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PaperclipPerfector  4mo ago (text post)   29077 thread views

Culture War Roundup for the week of December 18, 2023

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The Colorado Supreme Court holds:

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. 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 court stays its ruling until January 4, 2024, subject to any further appellate proceedings.

[recent related discussion, slightly older]

The Colorado Presidential Primary is scheduled for March 5th, for both parties. As the decision notes, January 4, 2024 is "the day before the Secretary’s deadline to certify the content of the presidential primary ballot)"; while the matter is open to further stay should federal courts intervene, such an intervention would itself determine at least the state presidential primary.

How are the procedural protections? From the dissent:

As President Trump, argues and the Electors do not contest, section 1-1-113’s procedures do not provide common tools for complex fact-finding: preliminary evidentiary or pre-trial motions hearings, subpoena powers, basic discovery, depositions, and time for disclosure of witnesses and exhibits. This same concern was raised in Frazier; the then-Secretary argued that “it is impossible to fully litigate a complex constitutional issue within days or weeks, as is typical of a section 1-1-113 proceeding.”...

Despite clear requirements, the district court did not follow section 1-4-1204’s statutory timeline for section 1-1-113 claims. The proceeding below involved two delays that, respectively, violated (1) the requirement that the merits hearing be held within five days of the challenge being lodged, and (2) the requirement that the district court issue its order within forty-eight hours of the merits hearing.

And the other dissent:

Thus, based on its interpretation of Section Three, our court sanctions these makeshift proceedings employed by the district court below—which lacked basic discovery, the ability to subpoena documents and compel witnesses, workable timeframes to adequately investigate and develop defenses, and the opportunity for a fair trial—to adjudicate a federal constitutional claim (a complicated one at that) masquerading as a run-of-the-mill state Election Code claim...

and

Even with the unauthorized statutory alterations made by the district court, the aggressive deadlines and procedures used nevertheless stripped the proceedings of many basic protections that normally accompany a civil trial, never mind a criminal trial. There was no basic discovery, no ability to subpoena documents and compel witnesses, no workable timeframes to adequately investigate and develop defenses, and no final resolution of many legal issues affecting the court’s power to decide the Electors’ claim before the hearing on the merits.

There was no fair trial either: President Trump was not offered the opportunity to request a jury of his peers; experts opined about some of the facts surrounding the January 6 incident and theorized about the law, including as it relates to the interpretation and application of the Fourteenth Amendment generally and Section Three specifically; and the court received and considered a partial congressional report, the admissibility of which is not beyond reproach.

Did the Colorado Supreme Court provide a more serious and deep analysis of the First Amendment jurisprudence, at least?

The district court also credited the testimony of Professor Peter Simi, a professor of sociology at Chapman University, whom it had “qualified . . . as an expert in political extremism, including how extremists communicate, and how the events leading up to and including the January 6 attack relate to longstanding patterns of behavior and communication by political extremists.”

He testified, according to the court’s summary, that (1) “violent far-right extremists understood that [President] Trump’s calls to ‘fight,’ which most politicians would mean only symbolically, were, when spoken by [President] Trump, literal calls to violence by these groups, while [President] Trump’s statements negating that sentiment were insincere and existed to obfuscate and create plausible deniability,”

There are interpretations here other than that of the Russell Conjugation: that stochastic terrorism is limited to this tiny portion of space, or perhaps that shucks there just hasn't ever been some opportunity to worry about it ever before and they're tots going to consistently apply this across the political spectrum in the future. They are not particularly persuasive to me, from this expert.

Perhaps more damning, this is what the majority found a useful one to highlight : a sociology professor who has been playing this tune since 2017.

If you put a gun to my head, I'd bet that this is overturned, or stayed until moot. But that's not a metaphor I pick from dissimilarity.

If you put a gun to my head, I'd bet that this is overturned, or stayed until moot.

