and current remarks indicating that if elected in 2024, he’d continue in office, evidence his contempt even for the electoral process he’s mastered with a subgroup of eligible American voters. Let’s remember that in the fall of 2020, he lost 60 of 61 court challenges. He’s put the American judicial system on trial. Does the Constitution of the United States undergird the entire political system of the United States or doesn’t it? Section 3 of the 14th Amendment anticipated a major threat to the Constitution. Doesn’t Trump’s irrepressible defiance plainly pose such a threat?
You seem very intelligent. Probably the most intelligent comment on this thread. But...
1. “Subgroup of eligible voters”?? Are you referring to the 75 million of us who voted for him? Is that a “subgroup” to you? Keep in mind, that is the second most votes in American history. In addition, he gained the most votes ever from first election to second. Let’s not marginalize 75 million voters please.
2. Trump didn’t “lose 60 of 61” court challenges. 60 cases were not taken up by the courts. Probably for the same reasons the Colorado Supreme Court is now trying to bar him from the ballot. There is enormous pressure from the left for courts to eliminate the Trump problem. The cases were rejected based on legal technicalities, primarily standing. So let’s not pretend that all those cases were adjudicated. He won the only case that WAS adjudicated.
3. Trump has neither been charged with, nor convicted of anything remotely resembling what is covered in the 14th amendment. Further, the 14th amendment makes no mention of the Presidency. It lists many other roles by name, but conspicuously absent is the Presidency.
4. How do you know his denials of the election result were “disingenuous”? Liberals changed all the election rules in the last minute (in some cases violating state law, Pennsylvania) and allowed roughly a third of voters to vote by mail. A recent poll found that roughly 20% of voters who voted by mail admit to some type of fraud (I’ll try to find the link). Additionally, for the first time in history (other than 2000), we didn’t know the result until long after Election Day. Now we’re told this is what we should always expect. Well why is that? If our technology has gotten dramatically better, why should we have to wait until days later? We went to sleep with Trump in a significant lead and we woke up to line graphs showing 100,000 vote spikes in the middle of the night for Biden. Mysteriously, these graphs can no longer be found on the internet, but we all remember them vividly. Additionally, nearly all of the typical election norms that have been the for decades somehow broke down. Here are just a couple of them...1. Whoever wins Ohio wins the other rust belt states. Trump won Ohio by 8 points but somehow lost the other 4 states. 2. Whoever wins the plurality of the “bellwether counties” wins the presidency. Trump won 18 of 19 of those counties but somehow lost. Trust me, there are PLENTY of reasons to believe the election was stolen. And Trump believe that with every fiber of his being. But see you had to say “disingenuous” because deep down you know that your party has been denying elections for at least two decades. Al Gore, Stacey Abrams, Hillary Clinton, and most certainly Biden would have.
A correction 74 million voted for Trump not 75 million, &5 is right wing propaganda
and yes the fascist Trump humpers are a sub group, but a very large cult, If the rest of us can vote and have our votes counted, his threat will be mitigate, What worries me besides the voter nullification laws enacted by Republican legislatures, is the voter suppression that will take place with armed militia poll watchers, restrictions on voting booths and drop boxes and MAGAt election officials. The real problem is those petulant minorities, like idiot leftists, students, Muslims and young black males that will either not vote for vote for a third party, thus guaranteeing the loss of their and our freedoms.
Aaron, States differ in their procedures for reporting absentee ballots cast early. In Ohio, early votes get announced first. Lately, that’s means that Democrats appear to have done very well, but, as day of voting ballots get counted and reported, Rs tend to overtake Ds. Next, for lots of reasons, OH isn’t the bellwether state it once was. We are less diverse, and the Rs have far outpaced and out organized Ds, especially in rural and ex-urban counties. Please explain how and why Trump failed to meet standing requirements in his legal 2020 alleged fraud challenges. The GOTV operations are complex, for sure. But ever since Alexander Hamilton obsessively established high standards for data collection and accurate counting of votes, there was advocacy and serious effort to assure accurate counting of votes as well as legal voting in the first place.
Trump lost the popular vote in 2016. In an intense mobilization effort that happily increased voter turnout nationally in 2020, he lost again. It’s important that any president be elected with a majority of votes per the intent of the 12th Amendment. Eventually, I hope that states will implement rank-choice voting for Presidential elections as well as other offices.
We don’t elect presidents based on popular vote. We elect them based on the Electoral College. Trump lost the Electoral College in 2020 by 44,000 votes. For some perspective, that’s less than Stacey Abrams margin of loss in the the Georgia gubernatorial race. And of course you know how that story went.
Of course, there’s this little gem 👇🏼Yeah, 2020 was a perfectly normal election. Most securest, accuratest, and bestest election ever. Except for that massive liberal ‘shadow campaign’. None so blind as those who refuse to see.
Uhh... did you read the article? It goes against everything you say. Like That 'shadow campaign', according to the article, made the election secure, accurate, and 'bestest'. Also, there are not 44,000 electors. There are 538. I get that it's difficult to read long articles from Time and stay awake, but you only have to read the first few paragraphs to get the gist. If you're going to cite sources, make sure that they agree with you.
Do you think a liberal organization would conduct such a poll? I’ll make you a deal...find me a similar poll conducted by a liberal organization and I’ll read it.
"The Heartland Institute is an American conservative and libertarian public policy think tank known for its rejection of both the scientific consensus on climate change and the negative health impacts of smoking."
Your assumption here seems to be that a majority of these 'fraudulent' ballots were against Trump. Most seem to be in the category of assisting someone in filling out a ballot. Are you aware that assisted living and nursing facilities assist their residents in filling out ballots? I'm not sure your assumptions hold.
While the Supreme Court affirming the Colorado decision that Trump is an insurrectionist is comforting, letting him stay on the ballot because this clause of the 14th amendment is not self executing would render the finding to be moot. From a political standpoint, it also means a court has ruled that an insurrectionist can run for president. Let’s wrap our hands around that.
