Patterico's Pontifications

9/6/2023

Colorado Voters File Lawsuit to Keep Trump Off Ballot

Filed under: General — Dana @ 4:32 pm



[guest post by Dana]

The 14th Amendment, (Sec. 3), in part:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same…

From the report:

Six Colorado voters filed a lawsuit on Wednesday seeking to keep former President Donald J. Trump off the state’s ballots under the 14th Amendment, which says anyone who “engaged in insurrection or rebellion” against the Constitution after taking an oath to defend it is ineligible to hold office.

The lawsuit, which was filed in a state district court in Denver with the help of the watchdog group Citizens for Responsibility and Ethics in Washington, demands that the Colorado secretary of state not print Mr. Trump’s name on the Republican primary ballot. It also asks the court to rule that Mr. Trump is disqualified in order to end any “uncertainty.”

The plaintiffs are Republican and unaffiliated voters who argue that Mr. Trump is ineligible and that they will be harmed if he appears on primary ballots. They aim to ensure “that votes cast will be for those constitutionally qualified to hold office, that a disqualified candidate does not siphon off support from their candidates of choice, and that voters are not deprived of the chance to vote for a qualified candidate in the general election,” the suit says.

Several other states are facing pressure from voters to keep Trump off the ballot, including Florida, New Hampshire, New Mexico, Ohio and Wisconsin, and New Hampshire (wherein a Republican candidate has sued).

Determining what is considered engagement in an insurrection is at the heart of the suit:

The theory that the 14th Amendment disqualifies Mr. Trump has gained traction among liberals and anti-Trump conservatives since two prominent conservative law professors argued in an article last month that his actions before and during the Jan. 6, 2021, attack on the Capitol constituted engagement in an insurrection.

It’s clear from reading the report and other commentary that law professors are not necessarily in agreement about standing:

The first fork in the Colorado case will be whether individual voters have the right to sue. Challenges to a candidate’s eligibility — on any basis, not just the 14th Amendment — often come from opposing candidates, who are directly affected by the challenged candidate’s presence.

“Section 3 of the 14th Amendment is old — it has not been truly stress-tested in modern times,” said Jessica Levinson, a professor at Loyola Law School who specializes in election law. “There are some big forks in the road where you can argue both ways.”

But Derek Muller, a professor at Notre Dame Law School, emphasized that standing requirements are looser in state courts than in federal courts, especially when it comes to voters’ ability to challenge candidates’ eligibility.

“I don’t think that the standing argument is going to be a significant barrier to these claims going forward in state court,” Professor Muller said, adding that a bigger hurdle could be “ripeness”: Because candidates haven’t formally filed for ballot access yet, a judge could decide that the legal questions are not ready for review.

–Dana

87 Responses to “Colorado Voters File Lawsuit to Keep Trump Off Ballot”

  1. Hello.

    Dana (4020dd)

  2. I Can’t Keep Trump Off the Ballot

    Some legal scholars are arguing that secretaries of state should remove Donald Trump from the 2024 presidential ballot under Section 3 of the 14th Amendment, which states that a public official is ineligible for public office if he has “engaged in insurrection or rebellion against” America. But Georgia law contemplates a legal process that must take place before anyone is removed from the ballot. Anyone who believes in democracy must let the voters decide.
    ………..
    Mr. Trump might win the nomination and general election. Or he could lose. The outcomes should be determined by the people who show up to make their preference known in primaries (including Georgia’s on March 12) and the general election on Nov. 5. A process that denies voters their chance to be the deciding factor in the nomination and election process would erode the belief in our uniquely American representative democracy.

    For a secretary of state to remove a candidate would only reinforce the grievances of those who see the system as rigged and corrupt. Denying voters the opportunity to choose is fundamentally un-American. Since our founding, Americans have believed that a government is just when it has earned the consent of the governed. Taking away the ability to choose—or object to—the eligibility of candidates eliminates that consent for slightly less than half of the country.
    ……….

    Rip Murdock (d2a2a8)

  3. Sorry, should have been blockquoted.

    Rip Murdock (d2a2a8)

  4. I’ll be surprised if this suit isn’t booted on standing.

    I finally got around to reading Baude’s article. I have some questions and reservations, but overall it’s surprisingly persuasive. For prudential reasons I still hope it fails, but the originalist analysis seems well-founded. I won’t guess what the Supreme Court will say, but Baude’s argument isn’t frivolous.

    If you’re interested, but don’t time to read 126 pages, I’d suggest starting with The Question of Coverage: Insurrection and Rebellion at Page 112, and reading to the end. It shouldn’t take more than a few minutes.

    lurker (cd7cd4)

  5. I’m pretty sure they lack standing and any harm they could show is minuscule. I think another candidate would have standing though, as would the SoS or Governor acting for the people of the state. But a few voters? No.

    Kevin M (ed969f)

  6. I am not comfortable with random secretaries of state deciding this. I think there needs to be a standard, preferably a conviction.

    Nic (896fdf)

  7. A government official, by themselves cannot remove Trump from the ballot. But a court might be able to if the plaintiff had standing. That a Secretary of States say they have no power is not an argument that they power does not exist. Just that they don’t have it themselves.

    Kevin M (ed969f)

  8. There Is No Insurrection Case against Trump

    ……….
    The Justice Department — the arm of the United States government vested with responsibility to enforce the insurrection law — has not charged Trump with insurrection because it can’t prove Trump committed insurrection. Not with anything we would recognize as due process of law.
    ………
    ……..In a courtroom, prosecutors need evidence — the loose rhetoric of Democrats and other anti-Trump obsessives won’t do. And no violent-crime charges have been brought against Trump at all because, again, in a courtroom, moral and political culpability for the events of January 6 — which Trump undoubtedly bears — is insufficient. You’ve got to be able to prove the crime — not just the acts of force but the required mental state. On Trump, Smith has neither. And he’s not close, because — past being prologue — if he were close, he’d go for it.
    ……..
    Inadvertently or not, those who are advocating the 14th Amendment as a vehicle for banning a Trump presidential run are doing the same thing they condemn Trump for doing: positing a highly dubious, widely rejected legal theory to interfere with the Constitution’s democratic process for electing a president……
    ……….

    Rip Murdock (d2a2a8)

  9. I don’t see the 14th Amendment being a good cause, though, as Trump has not been convicted of (nor charged with) any insurrection-type crime.

