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jimmyjazz · December 20, 2023

At some point plain language has to stand on its own. Absent a direct and contrary definition of "officer" within the Constitution, only an idiot or a bad actor would argue that POTUS is not a civil officer of the United States.

I realize lawdogs love to torture the rest of us with semantics and "yeah but" and all that other shit, but in the end, Colorado got it right. To somehow suggest that it would be better for the country going forward had they not done so because it sets a bad precedent is fucking lunacy. To suggest that the founders carved out US Senators, US Representatives, electors of P/VPOTUS, state legislators, etc. but specifically did NOT want to carve out P/VPOTUS is so ridiculous it doesn't even deserve consideration.

If we can't follow our own laws then we don't deserve to exist as a sovereign nation.

Edited December 20, 2023 by jimmyjazz

Brisketexan · December 20, 2023

33 minutes ago, jimmyjazz said:

If we can't follow our own laws then we don't deserve to exist as a sovereign nation.

So....I have some bad news for you......

dcbc · December 20, 2023

37 minutes ago, Brisketexan said:

So....I have some bad news for you......

Edited December 20, 2023 by dcbc

Macanudo · December 20, 2023

Can someone explain why no one has filed a similar motion in other states alleging the same argument that as in Colorado? Make each state go on record as yay or nay.

Pasken · December 20, 2023

6 minutes ago, Macanudo said:

Can someone explain why no one has filed a similar motion in other states alleging the same argument that as in Colorado? Make each state go on record as yay or nay.

I bet you start to see lawsuits filed to get biden off the ballot for some dumb reason.

nbmishoid · December 20, 2023

Weak Dem state organizations (and lack there of.

hornmpa96 · December 20, 2023

12 minutes ago, Macanudo said:

Can someone explain why no one has filed a similar motion in other states alleging the same argument that as in Colorado? Make each state go on record as yay or nay.

Cases have been filed in other states. I believe the cases have been essentially dismissed in 5 states with cases pending in 12-15 others.

TeeDubya · December 20, 2023

Maine could be next….

atomheartbevo · December 20, 2023

18 minutes ago, Macanudo said:

Can someone explain why no one has filed a similar motion in other states alleging the same argument that as in Colorado? Make each state go on record as yay or nay.

They have, it's just that some were dismissed.

https://www.forbes.com/sites/alisondurkee/2023/12/20/trump-14th-amendment-heres-where-lawsuits-challenging-ex-presidents-candidacy-stand-after-colorado-disqualifies-him/?sh=5e95bf50f384

Red Five · December 20, 2023

Hey. Remember when the Capitol was under attack and the president sat on his fat ass watching tv for four hours, enjoying what he had caused? The attack on the Capitol, and the attack on our election. THAT HE CAUSED, INTENTIONALLY. That there is even some kind of debate over whether he should be allowed to run for president again is just incredibly depressing.

dcbc · December 20, 2023

8 minutes ago, hornmpa96 said:

Cases have been filed in other states. I believe the cases have been essentially dismissed in 5 states with cases pending in 12-15 others.

At the very least, cases dismissed in Michigan and Minnesota are pending on appeal.

TwiceHorn · December 20, 2023

23 minutes ago, Macanudo said:

Can someone explain why no one has filed a similar motion in other states alleging the same argument that as in Colorado? Make each state go on record as yay or nay.

There's one pending in almost every state. See the lawfare link I posted above. However, some are pro se (by idiots) and some are pro se by lawyers in proprio persona but probably not qualified to take it to the end.

High Plains Drifter · December 20, 2023

I keep seeing this "noy appearing on the ballot" tossed around, and then talk of people writing him in on the Colorado ballot.

So, this entire amendment is just to keep the insurrectionists' names off the ballot, but people can still write them in, and if enough do so, the electors can still give the insurrectionist their electoral votes?

What kind of shit is that?

Or does "not appearing on the ballot" mean that the insurrectionist cannot win Colorado's electoral votes?

nbmishoid · December 20, 2023

How about those votes don’t count, as he is not a lawful candidate

Longhorn_Fan68 · December 20, 2023

14 minutes ago, High Plains Drifter said:

I keep seeing this "noy appearing on the ballot" tossed around, and then talk of people writing him in on the Colorado ballot.

So, this entire amendment is just to keep the insurrectionists' names off the ballot, but people can still write them in, and if enough do so, the electors can still give the insurrectionist their electoral votes?

What kind of shit is that?

Or does "not appearing on the ballot" mean that the insurrectionist cannot win Colorado's electoral votes?

apropos to nothing but I cannot read a post from you without getting the beasties in my head. anyway, carry on

TexasEd · December 20, 2023

I think in at least one of the dismissed cases they did it without prejudice and said that they would not rule on what the party wanted to put on the primary ballot but they would rule on what went on the November ballot.

Are there two angles here? a) cannot appear on the ballot and b) Ineligible for electoral college votes

a) could be a hurdle but b) would be a brick wall.

If b) comes along with a) for the primaries then all you need to do is remove enough states from the equation that winning a majority of Republican party delegates is a mathematical impossibility.

DDD Dad · December 20, 2023

5 hours ago, TwiceHorn said:

Given the language of the 14th, there's a ton of different ways it could go, because this right here is calvinball, it's make it up as you go along.

The Colorado Supreme Court did a pretty good job with it, though.

ETA: Opinion here. https://www.lawfaremedia.org/article/colorado-supreme-court-rules-trump-is-disqualified-from-holding-presidency

Lawfare has a tracker of all these cases. https://www.lawfaremedia.org/current-projects/the-trump-trials/section-3-litigation-tracker

Adam Liptak at the NYT seems to think they'll not let this stand under a theory of "judicial restraint" and the political question doctrine. However, it seems to me that if they do this it would be the opposite of judicial restraint because it would be inserting their own policy concerns (we can't take away people's right to vote for the candidate of their choice) for the language over the fairly clear language of the Constitution (which defines who is eligible to be elected President, such as natural born citizens of at least the age of 35 [or whatever the age floor is]).

https://www.nytimes.com/2023/12/20/podcasts/the-daily/trump-colorado-ballot.html

Spoiler

This transcript was created using speech recognition software. While it has been reviewed by human transcribers, it may contain errors. Please review the episode audio before quoting from this transcript and email transcripts@nytimes.com with any questions.

Michael Barbaro
From “The New York Times,” I’m Michael Barbaro. This is “The Daily.”

Today, the story behind the bombshell court ruling issued last night that could knock Donald Trump off the ballot for president in Colorado and open the floodgates for efforts to disqualify him across the country. I spoke with my colleague, Supreme Court reporter Adam Liptak. It’s Wednesday, December 20.

So Adam, thank you for jumping on with us so last-minute and so late at night. It is 10 PM on the nose. And we’re talking to you at this ungodly hour, because we’ve all just been jolted by a very big ruling from the Colorado Supreme Court. Can you briefly just describe that ruling?

Adam Liptak
The Colorado Supreme Court, by a 4-to-3 vote, said that Donald Trump is not eligible to be on the ballot for the Republican primary election there, saying that a provision of the 14th Amendment, adopted after the Civil War, bars people who have engaged in insurrection from holding federal office, that Donald Trump did engage in an insurrection in his efforts to overturn the 2020 election, and that this clause, although fashioned for the aftermath of the Civil War, continues to have force and requires the court to bar him from being on the ballot.

Michael Barbaro
So just in summary, the court has found that Trump’s overall conduct around what we have come to call January 6 — his role in a pretty elaborate effort to overturn the 2020 election, despite losing it — means that he should not be allowed to stand for re-election in Colorado, which would seem to have very big implications for the 2024 election, because it’s an election that’s about to start in just a few weeks. Primaries will be underway by mid-January.

Adam Liptak
Yeah, so it’s enormously consequential in Colorado. There are similar lawsuits filed in other states — notably, Michigan. This decision will almost certainly result in even more of them. And this really needs to be an issue that is resolved on a nationwide basis, meaning it has to go to the Supreme Court.

And it would be shocking if the Supreme Court would not wade in, take this case or a similar one, and issue a ruling on this question that, a decade ago, would have been impossible to imagine — that this Civil War-era Constitutional provision could, at least in legal theory, knock the leading candidate of one of the two major political parties off the ballot.

Michael Barbaro
Right. I mean, what you’re describing is a Supreme Court case with monumental stakes. Because the court will be asked to shape the contours of the next presidential race.

Adam Liptak
Right. And the Supreme Court knows that it can’t let chaos reign. It has to issue a definitive ruling. So it’s kind of impossible to imagine that one court having gone this far, and the Supreme Court of a major state, that the US Supreme Court would stay out of it. It will feel obligated to give us a definitive answer.

Michael Barbaro
OK, so Adam, given how big the stakes of this already are and how big they are going to be when the Supreme Court takes it up, give us the story behind this pretty extraordinary case and how it is that it ever reaches this point.

Adam Liptak
So it didn’t take long after January 6 for liberal legal activists and others to note that just as the Constitution says you can’t be president if you’re not 35 years old, you also can’t be president if you’re an insurrectionist, and the theory being that Section 3 of the 14th Amendment bars people who have taken an oath to support the Constitution of the United States from holding office if they then, quote, “shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.”

So they say that fits Donald Trump pretty well. And this theory gets a lot of applause and support from precisely the people you might imagine, from liberals. But as time goes on, legal scholars and others start to say, wait a second. This actually makes sense.

Michael Barbaro
Scholars like who?

Adam Liptak
Well, the issue really gets turbo-charged in August, when two prominent conservative law professors, members of the Federalist Society, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of Saint Thomas, publish an early draft of a long article that’s going to be in the “University of Pennsylvania Law Review.” And they are originalists, meaning that they try to unearth the original meaning of the Constitutional provision.

And the more they looked at it, the more they thought it was indisputable that Donald Trump had committed the kinds of acts that the provision gets triggered by and otherwise qualifies as someone who should be excluded from the ballot because of the things he did.

Michael Barbaro
So these conservative-minded legal theorists who, you might think, on paper, would be inclined to identify with Trump, agree that Trump does qualify as an insurrectionist under the 14th Amendment and, as a result, should be ineligible from being on the ballot for the presidency.

Adam Liptak
Yeah, they looked at the historical record, and they found that there was, as they put it, abundant evidence that Trump engaged in an insurrection, including by setting out to overturn the results of the election, trying to alter vote counts by fraud and intimidation, pressuring the vice president to violate the Constitution, calling for the march on the Capitol. I mean, they say that every official in the land, that election officials themselves — the state secretaries of state in charge of state election law has an obligation to keep Trump off the ballot.

Michael Barbaro
Wow.

Adam Liptak
The Constitution simply says, they say, that if you’ve done these things, you cannot be president.

Michael Barbaro
Mm-hmm. And so how does this turbo-charged conversation lead to a case in Colorado?

Adam Liptak
A group of Colorado voters filed a lawsuit saying Donald Trump should not be allowed to be on the primary ballot, and the lawsuit proceeds, and it goes to a state trial judge. And she does something interesting. She says, first of all, that Donald Trump did engage in insurrection.

But she says Section 3 nonetheless doesn’t apply to him, for two reasons. She says that the only oath he took as president to support the Constitution was not the kind of oath that triggers Section 3. And she says the office that he seeks, the presidency, is not one of the offices from which Section 3 disqualifies people. So for both of those reasons, she says Section 3 doesn’t apply to Donald Trump, even though he engaged in insurrection.