The ruling is absurd, but the Constitution is pretty clear that states get to decide how their elections are run, including their national elections. The only Constitutional caveats are that Congress can weigh in on Article I elections (legislators), and that the states must be structured in a republican way (i.e. representative democracy). Here are the (partial) instructions for Article II elections:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

If Colorado's legislature (or its sometimes-mouthpiece, the state court) says Trump can't be on the ballot, then Trump can't be on the ballot, and from a Constitutional standpoint, that's the end of the story. One Constitutional way out I see here is maybe a Fourteenth Amendment complaint of some kind, but the conservatives on the court are likely to be leery of that, and the progressives on the court will simply refuse to rule in Trump's favor no matter how much they may need to torture logic to get there.

My primary hesitation is Chief Justice Roberts. He is a pragmatist to the core, and may just oppose the chaos that would result: a likely domino-effect of progressive states using this ruling to (definitely) eliminate Trump from their ballots and (possibly in the future) even eliminate conservative candidates through bog-standard abuse of process. I could see Roberts relying on "The United States shall guarantee to every State in this Union a Republican Form of Government" from the Constitution with precisely the intent of preventing political chaos, but in doing so he would do pretty direct harm to the plain language governing Article II elections.

I'm less acquainted with any federal election statutes that may apply, but prima facie I would bet cautiously against this being overturned--on grounds that Roberts, as an establishment man, may find his distaste for Trump encouraging him to affirm the strength of Article II. This would be a victory for establishment Republicans as well as a victory for Trump haters. But I can imagine Roberts imagining the electoral chaos of an affirmation, because that result would make the 2000 and 2020 elections look tame by comparison; faced with such a vision, he could very well flinch. So I would expect Trump's team to work that angle hard--assuming there are any competent lawyers remaining who are still willing to represent him.

I agree with this analysis. States have plenary power about how to portion out electoral college votes, so it's really difficult for me to imagine what a SCOTUS intervention could look like.

The ruling is absurd, but the Constitution is pretty clear that states get to decide how their elections are run, including their national elections.

That's not really the way "judicial federalism" works, though. Yes, states have a lot of leeway in how they run elections, but this state is specifically appealing to the text of the federal Constitution in order to rule that he is ineligible. The fun history here to really drive the point home is that there are a lot of state Constitutions that have clauses that are word-for-word identical to the federal Constitution. Suppose that for some clause (not necessarily the one here), State A has a word-for-word identical clause in its state Constitution, but State B does not. Perhaps both states' Supreme Courts rule that that clause means X. Now, SCOTUS jumps in and says, "No no no, in the federal Constitution, that clause does not mean X." Well, State A's Supreme Court can (and some have in various cases) go back to the same issue and say, "Well, even if that clause in the federal Constitution doesn't mean X, we think that the same clause in the state Constitution means X." This has happened plenty of times. State B, on the other hand, has no such luck. The only thing they had to appeal to in this extremely sanitized hypothetical was the federal Constitution, and SCOTUS simply outranks them when it comes to interpreting what the federal Constitution means. [EDIT: Right after submitting, I realized that linking to this book is a good cite for an example of how this has definitely happened, concretely.]

"Judicial federalism" can work the other way, too. There are sometimes cases in the federal courts that turn on an interpretation of state law (or state Constitution). There have also definitely been examples where the federal courts essentially punt the question back over to the state Supreme Court, saying, "Yo! You guys need to tell us what your law means."

In this case, I don't believe Colorado has an equivalent-to-Section-3-of-14A in their state Constitution; they are purely interpreting the federal Constitution. As such, I don't think there's any reason why an appeal can't be made in the federal courts. There is a substantial federal question here, specifically that of interpreting the meaning of Section 3 of 14A of the federal Constitution.

[EDIT EDIT: Realize now that I should have read further in the comments; I was totally scooped. Oops.]

Parties are private organizations, though. They can just disregard the Colorado primary in deciding which candidate to back in the general election, can't they?

Parties are private organizations, though. They can just disregard the Colorado primary in deciding which candidate to back in the general election, can't they?

It's an interesting question! It depends on what you mean by "back," and also on how each state handles the primary process. I'm not familiar with Colorado's primary election laws so I don't have a direct answer for you, but in general states do not assemble their general election ballots based on what political parties want, but based on how relevant procedure (including primary elections) dictates.

For example, even if, say, Ron DeSantis won the Republican primaries generally, and the Party decided to back him, he could in theory still be excluded from some state ballots for, say, failing to get the right paperwork filed on time.