    If a state had a “no felons on the ballot” law, that might eventually be an effective cause, especially since presidential elections are NOT federal. Had they BEEN federal, a number of Trump’s idiot lawsuits would have had some traction.

    Kevin M (ed969f)

  10. For a secretary of state to remove a candidate would only reinforce the grievances of those who see the system as rigged and corrupt. Denying voters the opportunity to choose is fundamentally un-American. Since our founding, Americans have believed that a government is just when it has earned the consent of the governed. Taking away the ability to choose—or object to—the eligibility of candidates eliminates that consent for slightly less than half of the country.

    This is hand-waving in its purest form. There is no legal content in this paragraph.

    Kevin M (ed969f)

  11. The Justice Department — the arm of the United States government vested with responsibility to enforce the insurrection law — has not charged Trump with insurrection because it can’t prove Trump committed insurrection.

    They haven’t, that is true, as I said above. Could they charge him? Of course they could — an indictment would probably happen. Could they prove it? That depends on facts and evidence, and they probably have more than we know. A few convicted insurrectionists flipping and fingering Trump would be a start.

    Kevin M (ed969f)

  12. In his op-ed Raffensberger refers to Georgia’s process to decide these questions (not in the excerpt). When Free Speech for People challenged Marjorie Taylor Greene, citing the 14th Amendment, the case was heard by an administrative law judge (which is apparently Georgia’s process for ballot challenges), who ruled in her favor:

    Under Georgia law, administrative law judges send their findings in election challenges to the secretary of state, who makes the final decision on eligibility.

    The secretary of state typically has 30 days to issue a ruling, but Raffensperger, a Republican who tangled with Trump over his false claims of election fraud in the state, issued his determination just hours after Beaudrot’s decision was made public.

    Including this would have been helpful.

    Rip Murdock (d2a2a8)

  13. A few convicted insurrectionists flipping and fingering Trump would be a start.

    Kevin M (ed969f) — 9/6/2023 @ 5:32 pm


    😆😆😆
    LOL! They are waiting for Trump to pardon them.

    Rip Murdock (d2a2a8)

  14. I am not comfortable with random secretaries of state deciding this.

    Neither am I, but our comfort levels may not be constitutionally relevant.

    I think there needs to be a standard, preferably a conviction.

    Again, for prudential reasons, that would also be my preference too. But read Baude’s article for a serious, well-founded argument why it’s incorrect.

    lurker (cd7cd4)

  15. A government official, by themselves cannot remove Trump from the ballot.

    Can a government official, a Secretary of State for instance, remove a presidential candidate for not being 35 years old or a natural born citizen? Those conditions are equally categorical to the 14th Amendment’s exclusion of insurrectionists, and indistinguishably silent as to their enforcement mechanism. Obviously in all those cases any such decision would be judicially reviewable, but why the insurrectionist decision should be any different in the first instance from the others has no obvious basis in the constitutional text.

    lurker (cd7cd4)

  16. If a state had a “no felons on the ballot” law, that might eventually be an effective cause……

    Earlier this month, on the two-year anniversary of his participation in the attack on the U.S. Capitol, former West Virginia state lawmaker Derrick Evans announced he would run for a U.S. House seat in 2024. That’s despite pleading guilty to a felony civil disorder charge in 2022.

    With his felony conviction and a sentence that includes three years of probation, state law would prohibit Evans from voting or seeking state or local office. Under that law, even when he finishes his sentence he would be unable to run again for the legislature or for magistrate, a limited judicial post that is open to non-lawyers.

    There are no such limits to run for federal office.

    University of Iowa law professor Derek Muller said the Constitution’s 14th Amendment spells out who would be unable to run for federal office. The list includes those who took an oath to support the U.S. Constitution and then engaged in insurrection or rebellion, or those who gave aid or comfort to the country’s enemies.

    “That’s the only thing that expressly disqualifies you under the Constitution,” he said.

    Donald Kersey III, deputy secretary and general counsel for the West Virginia secretary of state’s office, said Evans was not convicted of insurrection or treason and therefore appears eligible to run for Congress.

    Source

    The second problem is that Trump is not (at this time) a felon. Felons-in-waiting do not count.

    Rip Murdock (d2a2a8)

  17. I don’t see the 14th Amendment being a good cause, though, as Trump has not been convicted of (nor charged with) any insurrection-type crime.

    That may be correct, but you should read Baude’s argument for why it isn’t.

    lurker (cd7cd4)

  18. > Can a government official, a Secretary of State for instance, remove a presidential candidate for not being 35 years old or a natural born citizen?

    The difficulty is these are provable facts that have a binary value: either the candidate is thirty five years old on the day of the election or he isn’t, and this can be demonstrated by reference to his birth certificate. Similarly, either the candidate was born in the country or otherwise considered a natural born citizen, or he wasn’t, and *this* can be demonstrated by reference to his birth certificate.

    If a candidate has been convicted in a court of law of committing insurrection or rebellion, it’s similarly clear.

    But in this situation, where the candidate engaged in conduct which some people think was insurrection or rebellion (i certainly do) and others don’t? Without a competent court ruling on the question, all you’ve got is the arbitrary opinion of the elected official excluding the candidate from the ballot.

    As a matter of law, I don’t see any difference between the Colorado Secretary of State excluding Trump on the grounds that January 6 was an insurrection and, say, the Alabama Secretary of State excluding Biden on the grounds that the Democratic party is a per se insurrectionary organization due to its embrace of socialism.

    If there *isn’t* a requirement for conviction as a predicate for establishing the fact of rebellion or insurrection, this is an open invitation to abuse by partisan-motivated elections officers in every jurisdiction. There *must* be some sort of clearly identifiable standard and definition that everyone can point to … and we don’t have that.

    In my view, Trump is the biggest danger to the Republic since the end of the civil war. But *this solution* to the problem of Trump is *also* a massive danger to the Republic, and we should — and will — find a better way.

    aphrael (71d87c)

  19. @5:

    I agree with Baude, but Trump’s not been charged with such a crime.

    Kevin M (ed969f)

  20. I hear a lot about the unrest that would follow Trump being barred from the ballot. And there probably would be some. But consider: If somehow Trump were elected President, would that be a peaceful thing itself?

    I can see California and the West Coast considering secession should that occur, rather than suffer Trump’s predations for 4 years. They probably would not, but the nation could be torn apart by the strain to the point where actual secession would just be a formality.