Michael Barbaro
So what happens after that?

Adam Liptak
Well, there’s an appeal, on a very quick schedule, to the Colorado Supreme Court. Both sides are unhappy with some parts of the decision.

Michael Barbaro
Mm-hmm.

Adam Liptak
Donald Trump is not happy to be called an insurrectionist. The voters are not happy that they lose on what they see as a kind of weird technicality. And the state Supreme Court, for the first time in the history of the republic, is faced with the question of whether it’s going to disqualify a candidate for president from one of the major political parties.

Michael Barbaro
We’ll be right back.

So Adam, once the Colorado Supreme Court and its judges take up this case on appeal, what happens to it?

Adam Liptak
So the court has a long, involved oral argument. The justices are quite engaged. They’re, all of them, appointed by Democrats, but they come at the case from many different angles. There are lots of legal issues in it.

And Trump’s lawyers dispute the insurrectionist point to some extent. They minimize Donald Trump’s involvement. They say maybe it was more a riot than an insurrection. But they really press hardest on the point that the provision we’ve been talking about, Section 3 of the 14th Amendment, doesn’t apply to their client and doesn’t apply to the office of the presidency.

Michael Barbaro
So they seize on this lower court judges’ decision.

Adam Liptak
Right. And they get a kind of skeptical response from at least some of the justices on the Colorado Supreme Court, one of them saying, how is that not absurd? I mean, in what world would the framers of the 14th Amendment want to disqualify everybody from every federal office who has engaged in insurrection, except for a former president and except for the office of the presidency?

The court looked at lots of other issues, too — most of them too technical to spend a lot of time on. But there are questions like, does the court have jurisdiction? Is this a political question that should not be resolved by judges? Does Congress have to act to implement the 14th Amendment?

It’s a thicket of complicated legal issues. But the two key points are the factual one — did he engage in insurrection — and the legal one — does Section 3 apply to him at all. And when the court rules, 4 to 3, they say that the voters challenging Trump’s candidacy have run the table on all of these issues, have established that he is an insurrectionist, and have established also that the provision, Section 3, applies to Donald Trump.

And in issuing this decision, the four justices in the majority seem to recognize the gravity of what they were doing. They wrote, “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law without fear or favor and without being swayed by public reaction to the decisions that the law mandates we reach.”

Michael Barbaro
OK. So let’s now turn, Adam, to the question of how quickly this case is likely to get to the US Supreme Court now on appeal, and how we think this Supreme Court is likely to receive it and think about it.

Adam Liptak
There’s every reason to think Donald Trump will go to the Supreme Court in very short order. And there’s every reason to think the court will take the case and, in due course, but probably not for a month or two, issue a definitive ruling. What will that ruling be? Well, I think that we should, first of all, reject the idea that it’s a predictable 6-3 ruling in favor of Donald Trump.

Michael Barbaro
Hmm. Because the court’s conservative majority is 6-to-3 liberals?

Adam Liptak
That’s right — six Republican appointees, three Democratic appointees, and on a kind of knucklehead level, you might think, well, that’ll tell us what’s going on.

Michael Barbaro
Right.

Adam Liptak
But I think what will weigh on the justices more, and on both sides of the ideological aisle, is who should decide this question. Should the voters take account of Donald Trump’s conduct in the aftermath of the 2020 election and make judgments for themselves about whether he’s fit to be president again? Or should courts, relying on a provision of the Constitution of the United States that seems to speak to this issue, take that question out of the voters’ hands?

Michael Barbaro
Interesting. Many of the justices, you’re saying — perhaps all the justices, even the liberal justices — may be reluctant to issue the kind of ruling against Trump, in this case, that would effectively take electoral choices away from voters.

Adam Liptak
Yes, that’s right. And I think that works on two levels. The justices, of course, will understand themselves to be making a purely legal judgment based on text, history, structure of the Constitution, the facts, and so on. But even some of the doctrines that they’re looking at, like the so-called Political Question Doctrine, which urges courts to stay out of some kinds of disputes, are broadly similar to an impulse that many people might have, in a non-legal sense, that these are serious matters.

Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington, or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?

Michael Barbaro
Another way to think about this is that you’re suggesting that judicial restraint in matters of an election might override the justices’ impulse to carefully read the 14th Amendment and the facts of this case and find that Trump is an insurrectionist and that the courts have the power to take him off the ballot.

Adam Liptak
The prospect of what would be a profoundly anti-democratic ruling, saying that people who want to vote for Donald Trump may not vote for him, is going to weigh on the justices. It will be part of the rich stew of calculations that go into their decision in this case.

Michael Barbaro
Got it. And if I’m reading between the lines here, what you’re really saying is, it’s going to be unlikely that the Supreme Court rules that Trump should be taken off the ballot in Colorado or any other state where voters are filing similar lawsuits.

Adam Liptak
It’s early days. We’ve just had the first major decision. There’s going to be a lot of briefs, a lot of arguments, and we’ll learn a lot more. But if you ask me today what the likely outcome is at the Supreme Court, it is not that they’re going to tell the American public that one of the two leading candidates for president can’t be on the ballot.

Michael Barbaro
Well, let’s play with that for just a moment. Let’s say the Supreme Court surprises us — surprises you — and decides to let this ruling from Colorado Supreme Court stand. Just on a legal basis, what would be the consequences of that, given, as you have said, that people are trying to file similar lawsuits across the country?

Adam Liptak
You would expect lawsuits in just about every state. And you would expect some state election officials, some state secretaries of state, to themselves take action to take Trump off the ballot. If the Supreme Court were to greenlight the idea that Trump’s participation in the aftermath of the 2020 election disqualifies him, it would give rise to all kinds of actions in all kinds of states.

Michael Barbaro
It seems hard to overstate, Adam, just how delicate this moment seems to be. We have a deeply polarized electorate, an election that is shaping up to be excruciatingly close, according to many polls, and the knowledge that the last election featuring the same two candidates we think might end up being the nominees again ended with a violent insurrection at the Capitol — we’ve been talking about it — over doubts about the legitimacy of that election.

And now, this election is already in court, long before any votes have been cast. And the courts are being asked whether one of these two candidates should even be allowed on the ballot. And so depending on the ruling, those really do look like the ingredients for a potential powder keg for something that could be very scary.

Adam Liptak
Yeah, Michael. It’s a dangerous moment.

I got an email tonight from Rick Hasen, a prominent election law specialist at UCLA, who said the stakes remind him of Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.

Michael Barbaro
Right.

Adam Liptak
He said, “Once again, the Supreme Court is being thrust into the center of a US presidential election. But unlike in 2000, the general political instability in the United States makes the situation now much more precarious.”

Michael Barbaro
Well, Adam. Thank you very much. We really appreciate it.

Adam Liptak
Thank you, Michael.

Michael Barbaro
We’ll be right back.

Here’s what else you need to know today. On Tuesday, the US military laid out a plan to create a Naval coalition to confront militants in Yemen who have been using drones and rockets to attack commercial ships in the Red Sea. The militants, members of the Houthi militia, began firing on the ships as a protest of Israel’s war on Hamas, an ally of the Houthis.

As a result, some of the world’s biggest companies have stopped sending their tankers through the Red Sea. The new Naval coalition will include contributions from among others — Britain, Bahrain, Canada, France, and Italy. And a new analysis shows that 2023 was a uniquely unproductive year for the House of Representatives.

The Republican-led chamber passed just 27 bills that became law, despite holding 724 votes. According to the Bipartisan Policy Center, that is more voting and less lawmaking than at any other point in the past decade.

Today’s episode was produced by Rob Szypko and Carlos Prieto. It was edited by Lisa Chow and Rachel Quester, contains original music from Marion Lozano and Dan Powell, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly.

That’s it for “The Daily.” I’m Michael Barbaro. See you tomorrow.

Edited December 20, 2023 by DDD Dad

Gatorubet · December 20, 2023

13 minutes ago, DDD Dad said:

Adam Liptak at the NYT seems to think they'll not let this stand under a theory of "judicial restraint" and the political question doctrine. However, it seems to me that if they do this it would be the opposite of judicial restraint because it would be inserting their own policy concerns (we can't take away people's right to vote for the candidate of their choice) for the language over the fairly clear language of the Constitution (which defines who is eligible to be elected President, such as natural born citizens of at least the age of 35 [or whatever the age floor is]).

https://www.nytimes.com/2023/12/20/podcasts/the-daily/trump-colorado-ballot.html

Reveal hidden contents

This transcript was created using speech recognition software. While it has been reviewed by human transcribers, it may contain errors. Please review the episode audio before quoting from this transcript and email transcripts@nytimes.com with any questions.

Michael Barbaro
From “The New York Times,” I’m Michael Barbaro. This is “The Daily.”

Today, the story behind the bombshell court ruling issued last night that could knock Donald Trump off the ballot for president in Colorado and open the floodgates for efforts to disqualify him across the country. I spoke with my colleague, Supreme Court reporter Adam Liptak. It’s Wednesday, December 20.

So Adam, thank you for jumping on with us so last-minute and so late at night. It is 10 PM on the nose. And we’re talking to you at this ungodly hour, because we’ve all just been jolted by a very big ruling from the Colorado Supreme Court. Can you briefly just describe that ruling?

Adam Liptak
The Colorado Supreme Court, by a 4-to-3 vote, said that Donald Trump is not eligible to be on the ballot for the Republican primary election there, saying that a provision of the 14th Amendment, adopted after the Civil War, bars people who have engaged in insurrection from holding federal office, that Donald Trump did engage in an insurrection in his efforts to overturn the 2020 election, and that this clause, although fashioned for the aftermath of the Civil War, continues to have force and requires the court to bar him from being on the ballot.

Michael Barbaro
So just in summary, the court has found that Trump’s overall conduct around what we have come to call January 6 — his role in a pretty elaborate effort to overturn the 2020 election, despite losing it — means that he should not be allowed to stand for re-election in Colorado, which would seem to have very big implications for the 2024 election, because it’s an election that’s about to start in just a few weeks. Primaries will be underway by mid-January.

Adam Liptak
Yeah, so it’s enormously consequential in Colorado. There are similar lawsuits filed in other states — notably, Michigan. This decision will almost certainly result in even more of them. And this really needs to be an issue that is resolved on a nationwide basis, meaning it has to go to the Supreme Court.

And it would be shocking if the Supreme Court would not wade in, take this case or a similar one, and issue a ruling on this question that, a decade ago, would have been impossible to imagine — that this Civil War-era Constitutional provision could, at least in legal theory, knock the leading candidate of one of the two major political parties off the ballot.

Michael Barbaro
Right. I mean, what you’re describing is a Supreme Court case with monumental stakes. Because the court will be asked to shape the contours of the next presidential race.

Adam Liptak
Right. And the Supreme Court knows that it can’t let chaos reign. It has to issue a definitive ruling. So it’s kind of impossible to imagine that one court having gone this far, and the Supreme Court of a major state, that the US Supreme Court would stay out of it. It will feel obligated to give us a definitive answer.

Michael Barbaro
OK, so Adam, given how big the stakes of this already are and how big they are going to be when the Supreme Court takes it up, give us the story behind this pretty extraordinary case and how it is that it ever reaches this point.