The Colorado GOP was already threatening to go to a caucus system before this; there's near certainty that they'll try to do so now. The federal GOP's rules normally hold that :

Any statewide presidential preference vote that permits a choice among candidates for the Republican nomination for President of the United States in a primary, caucuses, or a state convention must be used to allocate and bind the state’s delegation to the national convention in either a proportional or winner-take-all manner for at least one round of balloting...

And that his choice must be made before October 1st of 2023:

No material changes to the manner of electing, selecting, allocating, or binding delegates or alternate delegates or the date upon which such state Republican Party elects, selects, allocates, or binds delegates to the national convention shall be effective if made or adopted after October 1 of the year before the year in which the national convention is to be held. Where it is not possible for a state Republican Party to certify the manner and date upon which it holds a presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention in effect in that state on the date and in the manner provided in paragraph (f) of this rule, the process for holding the presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention shall be conducted in the same manner and held upon the same date as was used for the immediately preceding national convention. If it is not possible to hold a presidential primary, caucus, convention, or meeting for the purpose of voting for a presidential candidate and/or electing, selecting, allocating, or binding delegates to the national convention upon the same date as was used for the immediately preceding national convention, then delegates or alternate delegates shall be elected or selected by congressional district or state conventions pursuant to paragraph (e) of this rule.

But there's a few very broad exceptions, and even before touching the exceptions there's going to be serious arguments that the Colorado primary system no longer is a "vote that permits a choice among candidates".

Whether they can functionally assemble it, and whether some new principle will apply after they have done so, are exercises for the terrified viewer.

The Colorado GOP was already threatening to go to a caucus system before this; there's near certainty that they'll try to do so now.

To what end? Assuming they had the caucus system in now and Trump were to be win the nomination (regardless of if he won in CO's caucus or not), the same reason for stripping him from the primary roster is also true for the general election roster.

It just kicks the can down the road til the (deadlines for the) general election. Which is kinda a joke, but it's also kinda not.

There's one extent where the decision doesn't matter, because the Colorado primary and even general vote doesn't matter, and steps made here on the primary ballot will be swamped by actions taken for the general ballot here and elsewhere.

But there is absolutely an army of progressive twitterati champing at the bit, from Whitehouse or the White House on down, to take the acceptance or even delayed denial of an appeal -- which is discretionary! -- as evidence that the conservative side of the court -- did you know that Gorsuch is the justice assigned to the 10th Circuit, which includes Colorado? -- has been utterly compromised and is willing to sell out the Constitution to defend and promote the unlawful and doomed campaign of a monster, an insurrectionist, and a Republican. Punting at least avoids attacks on the 'shadow docket'; having months rather than weeks buys a lot of opportunity to have genuine arguments or, in the best case, to produce a per curiam opinion.

((Unfortunately, I think a lot of legal eagles are only considering it in these frameworks, while worse risks bubble under the surface. And there are probably a good many more tactics going on that I am not aware of or able to consider with five minutes of a novice's thought.))

The Colorado GOP was already threatening to go to a caucus system before this; there's near certainty that they'll try to do so now.

And that's what they have said in response to Vivek:

You won't have to because we will withdraw from the Primary as a Party and convert to a pure caucus system if this is allowed to stand.

The Republican Party: "The Colorado Supreme court has made their decision, let them enforce it."

Would be amusing, but I doubt they have the gumption.

U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) ruled that states can't add additional qualifications for Senators and Representatives. The same rules should apply to Presidential elections. And Colorado is pretending that Trump is disqualified by the 14th Amendment, not exercising its discretion to exclude whoever they want.

U.S. Term Limits v. Thornton, 514 U.S. 779 (1995) ruled that states can't add additional qualifications for Senators and Representatives. The same rules should apply to Presidential elections.

I doubt this simply because Article I gives Congress a say in the election of Senators and Representatives. Article II doesn't. But you may be right.

And Colorado is pretending that Trump is disqualified by the 14th Amendment, not exercising its discretion to exclude whoever they want.