    Kevin M (ed969f)

  21. There are no such limits to run for federal office.

    IF you are going to quote me, quote all I wrote:

    If a state had a “no felons on the ballot” law, that might eventually be an effective cause, especially since presidential elections are NOT federal.

    Using an ellipsis to hide what you don’t want to have to discuss is &^!*^% poor form. Using an example of a federally-regulated Congressional election (which the Constitution assigns to the feds) to argue about a state election (which the Constitution assigns to the states) is an attempt to obfuscate and deceive.

    Kevin M (ed969f)

  22. Democracy dies in court.

    Let’s get down to th nitty-gritty. January 23, 2025. Any state which has kept Trump off the ballot had better hope that the Democrats control both chambers of Congress. Or its electoral votes will not be counted.

    nk (9711bb)

  23. Atricle II, Section 1:

    Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

    There is no federal role, other than time, manner and civil rights, in presidential elections and (in particular) not in presidential primaries. A better argument is that there is no state power either in primary elections.

    Kevin M (ed969f)

  24. From Rethinking Presidential Eligibility in the Fordham Law Review (2016)

    The U.S. Supreme Court has yet to rule that any candidate for the presidency of the United States is ineligible for that office. This is so despite the fact that the eligibility of U.S. presidential candidates has often been challenged. Several aspiring Presidents have had lawsuits filed against them alleging that they fail to meet the requirements of the Constitution’s Eligibility Clause. In most instances, these lawsuits have been summarily dismissed. In the few circumstances when the courts have decided these cases on their merits, they have always ruled against the challengers.
    ………..
    Courts have held that ordinary citizens do not have standing to bring eligibility challenges under the Natural Born Citizen Clause. In granting President Obama’s motion to dismiss an eligibility challenge, a district court in Pennsylvania quoted what Chief Justice Warren Burger said in United States v. Richardson, the 1974 cases concerning the standing of a taxpayer:

    It can be argued that if respondent is not permitted to litigate this issue, no one can do so. In a very real sense, the absence of a particular individual or class to litigate these claims gives support to the argument that the subject matter is committed to the surveillance of Congress, and ultimately to the political process.

    After quoting Burger, the court went on to explain that if “Congress determines that citizens, voters, or party members should police the Constitution’s eligibility requirements for the Presidency, then it is free to pass laws conferring standing on [such] individuals.” But until Congress does so, voters have no standing to bring these sorts of challenges. Thus, congressional action is the only way forward.
    ………

    Rip Murdock (d2a2a8)

  25. Using an ellipsis to hide what you don’t want to have to discuss is &^!*^% poor form.

    It was hardly hiding. Your full post is still there for all to see.

    Rip Murdock (d2a2a8)

  26. Or its electoral votes will not be counted.

    Really? That is not a valid basis for an objection under the Electoral Count Reform Act of 2022. Only two reasons are acceptable: “the electors of the state were not lawfully certified under a certificate of ascertainment of appointment of electors” or “the vote of one or more electors has not been regularly given.”

    Kevin M (ed969f)

  27. It was hardly hiding. Your full post is still there for all to see.

    The thing you left out makes your entire argument meaningless. I guess you just left it out to save space.

    Kevin M (ed969f)

  28. Political parties are membership organizations, protected by two clauses in the First Amendment, and there is no more powerful federal role than that. The idea that a state judge will choose the candidate they will put forth for the general election is mind-boggling.

    nk (9711bb)

  29. @24:

    Agreed. To have standing without explicit empowerment under the law, a showing of significant harm is needed. Voters cannot do that, interest groups cannot do that.

    However, another candidate can probably show harm.

    Kevin M (ed969f)

  30. The idea that a state judge will choose the candidate they will put forth for the general election is mind-boggling.

    As I said above: “A better argument is that there is no state power either in primary elections.”

    Kevin M (ed969f)

  31. It is also mind-boggling that a state would choose to ignore the presidential votes of its citizens, yet a number of states have already agreed to do that.

    Kevin M (ed969f)

  32. But, nk, if a 30 year-old was on the primary ballot for President, or a non-citizen, would a state court have the power (not to mention duty) to correct that? Or do they just say “Vaya con Dios” and wash their hands?

    Kevin M (ed969f)

  33. Kevin M (ed969f) — 9/6/2023 @ 6:22 pm

    If there was no state power in primary elections, where would challenges be heard? Federal court?

    Rip Murdock (d2a2a8)

  34. Political parties are membership organizations……

    LOL! Do you need a Republican Party membership card to vote in the primary?

    Rip Murdock (d2a2a8)

  35. LOL! Do you need a Republican Party membership card to vote in the primary?

    LOL! Yes! In some places I’ve heard of, like New and California, you have to have it well in advance of the election. Where I’m at, we can get it right on the spot by checking a little box on our ballot request. And absolutely free too! LOL!

    nk (9711bb)

  36. I’ve heard that some so-called gentlemen’s clubs have the same membership policy too, but I have not experienced it personally. LOL!

    nk (9711bb)

  37. Sorry, Rip, but LOLs are no less annoying when you do it than when BuDuh does it.

    I think these discussions most often go off the rails when commenters here adopt the positions of “legal scholars”. If those guys could practice law, they wouldn’t be teaching it. It’s like bringing a “plumbing scholar” to unclog your sink. Talk is cheap, and even cheaper in the electronic age. No paper or typewriter ribbons.

    nk (9711bb)

  38. But, nk, if a 30 year-old was on the primary ballot for President, or a non-citizen, would a state court have the power (not to mention duty) to correct that?

    No. Dipsticks have the right peaceably to assemble and petition for redress of grievances too.

    Or do they just say “Vaya con Dios” and wash their hands?

    They say come back when and if the party petitions to put him on the general election ballot. That is basically an advisory vote to the legislature and definitely involves state action.

    nk (9711bb)

  39. > LOL! Yes! In some places I’ve heard of, like New and California, you have to have it well in advance of the election. Where I’m at, we can get it right on the spot by checking a little box on our ballot request. And absolutely free too! LOL!

    In the case of California, California’s government and voters *wanted* the Democratic and Republican primaries to be open to everyone, and the parties *sued to stop it*. And won.

    aphrael (71d87c)

  40. > If a state had a “no felons on the ballot” law, that might eventually be an effective cause, especially since presidential elections are NOT federal.

    This would fail for the same reason term limits failed — the constitution specifies the requirements for federal office and states *may not* add additional qualifications.

    aphrael (71d87c)

  41. > when commenters here adopt the positions of “legal scholars”.