Adam Liptak
So it didn’t take long after January 6 for liberal legal activists and others to note that just as the Constitution says you can’t be president if you’re not 35 years old, you also can’t be president if you’re an insurrectionist, and the theory being that Section 3 of the 14th Amendment bars people who have taken an oath to support the Constitution of the United States from holding office if they then, quote, “shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.”

So they say that fits Donald Trump pretty well. And this theory gets a lot of applause and support from precisely the people you might imagine, from liberals. But as time goes on, legal scholars and others start to say, wait a second. This actually makes sense.

Michael Barbaro
Scholars like who?

Adam Liptak
Well, the issue really gets turbo-charged in August, when two prominent conservative law professors, members of the Federalist Society, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of Saint Thomas, publish an early draft of a long article that’s going to be in the “University of Pennsylvania Law Review.” And they are originalists, meaning that they try to unearth the original meaning of the Constitutional provision.

And the more they looked at it, the more they thought it was indisputable that Donald Trump had committed the kinds of acts that the provision gets triggered by and otherwise qualifies as someone who should be excluded from the ballot because of the things he did.

Michael Barbaro
So these conservative-minded legal theorists who, you might think, on paper, would be inclined to identify with Trump, agree that Trump does qualify as an insurrectionist under the 14th Amendment and, as a result, should be ineligible from being on the ballot for the presidency.

Adam Liptak
Yeah, they looked at the historical record, and they found that there was, as they put it, abundant evidence that Trump engaged in an insurrection, including by setting out to overturn the results of the election, trying to alter vote counts by fraud and intimidation, pressuring the vice president to violate the Constitution, calling for the march on the Capitol. I mean, they say that every official in the land, that election officials themselves — the state secretaries of state in charge of state election law has an obligation to keep Trump off the ballot.

Michael Barbaro
Wow.

Adam Liptak
The Constitution simply says, they say, that if you’ve done these things, you cannot be president.

Michael Barbaro
Mm-hmm. And so how does this turbo-charged conversation lead to a case in Colorado?

Adam Liptak
A group of Colorado voters filed a lawsuit saying Donald Trump should not be allowed to be on the primary ballot, and the lawsuit proceeds, and it goes to a state trial judge. And she does something interesting. She says, first of all, that Donald Trump did engage in insurrection.

But she says Section 3 nonetheless doesn’t apply to him, for two reasons. She says that the only oath he took as president to support the Constitution was not the kind of oath that triggers Section 3. And she says the office that he seeks, the presidency, is not one of the offices from which Section 3 disqualifies people. So for both of those reasons, she says Section 3 doesn’t apply to Donald Trump, even though he engaged in insurrection.

Michael Barbaro
So what happens after that?

Adam Liptak
Well, there’s an appeal, on a very quick schedule, to the Colorado Supreme Court. Both sides are unhappy with some parts of the decision.

Michael Barbaro
Mm-hmm.

Adam Liptak
Donald Trump is not happy to be called an insurrectionist. The voters are not happy that they lose on what they see as a kind of weird technicality. And the state Supreme Court, for the first time in the history of the republic, is faced with the question of whether it’s going to disqualify a candidate for president from one of the major political parties.

Michael Barbaro
We’ll be right back.

So Adam, once the Colorado Supreme Court and its judges take up this case on appeal, what happens to it?

Adam Liptak
So the court has a long, involved oral argument. The justices are quite engaged. They’re, all of them, appointed by Democrats, but they come at the case from many different angles. There are lots of legal issues in it.

And Trump’s lawyers dispute the insurrectionist point to some extent. They minimize Donald Trump’s involvement. They say maybe it was more a riot than an insurrection. But they really press hardest on the point that the provision we’ve been talking about, Section 3 of the 14th Amendment, doesn’t apply to their client and doesn’t apply to the office of the presidency.

Michael Barbaro
So they seize on this lower court judges’ decision.

Adam Liptak
Right. And they get a kind of skeptical response from at least some of the justices on the Colorado Supreme Court, one of them saying, how is that not absurd? I mean, in what world would the framers of the 14th Amendment want to disqualify everybody from every federal office who has engaged in insurrection, except for a former president and except for the office of the presidency?

The court looked at lots of other issues, too — most of them too technical to spend a lot of time on. But there are questions like, does the court have jurisdiction? Is this a political question that should not be resolved by judges? Does Congress have to act to implement the 14th Amendment?

It’s a thicket of complicated legal issues. But the two key points are the factual one — did he engage in insurrection — and the legal one — does Section 3 apply to him at all. And when the court rules, 4 to 3, they say that the voters challenging Trump’s candidacy have run the table on all of these issues, have established that he is an insurrectionist, and have established also that the provision, Section 3, applies to Donald Trump.

And in issuing this decision, the four justices in the majority seem to recognize the gravity of what they were doing. They wrote, “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law without fear or favor and without being swayed by public reaction to the decisions that the law mandates we reach.”

Michael Barbaro
OK. So let’s now turn, Adam, to the question of how quickly this case is likely to get to the US Supreme Court now on appeal, and how we think this Supreme Court is likely to receive it and think about it.

Adam Liptak
There’s every reason to think Donald Trump will go to the Supreme Court in very short order. And there’s every reason to think the court will take the case and, in due course, but probably not for a month or two, issue a definitive ruling. What will that ruling be? Well, I think that we should, first of all, reject the idea that it’s a predictable 6-3 ruling in favor of Donald Trump.

Michael Barbaro
Hmm. Because the court’s conservative majority is 6-to-3 liberals?

Adam Liptak
That’s right — six Republican appointees, three Democratic appointees, and on a kind of knucklehead level, you might think, well, that’ll tell us what’s going on.

Michael Barbaro
Right.

Adam Liptak
But I think what will weigh on the justices more, and on both sides of the ideological aisle, is who should decide this question. Should the voters take account of Donald Trump’s conduct in the aftermath of the 2020 election and make judgments for themselves about whether he’s fit to be president again? Or should courts, relying on a provision of the Constitution of the United States that seems to speak to this issue, take that question out of the voters’ hands?

Michael Barbaro
Interesting. Many of the justices, you’re saying — perhaps all the justices, even the liberal justices — may be reluctant to issue the kind of ruling against Trump, in this case, that would effectively take electoral choices away from voters.

Adam Liptak
Yes, that’s right. And I think that works on two levels. The justices, of course, will understand themselves to be making a purely legal judgment based on text, history, structure of the Constitution, the facts, and so on. But even some of the doctrines that they’re looking at, like the so-called Political Question Doctrine, which urges courts to stay out of some kinds of disputes, are broadly similar to an impulse that many people might have, in a non-legal sense, that these are serious matters.

Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington, or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?

Michael Barbaro
Another way to think about this is that you’re suggesting that judicial restraint in matters of an election might override the justices’ impulse to carefully read the 14th Amendment and the facts of this case and find that Trump is an insurrectionist and that the courts have the power to take him off the ballot.

Adam Liptak
The prospect of what would be a profoundly anti-democratic ruling, saying that people who want to vote for Donald Trump may not vote for him, is going to weigh on the justices. It will be part of the rich stew of calculations that go into their decision in this case.

Michael Barbaro
Got it. And if I’m reading between the lines here, what you’re really saying is, it’s going to be unlikely that the Supreme Court rules that Trump should be taken off the ballot in Colorado or any other state where voters are filing similar lawsuits.

Adam Liptak
It’s early days. We’ve just had the first major decision. There’s going to be a lot of briefs, a lot of arguments, and we’ll learn a lot more. But if you ask me today what the likely outcome is at the Supreme Court, it is not that they’re going to tell the American public that one of the two leading candidates for president can’t be on the ballot.

Michael Barbaro
Well, let’s play with that for just a moment. Let’s say the Supreme Court surprises us — surprises you — and decides to let this ruling from Colorado Supreme Court stand. Just on a legal basis, what would be the consequences of that, given, as you have said, that people are trying to file similar lawsuits across the country?

Adam Liptak
You would expect lawsuits in just about every state. And you would expect some state election officials, some state secretaries of state, to themselves take action to take Trump off the ballot. If the Supreme Court were to greenlight the idea that Trump’s participation in the aftermath of the 2020 election disqualifies him, it would give rise to all kinds of actions in all kinds of states.

Michael Barbaro
It seems hard to overstate, Adam, just how delicate this moment seems to be. We have a deeply polarized electorate, an election that is shaping up to be excruciatingly close, according to many polls, and the knowledge that the last election featuring the same two candidates we think might end up being the nominees again ended with a violent insurrection at the Capitol — we’ve been talking about it — over doubts about the legitimacy of that election.

And now, this election is already in court, long before any votes have been cast. And the courts are being asked whether one of these two candidates should even be allowed on the ballot. And so depending on the ruling, those really do look like the ingredients for a potential powder keg for something that could be very scary.

Adam Liptak
Yeah, Michael. It’s a dangerous moment.

I got an email tonight from Rick Hasen, a prominent election law specialist at UCLA, who said the stakes remind him of Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.

Michael Barbaro
Right.

Adam Liptak
He said, “Once again, the Supreme Court is being thrust into the center of a US presidential election. But unlike in 2000, the general political instability in the United States makes the situation now much more precarious.”

Michael Barbaro
Well, Adam. Thank you very much. We really appreciate it.

Adam Liptak
Thank you, Michael.

Michael Barbaro
We’ll be right back.

Here’s what else you need to know today. On Tuesday, the US military laid out a plan to create a Naval coalition to confront militants in Yemen who have been using drones and rockets to attack commercial ships in the Red Sea. The militants, members of the Houthi militia, began firing on the ships as a protest of Israel’s war on Hamas, an ally of the Houthis.

As a result, some of the world’s biggest companies have stopped sending their tankers through the Red Sea. The new Naval coalition will include contributions from among others — Britain, Bahrain, Canada, France, and Italy. And a new analysis shows that 2023 was a uniquely unproductive year for the House of Representatives.

The Republican-led chamber passed just 27 bills that became law, despite holding 724 votes. According to the Bipartisan Policy Center, that is more voting and less lawmaking than at any other point in the past decade.

Today’s episode was produced by Rob Szypko and Carlos Prieto. It was edited by Lisa Chow and Rachel Quester, contains original music from Marion Lozano and Dan Powell, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly.

That’s it for “The Daily.” I’m Michael Barbaro. See you tomorrow.

Short version in non-legal terms:

Neonmoon · December 20, 2023

1 hour ago, atomheartbevo said:

They have, it's just that some were dismissed.

https://www.forbes.com/sites/alisondurkee/2023/12/20/trump-14th-amendment-heres-where-lawsuits-challenging-ex-presidents-candidacy-stand-after-colorado-disqualifies-him/?sh=5e95bf50f384

I think dismissed is a bit misleading. The Florida case was brought by a random lawyer so dismissed due to standing. Many of the others said 14th doesn’t apply to primaries, come back in General Election

https://www.lawfaremedia.org/current-projects/the-trump-trials/section-3-litigation-tracker

bolverk · December 20, 2023

30 minutes ago, DDD Dad said:

Adam Liptak at the NYT seems to think they'll not let this stand under a theory of "judicial restraint" and the political question doctrine. However, it seems to me that if they do this it would be the opposite of judicial restraint because it would be inserting their own policy concerns (we can't take away people's right to vote for the candidate of their choice) for the language over the fairly clear language of the Constitution (which defines who is eligible to be elected President, such as natural born citizens of at least the age of 35 [or whatever the age floor is]).

https://www.nytimes.com/2023/12/20/podcasts/the-daily/trump-colorado-ballot.html

Reveal hidden contents

This transcript was created using speech recognition software. While it has been reviewed by human transcribers, it may contain errors. Please review the episode audio before quoting from this transcript and email transcripts@nytimes.com with any questions.