There’s an increasing likelihood that we will find out. In fact, I would think that the whole Colorado thing was a red flag operation by Trump if I thought he could play that sort of 3D politics.
Thank you, Professor Vladek. Extremely thoughtful, mature discussion of a very difficult situation. However, I would think it a transparent dodge for Court to rule that XIVth is not self-executing or that it does not apply to presidential candidates. If they’re going to slip out the side door on this (and there may be noble, time-honored reasons to do so), perhaps better to say federal conviction is a necessary predicate for disqualification. That would link in section 5.
Whatever they do, I pray it is unanimous or a 6-3 or better ruling. Please, dear God.
And that would be anchored by the existence of a specific federal crime of insurrection, by which Congress can be determined to have precluded any state action on the subject.
We need a unanimous decision, even if it some “concur in result only.”
Thank you. I too find myself conflicted. He is unquestionably guilty, of sooo much, and accountability for his conduct is unquestionably overdue, including bar from public office, and bars between him and the general public. But, I fear nothing short of a resounding loss in the election will end this nightmare, and avoid martyrdom.
William, it would be a nightmare if he wins in November. As long as he is kept away from the Oval Office, and he would be if the SC finds that incited the insurrection, the MAGA nightmare would continue, but I can live with that.
Really? I don't see that because the mechanism they use to dismiss court decisions (it's all rigged against him, our dear victim who feels victimized like we do which is why we identify with him) will continue to operate. The only thing I see snapping them out of it is seeing they were conned. This is how the movie, "A Face in the Crowd" ends. The main character's fans adore him until the live mic after one of his TV performances shows them what he really thinks of them - they're idiots.
Here's another example. (I remember hearing the story but I can't find the actual.) It was a Klan leader in the 1950s who was accused of misusing funds. He took the 5th. In the 1950s, taking the 5th is what, the Klan members believed, Communists did. And they rejected him for both the misuse of THEIR money and taking the 5th.
We'll see maybe. That's my assessment. Schoolchildren learn early cheaters ruin the game. Fundamentally this is what this is. And.it'll be tough to sustain the idea a 6-3 Conservative Court is the Deep State..you're into deep paranoia.
Interested in your reaction to Prof. Lawrence Lessig's take? This is from his writeup at Slate:
"Law professor Kurt Lash has shown that the crafting of Section 3 [of the 14th] to omit the president was not an oversight. As his work shows, an earlier draft of the clause expressly mentioned the president; that mention was removed....
There is an obvious reason why the only two nationally elected officers would be excluded from its reach. It took mere moments after the Colorado Supreme Court’s ruling to see why, as Texas Lt. Gov. Dan Patrick threatened to remove President Joe Biden from the Texas ballot as retribution. You see, with every other officer excluded under the provision, the state official or state court effecting that exclusion would feel the political costs of their decision alone. If the Missouri secretary of state decides that Josh Hawley was an insurrectionist — for both advancing a plainly illegal theory under which Congress could reverse the electoral votes of Pennsylvania, and for rallying the rioters on Jan. 6 with his now-infamous salute — then Missouri and its voters will bear the political costs of that decision alone. Its act would not impose a cost on other states. But if state officials from blue states can remove red state candidates, or vice versa, that state bears no cost. Instead, it gains a political victory. In the language of economics, the decision imposes an externality on the nation, which is exactly the kind of decision that states alone should not be making for other states. Such behavior is obvious to lead to a tit for tat and a breakdown of our entire electoral system...."
If the Supreme Court owes a responsibility to the institutions of our democratic government, I don’t see why keeping Trump off the ballot disrespects those institutions. He’s just a guy (who, by hypothesis, engaged in insurrection), but the party he represents still remains free to select another candidate. It seems like we’re inflating the importance of Trump to view his disqualification as some sort of major blow to democracy -- however rabid his supporters might be, he’s forfeited his entitlement under the Constitution to insist that voters have a chance to elect him to federal office. Hardly a constitutional crisis.
You really don’t think that keeping Trump off the ballot won’t provoke a constitutional crisis if it spreads beyond Colorado? It’s not Trump that’s important - it’s the millions of voters who will believe themselves to have been disenfranchised, and millions more who will recognize that fact even though they don’t like Trump, unless Trump actually wins the election anyway. My hope is that the SC slam dunks this potentially dangerous precedent and leaves Trump to win on the merits, if he can.
MAGA are fantasists who have to believe impossible things to inhabit an alternative reality. Worry much, much, more about everybody else, a majority of whom already agree with Colorado S.C. , 54%, including 12% Republicans.
I actually know people who voted for Trump. They aren’t fantasists, any more than the rest of us. Or maybe, just as much as the rest of us. But the interesting thing is that they tend to be people who can survive in situations lots of people probably won’t. They are people who work with their hands, and actually know how to use tools to build things. Civilization rests on the backs of these people, and they don’t really need you. Or me, for that matter. But you need them. As do I.
The only income bracket Trump won was > $100k. BTW, I'm one of those people who earned a living with his hands, I've worked on everything from circuit boards to a supertanker. I also know what paranoid ideas are. MAGA is overrun with them. None thought to question why Trump's campaign pros, who know the numbers down to the precinct level, wouldn't support his claims he won.
“By hypothesis”? Wtf? You’re seriously ok with removing the most popular candidate from the ballot based on the “hypothesis” that he committed an insurrection, a crime he hasn’t even been charged with. What the hell is wrong with you people? Were y’all born yesterday?
Wish we had known it was perfectly acceptable to remove candidates from the ballot based on hypotheses. We could have avoided the pain of Obama’s 8 year reign simply by hypothesizing that he wasn’t a natural born citizen. We really missed an opportunity there!