    I’ll point out that a number of us are licensed to practice law, and expecting us to approach legal questions in any way other than by doing legal analysis seems … unrealistic and unreasonable.

    aphrael (71d87c)

  42. By “legal scholars”, I meant the law professors and law review writers such as those cited in the post and in the comments. Present company excepted, and their own opinions welcome.

    nk (6c45b4)

  43. If those guys could practice law, they wouldn’t be teaching it.

    Sorry, nk, but that’s incorrect. With rare exception, I know of no law professors at elite schools who wouldn’t be welcomed at a BigLaw firm tomorrow for a lot more money, yet want no part of it. At the same time I know plenty of highly skilled, well-compensated lawyers who’d give up half their salary for the life of a professor at a tier 1 or 2 school, but wouldn’t be considered for the job.

    lurker (cd7cd4)

  44. If there *isn’t* a requirement for conviction as a predicate for establishing the fact of rebellion or insurrection, this is an open invitation to abuse by partisan-motivated elections officers in every jurisdiction. There *must* be some sort of clearly identifiable standard and definition that everyone can point to … and we don’t have that.

    I agree, but that’s an argument for why Section 3 should require a clear standard, not that it does. Baude makes a credible case that the text, precedent and history say Section 3, like the age and citizenship clauses, is a self-executing exclusion to be enforced in the first instance by anyone whose job it is to decide whether a candidate is constitutionally eligible to be on the ballot. And if anybody wants to challenge that decision, that’s what courts are for. And if what ensues is the escalating tit-for-tat recriminations you and I fear might, it’s for Congress to fill the gaps the Constitution left open or ambiguous.

    lurker (cd7cd4)

  45. @5:

    I agree with Baude, but Trump’s not been charged with such a crime.

    Kevin M (ed969f) — 9/6/2023 @ 5:56 pm

    Then you don’t agree with Baude. He says no external proceeding is required:

    Section Three is legally self-executing. That is, Section Three’s disqualification is constitutionally automatic whenever its terms are satisfied. Section Three requires no legislation or adjudication to be legally effective. It is enacted by the enactment of the Fourteenth Amendment. Its disqualification, where triggered, just is.

    It follows that Section Three’s disqualification may and should be followed and carried out by all whose duties are affected by it. In many cases, Section Three will give rise to judiciable controversies in the courts. In others it will be enforceable by state and federal officials. But no prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands. Section Three is ready for use.

    […]

    Section Three is also noticeably different from other constitutional provisions that deal with misbehavior—provisions that are not self-executing in the same way. Article III, for instance, describes the offense of treason:

    Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.

    Note the contrast. The Treason Clause defines an offense (“Treason . . . shall
    consist”) but it does not itself convict anybody of treason. Section Three, by contrast, enacts its own disqualification (“No person shall be”). It acts on persons, not offenses. This is driven home by the Treason Clause’s specific procedures and powers:

    “[C]onvict[ions] of treason” require two witnesses or a public confession; and “Congress shall have power to declare the punishment of treason.”

    Section Three of the Fourteenth Amendment, by contrast, is offense, conviction, and punishment all rolled in to one.

    Similarly, the Constitution’s impeachment provisions say that those who are
    impeached “shall be removed from Office.” But the Constitution does not itself impeach anybody. Instead, it specifies that somebody else—the House and Senate—
    must do the impeaching. Again, Section Three’s contrast is glaring. The framers of
    Section Three had the treason clause and impeachment clauses at hand and chose a
    noticeably different path. Section Three does not call for treason trials or the impeachment of secessionists. It directly imposes an across-the-board disqualification and involves Congress only if Congress wishes to end it.

    lurker (cd7cd4)

  46. That may be correct, but you should read Baude’s argument for why it isn’t.

    I did. I get what he’s saying, but without a court establishing guilt, it doesn’t wash. I note that they bounced Couy Whassiname off a NM county commission after he was convicted of mere trespassing. I didn’t agree with that either. He was indeed a piece of work, but rural NM has got a lot of that.

    Now, I happen to think that Trump is guilty of conspiracy in the planning, and aiding and abetting the actual insurrection, but that’s just an opinion. To keep him off the ballot would take a conviction and the DoJ has not brought the charge.

    Kevin M (ed969f)

  47. That is, Section Three’s disqualification is constitutionally automatic whenever its terms are satisfied. Section Three requires no legislation or adjudication to be legally effective.

    So, if someone just claims it, that’s enough? To say that no adjudication is required to disqualify someone from office is really scary stuff. Destroying democracy to save it.

    But no prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands. Section Three is ready for use.

    Wow. Just wow. So, the Contra Costa County Election department can just pull out all ballots for Trump and destroy them? This statement suggests no limits, no requirements, no jurisdiction other than “I can!”

    Again, I agree that Trump should be disqualified — for all the reasons Baude lists — but I kind of stand with the Rule of Law and due process, and Baude argues for the mob.

    I will point out that the House version of the Electoral Count Reform Act had 14.3 as a valid reason to discard electoral votes, or Electoral voters, but the Senate would not sit still for it.

    Kevin M (ed969f)

  48. I agree, but that’s an argument for why Section 3 should require a clear standard, not that it does.

    “The Constitution is not a suicide pact.”

    Crowdsourcing election qualifications does not seem like a good plan.

    Kevin M (ed969f)

  49. This would fail for the same reason term limits failed — the constitution specifies the requirements for federal office and states *may not* add additional qualifications.

    That case (US Term Limits v Thornton) was about Congressional races, which are federal elections. The Constitution gives very little role to the federal government in presidential elections, where the power is at the state level. Only when issues of civil rights come up, does the 14th amendment give the feds grounds to interfere.

    The only reason that California puts the parties’ convention choices on the general election ballot is that state law requires it. I don’t see why they could not add “but no such candidate may be a felon.” I believe that exception is in the 14th amendment, too, so it’s not discriminatory.

    Kevin M (ed969f)

  50. And they don’t put all candidates on the ballot, either. Only those of state-recognized parties. You could argue that candidates of other parties should also be on the ballot, as that is “imposing an additional requirement”, but good luck with that.

    Kevin M (ed969f)

  51. As lurker observed the other day, I prefer bright lines, and I think there should be some bright lines for establishing “shall have engaged in insurrection or rebellion”, because if Trump loses the case and there isn’t clearly defined standard, you can bet that partisans will rush to file Article 3 lawsuits in future elections to get their rivals kicked off ballots.

