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PaperclipPerfector  1yr ago (text post)   30256 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.

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