They're definitely saying this now, but they're saying that Trump's Fourteenth Amendment disqualification can be litigated (very broadly, see this comment) under the state's election laws. This creates a fact/law question (leading to the Fourteenth Amendment problems I tagged but should have pondered at greater length) that SCOTUS seems likely to want to avoid, but... hard to say. It would be interesting to know how far the Colorado court is willing to go to keep Trump off the ballot, but depending on how quickly SCOTUS remands (assuming they do), we may get to find out.

There are 14th Amendment due process arguments, as noted at length in the dissents, though in turn there's been serious efforts to promote the view that there is no liberty interest in a ballot slot. Somin at Volokh argues this sort of perspective -- I don't know how much to trust him given his refusal to interact with the First Amendment component of this whole debate, but it's not plainly laughable.

Another argument would be US Term Limits, which holds that the Constitutional requirements for other offices (Senators and Representatives) are exclusive. That said, US Term Limits was limited to Senators and Representatives, and Thomas' dissent was both legendary and pretty well-recognized; I don't think it'd be likely to be successful.

I think the most plausible appeal would be to focus the self-executing theory. It's an incredibly expansive and aggressive read -- not as bad as the independent state legislature theory, but closer than I'd like. That's a matter of law (so SCOTUS can review it, unlike the 'facts' of what exactly Trump was alleged to have done, or the squishy interpretation of insurrection), it's a federal Constitutional question, and it punts on the ugly questions around due process.

Of course, Trump's lawyers are clowns, so we've got that as an additional problem.

Yeah, looking at this after sleeping on it, I'm less satisfied with my analysis than I was. In addition to being a pragmatist, Roberts has a tendency to aim for narrow, technical rulings, and if he can remand this in a way that (as you say) "punts on the ugly questions" I could see him pushing for that route. I agree that US Term Limits is a bad fit simply because we're in the wrong Article with this case. But the fact/law distinction on the question of insurrection potentially tees up the Court to either do Trump or his opponents a huge rhetorical favor, no matter the legal result.

I wouldn’t worry about changing your mind. It seems like a few people dunked on you with what you now agree are better arguments. On new debates having wrong arguments is part of a process of getting to what you later believe are better arguments.

For old issues (Ukraine, Hunter’s laptop, etc) I hate when I get sucked into debates because the issues have already been litigated and sides staked. For new debates you are working thru the arguments that will be made and my gut says your argument will be the one made in favor of the ruling so it did need to be expressed.

If the court decides for Trump on the grounds that the clause is not self-executing, they can simply vacate the rest of the findings. This seems like a Roberts thing to do... though finding that the Colorado Supreme Court can do as it likes with elections and he won't second-guess them ALSO seems like a Roberts thing to do.

Of course, Trump's lawyers are clowns

Personally, this seems extremely distasteful when anyone who has touched Trump with a 39 and a 1/2 foot pole has been un-personed. "Only these clowns managed to show up" usually makes me root for the 'clowns'

Presuming but not concluding that's true, it might make things more sympathetic, but it doesn't make it any less of a circus. And this stuff is too important to say "sorry you got outmaneuvered, we'll give you a mulligan and a handicap on the next one".

I'd be curious if Section 5 of the 14th Amendment ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.") indicates that Congress, and not Colorado, is responsible for its enforcement. But it doesn't feel like a slam dunk argument.

Having now read the dissent by Samour I actually do think this is a slam dunk argument.

I'm very unconvinced by Samour's argument. He says sure, the 13th and 15th amendments are self-executing despite featuring the same "Congress shall have power to enforce this article by appropriate legislation" language. And sure, the 14th is self-executing when used "as a shield". But it can't be self-executing when used "as a sword" by a state because that would violate the due process protections of the 14th amendment (which also lack enabling legislation in respect to presidential eligibility - but these parts are self-executing in this context for some reason). It feels very strained, exceptions built on exceptions.

He also has the problem that his argument proves too much. In my view most of the various legal arguments offered in Trump's defence run into the problem that they would also allow Jefferson Davis to become President. That was true of the "officer of the US" position the district court took, and it's true of Samour's dissent here. Davis is the central case of what section 3 is for, so any interpretation that is so permissive as to allow him to become POTUS is akin to an interpretation of the 1st amendment that says you have freedom to believe in whatever religion you want as long as it's Catholicism.