Michael Barbaro
From “The New York Times,” I’m Michael Barbaro. This is “The Daily.”

Today, the story behind the bombshell court ruling issued last night that could knock Donald Trump off the ballot for president in Colorado and open the floodgates for efforts to disqualify him across the country. I spoke with my colleague, Supreme Court reporter Adam Liptak. It’s Wednesday, December 20.

So Adam, thank you for jumping on with us so last-minute and so late at night. It is 10 PM on the nose. And we’re talking to you at this ungodly hour, because we’ve all just been jolted by a very big ruling from the Colorado Supreme Court. Can you briefly just describe that ruling?

Adam Liptak
The Colorado Supreme Court, by a 4-to-3 vote, said that Donald Trump is not eligible to be on the ballot for the Republican primary election there, saying that a provision of the 14th Amendment, adopted after the Civil War, bars people who have engaged in insurrection from holding federal office, that Donald Trump did engage in an insurrection in his efforts to overturn the 2020 election, and that this clause, although fashioned for the aftermath of the Civil War, continues to have force and requires the court to bar him from being on the ballot.

Michael Barbaro
So just in summary, the court has found that Trump’s overall conduct around what we have come to call January 6 — his role in a pretty elaborate effort to overturn the 2020 election, despite losing it — means that he should not be allowed to stand for re-election in Colorado, which would seem to have very big implications for the 2024 election, because it’s an election that’s about to start in just a few weeks. Primaries will be underway by mid-January.

Adam Liptak
Yeah, so it’s enormously consequential in Colorado. There are similar lawsuits filed in other states — notably, Michigan. This decision will almost certainly result in even more of them. And this really needs to be an issue that is resolved on a nationwide basis, meaning it has to go to the Supreme Court.

And it would be shocking if the Supreme Court would not wade in, take this case or a similar one, and issue a ruling on this question that, a decade ago, would have been impossible to imagine — that this Civil War-era Constitutional provision could, at least in legal theory, knock the leading candidate of one of the two major political parties off the ballot.

Michael Barbaro
Right. I mean, what you’re describing is a Supreme Court case with monumental stakes. Because the court will be asked to shape the contours of the next presidential race.

Adam Liptak
Right. And the Supreme Court knows that it can’t let chaos reign. It has to issue a definitive ruling. So it’s kind of impossible to imagine that one court having gone this far, and the Supreme Court of a major state, that the US Supreme Court would stay out of it. It will feel obligated to give us a definitive answer.

Michael Barbaro
OK, so Adam, given how big the stakes of this already are and how big they are going to be when the Supreme Court takes it up, give us the story behind this pretty extraordinary case and how it is that it ever reaches this point.

Adam Liptak
So it didn’t take long after January 6 for liberal legal activists and others to note that just as the Constitution says you can’t be president if you’re not 35 years old, you also can’t be president if you’re an insurrectionist, and the theory being that Section 3 of the 14th Amendment bars people who have taken an oath to support the Constitution of the United States from holding office if they then, quote, “shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.”

So they say that fits Donald Trump pretty well. And this theory gets a lot of applause and support from precisely the people you might imagine, from liberals. But as time goes on, legal scholars and others start to say, wait a second. This actually makes sense.

Michael Barbaro
Scholars like who?

Adam Liptak
Well, the issue really gets turbo-charged in August, when two prominent conservative law professors, members of the Federalist Society, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of Saint Thomas, publish an early draft of a long article that’s going to be in the “University of Pennsylvania Law Review.” And they are originalists, meaning that they try to unearth the original meaning of the Constitutional provision.

And the more they looked at it, the more they thought it was indisputable that Donald Trump had committed the kinds of acts that the provision gets triggered by and otherwise qualifies as someone who should be excluded from the ballot because of the things he did.

Michael Barbaro
So these conservative-minded legal theorists who, you might think, on paper, would be inclined to identify with Trump, agree that Trump does qualify as an insurrectionist under the 14th Amendment and, as a result, should be ineligible from being on the ballot for the presidency.

Adam Liptak
Yeah, they looked at the historical record, and they found that there was, as they put it, abundant evidence that Trump engaged in an insurrection, including by setting out to overturn the results of the election, trying to alter vote counts by fraud and intimidation, pressuring the vice president to violate the Constitution, calling for the march on the Capitol. I mean, they say that every official in the land, that election officials themselves — the state secretaries of state in charge of state election law has an obligation to keep Trump off the ballot.

Michael Barbaro
Wow.

Adam Liptak
The Constitution simply says, they say, that if you’ve done these things, you cannot be president.

Michael Barbaro
Mm-hmm. And so how does this turbo-charged conversation lead to a case in Colorado?

Adam Liptak
A group of Colorado voters filed a lawsuit saying Donald Trump should not be allowed to be on the primary ballot, and the lawsuit proceeds, and it goes to a state trial judge. And she does something interesting. She says, first of all, that Donald Trump did engage in insurrection.

But she says Section 3 nonetheless doesn’t apply to him, for two reasons. She says that the only oath he took as president to support the Constitution was not the kind of oath that triggers Section 3. And she says the office that he seeks, the presidency, is not one of the offices from which Section 3 disqualifies people. So for both of those reasons, she says Section 3 doesn’t apply to Donald Trump, even though he engaged in insurrection.

Michael Barbaro
So what happens after that?

Adam Liptak
Well, there’s an appeal, on a very quick schedule, to the Colorado Supreme Court. Both sides are unhappy with some parts of the decision.

Michael Barbaro
Mm-hmm.

Adam Liptak
Donald Trump is not happy to be called an insurrectionist. The voters are not happy that they lose on what they see as a kind of weird technicality. And the state Supreme Court, for the first time in the history of the republic, is faced with the question of whether it’s going to disqualify a candidate for president from one of the major political parties.

Michael Barbaro
We’ll be right back.

So Adam, once the Colorado Supreme Court and its judges take up this case on appeal, what happens to it?

Adam Liptak
So the court has a long, involved oral argument. The justices are quite engaged. They’re, all of them, appointed by Democrats, but they come at the case from many different angles. There are lots of legal issues in it.

And Trump’s lawyers dispute the insurrectionist point to some extent. They minimize Donald Trump’s involvement. They say maybe it was more a riot than an insurrection. But they really press hardest on the point that the provision we’ve been talking about, Section 3 of the 14th Amendment, doesn’t apply to their client and doesn’t apply to the office of the presidency.

Michael Barbaro
So they seize on this lower court judges’ decision.

Adam Liptak
Right. And they get a kind of skeptical response from at least some of the justices on the Colorado Supreme Court, one of them saying, how is that not absurd? I mean, in what world would the framers of the 14th Amendment want to disqualify everybody from every federal office who has engaged in insurrection, except for a former president and except for the office of the presidency?

The court looked at lots of other issues, too — most of them too technical to spend a lot of time on. But there are questions like, does the court have jurisdiction? Is this a political question that should not be resolved by judges? Does Congress have to act to implement the 14th Amendment?

It’s a thicket of complicated legal issues. But the two key points are the factual one — did he engage in insurrection — and the legal one — does Section 3 apply to him at all. And when the court rules, 4 to 3, they say that the voters challenging Trump’s candidacy have run the table on all of these issues, have established that he is an insurrectionist, and have established also that the provision, Section 3, applies to Donald Trump.

And in issuing this decision, the four justices in the majority seem to recognize the gravity of what they were doing. They wrote, “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law without fear or favor and without being swayed by public reaction to the decisions that the law mandates we reach.”

Michael Barbaro
OK. So let’s now turn, Adam, to the question of how quickly this case is likely to get to the US Supreme Court now on appeal, and how we think this Supreme Court is likely to receive it and think about it.

Adam Liptak
There’s every reason to think Donald Trump will go to the Supreme Court in very short order. And there’s every reason to think the court will take the case and, in due course, but probably not for a month or two, issue a definitive ruling. What will that ruling be? Well, I think that we should, first of all, reject the idea that it’s a predictable 6-3 ruling in favor of Donald Trump.

Michael Barbaro
Hmm. Because the court’s conservative majority is 6-to-3 liberals?

Adam Liptak
That’s right — six Republican appointees, three Democratic appointees, and on a kind of knucklehead level, you might think, well, that’ll tell us what’s going on.

Michael Barbaro
Right.

Adam Liptak
But I think what will weigh on the justices more, and on both sides of the ideological aisle, is who should decide this question. Should the voters take account of Donald Trump’s conduct in the aftermath of the 2020 election and make judgments for themselves about whether he’s fit to be president again? Or should courts, relying on a provision of the Constitution of the United States that seems to speak to this issue, take that question out of the voters’ hands?

Michael Barbaro
Interesting. Many of the justices, you’re saying — perhaps all the justices, even the liberal justices — may be reluctant to issue the kind of ruling against Trump, in this case, that would effectively take electoral choices away from voters.

Adam Liptak
Yes, that’s right. And I think that works on two levels. The justices, of course, will understand themselves to be making a purely legal judgment based on text, history, structure of the Constitution, the facts, and so on. But even some of the doctrines that they’re looking at, like the so-called Political Question Doctrine, which urges courts to stay out of some kinds of disputes, are broadly similar to an impulse that many people might have, in a non-legal sense, that these are serious matters.

Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington, or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?

Michael Barbaro
Another way to think about this is that you’re suggesting that judicial restraint in matters of an election might override the justices’ impulse to carefully read the 14th Amendment and the facts of this case and find that Trump is an insurrectionist and that the courts have the power to take him off the ballot.

Adam Liptak
The prospect of what would be a profoundly anti-democratic ruling, saying that people who want to vote for Donald Trump may not vote for him, is going to weigh on the justices. It will be part of the rich stew of calculations that go into their decision in this case.

Michael Barbaro
Got it. And if I’m reading between the lines here, what you’re really saying is, it’s going to be unlikely that the Supreme Court rules that Trump should be taken off the ballot in Colorado or any other state where voters are filing similar lawsuits.

Adam Liptak
It’s early days. We’ve just had the first major decision. There’s going to be a lot of briefs, a lot of arguments, and we’ll learn a lot more. But if you ask me today what the likely outcome is at the Supreme Court, it is not that they’re going to tell the American public that one of the two leading candidates for president can’t be on the ballot.

Michael Barbaro
Well, let’s play with that for just a moment. Let’s say the Supreme Court surprises us — surprises you — and decides to let this ruling from Colorado Supreme Court stand. Just on a legal basis, what would be the consequences of that, given, as you have said, that people are trying to file similar lawsuits across the country?

Adam Liptak
You would expect lawsuits in just about every state. And you would expect some state election officials, some state secretaries of state, to themselves take action to take Trump off the ballot. If the Supreme Court were to greenlight the idea that Trump’s participation in the aftermath of the 2020 election disqualifies him, it would give rise to all kinds of actions in all kinds of states.