Reading comprehension isn’t your strong suit, I guess? I’m addressing the point raised by Professor Vladeck that the Supreme Court has to consider the political implications of the decision whether to affirm the removal of Trump from the ballot. Unless the relevant criteria for disqualification have been established -- i.e., that he engaged in insurrection -- the Court need not confront this political issue. Thus the *hypothesis* that Trump’s conduct meets the standard for disqualification. Oh, and there’s also the fact that the Colorado courts have now ruled that this standard *has* been met. But hey, if Trump’s the “most popular candidate” (who has never won the popular vote in any election), then I guess none of this fancy legal stuff matters, right?
Also, according to recent polling, he is the most popular candidate in THIS election. The only election that matters in the context of trying to keep him off the ballot.
The Robert E. Lee example is stupid. Lee WAS an officer of the confederate army. He’s exactly who the 14th amendment was designed to prevent from holding public office. He is no way a parallel to Donald Trump. It’s kind of absurd that you would even make such a connection. To do so is equating a few hours of chaotic riot at the Capitol to the freaking Civil War! What is wrong with you people?
Well...he hasn’t been charged or convicted of anything even remotely resembling what is covered by the 14th amendment. Also, the 14th amendment doesn’t mention the Presidency. So... in my opinion, there is likely nothing he could do that would disqualify him based on the 14th amendment.
But I know to y’all, that doesn’t matter. It’s whatever it takes to keep him from taking office again. Because that’s what you’ve been told for 8 years you should feel. Y’all are a pathetic bunch.
Research the constitution. That’s kinda how it was set up. The gridlock is intentional. The wild swings will even out. How violent will the swings be if either party can begin excluding the opposing candidate from the ballot based on nonsense?
Hint...Abe Lincoln was excluded from the ballot in many southern states just before the Civil War. Hang in there, my Aussie friend!
One point that has gone mostly unsaid is that regardless of left/right political philosophy divisions, Trump is so thoroughly dishonest and unpredictable that he is not a good (or valid) avatar of any political philosophy. In practice, a second term in office could easily be a disaster for honest conservatives, for Republicans, for democracy, for the country, and for the world. If the right-wing members of the Court are genuinely conservative, they might conclude that letting Trump stay on the ballot does not serve the interests that they value, and thus they might not, in their heart of hearts, want him to stay on the ballot. If so, they have off ramps.
This mess is the result of Trump and his group of encouragers. Had he been raised with a little bit of humility or sense of right, then this would have never happened and our country might not be on the precipice.
Could the Supreme Court hand down opinions on both this (reversing Colorado on whichever grounds) and the Presidential Immunity case (holding it doesn't exist) on the same day as a mechanism to generate the appearance of splitting the baby?
You assume the risks posed to civic stability are approximately equal either way whether the Court upholds Anderson or not. I don't think they are. I see the threat of MAGA rage as a bluff and a con; these are primarily people who believe impossible things in order to participate in a fantasy, to which the WWE is more than a little analagous. This is why, since Jan. 6 itself, we have seen no organized, competently executed actual acts of violence. My bet is we won't if Anderson is upheld, in fact it might be the thing that finally causes people to "snap out of it".
OTOH, the risk to civic stability of Trump's reelection in the face of the majority's conviction he was not constitutionally eligible to run, and is thus wholly illegitimate, no matter what those "partisan hacks in robes" ruled, is dire, and it would be reckless to let normalcy bias cause us to disregard it.
Not a lawyer myself, very much appreciate hearing you all think out loud.
My question in all of this, what if the court makes no decision before the R primary or the general? Trump is on the ballot, gets votes. If the court then rules and upholds that he committed insurrection and is disqualified from office, those votes are counted, but then, what? Ignored? Shouldn't the CO Secretary of State put a warning on the ballot that a vote for Trump before SCOTUS issues a ruling may potentially be a wasted vote?
Geez y’all are a mess. Warnings on ballots? Is that democracy to you? Here’s a novel idea...how about we let the leading candidate for president appear on the ballot and let the people decide if he should be president? What if we just did that? After all, it’s worked for the last 250 years. 🤷♂️
Because electoral politics must take place within the bounds of the Constitution. That's foundational, as Constitution in fact created politics. Every game has rules.
Keeping someone off the ballot does not keep them from the election and from winning a plurality of votes. So it seems to me that a finding of disqualification should take place before the election, but the act of disqualification would take place after the election. Votes for a disqualified person are simply invalid -- like a vote for Olivia Rodrigo or Mickey Mouse. Both of these folks might have great policy positions, but they are disqualified, Mickey forever and Olivia until she turns 35.
So it strikes me that the court order removing Trump from the primary ballot is improper or at least incomplete. I would imagine the order to read that Donald Trump is disqualified from office and votes for him are proactively declared invalid. If the Republican party then wants to run a disqualified individual it is their problem.
My thought, too, but I thought someone else might have it so I refrained from posting it before reading all the comments. :)
Ironically, this understanding of the role of Congress in reviewing recognition of the proper Electors seems to me to have been at the bottom of Trump’s confused understanding of Congress’ role.
I think this is both a good solution and a good prediction. No one will be happy. But this is the best possible outcome for the court and for a bar to chaos--state the factually true (Trump engaged in insurrection) and fudge the legal. Faulty result/reasoning, but most Solomonic. But can Roberts get angry old men Alito/Thomas on board by threatening to bar Trump? I'm skeptical due to their contempt for anything but their political mission--but that's Roberts' needle to thread.
"1. President Trump did, in fact, engage in “insurrection” through his efforts, both before and on January 6, to encourage the use of both subterfuge and force to subvert the results of the 2020 presidential election—and to prevent the transition of power to his (duly elected) political opponent."