There are Federal crimes related to slavery though: 18 U.S. Code § 1583 - Enticement into slavery. This is more than just a gotcha; we're talking about punishments here, and I don't really see how the 13th amendment can be self-executing with regard to charging, trying, and punishing an individual for holding someone else in involuntary servitude. So if we imagine a case where a slave sued his enslaver who held him in bondage after 1865, sure, the court would rule that the slave could no longer be held, but without further legislation, they couldn't really specify a punishment for the slave holder. Presumably the slaveholder could then be sued in civil court for damages by his slave. I think in that case the 13th amendment would prevent the slaveholder from using "this man is my slave" as a defense.

Getting kind of far afield here, but the overall point is that the difference between sword and shield actually is important; if the Constitution establishes a specific punishment, then it makes sense to believe that it is up to Congress to establish a procedure for determining to whom that punishment should be applied.

On the other hand, I don't have much to say in response to your point about Jefferson Davis. It's a good point.

This argument only makes sense if you consider disqualification from public office a punishment. But if it is, it's a punishment that is arbitrarily applied to every naturalized citizen, with no recourse or due process. Elon Musk can never be President because he was born in South Africa, and therefore his loyalty cannot be trusted. Doesn't matter if his record is spotless, doesn't matter if he has had no jury trial, doesn't matter if the American voters trust him, he cannot be President. An irreversible and unappealable "punishment" for the crime being born in the wrong place.

Rather I think it makes sense to say that punishment for slavery or insurrection would need to be legislated and to be subject to a criminal trial before a term of imprisonment can be applied. But disqualification is not a punishment - it's simply a judgement about who can be trusted to hold public office. Those who are too young an inexperienced, those who may hold split national loyalties, and those who have shown themselves to be oath-breakers are judged to be unacceptable risks by the constitution. It's got nothing to do with "fair", and there is no right to hold public office.

I'm not confident on it, but I think Davis-as-President would have been subject to Section 14 and 15 of the Enforcement Act of 1870, during his lifetime, if a bit of a clusterfuck given the attorney general component (and judicial) making it a bit of a race.

If you are interested in the counter-argument, check out the discussion in the Court's opinion, starting at paragraph 90 (page 51 of the pdf), on whether section 3 of the 14th amendment is "self-executing"

If this were a state court interpreting a state constitutional provision, then I think you would be right. However, if the case is decided based entirely on a state court’s interpretation of the federal constitution, can’t the Supreme Court tell them their interpretation of the federal constitution is wrong and remand the case?

However, if the case is decided based entirely on a state court’s interpretation of the federal constitution, can’t the Supreme Court tell them their interpretation of the federal constitution is wrong and remand the case?

Yeah, this is correct, I should probably have waited to post until after I'd gotten some sleep.

If you read the decision, the Colorado Supreme Court is not basing its case entirely on the federal constitution, but rather saying that Colorado statutory law provides a judicial remedy for voters seeking to remove a disqualified candidate from the ballot, and further that they are removing Trump from the ballot in holding that Trump is so disqualified. But there are two prongs to that--a question of fact, and a question of law. On the question of law, SCOTUS isn't going to hold that insurrection doesn't disqualify, but they could (even though supposedly appellate courts don't like to revisit findings of fact, they often do) hold that Trump has not actually been proven guilty of insurrection (the Due Process/Fourteenth Amendment question I mentioned but didn't elaborate upon).

The question then becomes, how far is the Colorado court willing to go, on remand, to keep Trump off the ballot anyway--but as others have pointed out, by then the issue may be moot.

If Colorado's legislature (or its sometimes-mouthpiece, the state court) says Trump can't be on the ballot, then Trump can't be on the ballot, and from a Constitutional standpoint, that's the end of the story.

That can't be right; if that were the case, the court would not have spent 16 pages addressing the claim that Trump cannot be removed from the ballot based on speech which is protected by the First Amendment.

Sorry, it would have been more precise to say "if Colorado's legislature says Trump can't be on the ballot, provided they haven't done anything unconstitutional in the process (e.g. racial discrimination or whatever)..."

