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zataomm  4mo ago (text post)   5357 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'm not sure I fully understand the potential consequences for this decision - like, what are the odds that this decision will lead to some extremely bad outside side effects (like eg. armed protests, insurrections, civil war)?

I'm sketching this out, feel free to iron man, something like there are significant write-in ballots, they don't get counted, and as a consequence, the US sees organized armed revolt?

Maybe it's just me, but it seems like trying to prevent a populist candidate from running via technicalities is not the most effective option?

If there's something that is essentially a stolen election (e.g. no Republican on ballot in enough states to plausibly throw the election the other way, or different states putting different Republicans on the ballot, or states disregarding the popular vote and sending the other set of electors), very high. "You maniacs! You blew it up!"

If Trump is on the ballot, votes for him are counted in all states, and he loses, very low.

If Trump is banned nationwide and the Republicans choose someone else, and Trump being banned doesn't come about through some form of court-packing, and there's no major "Trump-Anyway" vote-split, very low (whoever wins).

If there's a "Trump-Anyway" vote-split, low.

If the court is packed to ban Trump, high to very high depending on method.

If Trump dies of natural causes and the Republicans pick someone else, very low (whoever wins).

If Trump wins... less confident about this one than the rest, due to having a poor finger on SJ's pulse these days, but I'll say low.

The ironman and steelman of worst-plausible-case are bad enough I’m not willing to discuss them openly. There’s options here, even if never genuinely implemented, where simple explicit proposal by high-profile actors would at best undermine both parties’s trust in federal elections and systems as a whole, and more likely drive open attacks.

The more intermediate case ‘just’ destroys conservative trust in the judiciary. Either SCOTUS punts, lower courts defy rulings, or procedural gamesmanship drives through changes faster than they can be seriously reviewed for lawfulness. This doesn’t even necessarily require Trump be off the ballot: stupid gimmicks like prefixing his name with ‘felon’ wouldn’t even need to work to have a massive social impact

The good news is that there are off-ramps still available, some under no one’s control but fate.

What's the difference between an ironman and steelman?

At least as I've seen it colloquially used in the ratsphere, iron is 'softer' than steel, sometimes with the implication than iron is something present in nature (if rare), while steel is mostly man-made. Might be derived from DoD framing of increasingly higher-order languages.

I think major violent unrest is pretty unlikely. My expectation is that the Supreme Court will make a definitive ruling one way or the other and Trump will either be on the ballot everywhere or nowhere (and if nowhere, then the GOP will successfully organize to replace him with DeSantis or Haley). No matter what happens some people will be pissed off, but they will bitch and moan and get over it without drawing any significant amount of blood. I could see irate Trump supporters throwing the election to Biden via write-in campaign that splits the GOP vote though.

If violent protest were to occur, I would expect it to be in response to Trump being imprisoned rather than because of the 14th Amendment issue.

Maybe it's just me, but it seems like trying to prevent a populist candidate from running via technicalities is not the most effective option?

"No trying to overthrow the government" is not a technicality.

"No trying to overthrow the government" is not a technicality.

I read through the 14th amendment and thought this was pretty much cut and dry myself. However, after discussing it with my SO, there is the problem that he has not been convicted of anything yet. Also, even if we were to say "Giving Aid and Comfort" -- well, explicitly he hasn't given money or legal aid to them, right?

So, in a court of law, is there sufficient condition met for the man to be excluded by 14th Amendment prior to him being convicted of this? It seems the Supreme court would probably throw all these out on straight constitutional grounds, no?

If he is convicted, though, whole different story. No questions, 14th amendment excludes him outright.

As I've said previously, I find it completely implausible to suggest a criminal conviction is required to apply section 3. That would mean that Jefferson Davis and Robert E Lee were not barred by it.

I’m of the opinion that conviction is sufficient, but not necessary.

It would be obvious that a convicted insurrectionist was ineligible, just as it would be obvious for an enemy general or president. Since neither is true in this case, we ought to pick some sort of threshold in between.

Basing it on a lawsuit is…alright, I guess. It might or might not have worked for Lee or Davis, depending on whether a local judge or jury corrupted the process. That’s not easy to avoid. It leaves me inclined to rely on a national-level decision for national-level candidates. Maybe for lower-level ones, too?

It’s a thorny problem, and I sympathize with the Colorado judges; they were definitely not happy to be in this position.

The problem is that Colorado law requires invalid candidates to be removed from its ballots. It gives a timeline and procedure for making this happen via a lawsuit and a judge. As you observe, if Trump had been convicted (say, after his impeachment), the suit could just cite that.

Since he wasn’t, though, the Colorado court is in a bind. They are required to make a decision, which means they need someone to make a finding of fact. But other states are not necessarily so bound. I think this makes it really hard for the Supreme Court to affect other states. Finding that Colorado’s law violates due process, for example, would just leave us back where we were before they banned him.

Funny, I have the diametrically opposite interpretation of potential consequences.

Throwing someone in jail because they committed a crime - that sounds like punishing an individual for their actions (which, while unpopular, I would predict would be more acceptable to Trump supporter). So I would not expect any kind of violent unrest - just some moaning etc....

While, if a candidate is prevented from showing up on a ballot despite popular support? I predict that would be interpreted more like attempting to penalize a large swathe of the electorate for their political leanings and sensibilities (as opposed to penalizing an individual). And I would expect that interpretation to galvanize folk, whether or not they'd vote for the individual, and lead to protests and potential violence

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