While facially tRump's actions subsumed "insurrection", or "giving aid and comfort...", at this moment it's an opinion, not a dispositive fact, at least not one decided in a court of law by a jury of tRump's peers. Insurrection, of course is a federal crime - 18 U.S. Code § 2383 - but tRump has not been charged accordingly, and therefore his actions as insurrectionary remain as those in the eyes of the beholder. Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion, but as yet there has been no hard-and-fast determination of tRump's actions as insurrectionary, other than several Colorado judges proclaiming them just so. Would that suffice for SCOTUS? I'm inclined to think not, certainly absent a conviction. And without the latter, tRump walks, IMHO.
I'm sorry, it's incoherent to say that "Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion," yet demand that Trump be formally adjudicated as an insurrectionist. Why isn't Trump also one "by definition?" Because he did not personally take up arms against the Capitol police? Neither did most Confederate state officeholders. If some guilty behavior is provable by the evidence of everyone's eyes--and some is--then Trump's behavior qualifies.
Also, remember that criminal conviction of insurrection is necessary for depriving the accused of life, liberty or property, but disqualification from political candidacy is a civil matter, not a criminal penalty. Criminal due process is a non-issue here. This is closer to a determination that Trump was in reality not a natural-born citizen, or--despite his appearance--not yet 35 years of age.
Yes. There has been in depth analysis of the history that spells out what "insurrection" entails & Trump's acts apply. The district court had a hearing on the question. The provision historically and by nature does not require a criminal trial process.
The historical analysis has cited that interference of the transfer of power -- which is one of the counts in the D.C. case (interference with the 1/6 proceeding) -- as a form of insurrection. If Vice President Breckinridge, instead of becoming a Confederate general, tried to stop Lincoln from being president by interference of the electoral count, I think he would have been disqualified as well.
Wasn’t the Confederate situation the result of Congressional action? And as such, based in Congress’s authority to judge the qualifications of its own members, needing no judicial determination?
Early uses of Section 3 were just that Congress refused to seat ex-Confederates who had been elected to the House. The point is that there was no requirement for a statute to be passed by Congress that they had that power, or that some court first needed to declare the incoming reps as insurrectionists.
On the broader question of whether Section 3 is "self-executing," I here quote from a persuasive article by Mark Brown, a law professor at Capital:
"Section 1983 was passed in 1871 to correct state and local abuses of freed slaves throughout the Reconstructed South. It awarded, and still awards, the victims of unconstitutional conduct a private action against the offending government official. It has in modern times (defined as since 1961) become the premier mechanism for vindicating federal wrongs perpetrated by state and local officials.
"But before modern developments beginning in 1961, constitutional provisions (including those in the Fourteenth Amendment) were always understood to be enforceable without federal enforcement statutes like section 1983. As explained by Professor Anne Woolhandler, “positive,” “direct,” “offensive” constitutional litigation in state and federal courts long preceded the adoption of the Fourteenth Amendment in 1868, section 1983 in 1871, and general federal question jurisdiction in 1875. “Throughout the nineteenth century, both before and after Reconstruction,” she explains, “the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it.” Consequently, “much of the Supreme Court’s development of individual rights and remedies took place without reliance on either federal question jurisdiction or statutes such as § 1983, but rather under the rubric of diversity jurisdiction.” Congressional enforcement mechanisms and federal question jurisdiction did not exist, were not used and were unnecessary. Constitutional provisions were fully enforceable without congressional assistance."
It was not several Colorado judges proclaiming them just so. It was the finder of fact, the trial judge, who heard all the evidence over a 5-day trial at which Trump's interests were defended by competent counsel. The trial judge ruled, not proclaimed, that the evidence showed that he engaged in insurrection. Anyone can disagree, but that is a lot different than saying several judges - or, a few guys/gals - simply proclaimed.
I think this summarizes things generally well. Thank you.
Various Republican senators said they did not convict because the Senate did not have the jurisdiction to try the case after Trump left office. The argument they "acquitted" him & thus he's immune is doubly wrong. There is no double jeopardy bar anyway.
[To address an argument some make]
It would have been advisable -- a bill was offered, and the 1/6 Committee Report referenced it -- for Congress to pass enforcement legislation. Republican senators (57 convicting & others like Mitch McConnell not denying he was guilty) also could have voted on such a law and/or a resolution with a "whereas" stating Trump committed insurrection. Another way we could have avoided this.
If we are dreaming, what they should do is pass a joint resolution that he engaged in insurrection and is disqualified. They could have done that in February 2021 & Republicans would not have had a "Trump's not in office, so we can't try" him dodge.
Please give more consideration to the relevance of Marbury. The doctrine of judicial review gets established, but the trade-off is acceptance of partisan power politics never anticipated by the framers and the naming of “the political question” as a definite basis for disqualifying standing. Still, the rhetorical critique of Jefferson and Madison for their denial of Marbury’s fundamental rights as well as the disrespect of legal actions by a sitting president serves as an authoritative warning or reminder on political decorum, the importance of civility, especially obeying necessarily inferential rules of the game. Trump’s disingenuous denials of the results of the 2020 election and current remarks indicating that if elected in 2024, he’d continue in office, evidence his contempt even for the electoral process he’s mastered with a subgroup of eligible American voters. Let’s remember that in the fall of 2020, he lost 60 of 61 court challenges. He’s put the American judicial system on trial. Does the Constitution of the United States undergird the entire political system of the United States or doesn’t it? Section 3 of the 14th Amendment anticipated a major threat to the Constitution. Doesn’t Trump’s irrepressible defiance plainly pose such a threat?
You seem very intelligent. Probably the most intelligent comment on this thread. But...
1. “Subgroup of eligible voters”?? Are you referring to the 75 million of us who voted for him? Is that a “subgroup” to you? Keep in mind, that is the second most votes in American history. In addition, he gained the most votes ever from first election to second. Let’s not marginalize 75 million voters please.