Michael Barbaro
It seems hard to overstate, Adam, just how delicate this moment seems to be. We have a deeply polarized electorate, an election that is shaping up to be excruciatingly close, according to many polls, and the knowledge that the last election featuring the same two candidates we think might end up being the nominees again ended with a violent insurrection at the Capitol — we’ve been talking about it — over doubts about the legitimacy of that election.

And now, this election is already in court, long before any votes have been cast. And the courts are being asked whether one of these two candidates should even be allowed on the ballot. And so depending on the ruling, those really do look like the ingredients for a potential powder keg for something that could be very scary.

Adam Liptak
Yeah, Michael. It’s a dangerous moment.

I got an email tonight from Rick Hasen, a prominent election law specialist at UCLA, who said the stakes remind him of Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.

Michael Barbaro
Right.

Adam Liptak
He said, “Once again, the Supreme Court is being thrust into the center of a US presidential election. But unlike in 2000, the general political instability in the United States makes the situation now much more precarious.”

Michael Barbaro
Well, Adam. Thank you very much. We really appreciate it.

Adam Liptak
Thank you, Michael.

Michael Barbaro
We’ll be right back.

Here’s what else you need to know today. On Tuesday, the US military laid out a plan to create a Naval coalition to confront militants in Yemen who have been using drones and rockets to attack commercial ships in the Red Sea. The militants, members of the Houthi militia, began firing on the ships as a protest of Israel’s war on Hamas, an ally of the Houthis.

As a result, some of the world’s biggest companies have stopped sending their tankers through the Red Sea. The new Naval coalition will include contributions from among others — Britain, Bahrain, Canada, France, and Italy. And a new analysis shows that 2023 was a uniquely unproductive year for the House of Representatives.

The Republican-led chamber passed just 27 bills that became law, despite holding 724 votes. According to the Bipartisan Policy Center, that is more voting and less lawmaking than at any other point in the past decade.

Today’s episode was produced by Rob Szypko and Carlos Prieto. It was edited by Lisa Chow and Rachel Quester, contains original music from Marion Lozano and Dan Powell, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly.

That’s it for “The Daily.” I’m Michael Barbaro. See you tomorrow.

The bolded right there would be my argument were I to argue this case. The Constitution plainly states the requirements for eligibility:

Article II, Section 1, Clause 5:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

You might not think any of that is fair. You might think that goes against the will of the people supporting a certain candidate, but that's what the Constitution says, and it's always been enforced. Hell, Trump himself made a big stink about Obama's fucking birth certificate, arguing that he shouldn't be president with the lie that he wasn't born in the United States.

Wouldn't it be the height of irony if the man whose political fortunes rose based on that lie was himself disqualified for eligibility due to what the Constitution said?

dcbc · December 20, 2023

20 minutes ago, bolverk said:

The bolded right there would be my argument were I to argue this case. The Constitution plainly states the requirements for eligibility:

Article II, Section 1, Clause 5:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

You might not think any of that is fair. You might think that goes against the will of the people supporting a certain candidate, but that's what the Constitution says, and it's always been enforced. Hell, Trump himself made a big stink about Obama's fucking birth certificate, arguing that he shouldn't be president with the lie that he wasn't born in the United States.

Wouldn't it be the height of irony if the man whose political fortunes rose based on that lie was himself disqualified for eligibility due to what the Constitution said?

Maybe I'm missing your point, but I don't think Section 3 of the 14th Amendment contradicts this. In fact, it assumes that the person ineligible for election previously was elected but committed an act of insurrection. The amendment can be harmonized with Art. II, Sec. 1.

Brisketexan · December 20, 2023

1 hour ago, DDD Dad said:

Adam Liptak at the NYT seems to think they'll not let this stand under a theory of "judicial restraint" and the political question doctrine. However, it seems to me that if they do this it would be the opposite of judicial restraint because it would be inserting their own policy concerns (we can't take away people's right to vote for the candidate of their choice) for the language over the fairly clear language of the Constitution (which defines who is eligible to be elected President, such as natural born citizens of at least the age of 35 [or whatever the age floor is]).

https://www.nytimes.com/2023/12/20/podcasts/the-daily/trump-colorado-ballot.html

Reveal hidden contents

This transcript was created using speech recognition software. While it has been reviewed by human transcribers, it may contain errors. Please review the episode audio before quoting from this transcript and email transcripts@nytimes.com with any questions.

Michael Barbaro
From “The New York Times,” I’m Michael Barbaro. This is “The Daily.”

Today, the story behind the bombshell court ruling issued last night that could knock Donald Trump off the ballot for president in Colorado and open the floodgates for efforts to disqualify him across the country. I spoke with my colleague, Supreme Court reporter Adam Liptak. It’s Wednesday, December 20.

So Adam, thank you for jumping on with us so last-minute and so late at night. It is 10 PM on the nose. And we’re talking to you at this ungodly hour, because we’ve all just been jolted by a very big ruling from the Colorado Supreme Court. Can you briefly just describe that ruling?

Adam Liptak
The Colorado Supreme Court, by a 4-to-3 vote, said that Donald Trump is not eligible to be on the ballot for the Republican primary election there, saying that a provision of the 14th Amendment, adopted after the Civil War, bars people who have engaged in insurrection from holding federal office, that Donald Trump did engage in an insurrection in his efforts to overturn the 2020 election, and that this clause, although fashioned for the aftermath of the Civil War, continues to have force and requires the court to bar him from being on the ballot.

Michael Barbaro
So just in summary, the court has found that Trump’s overall conduct around what we have come to call January 6 — his role in a pretty elaborate effort to overturn the 2020 election, despite losing it — means that he should not be allowed to stand for re-election in Colorado, which would seem to have very big implications for the 2024 election, because it’s an election that’s about to start in just a few weeks. Primaries will be underway by mid-January.

Adam Liptak
Yeah, so it’s enormously consequential in Colorado. There are similar lawsuits filed in other states — notably, Michigan. This decision will almost certainly result in even more of them. And this really needs to be an issue that is resolved on a nationwide basis, meaning it has to go to the Supreme Court.

And it would be shocking if the Supreme Court would not wade in, take this case or a similar one, and issue a ruling on this question that, a decade ago, would have been impossible to imagine — that this Civil War-era Constitutional provision could, at least in legal theory, knock the leading candidate of one of the two major political parties off the ballot.

Michael Barbaro
Right. I mean, what you’re describing is a Supreme Court case with monumental stakes. Because the court will be asked to shape the contours of the next presidential race.

Adam Liptak
Right. And the Supreme Court knows that it can’t let chaos reign. It has to issue a definitive ruling. So it’s kind of impossible to imagine that one court having gone this far, and the Supreme Court of a major state, that the US Supreme Court would stay out of it. It will feel obligated to give us a definitive answer.

Michael Barbaro
OK, so Adam, given how big the stakes of this already are and how big they are going to be when the Supreme Court takes it up, give us the story behind this pretty extraordinary case and how it is that it ever reaches this point.

Adam Liptak
So it didn’t take long after January 6 for liberal legal activists and others to note that just as the Constitution says you can’t be president if you’re not 35 years old, you also can’t be president if you’re an insurrectionist, and the theory being that Section 3 of the 14th Amendment bars people who have taken an oath to support the Constitution of the United States from holding office if they then, quote, “shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.”

So they say that fits Donald Trump pretty well. And this theory gets a lot of applause and support from precisely the people you might imagine, from liberals. But as time goes on, legal scholars and others start to say, wait a second. This actually makes sense.

Michael Barbaro
Scholars like who?

Adam Liptak
Well, the issue really gets turbo-charged in August, when two prominent conservative law professors, members of the Federalist Society, William Baude of the University of Chicago and Michael Stokes Paulsen of the University of Saint Thomas, publish an early draft of a long article that’s going to be in the “University of Pennsylvania Law Review.” And they are originalists, meaning that they try to unearth the original meaning of the Constitutional provision.

And the more they looked at it, the more they thought it was indisputable that Donald Trump had committed the kinds of acts that the provision gets triggered by and otherwise qualifies as someone who should be excluded from the ballot because of the things he did.

Michael Barbaro
So these conservative-minded legal theorists who, you might think, on paper, would be inclined to identify with Trump, agree that Trump does qualify as an insurrectionist under the 14th Amendment and, as a result, should be ineligible from being on the ballot for the presidency.

Adam Liptak
Yeah, they looked at the historical record, and they found that there was, as they put it, abundant evidence that Trump engaged in an insurrection, including by setting out to overturn the results of the election, trying to alter vote counts by fraud and intimidation, pressuring the vice president to violate the Constitution, calling for the march on the Capitol. I mean, they say that every official in the land, that election officials themselves — the state secretaries of state in charge of state election law has an obligation to keep Trump off the ballot.

Michael Barbaro
Wow.

Adam Liptak
The Constitution simply says, they say, that if you’ve done these things, you cannot be president.

Michael Barbaro
Mm-hmm. And so how does this turbo-charged conversation lead to a case in Colorado?

Adam Liptak
A group of Colorado voters filed a lawsuit saying Donald Trump should not be allowed to be on the primary ballot, and the lawsuit proceeds, and it goes to a state trial judge. And she does something interesting. She says, first of all, that Donald Trump did engage in insurrection.

But she says Section 3 nonetheless doesn’t apply to him, for two reasons. She says that the only oath he took as president to support the Constitution was not the kind of oath that triggers Section 3. And she says the office that he seeks, the presidency, is not one of the offices from which Section 3 disqualifies people. So for both of those reasons, she says Section 3 doesn’t apply to Donald Trump, even though he engaged in insurrection.

Michael Barbaro
So what happens after that?

Adam Liptak
Well, there’s an appeal, on a very quick schedule, to the Colorado Supreme Court. Both sides are unhappy with some parts of the decision.

Michael Barbaro
Mm-hmm.

Adam Liptak
Donald Trump is not happy to be called an insurrectionist. The voters are not happy that they lose on what they see as a kind of weird technicality. And the state Supreme Court, for the first time in the history of the republic, is faced with the question of whether it’s going to disqualify a candidate for president from one of the major political parties.

Michael Barbaro
We’ll be right back.

So Adam, once the Colorado Supreme Court and its judges take up this case on appeal, what happens to it?

Adam Liptak
So the court has a long, involved oral argument. The justices are quite engaged. They’re, all of them, appointed by Democrats, but they come at the case from many different angles. There are lots of legal issues in it.

And Trump’s lawyers dispute the insurrectionist point to some extent. They minimize Donald Trump’s involvement. They say maybe it was more a riot than an insurrection. But they really press hardest on the point that the provision we’ve been talking about, Section 3 of the 14th Amendment, doesn’t apply to their client and doesn’t apply to the office of the presidency.

Michael Barbaro
So they seize on this lower court judges’ decision.

Adam Liptak
Right. And they get a kind of skeptical response from at least some of the justices on the Colorado Supreme Court, one of them saying, how is that not absurd? I mean, in what world would the framers of the 14th Amendment want to disqualify everybody from every federal office who has engaged in insurrection, except for a former president and except for the office of the presidency?

The court looked at lots of other issues, too — most of them too technical to spend a lot of time on. But there are questions like, does the court have jurisdiction? Is this a political question that should not be resolved by judges? Does Congress have to act to implement the 14th Amendment?