    Paul Montagu (d52d7d)

  52. Section Three requires no legislation or adjudication to be legally effective.

    So, if someone just claims it, that’s enough? To say that no adjudication is required to disqualify someone from office is really scary stuff. Destroying democracy to save it.

    Yes, government officers who abuse their power can indeed do scary things. But how is being disqualified by a rogue secretary of state who “just claims” you abetted an insurrection different from being disqualified by one who just claims you aren’t a natural born citizen? Or that you aren’t 35 yrs old? The damage is the same, as are the remedies. Hopefully the legislature didn’t give the secretary more power than it can reign in when the secretary turns out to be a whacko demagogue.

    lurker (cd7cd4)

  53. But no prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands. Section Three is ready for use.

    Wow. Just wow. So, the Contra Costa County Election department can just pull out all ballots for Trump and destroy them? This statement suggests no limits, no requirements, no jurisdiction other than “I can!”

    I don’t know. Can they? Can they pull out and destroy the ballots for Obama if they decide he isn’t a natural born citizen? I hope not in both cases.

    I assume you mean ballots that have already been cast for Trump (and Obama), since I can’t figure out what “ballots for Trump” (or Obama) could mean otherwise. So does the authority to destroy ballots already cast typically go along with the authority to decide who’s eligible to be on the ballot? Again, I hope not.

    lurker (cd7cd4)

  54. As lurker observed the other day, I prefer bright lines, and I think there should be some bright lines for establishing “shall have engaged in insurrection or rebellion”, because if Trump loses the case and there isn’t clearly defined standard, you can bet that partisans will rush to file Article 3 lawsuits in future elections to get their rivals kicked off ballots.

    I only hope that’s the worst that would happen, but it’s bad enough. So yes, I too would like there to be an established standard for Section 3 insurrection or rebellion. But I’m not sure there is.

    lurker (cd7cd4)

  55. Sorry, Rip, but LOLs are no less annoying when you do it than when BuDuh does it.

    For the record, my schtick was to LOL as a mocking of Rip’s poor social skills.

    BuDuh (4214e4)

  56. I think these discussions most often go off the rails when commenters here adopt the positions of “legal scholars”

    Indeed.

    Here is what Volokh had to say about the 14th amendment in 2021:

    There is a pragmatic rationale that explains why the presidency and vice presidency were excluded from the jurisdictional element of Section 3. By the time the Fourteenth Amendment was approved in 1868, there were no living Presidents that had supported the Confederacy. Tyler had already died in 1862. The other living former Presidents (Fillmore, Pierce, Buchanan, and Johnson) had not supported the Confederacy. Moreover, Breckinridge, a former Vice President of the United States who joined the Confederacy, had previously served as a U.S. Senator. Therefore, he was already clearly covered by Section 3’s jurisdictional element. Thus, the Framers of the Fourteenth Amendment—whose focus was on past wrongdoing during the Civil War—had no pressing reason to draft Section 3’s jurisdictional element to cover former or future U.S. Presidents.

    We think the democracy canon provides further support for our position. Professor Richard L. Hasen explains that under this canon a provision of the Constitution that might be read to “limit the citizen in his exercise of [the right of suffrage] should be liberally construed in his favor.” This policy concern equally applies to the political candidate who wishes to run for a specific position. Given two reasonable readings of the Constitution and its “officer of the United States”-language, the democracy canon favors the reading that expands democratic choice. Under what appears to be the House’s reading of Section 3, voters and electors nationwide are permanently disenfranchised from selecting a presidential candidate. Under our approach, voters and electors can select the President of their choice. We should prefer the latter reading. The House’s approach is inconsistent with the democracy canon.

    BuDuh (4214e4)

  57. The courts and ultimately supreme court will decide. Trump will argue that he wasn’t trying insurrection or rebellion. In 1876 democrat party told its members to get their guns and go to washington dc to stop rutherfraud b. hayes from stealing the presidency and no one was charged with rebellion including the democrat presidential candidate. They can’t even prove trump ordered the storming of the capital.

    asset (547de8)

  58. I’d rather not see Trump kept off the balot based on a stretch of the law. If he’s fairly convicted of a felony that’s one thing. But this doesn’t seem justified.

    Time123 (059f66)

  59. @22

    Let’s get down to th nitty-gritty. January 23, 2025. Any state which has kept Trump off the ballot had better hope that the Democrats control both chambers of Congress. Or its electoral votes will not be counted.

    nk (9711bb) — 9/6/2023 @ 6:07 pm

    I’m sorry, but what?

    They just changed the law the make it even harder to contest the election.

    whembly (5f7596)

  60. Yes, government officers who abuse their power can indeed do scary things.

    When the interpretation of the law is such that many many actors have powers in different areas, you are guaranteed to find some who will see their duty requires aggressive action. Election integrity is predicated on stability and reasonable commonality of election rules. When any number of federal, state and local officials have what is apparently plenary power to alter the rules as they see their duty requires, the idea of election integrity is damaged, to put it mildly.

    If you thought the reaction to the election of 2020 was strident, wait until you have a hodge-podge of election rules, all aimed at disfavoring one party. The resulting cost should inform the interpretation of the 14th Amendment, requiring a finding of facts in open court prior to the imposition of sanctions.

    Kevin M (ed969f)

  61. To repeat: The House version of the Electoral Count Reform Act had 14.3 as a valid reason to discard electoral votes, or Electoral voters, but the Senate would not sit still for it.

    The version that was enacted does not have any reference to 14.3 as a valid cause for excluding electoral votes or voters. Only the lack of state credentials, or votes not given in regular order (whatever that entails).

    Kevin M (ed969f)

  62. Yeah, Kevin @26 and whembly @59 are right, about the ECRA. I even got the date wrong.

    nk (b5bf15)

  63. It’s possible that a “vote not given in regular order” would include a vote for an unqualified candidate, but an explicit provision in the House version to disqualify based on 14.3 (and a lot of other stuff) was removed from the final version.

    Kevin M (ed969f)

  64. whembly (5f7596) — 9/7/2023 @ 7:46 am blockquote They just changed the law the make it even harder to contest the election.No, they count the votes but somehow some people might deem him disqualified – and a 2/3 majority cann waive it. If he is disqualified Trump’s vice president becomes president (20th amendment) not Biden.

    A state, on the other hand. can make any rules for the appointment of Electors that it wants, but what is done must follow state law, possibly determined by a court ruling.