2. Trump didn’t “lose 60 of 61” court challenges. 60 cases were not taken up by the courts. Probably for the same reasons the Colorado Supreme Court is now trying to bar him from the ballot. There is enormous pressure from the left for courts to eliminate the Trump problem. The cases were rejected based on legal technicalities, primarily standing. So let’s not pretend that all those cases were adjudicated. He won the only case that WAS adjudicated.
3. Trump has neither been charged with, nor convicted of anything remotely resembling what is covered in the 14th amendment. Further, the 14th amendment makes no mention of the Presidency. It lists many other roles by name, but conspicuously absent is the Presidency.
4. How do you know his denials of the election result were “disingenuous”? Liberals changed all the election rules in the last minute (in some cases violating state law, Pennsylvania) and allowed roughly a third of voters to vote by mail. A recent poll found that roughly 20% of voters who voted by mail admit to some type of fraud (I’ll try to find the link). Additionally, for the first time in history (other than 2000), we didn’t know the result until long after Election Day. Now we’re told this is what we should always expect. Well why is that? If our technology has gotten dramatically better, why should we have to wait until days later? We went to sleep with Trump in a significant lead and we woke up to line graphs showing 100,000 vote spikes in the middle of the night for Biden. Mysteriously, these graphs can no longer be found on the internet, but we all remember them vividly. Additionally, nearly all of the typical election norms that have been the for decades somehow broke down. Here are just a couple of them...1. Whoever wins Ohio wins the other rust belt states. Trump won Ohio by 8 points but somehow lost the other 4 states. 2. Whoever wins the plurality of the “bellwether counties” wins the presidency. Trump won 18 of 19 of those counties but somehow lost. Trust me, there are PLENTY of reasons to believe the election was stolen. And Trump believe that with every fiber of his being. But see you had to say “disingenuous” because deep down you know that your party has been denying elections for at least two decades. Al Gore, Stacey Abrams, Hillary Clinton, and most certainly Biden would have.
Point 2 is flatly a lie, Trump was ruled against in numerous cases.
A correction 74 million voted for Trump not 75 million, &5 is right wing propaganda
and yes the fascist Trump humpers are a sub group, but a very large cult, If the rest of us can vote and have our votes counted, his threat will be mitigate, What worries me besides the voter nullification laws enacted by Republican legislatures, is the voter suppression that will take place with armed militia poll watchers, restrictions on voting booths and drop boxes and MAGAt election officials. The real problem is those petulant minorities, like idiot leftists, students, Muslims and young black males that will either not vote for vote for a third party, thus guaranteeing the loss of their and our freedoms.
Here’s the link...1 in 5 voters admit to some kind of fraud...Trump lost by 44,000 votes. 🤷♂️
https://finance.yahoo.com/news/heartland-rasmussen-poll-one-five-161100197.html
Aaron, States differ in their procedures for reporting absentee ballots cast early. In Ohio, early votes get announced first. Lately, that’s means that Democrats appear to have done very well, but, as day of voting ballots get counted and reported, Rs tend to overtake Ds. Next, for lots of reasons, OH isn’t the bellwether state it once was. We are less diverse, and the Rs have far outpaced and out organized Ds, especially in rural and ex-urban counties. Please explain how and why Trump failed to meet standing requirements in his legal 2020 alleged fraud challenges. The GOTV operations are complex, for sure. But ever since Alexander Hamilton obsessively established high standards for data collection and accurate counting of votes, there was advocacy and serious effort to assure accurate counting of votes as well as legal voting in the first place.
Trump lost the popular vote in 2016. In an intense mobilization effort that happily increased voter turnout nationally in 2020, he lost again. It’s important that any president be elected with a majority of votes per the intent of the 12th Amendment. Eventually, I hope that states will implement rank-choice voting for Presidential elections as well as other offices.
We don’t elect presidents based on popular vote. We elect them based on the Electoral College. Trump lost the Electoral College in 2020 by 44,000 votes. For some perspective, that’s less than Stacey Abrams margin of loss in the the Georgia gubernatorial race. And of course you know how that story went.
Of course, there’s this little gem 👇🏼Yeah, 2020 was a perfectly normal election. Most securest, accuratest, and bestest election ever. Except for that massive liberal ‘shadow campaign’. None so blind as those who refuse to see.
https://time.com/5936036/secret-2020-election-campaign/
Uhh... did you read the article? It goes against everything you say. Like That 'shadow campaign', according to the article, made the election secure, accurate, and 'bestest'. Also, there are not 44,000 electors. There are 538. I get that it's difficult to read long articles from Time and stay awake, but you only have to read the first few paragraphs to get the gist. If you're going to cite sources, make sure that they agree with you.
Do you think a liberal organization would conduct such a poll? I’ll make you a deal...find me a similar poll conducted by a liberal organization and I’ll read it.
This is the sponsor/creator of this "poll".
"The Heartland Institute is an American conservative and libertarian public policy think tank known for its rejection of both the scientific consensus on climate change and the negative health impacts of smoking."
https://en.m.wikipedia.org/wiki/Heartland_Institute
Your assumption here seems to be that a majority of these 'fraudulent' ballots were against Trump. Most seem to be in the category of assisting someone in filling out a ballot. Are you aware that assisted living and nursing facilities assist their residents in filling out ballots? I'm not sure your assumptions hold.
Read this and tell me what you think...
https://fivethirtyeight.com/features/what-absentee-voting-looked-like-in-all-50-states/amp/
That’s all you got? Seriously? Hang in there, Mary!
While the Supreme Court affirming the Colorado decision that Trump is an insurrectionist is comforting, letting him stay on the ballot because this clause of the 14th amendment is not self executing would render the finding to be moot. From a political standpoint, it also means a court has ruled that an insurrectionist can run for president. Let’s wrap our hands around that.
What happens if the insurrectionist wins?
There’s an increasing likelihood that we will find out. In fact, I would think that the whole Colorado thing was a red flag operation by Trump if I thought he could play that sort of 3D politics.