It’s a thicket of complicated legal issues. But the two key points are the factual one — did he engage in insurrection — and the legal one — does Section 3 apply to him at all. And when the court rules, 4 to 3, they say that the voters challenging Trump’s candidacy have run the table on all of these issues, have established that he is an insurrectionist, and have established also that the provision, Section 3, applies to Donald Trump.

And in issuing this decision, the four justices in the majority seem to recognize the gravity of what they were doing. They wrote, “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us. We are likewise mindful of our solemn duty to apply the law without fear or favor and without being swayed by public reaction to the decisions that the law mandates we reach.”

Michael Barbaro
OK. So let’s now turn, Adam, to the question of how quickly this case is likely to get to the US Supreme Court now on appeal, and how we think this Supreme Court is likely to receive it and think about it.

Adam Liptak
There’s every reason to think Donald Trump will go to the Supreme Court in very short order. And there’s every reason to think the court will take the case and, in due course, but probably not for a month or two, issue a definitive ruling. What will that ruling be? Well, I think that we should, first of all, reject the idea that it’s a predictable 6-3 ruling in favor of Donald Trump.

Michael Barbaro
Hmm. Because the court’s conservative majority is 6-to-3 liberals?

Adam Liptak
That’s right — six Republican appointees, three Democratic appointees, and on a kind of knucklehead level, you might think, well, that’ll tell us what’s going on.

Michael Barbaro
Right.

Adam Liptak
But I think what will weigh on the justices more, and on both sides of the ideological aisle, is who should decide this question. Should the voters take account of Donald Trump’s conduct in the aftermath of the 2020 election and make judgments for themselves about whether he’s fit to be president again? Or should courts, relying on a provision of the Constitution of the United States that seems to speak to this issue, take that question out of the voters’ hands?

Michael Barbaro
Interesting. Many of the justices, you’re saying — perhaps all the justices, even the liberal justices — may be reluctant to issue the kind of ruling against Trump, in this case, that would effectively take electoral choices away from voters.

Adam Liptak
Yes, that’s right. And I think that works on two levels. The justices, of course, will understand themselves to be making a purely legal judgment based on text, history, structure of the Constitution, the facts, and so on. But even some of the doctrines that they’re looking at, like the so-called Political Question Doctrine, which urges courts to stay out of some kinds of disputes, are broadly similar to an impulse that many people might have, in a non-legal sense, that these are serious matters.

Donald Trump is accused of doing grave wrongs in trying to overturn the election. But who should decide the consequences of that? Should it be nine people in Washington, or should it be the electorate of the United States, which can, for itself, assess whether Trump’s conduct is so blameworthy that he should not have the opportunity to serve another term?

Michael Barbaro
Another way to think about this is that you’re suggesting that judicial restraint in matters of an election might override the justices’ impulse to carefully read the 14th Amendment and the facts of this case and find that Trump is an insurrectionist and that the courts have the power to take him off the ballot.

Adam Liptak
The prospect of what would be a profoundly anti-democratic ruling, saying that people who want to vote for Donald Trump may not vote for him, is going to weigh on the justices. It will be part of the rich stew of calculations that go into their decision in this case.

Michael Barbaro
Got it. And if I’m reading between the lines here, what you’re really saying is, it’s going to be unlikely that the Supreme Court rules that Trump should be taken off the ballot in Colorado or any other state where voters are filing similar lawsuits.

Adam Liptak
It’s early days. We’ve just had the first major decision. There’s going to be a lot of briefs, a lot of arguments, and we’ll learn a lot more. But if you ask me today what the likely outcome is at the Supreme Court, it is not that they’re going to tell the American public that one of the two leading candidates for president can’t be on the ballot.

Michael Barbaro
Well, let’s play with that for just a moment. Let’s say the Supreme Court surprises us — surprises you — and decides to let this ruling from Colorado Supreme Court stand. Just on a legal basis, what would be the consequences of that, given, as you have said, that people are trying to file similar lawsuits across the country?

Adam Liptak
You would expect lawsuits in just about every state. And you would expect some state election officials, some state secretaries of state, to themselves take action to take Trump off the ballot. If the Supreme Court were to greenlight the idea that Trump’s participation in the aftermath of the 2020 election disqualifies him, it would give rise to all kinds of actions in all kinds of states.

Michael Barbaro
It seems hard to overstate, Adam, just how delicate this moment seems to be. We have a deeply polarized electorate, an election that is shaping up to be excruciatingly close, according to many polls, and the knowledge that the last election featuring the same two candidates we think might end up being the nominees again ended with a violent insurrection at the Capitol — we’ve been talking about it — over doubts about the legitimacy of that election.

And now, this election is already in court, long before any votes have been cast. And the courts are being asked whether one of these two candidates should even be allowed on the ballot. And so depending on the ruling, those really do look like the ingredients for a potential powder keg for something that could be very scary.

Adam Liptak
Yeah, Michael. It’s a dangerous moment.

I got an email tonight from Rick Hasen, a prominent election law specialist at UCLA, who said the stakes remind him of Bush v. Gore, the 2000 decision that handed the presidency to George W. Bush.

Michael Barbaro
Right.

Adam Liptak
He said, “Once again, the Supreme Court is being thrust into the center of a US presidential election. But unlike in 2000, the general political instability in the United States makes the situation now much more precarious.”

Michael Barbaro
Well, Adam. Thank you very much. We really appreciate it.

Adam Liptak
Thank you, Michael.

Michael Barbaro
We’ll be right back.

Here’s what else you need to know today. On Tuesday, the US military laid out a plan to create a Naval coalition to confront militants in Yemen who have been using drones and rockets to attack commercial ships in the Red Sea. The militants, members of the Houthi militia, began firing on the ships as a protest of Israel’s war on Hamas, an ally of the Houthis.

As a result, some of the world’s biggest companies have stopped sending their tankers through the Red Sea. The new Naval coalition will include contributions from among others — Britain, Bahrain, Canada, France, and Italy. And a new analysis shows that 2023 was a uniquely unproductive year for the House of Representatives.

The Republican-led chamber passed just 27 bills that became law, despite holding 724 votes. According to the Bipartisan Policy Center, that is more voting and less lawmaking than at any other point in the past decade.

Today’s episode was produced by Rob Szypko and Carlos Prieto. It was edited by Lisa Chow and Rachel Quester, contains original music from Marion Lozano and Dan Powell, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly.

That’s it for “The Daily.” I’m Michael Barbaro. See you tomorrow.

The bolded is the entire rub. Do they actually insert their political will, rendering an entire clause of the amendment functionally null and void? Because that's what they'd be doing. They'd be saying "sure, we know the 14th amendment plainly says that, but that sounds not very nice, so we're just going to write it out of the Constitution."

In short, there is a very, very strong chance that's exactly what they do, because "canons of construction" are fucking dead and buried, along with every other legal principle and rule you and I spent 30 years thinking might actually apply in, you know, "law stuff." Turns out, the law isn't a thing at all. Silly us.

bolverk · December 20, 2023

2 minutes ago, dcbc said:

Maybe I'm missing your point, but I don't think Section 3 of the 14th Amendment contradicts this. In fact, it assumes that the person ineligible for election previously was elected but committed an act of insurrection. The amendment can be harmonized with Art. II, Sec. 1.

First off, I'm not a law and certainly not a constitutional scholar. From that layman's perspective, I was trying to say that the Constitution states who is and isn't eligible to be president.

Yes, the original text says who is eligible based on place of birth (the US), length of residence, and age. Then, the 14th Amendment added the insurrection qualifier to those who had previously held office and had sworn an oath to the Constitution.

I'm just saying that the argument before SCOTUS should be that if you're going to enforce the original text, then you should also enforce the amendment. To a layman, such as myself, that's an effective argument.

However, I'm under no illusions that this Court will follow through.

C-Man · December 20, 2023

2 hours ago, Pasken said:

I bet you start to see lawsuits filed to get biden off the ballot for some dumb reason.

Yep. For letting 8 million people cross the border. They hella mad.

https://nypost.com/2023/12/20/news/republicans-float-booting-biden-off-ballots-after-trump-colorado-ruling/

Brisketexan · December 20, 2023

1 minute ago, bolverk said:

I'm just saying that the argument before SCOTUS should be that if you're going to enforce the original text, then you should also enforce the amendment. To a layman, such as myself, that's an effective argument.

However, I'm under no illusions that this Court will follow through.

The best arguments actually are the simplest ones. It's an excellent argument, and it's the right one.

Will this SCOTUS follow it? Probably not. They'll make up some new special rule that allows them to reach the outcome they want so that we can exist in a world where 1) the 2nd amendment is pure, plain, and inviolate, and means that no gun law that didn't exist in 1791 can exist today, and 2) that part of the 14th amendment is utterly meaningless and is written out of the Constitution altogether. Because Calvinball.

Brisketexan · December 20, 2023

3 minutes ago, C-Man said:

Yep. For letting 8 million people cross the border. They hella mad.

https://nypost.com/2023/12/20/news/republicans-float-booting-biden-off-ballots-after-trump-colorado-ruling/

I love how Jenna says the Colorado ruling "has no limiting principle." I mean, sure. Except for the whole predicate that the court found that DOTUS participated in an insurrection, thus putting his action squarely within the scope of the amendment.

These are the dumbest fucking people, and they are the dominant strain of thinking in this country.

Francisco 2.0 · December 20, 2023

https://www.theatlantic.com/ideas/archive/2023/12/dont-read-the-colorado-ruling-read-the-dissents/676920/

The Colorado Ruling Changed My Mind

The strongest argument for throwing Trump off the ballot is the weakness of the counterarguments.

By George T. Conway III

Quote

When I review divided appellate-court decisions, I almost always read the dissenting opinions first. The habit formed back when I was a young law student and lawyer—and Federalist Society member—in the late 1980s, when I would pore (and, I confess, usually coo) over Justice Antonin Scalia’s latest dissents.

Quote

I came to adopt the practice not just for newsworthy rulings that I disagreed with, but for decisions I agreed with, including even obscure cases in the areas of business law I practiced. Dissents are generally shorter, and almost always more fun to read, than majority opinions; judges usually feel freer to express themselves when writing separately. But dissents are also intellectually useful: If there’s a weakness in the majority’s argument, an able judge will expose it, sometimes brutally, and she may make you change your mind, or at least be less dismissive of her position, even when you disagree. Give me a pile of Justice Elena Kagan’s dissents to read anytime—I love them even when she’s wrong, as I think she often is. You can learn a lot from dissents.

Quote

Last night, I reviewed the three separate dissents in Anderson v. Griswold, the landmark 4–3 Colorado Supreme Court case holding that Section 3 of the Fourteenth Amendment prohibits Donald Trump from ever serving again as president of the United States. I had been skeptical of the argument, but not for any concrete legal reason. To the contrary, I believed the masterful articlewritten by the law professors (and Federalist Society members) William Baude and Michael Stokes Paulsen had put the argument into play. And I had read(not to mention heard, at length, on the phone) and took quite seriously what my friends Judge J. Michael Luttig and Professor Laurence H. Tribe had to say about it here in The Atlantic—that the Fourteenth Amendment clearly commands, in plain language, that Trump never hold federal office again.