    The Republican Party can substitute another candidate in that state or informally pledge their electors to Trump, depending on state law about faithless eletors.’

    primaries are not governed by state law (and a party can substitute a caucus)but the Republican Party’s policy is to follow state law.

    Sammy Finkelman (f37bf5)

  65. A party can re-pledge electors under a number of conditions. The candidate dies, or otherwise withdraws, or because of certain state laws a place-holder VP candidate was named to meet a deadline (this happened with Perot because the rules for petitioners were different than for the majors in a few states).

    These are not considered “faithless.” It’s also hard to see how a state can force an elector’s vote — it was never supposed to be a magisterial act. All they do is select them, they have no further power over them other than later sh1tlists and the like.

    Kevin M (ed969f)

  66. I even got the date wrong.

    The proper date is 12/22/2022 for final passage.

    Kevin M (ed969f)

  67. Can they pull out and destroy the ballots for Obama if they decide he isn’t a natural born citizen?

    He is a natural born citizen, but he’s not eligible to be president again because of the 22nd amendment.

    Could any ballots for him be pulled out? Well, people are voting for Electors who also vote for vice president. Some electors may be uneligible to serve as electors because “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector,”

    The general rule in elections is, you count the votes, and if a dead man is elected, the office is declared vacant. The runner up doesn’t usually get it.

    The Twentieth amendment (I think) deals with the question of aa person who is not eligible to serve as president (or possibly with no choice being made) The language is a bit puzzling:

    https://constitution.congress.gov/browse/amendment-20/section-3/#:~:text=Twentieth%20Amendment%20Presidential%20Term%20and%20Succession&text=If%2C%20at%20the%20time%20fixed,President%20elect%20shall%20become%20President.

    Section 3 Succession
    If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

    Someone ineligible to be president can be what would be the president-elect – he just can’t be elected president. The 22nd amendment was passed after the 20th and uses language that goes:

    No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

    I think there “elected” has to mean fully certified.

    Sammy Finkelman (1d215a)

  68. But no prior judicial decision, and no implementing legislation, is required for Section Three to be carried out by officials sworn to uphold the Constitution whose duties present the occasion for applying Section Three’s commands.

    Well,

    https://constitutioncenter.org/blog/the-constitution-offers-another-path-to-trump-accountability

    In 1869, Justin Reade of the North Carolina Supreme Court described the thinking behind Section 3, according to one legal scholar. He said, “[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again, until relieved by Congress.”

    During the Reconstruction, Section 3 was used to disqualify numerous people but, as that same legal scholar wrote, since then, only one person’s qualifications were challenged under Section 3, a congressman at the start of World War I.

    Surprisingly, the Supreme Court as a whole played no role in the unfolding of the use of Section 3 during that period in our history. But one justice did.

    Chief Justice Salmon Chase was the circuit justice for Virginia. Supreme Court justices even today act as circuit justices handling emergency applications and other matters for the 13 federal circuit courts. At the time of Chase, but not today, each justice sat in a circuit court as a trial judge with the local district judge.

    In 1868, Chief Justice Chase, a leading architect of anti-slavery litigation, a former Ohio governor and a presidential hopeful, was to preside, with another judge, over the treason trial of the president of the Confederate States, Jefferson Davis, in Richmond, Virginia. At the heart of the trial would be a question never answered by the Supreme Court: whether secession from the Union was treason.

    Before the trial, Chase reportedly told Davis’ lawyer that he believed Section 3 was a criminal punishment. If Davis was subjected to punishment under Section 3, he could not be punished for treason or other charges because of the Constitution’s double jeopardy clause. At the start of the trial, Davis’ lawyers presented an affidavit showing Davis had taken an oath to defend the Constitution in 1845 when he was elected to Congress, according to historian C. Ellen Connally. That placed him within Section 3’s disqualification.

    The question for the trial court was whether Section 3 was a punishment. Chase ruled that it was and voted to quash the indictment, but the local district court said no. The issue was certified to the full Supreme Court but the court never reached the merits because President Andrew Johnson issued a full pardon to all participants in the Civil War, including Davis….

    …Chase had a second experience with Section 3 in an 1869 case, In Re Griffin. Caesar Griffin was sentenced to two years in prison for assault with intent to kill by a state judge, a former Confederate officer. Griffin’s lawyer argued that the judge was disqualified under Section 3 and that Section 3 was self-executing, which means it didn’t need special implementing legislation to be effective.

    Chase ruled that the judge was not disqualified because Section 3 was not self-executing. To rule otherwise, Chase knew, would mean all official acts of all ineligible former officers would be null and void. He chose an alternative reading of the section.

    Sammy Finkelman (1d215a)

  69. If you thought the reaction to the election of 2020 was strident, wait until you have a hodge-podge of election rules, all aimed at disfavoring one party. The resulting cost should inform the interpretation of the 14th Amendment, requiring a finding of facts in open court prior to the imposition of sanctions.

    Kevin M (ed969f) — 9/7/2023 @ 8:08 am

    No. The Constitution is what it is, as best we can ascertain its original public meaning, with no outcome privileged over another. If we don’t like the result, we can pass a law to fix it, e.g., procedures for approving/removing names from the ballot. And if that law is found unconstitutional, we can amend the Constitution itself. Interpreting the Constitution to reach preferred results is exactly the kind of legislating-from-the-bench judicial activism we’ve been railing against since Wickard v. Filburn.

    lurker (cd7cd4)

  70. So, if following the Constitution would necessarily lead to civil war with nuclear weapons (to pick an extreme case for your absolutism) we’d have no choice?

    Kevin M (ed969f)

  71. So, if following the Constitution would necessarily lead to civil war with nuclear weapons (to pick an extreme absurd case for your absolutism) we’d have no choice?

    Kevin M (ed969f) — 9/7/2023 @ 4:10 pm

    FIFY.

    Rip Murdock (d2a2a8)

  72. Whatever. He said it was an absolute, so there is no “absurd” more absurd that an absolute.

    Kevin M (ed969f)

  73. Who said it was an absolute?

    nk (8e647e)

  74. @69, he says that the Constitution is a rock upon which all must break, regardless of the outcome. Elsewhere he suggests that any person with authority under the constitution has plenary power to enforce it (presumably as they see it).

    This is beyond scary. This is taking the Rule of Law into everyone’s hands, helter-skelter, with no thought as to the viability of actions or their consequences, nor much caring.