Thank you, Professor Vladek. Extremely thoughtful, mature discussion of a very difficult situation. However, I would think it a transparent dodge for Court to rule that XIVth is not self-executing or that it does not apply to presidential candidates. If they’re going to slip out the side door on this (and there may be noble, time-honored reasons to do so), perhaps better to say federal conviction is a necessary predicate for disqualification. That would link in section 5.
Whatever they do, I pray it is unanimous or a 6-3 or better ruling. Please, dear God.
ArtI.S4.C1.1.1.1.1 Role of the States in Regulating Federal Elections
states cant remove a president
Don’t think anyone has argued that they can.
And that would be anchored by the existence of a specific federal crime of insurrection, by which Congress can be determined to have precluded any state action on the subject.
We need a unanimous decision, even if it some “concur in result only.”
Thank you. I too find myself conflicted. He is unquestionably guilty, of sooo much, and accountability for his conduct is unquestionably overdue, including bar from public office, and bars between him and the general public. But, I fear nothing short of a resounding loss in the election will end this nightmare, and avoid martyrdom.
William, it would be a nightmare if he wins in November. As long as he is kept away from the Oval Office, and he would be if the SC finds that incited the insurrection, the MAGA nightmare would continue, but I can live with that.
I see disqualification as very possibly the "snap out of it!" slap in the face. MAGA needs. Hard to see what else could be.
Really? I don't see that because the mechanism they use to dismiss court decisions (it's all rigged against him, our dear victim who feels victimized like we do which is why we identify with him) will continue to operate. The only thing I see snapping them out of it is seeing they were conned. This is how the movie, "A Face in the Crowd" ends. The main character's fans adore him until the live mic after one of his TV performances shows them what he really thinks of them - they're idiots.
Here's another example. (I remember hearing the story but I can't find the actual.) It was a Klan leader in the 1950s who was accused of misusing funds. He took the 5th. In the 1950s, taking the 5th is what, the Klan members believed, Communists did. And they rejected him for both the misuse of THEIR money and taking the 5th.
We'll see maybe. That's my assessment. Schoolchildren learn early cheaters ruin the game. Fundamentally this is what this is. And.it'll be tough to sustain the idea a 6-3 Conservative Court is the Deep State..you're into deep paranoia.
Interested in your reaction to Prof. Lawrence Lessig's take? This is from his writeup at Slate:
"Law professor Kurt Lash has shown that the crafting of Section 3 [of the 14th] to omit the president was not an oversight. As his work shows, an earlier draft of the clause expressly mentioned the president; that mention was removed....
There is an obvious reason why the only two nationally elected officers would be excluded from its reach. It took mere moments after the Colorado Supreme Court’s ruling to see why, as Texas Lt. Gov. Dan Patrick threatened to remove President Joe Biden from the Texas ballot as retribution. You see, with every other officer excluded under the provision, the state official or state court effecting that exclusion would feel the political costs of their decision alone. If the Missouri secretary of state decides that Josh Hawley was an insurrectionist — for both advancing a plainly illegal theory under which Congress could reverse the electoral votes of Pennsylvania, and for rallying the rioters on Jan. 6 with his now-infamous salute — then Missouri and its voters will bear the political costs of that decision alone. Its act would not impose a cost on other states. But if state officials from blue states can remove red state candidates, or vice versa, that state bears no cost. Instead, it gains a political victory. In the language of economics, the decision imposes an externality on the nation, which is exactly the kind of decision that states alone should not be making for other states. Such behavior is obvious to lead to a tit for tat and a breakdown of our entire electoral system...."
Well, Ilya Somin makes good points in response to Lessig:
https://reason.com/volokh/2023/12/21/efforts-to-show-that-exempting-the-president-from-the-scope-of-section-3-of-the-14th-amendment-isnt-absurd-underscore-that-it-actually-is/
If the Supreme Court owes a responsibility to the institutions of our democratic government, I don’t see why keeping Trump off the ballot disrespects those institutions. He’s just a guy (who, by hypothesis, engaged in insurrection), but the party he represents still remains free to select another candidate. It seems like we’re inflating the importance of Trump to view his disqualification as some sort of major blow to democracy -- however rabid his supporters might be, he’s forfeited his entitlement under the Constitution to insist that voters have a chance to elect him to federal office. Hardly a constitutional crisis.
You really don’t think that keeping Trump off the ballot won’t provoke a constitutional crisis if it spreads beyond Colorado? It’s not Trump that’s important - it’s the millions of voters who will believe themselves to have been disenfranchised, and millions more who will recognize that fact even though they don’t like Trump, unless Trump actually wins the election anyway. My hope is that the SC slam dunks this potentially dangerous precedent and leaves Trump to win on the merits, if he can.
MAGA are fantasists who have to believe impossible things to inhabit an alternative reality. Worry much, much, more about everybody else, a majority of whom already agree with Colorado S.C. , 54%, including 12% Republicans.
I actually know people who voted for Trump. They aren’t fantasists, any more than the rest of us. Or maybe, just as much as the rest of us. But the interesting thing is that they tend to be people who can survive in situations lots of people probably won’t. They are people who work with their hands, and actually know how to use tools to build things. Civilization rests on the backs of these people, and they don’t really need you. Or me, for that matter. But you need them. As do I.
The only income bracket Trump won was > $100k. BTW, I'm one of those people who earned a living with his hands, I've worked on everything from circuit boards to a supertanker. I also know what paranoid ideas are. MAGA is overrun with them. None thought to question why Trump's campaign pros, who know the numbers down to the precinct level, wouldn't support his claims he won.
“By hypothesis”? Wtf? You’re seriously ok with removing the most popular candidate from the ballot based on the “hypothesis” that he committed an insurrection, a crime he hasn’t even been charged with. What the hell is wrong with you people? Were y’all born yesterday?