Spoiler

Their points were strong. But much as I never want to see Trump near the White House again, I wasn’t quite buying them. The argument seemed somehow too good to be true. And frankly, from a political standpoint, it would be better for the country if Trump were thrashed at the polls, as I think he ultimately would be. There had to be a wrinkle. I just knew it.

But last night changed my mind. Not because of anything the Colorado Supreme Court majority said. The three dissents were what convinced me the majoritywas right.

The dissents were gobsmacking—for their weakness. They did not want for legal craftsmanship, but they did lack any semblance of a convincing argument.

For starters, none of the dissents challenged the district court’s factual finding that Trump had engaged in an insurrection. None of the dissents seriously questioned that, under Section 3 of the Fourteenth Amendment, Trump is barred from office if he did so. Nor could they. The constitutional language is plain. You can’t be president if you previously took an oath “as an officer of the United States … to support the Constitution of the United States” but “engaged in insurrection or rebellion” against, or have “given aid or comfort to the enemies of,” that Constitution or the nation it charters.

Nor did the dissents challenge the evidence—adduced during a five-day bench trial, and which, three years ago, we saw for ourselves in real time—that Trump had engaged in an insurrection by any reasonable understanding of the term. And the dissenters didn’t even bother with the district court’s bizarre position that even though Trump is an insurrectionist, Section 3 doesn’t apply to him because the person holding what the Constitution itself calls the “Office of the President” is, somehow, not an “officer of the United States.”

Instead, the three dissenters mostly confined themselves to saying that state law doesn’t provide the plaintiffs with a remedy. But that won’t help Trump. This case seems headed for the Supreme Court of the United States, which has no authority to make definitive pronouncements about state law. In Colorado, the Supreme Court of Colorado has the last word on that. And it now has spoken.

Yet even the dissenters’ contentions about state law made little sense. Chief Justice Brian Boatright argued that, while Colorado law requires its secretary of state to examine the constitutional qualifications of presidential candidates, it doesn’t allow her to consider whether they are constitutionally disqualified.

Nothing in the state statute suggests that’s the case, and it’s plainly illogical. Every qualification necessarily establishes a disqualification. If the Constitution says, as it does, that you have to be 35 years of age to serve as president, you’re out of luck—disqualified—if you’re 34 and a half. By the same token, if you’ve engaged in an insurrection against that Constitution in violation of your oath to it, you’ve failed to meet the ironclad (and rather undemanding) requirement that you not have done that.

Boatright’s suggestion that the insurrection issue presents something too complex for Colorado’s election-dispute-resolution procedures is equally unconvincing. Reviewing the tabulation of statewide votes can be complicated—remember those Florida “chads” in 2000?—but the courts have to get it done, and quickly. It’s hard to imagine that assessing the undisputed record of Trump’s miscreance presents any more complexity than that.

And no stronger is Justice Carlos Samour’s suggestion that Trump was somehow deprived of due process by the proceedings in the district court. This was a full-blown, five-day trial, with sworn witnesses and lots of documentary exhibits, all admitted under the traditional rules of evidence before a judicial officer, who then made extensive written findings of fact under a stringent standard of proof. Every day in this country, people go to prison—for years—with a lot less process than Trump got here. As for the expeditiousness of the proceedings, that’s in the very nature of election disputes: Recall, once again, Florida in 2000. And Samour’s suggestion that Trump was denied a fair trial because he didn’t have a jury is almost embarrassing: Any first-year law student who has taken civil procedure could tell you that election cases are not even close to the sort of litigation to which a Seventh Amendment jury-trial right would attach.

The closest the dissents come to presenting a federal-law issue that ought to give someone pause comes in Samour’s argument that Section 3 is not self-executing—that it can’t be enforced unless Congress passes a law detailing how it can be enforced. The majority opinion, though, along with Paulsen and Baude and Luttig and Tribe, have disposed of that argument many times over. All you need to do is to look, as any good Scalia-like textualist would, to the words and structure of the Fourteenth Amendment.

True, Section 5 of the amendment gives Congress the power to enact enforcement legislation. But nothing in the amendment suggests that such legislation is required—that Section 3 (or any other prohibition in the amendment) has no teeth unless Congress implants them. To hold otherwise would mean that Section 1 of the Fourteenth Amendment—which contains the more familiar prohibitions against state deprivations of equal protection and due process—would likewise have been born toothless. Which would mean that, if every federal civil-rights statute were repealed tomorrow, states could immediately start racially resegregating their schools. That’s not the law, and thankfully so.

So the dissents showed one thing clearly: The Colorado majority was right. I dare not predict what will happen next. But if Trump’s lawyers or any members of the United States Supreme Court want to overturn the decision, they’d better come up with something much, much stronger. And fast.

TexasEd · December 20, 2023

11 minutes ago, Francisco 2.0 said:

https://www.theatlantic.com/ideas/archive/2023/12/dont-read-the-colorado-ruling-read-the-dissents/676920/

The Colorado Ruling Changed My Mind

The strongest argument for throwing Trump off the ballot is the weakness of the counterarguments.

By George T. Conway III

Hide contents

Their points were strong. But much as I never want to see Trump near the White House again, I wasn’t quite buying them. The argument seemed somehow too good to be true. And frankly, from a political standpoint, it would be better for the country if Trump were thrashed at the polls, as I think he ultimately would be. There had to be a wrinkle. I just knew it.

But last night changed my mind. Not because of anything the Colorado Supreme Court majority said. The three dissents were what convinced me the majoritywas right.

The dissents were gobsmacking—for their weakness. They did not want for legal craftsmanship, but they did lack any semblance of a convincing argument.

For starters, none of the dissents challenged the district court’s factual finding that Trump had engaged in an insurrection. None of the dissents seriously questioned that, under Section 3 of the Fourteenth Amendment, Trump is barred from office if he did so. Nor could they. The constitutional language is plain. You can’t be president if you previously took an oath “as an officer of the United States … to support the Constitution of the United States” but “engaged in insurrection or rebellion” against, or have “given aid or comfort to the enemies of,” that Constitution or the nation it charters.

Nor did the dissents challenge the evidence—adduced during a five-day bench trial, and which, three years ago, we saw for ourselves in real time—that Trump had engaged in an insurrection by any reasonable understanding of the term. And the dissenters didn’t even bother with the district court’s bizarre position that even though Trump is an insurrectionist, Section 3 doesn’t apply to him because the person holding what the Constitution itself calls the “Office of the President” is, somehow, not an “officer of the United States.”

Instead, the three dissenters mostly confined themselves to saying that state law doesn’t provide the plaintiffs with a remedy. But that won’t help Trump. This case seems headed for the Supreme Court of the United States, which has no authority to make definitive pronouncements about state law. In Colorado, the Supreme Court of Colorado has the last word on that. And it now has spoken.

Yet even the dissenters’ contentions about state law made little sense. Chief Justice Brian Boatright argued that, while Colorado law requires its secretary of state to examine the constitutional qualifications of presidential candidates, it doesn’t allow her to consider whether they are constitutionally disqualified.

Nothing in the state statute suggests that’s the case, and it’s plainly illogical. Every qualification necessarily establishes a disqualification. If the Constitution says, as it does, that you have to be 35 years of age to serve as president, you’re out of luck—disqualified—if you’re 34 and a half. By the same token, if you’ve engaged in an insurrection against that Constitution in violation of your oath to it, you’ve failed to meet the ironclad (and rather undemanding) requirement that you not have done that.

Boatright’s suggestion that the insurrection issue presents something too complex for Colorado’s election-dispute-resolution procedures is equally unconvincing. Reviewing the tabulation of statewide votes can be complicated—remember those Florida “chads” in 2000?—but the courts have to get it done, and quickly. It’s hard to imagine that assessing the undisputed record of Trump’s miscreance presents any more complexity than that.

And no stronger is Justice Carlos Samour’s suggestion that Trump was somehow deprived of due process by the proceedings in the district court. This was a full-blown, five-day trial, with sworn witnesses and lots of documentary exhibits, all admitted under the traditional rules of evidence before a judicial officer, who then made extensive written findings of fact under a stringent standard of proof. Every day in this country, people go to prison—for years—with a lot less process than Trump got here. As for the expeditiousness of the proceedings, that’s in the very nature of election disputes: Recall, once again, Florida in 2000. And Samour’s suggestion that Trump was denied a fair trial because he didn’t have a jury is almost embarrassing: Any first-year law student who has taken civil procedure could tell you that election cases are not even close to the sort of litigation to which a Seventh Amendment jury-trial right would attach.

The closest the dissents come to presenting a federal-law issue that ought to give someone pause comes in Samour’s argument that Section 3 is not self-executing—that it can’t be enforced unless Congress passes a law detailing how it can be enforced. The majority opinion, though, along with Paulsen and Baude and Luttig and Tribe, have disposed of that argument many times over. All you need to do is to look, as any good Scalia-like textualist would, to the words and structure of the Fourteenth Amendment.

True, Section 5 of the amendment gives Congress the power to enact enforcement legislation. But nothing in the amendment suggests that such legislation is required—that Section 3 (or any other prohibition in the amendment) has no teeth unless Congress implants them. To hold otherwise would mean that Section 1 of the Fourteenth Amendment—which contains the more familiar prohibitions against state deprivations of equal protection and due process—would likewise have been born toothless. Which would mean that, if every federal civil-rights statute were repealed tomorrow, states could immediately start racially resegregating their schools. That’s not the law, and thankfully so.

So the dissents showed one thing clearly: The Colorado majority was right. I dare not predict what will happen next. But if Trump’s lawyers or any members of the United States Supreme Court want to overturn the decision, they’d better come up with something much, much stronger. And fast.

Layman logic... If this is correct and the lower court's findings of fact is complete which includes the assertion that Trump led an insurrection and those facts were unchallenged at the state SC level then can the USSC even consider reversing that finding of fact?

Edited December 20, 2023 by TexasEd

atomheartbevo · December 20, 2023

36 minutes ago, C-Man said:

Yep. For letting 8 million people cross the border. They hella mad.

Plenty crossed illegally under Trump. And George W. And George H. W., and Reagan.

Maybe we should disqualify Trump over that.

conVINCEd · December 21, 2023

1 minute ago, atomheartbevo said:

Plenty crossed illegally under Trump. And George W. And George H. W., and Reagan.

Maybe we should disqualify Trump over that.

I peacefully co-existed with illegal immigrants for the first 40 years of my life. It wasn’t until the run up to the 2016 election that it was suddenly a problem. Despite the protestations from the right, I still peacefully co-exist with them. My yard gets mowed once a week, my house gets cleaned bi-weekly, and I have a lot of options for good Mexican food within a 5 mile radius of my house. I’m happy with the current state of affairs at the southern border.

atomheartbevo · December 21, 2023

7 minutes ago, conVINCEd said:

I peacefully co-existed with illegal immigrants for the first 40 years of my life. It wasn’t until the run up to the 2016 election that it was suddenly a problem. Despite the protestations from the right, I still peacefully co-exist with them. My yard gets mowed once a week, my house gets cleaned bi-weekly, and I have a lot of options for good Mexican food within a 5 mile radius of my house. I’m happy with the current state of affairs at the southern border.

This is the majority of Texans before 2016.

I still remember Rick Perry talking about open borders and having a unified healthcare system on both sides of the border, as well as boosting education along the border.