    Kevin M (ed969f)

  75. I look at Constitutional questions from a structural point of view. Does the structure of the Constitution suggest that a Secretary of State could personally adjudicate whether a potential candidate is guilty of insurrection…just as he or she can decide whether said candidate meets the age or citizenship qualifications? Is it an administrative duty or is it a legal question?

    Implying that power seems like a stretch to me because of the due process implications for the individual and the voting rights concerns for the collective. Inevitably this assertion would get challenged and it would move up to the Supreme Court because of lack of clear precedent. Prudentially, I doubt the Court would leave it to the states or throw it to the people to amend the Constitution if they want a different result. Maybe Thomas would hold to that position.

    The implications are too grave. You con’t get impeached and removed without some process. You don’t have voting rights taken away without some process. The fact that there can be administrative aspects to that process…checking age and felon status…does not imply that all processes must be administrative. No one goes to the Secretary of State to determine whether an accused has actually committed a felony. That would be unprecedented. Some other body would need to establish the factual accuracy of whether someone has committed insurrection. At least that’s my take….

    AJ_Liberty (3fb041)

  76. AJ,

    It’s a matter of proof. The age requirement is satisfied or not with an easy proof. Native-born status is only slightly more involved, although some would clutter the question with crank definitions.

    But the insurrection thing has a number of moving parts and grey areas, and demands due process and a finding of facts.

    That being said, there is a role for states here as presidential elections are regulated mainly (some would say only) by state legislatures and state courts. A state CAN impose additional requirements on presidential candidates since the legislature is actually allowed to use any criteria should they choose direct selection of electors, subject only to 14th Amendment concerns over equal application of the laws.

    Otherwise, I agree with you — this is not an administerial power, it requires due process no matter where the decision is made.

    Kevin M (ed969f)

  77. Let’s take this one step further, and talk about “treason” and not just “insurrection.” Clearly a traitor is barred from government office. Does a Secretary of State, or the FEC, or a Contra Costa County Election Board official have the power to declare someone a traitor?

    I would hope not.

    Kevin M (ed969f)

  78. @69, he says that the Constitution is a rock upon which all must break, regardless of the outcome. Elsewhere he suggests that any person with authority under the constitution has plenary power to enforce it (presumably as they see it).

    This is beyond scary. This is taking the Rule of Law into everyone’s hands, helter-skelter, with no thought as to the viability of actions or their consequences, nor much caring.

    There you go misrepresenting my words again, Kevin. You’re a good guy, but you’re too smart that I should have to keep explaining why what you attribute to me isn’t what I said. Please try harder.

    To begin with, before hitting “Submit,” you might re-read my comment and ask yourself, “Is that really what I’m claiming he said? Are there other plausible interpretations? If so, shouldn’t I go with, ‘I think he’s saying…’ rather than ‘he says…’?”

    FYI, what I wrote was just about the briefest possible description of textualism, the mode of constitutional interpretation favored by conservatives everywhere. Is there more to it than that? Obviously. Millions of words have been written. As a thumbnail though, I stand by it. So if you think textualism causes your parade of horribles, take it up with Zombie Scalia.

    Next, ask yourself whether all the arguments you’re attributing to me, in addition to being accurately reproduced, are even mine. Or are some of them the arguments of a person whose article I said I found persuasive, but reserved judgment as to its conclusion, mentioning repeatedly that I hope it’s wrong?

    Which, in turn, makes your “not much caring” pretty much exactly the opposite of what I said. On that final point at least, your use of passive voice leaves ambiguous whom you were referring to as “not much caring,” so I give you the benefit of the doubt that it wasn’t me.

    By the way, that was me saying, “I suspect you may be accusing me of ‘not much caring,’ but I may be wrong,” instead of “you accused me of not caring.” I know, what I actually said was wordier and clunkier than what I didn’t. But that sacrifice of pithiness was the cost of being respectful. IMO that’s a price worth paying.

    lurker (cd7cd4)

  79. I look at Constitutional questions from a structural point of view. Does the structure of the Constitution suggest that a Secretary of State could personally adjudicate whether a potential candidate is guilty of insurrection…just as he or she can decide whether said candidate meets the age or citizenship qualifications? Is it an administrative duty or is it a legal question?

    But couldn’t the same be said of deciding natural born citizen status? If the Obama years taught us anything, that’s a contestable issue. So, for that matter, is date of birth when people are willing to challenge birth certificates.

    Implying that power seems like a stretch to me because of the due process implications for the individual and the voting rights concerns for the collective. Inevitably this assertion would get challenged and it would move up to the Supreme Court because of lack of clear precedent.

    But again, which rights are implicated by the insurrection disqualification that aren’t by the natural born citizen and age disqualifications? No one is suggesting the disqualification carries a penalty, criminal or otherwise, apart from being removed from the ballot. I agree that secretaries of state removing Trump from the ballot on their own idiosyncratic findings would be terrible for a number of reasons, but I also, like you, expect that any such action wouldn’t last long before the Supreme Court weighs in, hopefully filling the gaps.

    You con’t get impeached and removed without some process. You don’t have voting rights taken away without some process. The fact that there can be administrative aspects to that process…checking age and felon status…does not imply that all processes must be administrative. No one goes to the Secretary of State to determine whether an accused has actually committed a felony. That would be unprecedented. Some other body would need to establish the factual accuracy of whether someone has committed insurrection. At least that’s my take….

    But the impeachment clause is instructive in another way. It doesn’t define “high crimes or misdemeanors,” so that definition has been left to the political process, i.e., it’s not really defined at all. Likewise, nowhere does Section 3’s reference to “insurrection” tie it to the federal crime of insurrection. Indeed it also mentions “rebellion,” which isn’t a delineated crime. So not only is Section 3 silent about how the candidate’s insurrection should be determined — by a secretary of state? judge? jury? — it’s equally silent about what must be proven. Are the elements the same as for criminal insurrection? Unlikely, since there are no codified elements of “rebellion.” Is the standard of proof beyond a reasonable doubt? Preponderance of the evidence? While I hope the Supreme Court would put meat on those bones, it’s not obvious to me that answer won’t be, like “high crimes and misdemeanors,” a political one.

    lurker (cd7cd4)

  80. “But the impeachment clause is instructive in another way. It doesn’t define “high crimes or misdemeanors,” so that definition has been left to the political process”

    But no one would presume to say that an impeachment does not require an adversarial trial of some sort followed by a jury’s rendered verdict. Due process. You’re presuming that a Secretary of State should be judge, jury, and executioner when it comes to insurrections. Is it a riot or a rebellion? Asking the Secretary or State doesn’t quite sound right.