Wish we had known it was perfectly acceptable to remove candidates from the ballot based on hypotheses. We could have avoided the pain of Obama’s 8 year reign simply by hypothesizing that he wasn’t a natural born citizen. We really missed an opportunity there!
Friggin morons!
Reading comprehension isn’t your strong suit, I guess? I’m addressing the point raised by Professor Vladeck that the Supreme Court has to consider the political implications of the decision whether to affirm the removal of Trump from the ballot. Unless the relevant criteria for disqualification have been established -- i.e., that he engaged in insurrection -- the Court need not confront this political issue. Thus the *hypothesis* that Trump’s conduct meets the standard for disqualification. Oh, and there’s also the fact that the Colorado courts have now ruled that this standard *has* been met. But hey, if Trump’s the “most popular candidate” (who has never won the popular vote in any election), then I guess none of this fancy legal stuff matters, right?
Also, according to recent polling, he is the most popular candidate in THIS election. The only election that matters in the context of trying to keep him off the ballot.
Well...not sure if you’ve heard but the Electoral College decides our elections. Not the popular vote.
Well said.
The Robert E. Lee example is stupid. Lee WAS an officer of the confederate army. He’s exactly who the 14th amendment was designed to prevent from holding public office. He is no way a parallel to Donald Trump. It’s kind of absurd that you would even make such a connection. To do so is equating a few hours of chaotic riot at the Capitol to the freaking Civil War! What is wrong with you people?
Well...he hasn’t been charged or convicted of anything even remotely resembling what is covered by the 14th amendment. Also, the 14th amendment doesn’t mention the Presidency. So... in my opinion, there is likely nothing he could do that would disqualify him based on the 14th amendment.
But I know to y’all, that doesn’t matter. It’s whatever it takes to keep him from taking office again. Because that’s what you’ve been told for 8 years you should feel. Y’all are a pathetic bunch.
Research the constitution. That’s kinda how it was set up. The gridlock is intentional. The wild swings will even out. How violent will the swings be if either party can begin excluding the opposing candidate from the ballot based on nonsense?
Hint...Abe Lincoln was excluded from the ballot in many southern states just before the Civil War. Hang in there, my Aussie friend!
Do you know how the decision to exclude Lincoln from the ballot was made in those states? I have difficulty imagining that the courts were involved.
One point that has gone mostly unsaid is that regardless of left/right political philosophy divisions, Trump is so thoroughly dishonest and unpredictable that he is not a good (or valid) avatar of any political philosophy. In practice, a second term in office could easily be a disaster for honest conservatives, for Republicans, for democracy, for the country, and for the world. If the right-wing members of the Court are genuinely conservative, they might conclude that letting Trump stay on the ballot does not serve the interests that they value, and thus they might not, in their heart of hearts, want him to stay on the ballot. If so, they have off ramps.
You left out one more person/group at fault.
This mess is the result of Trump and his group of encouragers. Had he been raised with a little bit of humility or sense of right, then this would have never happened and our country might not be on the precipice.
Could the Supreme Court hand down opinions on both this (reversing Colorado on whichever grounds) and the Presidential Immunity case (holding it doesn't exist) on the same day as a mechanism to generate the appearance of splitting the baby?
You assume the risks posed to civic stability are approximately equal either way whether the Court upholds Anderson or not. I don't think they are. I see the threat of MAGA rage as a bluff and a con; these are primarily people who believe impossible things in order to participate in a fantasy, to which the WWE is more than a little analagous. This is why, since Jan. 6 itself, we have seen no organized, competently executed actual acts of violence. My bet is we won't if Anderson is upheld, in fact it might be the thing that finally causes people to "snap out of it".
OTOH, the risk to civic stability of Trump's reelection in the face of the majority's conviction he was not constitutionally eligible to run, and is thus wholly illegitimate, no matter what those "partisan hacks in robes" ruled, is dire, and it would be reckless to let normalcy bias cause us to disregard it.
Not a lawyer myself, very much appreciate hearing you all think out loud.
My question in all of this, what if the court makes no decision before the R primary or the general? Trump is on the ballot, gets votes. If the court then rules and upholds that he committed insurrection and is disqualified from office, those votes are counted, but then, what? Ignored? Shouldn't the CO Secretary of State put a warning on the ballot that a vote for Trump before SCOTUS issues a ruling may potentially be a wasted vote?
Geez y’all are a mess. Warnings on ballots? Is that democracy to you? Here’s a novel idea...how about we let the leading candidate for president appear on the ballot and let the people decide if he should be president? What if we just did that? After all, it’s worked for the last 250 years. 🤷♂️
Because electoral politics must take place within the bounds of the Constitution. That's foundational, as Constitution in fact created politics. Every game has rules.
Keeping someone off the ballot does not keep them from the election and from winning a plurality of votes. So it seems to me that a finding of disqualification should take place before the election, but the act of disqualification would take place after the election. Votes for a disqualified person are simply invalid -- like a vote for Olivia Rodrigo or Mickey Mouse. Both of these folks might have great policy positions, but they are disqualified, Mickey forever and Olivia until she turns 35.
So it strikes me that the court order removing Trump from the primary ballot is improper or at least incomplete. I would imagine the order to read that Donald Trump is disqualified from office and votes for him are proactively declared invalid. If the Republican party then wants to run a disqualified individual it is their problem.
What great commentary by Professor Vladeck.
Yeah, that’s an excellent legal theory you have there. Sounds extremely well thought out. But there are a couple of glaring holes.
1. Donald Trump has neither been charged nor convicted of “insurrection”.
2. Conspicuously absent from the 14th amendment is any mention of the Presidency.
But sure, go ahead and keep him off the ballot. I’m sure that will be good for America.