Biff Tannen · December 21, 2023

3 hours ago, Red Five said:

Hey. Remember when the Capitol was under attack and the president sat on his fat ass watching tv for four hours, enjoying what he had caused? The attack on the Capitol, and the attack on our election. THAT HE CAUSED, INTENTIONALLY. That there is even some kind of debate over whether he should be allowed to run for president again is just incredibly depressing.

CNN literally today addressed that and said that democrats “believed” he had incited an insurrection and that is a big reason they think Biden should be more aggressive against dotard.

Again, Democrats “believe” this.

Im sick and fucking tired of the media placating this idea of two realities. No motherfuckers, we all SAW IT OCCUR IN REAL TIME.

It’s not up for debate. It happened. When media outlets frame it this way, it gives credence to the “alternative reality” shit show that the Rs cower under.

Shut up Lou Holtz · December 21, 2023

20 minutes ago, Biff Tannen said:

CNN literally today addressed that and said that democrats “believed” he had incited an insurrection and that is a big reason they think Biden should be more aggressive against dotard.

Again, Democrats “believe” this.

Im sick and fucking tired of the media placating this idea of two realities. No motherfuckers, we all SAW IT OCCUR IN REAL TIME.

It’s not up for debate. It happened. When media outlets frame it this way, it gives credence to the “alternative reality” shit show that the Rs cower under.

This is fucking infuriating. And the mentally handicapped red hats eat that shit up. It’s antifa. It’s BLM!

Chewbacca · December 21, 2023

3 minutes ago, Shut up Lou Holtz said:

This is fucking infuriating. And the mentally handicapped red hats eat that shit up. It’s antifa. It’s BLM!

Nah, they know it was them. But they enjoy lying and making themselves look better since the truth no longer matters.

dcbc · December 21, 2023

1 hour ago, bolverk said:

First off, I'm not a law and certainly not a constitutional scholar. From that layman's perspective, I was trying to say that the Constitution states who is and isn't eligible to be president.

Yes, the original text says who is eligible based on place of birth (the US), length of residence, and age. Then, the 14th Amendment added the insurrection qualifier to those who had previously held office and had sworn an oath to the Constitution.

I'm just saying that the argument before SCOTUS should be that if you're going to enforce the original text, then you should also enforce the amendment. To a layman, such as myself, that's an effective argument.

However, I'm under no illusions that this Court will follow through.

I don't think they'll go off the rails at that point. There's no hierarchy between the amendment and Article II, and I don't see any argument that they are disharmonious.

I'm not a constitutional scholar per se, but doing my best to pretend to be is part of my day job sometimes.

Generally, courts tend to follow the cannons of constitutional/statutory construction. The SCOTUS majority may indeed ignore these at their whim. But I'm not going to engage in the depressing exercise of what if. I instead prefer to reserve my shocked face for when things happen. I know I'm in the minority in this regard.

Supremacy-of-Text Principle. The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.
Principle of Interrelating Canons. No canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions.
Presumption of Validity. An interpretation that validates outweighs one that invalidates (ut res magis valeat quam pereat).
Ordinary-Meaning Canon. Words are to be understood in their ordinary, everyday meanings — unless the context indicates that they bear a technical sense.
Fixed-Meaning Canon. Words must be given the meaning they had when the text was adopted.
Omitted-Case Canon. Nothing is to be added to what the text states or reasonably implies (casus omissus pro omisso habendus est). That is, a matter not covered is to be treated as not covered.
General-Terms Canon. General terms are to be given their general meaning (generalia verba sunt generaliter intelligenda).
Negative-Implication Canon. The expression of one thing implies the exclusion of others (expressio unius est exclusio alterius).
Whole-Text Canon. The text must be construed as a whole.
Presumption of Consistent Usage. A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.
Surplusage Canon. If possible, every word and every provision is to be given effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence.
Absurdity Doctrine. A provision may be either disregarded or judicially corrected as an error (when the correction is textually simple) if failing to do so would result in a disposition that no reasonable person could approve.

Edited December 21, 2023 by dcbc

BamaATL · December 21, 2023

1 hour ago, conVINCEd said:

I peacefully co-existed with illegal immigrants for the first 40 years of my life. It wasn’t until the run up to the 2016 election that it was suddenly a problem. Despite the protestations from the right, I still peacefully co-exist with them. My yard gets mowed once a week, my house gets cleaned bi-weekly, and I have a lot of options for good Mexican food within a 5 mile radius of my house. I’m happy with the current state of affairs at the southern border.

Imagine not having anyone willing to do roofing work, carpentry, flooring installation, tree removal, etc; all extremely hard physical work. Most of my adult life I've worked with around and people with questionable legal status. Are they perfect, no, they are human just like us. Are they hard working people, you bet. Are they trying to make a better life for themselves and their families? You're damn right. What is more American than trying to make a better life for yourself (outside, perhaps of bitching and moaning)?

Give me your tired, your poor. Your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!

I don't know about you, but to me that is the core of being an American encapsulated by a poem. We aren't perfect, and we can always improve, but fundamentally this is who we are. Somewhere along the line, this has been lost on a lot of people, and it isn't just bothersome, it's downright offensive.

conVINCEd · December 21, 2023

9 minutes ago, BamaATL said:

Imagine not having anyone willing to do roofing work, carpentry, flooring installation, tree removal, etc; all extremely hard physical work. Most of my adult life I've worked with around and people with questionable legal status. Are they perfect, no, they are human just like us. Are they hard working people, you bet. Are they trying to make a better life for themselves and their families? You're damn right. What is more American than trying to make a better life for yourself (outside, perhaps of bitching and moaning)?

Give me your tired, your poor. Your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!

I don't know about you, but to me that is the core of being an American encapsulated by a poem. We aren't perfect, and we can always improve, but fundamentally this is who we are. Somewhere along the line, this has been lost on a lot of people, and it isn't just bothersome, it's downright offensive.

The Texas economy would collapse without illegal immigrants.

StassneyHorn · December 21, 2023

How fun would it be to have a vote on a resolution, where those who don’t work in the A/C would get a 10% raise YOY.

The Climate Change Makes Cents prop. I’d love to see the breakdown.

Francisco 2.0 · December 21, 2023

Lurch · December 21, 2023

The Texas economy would collapse without illegal immigrants.

It’s starting to be tested here in FL. I’d guess there is A LOT of behind the scenes pressure to figure out a graceful exit from some of the policies enacted the last year

tx 3 putt · December 21, 2023

4 hours ago, High Plains Drifter said:

I keep seeing this "noy appearing on the ballot" tossed around, and then talk of people writing him in on the Colorado ballot.

So, this entire amendment is just to keep the insurrectionists' names off the ballot, but people can still write them in, and if enough do so, the electors can still give the insurrectionist their electoral votes?

What kind of shit is that?

Or does "not appearing on the ballot" mean that the insurrectionist cannot win Colorado's electoral votes?

The average ‘maga’ humanoid can’t correctly spell his name, surly maga posters included

Biff Tannen · December 21, 2023

2 hours ago, BamaATL said:

Imagine not having anyone willing to do roofing work, carpentry, flooring installation, tree removal, etc; all extremely hard physical work. Most of my adult life I've worked with around and people with questionable legal status. Are they perfect, no, they are human just like us. Are they hard working people, you bet. Are they trying to make a better life for themselves and their families? You're damn right. What is more American than trying to make a better life for yourself (outside, perhaps of bitching and moaning)?

Give me your tired, your poor. Your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!

I don't know about you, but to me that is the core of being an American encapsulated by a poem. We aren't perfect, and we can always improve, but fundamentally this is who we are. Somewhere along the line, this has been lost on a lot of people, and it isn't just bothersome, it's downright offensive.

This is exactly the American dream and also exactly what happened in the early 20th century (and various other earlier epochs), yet we continue to repeat this cycle of anti-immigrant nonsense every few decades or so.

When I take a step back and look at it, it’s really just about 10% of us dragging everyone forward, while 90% are too god damn dumb to understand, care, or are adamantly against progress.

jimmyjazz · December 21, 2023

Just now, Biff Tannen said:

When I take a step back and look at it, it’s really just about 10% of us dragging everyone forward, while 90% are too god damn dumb to understand, care, or are adamantly against progress.

Actually, most of them would say stronger restrictions on immigration, legal or otherwise, IS progress.

TwiceHorn · December 21, 2023

4 hours ago, TexasEd said:

Layman logic... If this is correct and the lower court's findings of fact is complete which includes the assertion that Trump led an insurrection and those facts were unchallenged at the state SC level then can the USSC even consider reversing that finding of fact?

Consider it, I suppose, but that's generally not SCOTUS' game.

What they are more likely to do is hold that the Amendment requires criminal liability or that the findings of a state civil court are some other way inadequate, but not wrong.

I don't think the "officer" argument is going to carry the day for Trump, either. While that is not nearly the frivolous argument people want to think it is, because most elected officials are not legally officers of the United States, the President probably is and has been held to be one in other contexts (and also not one in the context of federal officer removal).

Edited December 21, 2023 by TwiceHorn

Rimbo · December 21, 2023

Neonmoon · December 21, 2023

I don’t think SCOTUS will try to refute the language of the 14th or argue Trump wasn’t an officer. I bet they try to argue Trump was not an insurrectionist because he has not been convicted of it (yet). In addition, he did not aid or support the convicted insurrectionists because there were no documentable actions. Only free speech. That’s my guess. I disagree with it, but it’s their only way

Captainant · December 21, 2023

It's amazing how far people will bend over backwards to justify and explain an overtly lawless act by our supreme court, if they were to rule that trump is exempt from the 14A. Stop talking about and conceptualizing the court as a legitimate body. It is an institution that has been packed with christofascists that demonstrably don't give a fuck about facts. They have been more than happy to make up whatever facts they need to get whatever ruling they need.

dcbc · December 21, 2023

1 hour ago, Captainant said:

It's amazing how far people will bend over backwards to justify and explain an overtly lawless act by our supreme court, if they were to rule that trump is exempt from the 14A. Stop talking about and conceptualizing the court as a legitimate body. It is an institution that has been packed with christofascists that demonstrably don't give a fuck about facts. They have been more than happy to make up whatever facts they need to get whatever ruling they need.

I don't think anyone here is bending over backward to justify improper acts by the Supreme Court by discussing how things ought or might go. We may not like it, but we aren't going to go all insurrectionist on the high court either.

Nice Guy Eddie · December 21, 2023

21 hours ago, Gatorubet said:

Agree. I will take any 9-0 bets, as that ain’t happening.

What odds are you giving? In sports, "that ain't happening" is probably 30-40 to 1.

Captainant · December 21, 2023

3 minutes ago, dcbc said:

I don't think anyone here is bending over backward to justify improper acts by the Supreme Court by discussing how things ought or might go. We may not like it, but we aren't going to go all insurrectionist on the high court either.

We should not be discussing it as a serious institution. Whatever it was before, it is now for the foreseeable future thanks to cramming it full of young fascists, a rubber stamp for the far right culture war machine.

That message needs to be repeated ad nauseum, because it's what's happening before our very eyes. It is no longer a serious institution. It's votes on the very fabric of the law of our nation are for sale to the highest bidder.

We must confront these facts. Otherwise we will be stuck here.

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