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PaperclipPerfector  4mo ago (text post)   29076 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.

Genuinely, it is hard to come up with anything to say that isn't already immediately obvious to any casual observer. My main reaction is that after all the sturm und drung about our sacred democracy, the people that want this are doing everything in their power to destroy the remaining legitimacy of Our Democracy. Of course, this thinking is about on par with the elephant in StoneToss.

Second is that I can barely contain my contempt for the legal profession and all of its fake pseudo-philosophizing. Hundreds of pages. They wrote hundreds of pages on this. Does anyone believe that hundreds of pages were necessary to arrive at this conclusion? Whether you think January 6 was an "insurrection" that disqualifies Trump or not, it's pretty obvious that you view isn't going to be based on careful line-item reading of endless history and text. In writing so extensively on the topic, the justices clarify that they're just liars concocting elaborate explanations for doing what they want to do anyway.

Finally, I would predict increased potential for violence, and it sure does seem like the people in charge are pushing the envelope, but after 2020 and its fallout, it's hard to imagine the American right doing much other than the elephant from StoneToss routine.

In what way does the observed evidence differ from what we would see in a world where these officials genuinely care about and want to preserve democracy, and genuinely believe that the Constitution has been violated and that this is the appropriate legal remedy?

It feels like your bottom line is 'My opponents will lie and cheat to beat Trump' and therefore it doesn't matter what actually happens in reality, if it's something that hurts Trump then the explanation must be lying and cheating.

That's the type of totalizing philosophy that can't actually learn from new evidence or predict things with a causal model. It should be avoided wherever possible.

In what way does the observed evidence differ from what we would see in a world where these officials genuinely care about and want to preserve democracy, and genuinely believe that the Constitution has been violated and that this is the appropriate legal remedy?

That removing the front runner from the ballot and attempting to imprison him is third world banana republic behavior.

What would be the appropriate response from the courts if Obama tried to run for a third term? What if he was really popular?

The issue at hand, which I don't think most of the comments here are addressing, is that a significant number of politicians, lawyers, etc believe that President Trump is disqualified from being on the ballot in the same way that Obama is disqualified from the ballot. They mostly come to this conclusion by looking at the January 6th report.

The most significant thing is that the court ruled that the January 6th report could be admitted into evidence and is being used as fact. The Supreme Court of the United States cannot contest that as it is a state-level decision, and the USC decides matters of law, not fact.

The cries that this is anti-democratic is missing the point. Restrictions on our elections are intentionally anti-democratic, but our books are full of them. Term limits, age limits, etc. This suits me, as I much prefer to live in a Republic than a Democracy.

The most significant thing is that the court ruled that the January 6th report could be admitted into evidence and is being used as fact. The Supreme Court of the United States cannot contest that as it is a state-level decision, and the USC decides matters of law, not fact.

The Supreme Court can certainly rule on state-level issues in its capacity as an appellate court from a State's highest court. That the January 6th report is admissible is a matter of law, not of fact. Furthermore, while appeals courts are indeed supposed to defer to trial courts as to matters of fact, this deference is not absolute --- and when it comes to the US Supreme Court, the deference is basically as much or as little as they care to give.

Playing cute games like accepting a partisan document as "fact" and then telling the US Supreme Court that it is beyond their review only works if SCOTUS plays along.

I wish we could amend Article 14 and change it to "convicted of insurrection in a court of law" or something like that. Most restrictions to office are ones that can be resolved by a simple glance at a birth certificate or official register.

By "I wish we could" I mean that the political will to come together and amend the Constitution no longer exists and I do not expect it to ever exist again. It is ironic that an article intending to defend against insurrection might be a cause of one.

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