In morning's light I am less satisfied with the rest of my analysis, though. The legal question of insurrection (and whether and how it may be disqualifying) is at least plausibly separable from the factual question of insurrection, though. So it will be interesting to see what happens.

So it will be interesting to see what happens.

I am skeptical that the First Amendment analysis will survive; the bar is extremely high for incitement to riot.

I don't disagree, but it's not obvious to me that the Court needs to reach the First Amendment question, which sometimes (though certainly not always) means that they won't. The First Amendment question is substantial to the question of insurrection, and however this ultimately plays out I would expect SCOTUS to prefer a procedural holding over a substantive one. So I expect the Fourteenth Amendment to play a more decisive role than the First--but you may be right!

I have given up prognosticating re what basis justices will rule on, but I am guessing that there wont be a single majority opinion. But of course the court might limit the issues presented from the get-go.

There are numerous deficiencies in the Colorado ruling both substantive (did Trump commit insurrection, how does the 1st and 14th interact) and procedural (is the 14th self executing, does it even apply to the president, even if self executing what kind of protections are provided to office seekers).

SCOTUS will rule on the procedural grounds because they don’t want this to become a tool to remove candidates from the election (eg maybe a state says that Biden gave comfort and aide to say the BLm riots and that is an insurrection). It would be easy to say Congress has to provide enabling legislation and while not entirely clear the closest thing to enabling legislation (1283) hasn’t been met and so unless and until that has been satisfied this provision won’t apply. I suspect even Kagan will join (or perhaps even write that opinion to help give it legitimacy). It can be politically neutral (eg we never get to the question of whether Trump is guilty of the underlying crime).

This is but another example though of the left’s hatred of Trump destroying institutions.

and (possibly in the future) even eliminate conservative candidates through bog-standard abuse of process

Coming out to an election near you this winter. If states reign supreme, what’s to stop any state from stripping literally all of their political adversaries from their ballots? Why would they stop at national elections for that matter? All they need is a governor and a stacked court.

If states reign supreme, what’s to stop any state from stripping literally all of their political adversaries from their ballots?

I have heard many people argue that the current two-party system of "Republicrats" is already doing precisely that. Have you ever tried to run for public office? It's not always and everywhere completely insane, but certainly it can be a time-consuming and expensive process. Party machines grease the skids for you, so legislation is typically written with those machines in mind. But that means, if you are a political adversary of the dominant parties, then the laws on the books are overwhelmingly likely to work against you.

Fortunately, in many places Republicans and Democrats exist in small enough numbers that unaffiliated voters can occasionally drive legislation that places limits on the excesses of partisans seeking to strip their adversaries of electability. This is the most likely practical result: states that go overboard in stripping adversaries will face an angry uprising from independent voters. But in places with entrenched one-party rule, this is less likely to pose a meaningful threat.

More expansively: the main thing preventing this from happening in the past has just been good old-fashioned civic virtue. But the news media, education systems, etc. have been beating the "burn it all down" drum long enough that many, maybe most Americans now think that destroying their opponents is more important than finding a way to coexist with them.

I do agree States get to run their elections but in this case the State Court is citing constitutional law to remove him. Couldn’t the SC just rule that you can remove him but you can’t remove him for the reason you picked and claim Trump didn’t do an actual insurrection.

At the end of the day I would assume it’s the Supreme Court with ultimate authority to rule if he violated section 3 of the 14th amendment which would open the door for the SC for a narrow ruling that he was not in violation.

I do agree States get to run their elections but in this case the State Court is citing constitutional law to remove him.

Yeah, in morning's light I'm thinking about the difference between the law of disqualification versus the factual question of insurrection. SCOTUS isn't going to rule that insurrection isn't disqualifying, but if they do rule that (e.g.) insurrection requires some kind of criminal conviction then on remand Colorado will need to find a different excuse. But in a way that turns into a gift for Trump, who would then get to walk around saying "the media lies, SCOTUS itself cleared me of insurrection," which... well, I don't know. It would be nice if the Republican Party would just toss him out in the primaries, then this would all be moot, but that seems less and less likely to happen.

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