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zataomm  2yr ago (text post)   7171 thread views

Colorado Supreme Court Thread

Link to the decision

I don't know to what extent there are established precedents for when a topic is worthy of a mega-thread, but this decision seems like a big deal to me with a lot to discuss, so I'm putting this thread here as a place for discussion. If nobody agrees then I guess they just won't comment.

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I've been going over the Colorado decision and found this passage from the majority opinion shocking:

Although we do not find Griffin’s Case compelling, we agree with Chief Justice Chase that 'it must be ascertained what particular individuals are embraced by the definition.' 11 F. Cas. at 26. While the disqualification of Section Three attaches automatically, the determination that such an attachment has occurred must be made before the disqualification holds meaning. And Congress has the power under Section Five to establish a process for making that determination. But the fact that Congress may establish such a process does not mean that disqualification pursuant to Section Three can be determined only through a process established by Congress. Here, the Colorado legislature has established a process—a court proceeding pursuant to section 1-1-113—to make the determination whether a candidate is qualified to be placed on the presidential primary ballot.

This just... doesn't seem right. Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"? It seems like this would be challenged and lose, ironically, under the 14th amendment, which disallows States from setting up their own processes by which to deny citizens rights to which they are entitled under federal law.

Imagine Congress passes a law granting some benefit to Americans with disabilities, and furthermore establishes a Board to review cases and determine which people are entitled to the benefit, could a State really set up its own separate Board and establish its own criteria determining who is "disabled"?

But that is not what happened here. Here, Congress has not acted at all, and the issue is whether the bar is self-executing:

The Electors’ challenge to the Secretary’s ability to certify President Trump as a qualified candidate presumes that Section Three is “self-executing” in the sense that it is enforceable as a constitutional disqualification without implementing legislation from Congress

PS: Please note that I am not defending the decision. For both legal and policy reasons, IMHO no criminal conviction = no disqualification.

Congress has not acted at all, and the issue is whether the bar is self-executing

Congress has acted though, 18 U.S. Code § 2383 - Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (June 25, 1948, ch. 645, 62 Stat. 808; Pub. L. 103–322, title XXXIII, § 330016(1)(L), Sept. 13, 1994, 108 Stat. 2147.)

That's why I found this passage shocking; I take your point that if Congress hasn't set up any mechanism to enforce the amendment then it's reasonable to believe that it should be enforcable somehow, but it's much harder for me to swallow the argument that even when Congress does address the matter, the States can set up their own enforcement bodies. In paragraph 105 of the CO decision, the Court writes:

We are similarly unpersuaded by Intervenors’ assertions that Congress created the only currently available mechanism for determining whether a person is disqualified pursuant to Section Three with the 1994 passage of 18 U.S.C. § 2383.

Or are you saying "Congress hasn't acted" because the code doesn't say that § 2383 is "pursuant to the 14th Amendment" or some such language?

The problem with “self-executing” especially in this case is that it doesn’t require a conviction which brings up a huge problem in that if you can create a self-executing punishment (which would happen if the other parts are self-executing— jail time and fines are legal penalties) then you’ve done away with the presumption of innocence and the right to a hearing and to cross examine witnesses. A “finding of fact” that allows for criminal punishments is essentially a trail in absentia i can declare that you did in fact commit insurrection or give aid and comfort to one without the inconvenience of a trial and the right to examine and dispute the evidence, to cross examine witnesses, or present a defense.

It seems a bit of a stretch to suggest that a document that in several instances explicitly requires the state to presume innocence, limits the ability to search (hence warrants), forbids the state from requiring a defendant to incriminate himself, requires juries of the defendant’s peers, and otherwise makes the state jump through hoops before declaring someone guilty of a crime would suddenly be okay with striking someone from a ballot or fining them or jailing them based on a finding of fact.

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