Hint...Abe Lincoln was kept off the ballot in many southern states just before the Civil War. 🤫
My thought, too, but I thought someone else might have it so I refrained from posting it before reading all the comments. :)
Ironically, this understanding of the role of Congress in reviewing recognition of the proper Electors seems to me to have been at the bottom of Trump’s confused understanding of Congress’ role.
I think this is both a good solution and a good prediction. No one will be happy. But this is the best possible outcome for the court and for a bar to chaos--state the factually true (Trump engaged in insurrection) and fudge the legal. Faulty result/reasoning, but most Solomonic. But can Roberts get angry old men Alito/Thomas on board by threatening to bar Trump? I'm skeptical due to their contempt for anything but their political mission--but that's Roberts' needle to thread.
😂 “No one will be happy”
This should be the new slogan of the Democrat party. Democracy! Yeah! 👊🏼
"1. President Trump did, in fact, engage in “insurrection” through his efforts, both before and on January 6, to encourage the use of both subterfuge and force to subvert the results of the 2020 presidential election—and to prevent the transition of power to his (duly elected) political opponent."
While facially tRump's actions subsumed "insurrection", or "giving aid and comfort...", at this moment it's an opinion, not a dispositive fact, at least not one decided in a court of law by a jury of tRump's peers. Insurrection, of course is a federal crime - 18 U.S. Code § 2383 - but tRump has not been charged accordingly, and therefore his actions as insurrectionary remain as those in the eyes of the beholder. Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion, but as yet there has been no hard-and-fast determination of tRump's actions as insurrectionary, other than several Colorado judges proclaiming them just so. Would that suffice for SCOTUS? I'm inclined to think not, certainly absent a conviction. And without the latter, tRump walks, IMHO.
I'm sorry, it's incoherent to say that "Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion," yet demand that Trump be formally adjudicated as an insurrectionist. Why isn't Trump also one "by definition?" Because he did not personally take up arms against the Capitol police? Neither did most Confederate state officeholders. If some guilty behavior is provable by the evidence of everyone's eyes--and some is--then Trump's behavior qualifies.
Also, remember that criminal conviction of insurrection is necessary for depriving the accused of life, liberty or property, but disqualification from political candidacy is a civil matter, not a criminal penalty. Criminal due process is a non-issue here. This is closer to a determination that Trump was in reality not a natural-born citizen, or--despite his appearance--not yet 35 years of age.
Yes. There has been in depth analysis of the history that spells out what "insurrection" entails & Trump's acts apply. The district court had a hearing on the question. The provision historically and by nature does not require a criminal trial process.
The historical analysis has cited that interference of the transfer of power -- which is one of the counts in the D.C. case (interference with the 1/6 proceeding) -- as a form of insurrection. If Vice President Breckinridge, instead of becoming a Confederate general, tried to stop Lincoln from being president by interference of the electoral count, I think he would have been disqualified as well.
Excellent point: disqualification from political candidacy is a civil matter.
Wasn’t the Confederate situation the result of Congressional action? And as such, based in Congress’s authority to judge the qualifications of its own members, needing no judicial determination?
Early uses of Section 3 were just that Congress refused to seat ex-Confederates who had been elected to the House. The point is that there was no requirement for a statute to be passed by Congress that they had that power, or that some court first needed to declare the incoming reps as insurrectionists.
On the broader question of whether Section 3 is "self-executing," I here quote from a persuasive article by Mark Brown, a law professor at Capital:
"Section 1983 was passed in 1871 to correct state and local abuses of freed slaves throughout the Reconstructed South. It awarded, and still awards, the victims of unconstitutional conduct a private action against the offending government official. It has in modern times (defined as since 1961) become the premier mechanism for vindicating federal wrongs perpetrated by state and local officials.
"But before modern developments beginning in 1961, constitutional provisions (including those in the Fourteenth Amendment) were always understood to be enforceable without federal enforcement statutes like section 1983. As explained by Professor Anne Woolhandler, “positive,” “direct,” “offensive” constitutional litigation in state and federal courts long preceded the adoption of the Fourteenth Amendment in 1868, section 1983 in 1871, and general federal question jurisdiction in 1875. “Throughout the nineteenth century, both before and after Reconstruction,” she explains, “the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it.” Consequently, “much of the Supreme Court’s development of individual rights and remedies took place without reliance on either federal question jurisdiction or statutes such as § 1983, but rather under the rubric of diversity jurisdiction.” Congressional enforcement mechanisms and federal question jurisdiction did not exist, were not used and were unnecessary. Constitutional provisions were fully enforceable without congressional assistance."
https://www.jurist.org/features/2023/10/12/trump-and-section-3-of-the-fourteenth-amendment-an-exploration-of-constitutional-eligibility/
It was not several Colorado judges proclaiming them just so. It was the finder of fact, the trial judge, who heard all the evidence over a 5-day trial at which Trump's interests were defended by competent counsel. The trial judge ruled, not proclaimed, that the evidence showed that he engaged in insurrection. Anyone can disagree, but that is a lot different than saying several judges - or, a few guys/gals - simply proclaimed.
I think this summarizes things generally well. Thank you.
Various Republican senators said they did not convict because the Senate did not have the jurisdiction to try the case after Trump left office. The argument they "acquitted" him & thus he's immune is doubly wrong. There is no double jeopardy bar anyway.
[To address an argument some make]
It would have been advisable -- a bill was offered, and the 1/6 Committee Report referenced it -- for Congress to pass enforcement legislation. Republican senators (57 convicting & others like Mitch McConnell not denying he was guilty) also could have voted on such a law and/or a resolution with a "whereas" stating Trump committed insurrection. Another way we could have avoided this.
Aha! So the solution is that Congress should impeach Trump now for insurrection, and his presence on the ballot would be governed by the outcome.
If we are dreaming, what they should do is pass a joint resolution that he engaged in insurrection and is disqualified. They could have done that in February 2021 & Republicans would not have had a "Trump's not in office, so we can't try" him dodge.