    AJ_Liberty (9d4ff9)

  81. But no one would presume to say that an impeachment does not require an adversarial trial of some sort followed by a jury’s rendered verdict. Due process.

    The Constitution says “Impeachment… and Conviction.” It’s silent as to any comparable process required for ballot disqualification.

    You’re presuming that a Secretary of State should be judge, jury, and executioner when it comes to insurrections.

    I don’t presume that at all. On the contrary, I believe I’ve made it clear that were it up to me a Secretary of State would have no such power. But what I believe the Constitution should require and what it does require are two different things. I don’t know the right answer, and I’m at best agnostic about major parts of Baude’s thesis. But I do find it a serious, Constitutionally well-founded argument. I think it deserves a serious, Constitutionally well-founded response from its detractors. I’ve yet to see one.

    I read his argument as having two prongs. The first, which I find persuasive, is that there’s no textual basis to distinguish the process required to disqualify someone for insurrection or rebellion from the process required to disqualify them for being underage or not a natural born citizen. But saying that isn’t the same as saying the Secretary of State would be judge, jury and executioner. It could just as well mean a more formal, exacting procedure is required to disqualify on any of the enumerated bases.

    The second prong, that the disqualification clauses are self-executing, comes closer to conceding a Secretary of State those judge, jury and executioner powers.* I’m not persuaded by that prong, but frankly, my skepticism is based on my own prudential preferences, not on any Constitutional text or jurisprudence. I’m really just hand-waiving, which is also all I’ve seen from anyone who disputes the thesis. It’s wrong because it must be wrong, because here’s how far the sky will fall if he’s right (I think it will fall pretty far). Not that it’s wrong because here’s where the Constitution says it is.

    (*FWIW Baude seems pretty clear that any such disqualifications would be subject to judicial and/or legislative override.)

    Is it a riot or a rebellion? Asking the Secretary or State doesn’t quite sound right.

    I agree, but again, sounding wrong to you or me carries shockingly little constitutional weight. I have no idea what the Supreme Court will say. They could (1) buy Baude’s argument in toto, i.e., the disqualification provisions are self-executing, no process required for any of them; (2) reject his argument in toto, i.e., the insurrection/rebellion disqualifications require a formal process, the others don’t; (3) split the baby, i.e., everything requires the same procedure, but it’s a more formal, exacting one than is currently practiced for age and natural born citizen disqualifications; or (4) decide it’s a non-justiciable political question. None of the those would shock me. Even if you put a gun to my head, I don’t know which I’d predict. I’d hope for (2) or (3).

    lurker (cd7cd4)

  82. Dear Lujan Grisham:

    Title 18, U.S.C., Section 241 – Conspiracy Against Rights

    This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).

    It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.

    Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.

    The statute of limitations is 7 years. That’s until 2030. Bet you the Democrats don’t hold the White House that long.

    Kevin M (ed969f)

  83. wrong thread

    Kevin M (ed969f)

  84. Or maybe not.

    Kevin M (ed969f)

  85. Here’s a comment that I left for Beldar at the Dispatch:

    Professor Michael McConnell: “It is not obvious that partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials [Congress] with clear statutory and constitutional authority have not done so.”

    So, at minimum, the suggested exercise is profoundly anti-democratic. His words, though I agree.

    Section 3 does not have to be self-executing, this would be a choice…probably a choice the courts won’t authorize given its potential for abuse…abuse that also impacts millions of voters who are more than willing to vote for Trump and who do not believe he mounted an “insurrection”.

    Is it an insurrection to propose an outlandish read of the Electoral Count Act? It seems like there is a process for dealing with that. A court challenge is made and the outlandish read…and its fecund fake elector fruit….would be cast out. Further, there was no assumption of power by the Capitol rioters…and though crimes were committed, the violence was more exasperation then focused at toppling the government or the Constitution. I mean the horned Shaman more cartoonish than truly assuming any sort of control.

    A riot is not a rebellion. Arm twisting secretaries of state over the phone might be criminal but does it ring the bell on “engaging” in insurrection? It was a request by Trump with hardly an “or else”, stated or implied. The highest Court will not want to be seen as interfering in elections and green-lighting rank partisanship. It won’t give section 3 a broad read…perhaps for the prudential reason of wanting to keep the peace….we’re not that far from more violence….

    AJ_Liberty (86f7df)

  86. Professor Michael McConnell: “It is not obvious that partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials [Congress] with clear statutory and constitutional authority have not done so.”

    I concur. It’s not obvious. Neither is it obvious, prudential concerns aside, that they shouldn’t. I don’t agree that the exercise is undemocratic. Now that we’ve let the Section 3 genie out of the bottle, I doubt it goes back until we get some answers. What is a Section 3 “insurrection?” Its juxtaposition in Section 3 to the Criminally undefined “rebellion” means we can’t divine its meaning simply by borrowing elements from a criminal code. Who has the power to enforce Section 3? What process is required? What’s the standard of proof? Are the answers the same for insurrection/rebellion as for age and natural born citizenship? What kind of judicial and/or legislative review is available or required? In short, is Baude’s thesis legit, cr@p, or both? Those questions seem pretty important.

    SCOTUS has to weigh in, and that requires a live controversy. Which means the only way we get answers is probably for one of those state officials to declare Trump disqualified. After Baude/Paulsen, that declaration was probably inevitable, but I’m beginning to suspect a test case disqualification is also necessary to resolve important Constitutional questions. Hopefully the Court strikes down Baude’s thesis, which in turn rescinds the disqualification, so no harm no foul. Either way, with any luck Section 3 emerges from SCOTUS with more public legitimacy than I fear it will have on arrival. I’d still prefer not to feed grievance fantasies of the violence-prone, but at this point I doubt it can be entirely avoided.

    lurker (cd7cd4)

  87. “Hopefully the Court strikes down Baude’s thesis, which in turn rescinds the disqualification, so no harm no foul.”

    Agree and I also agree that it’s good to test this thesis in a courtroom. Not because it will give Trump an opportunity to claim some sort of victory when he stays on the ballot, but because it continues to put Trump’s actions on and around J6 front and center. If people are seriously debating what constitutes an insurrection, then that does not help Trump, especially with moderates and independents.

    The same with Jack Smith’s case. It will get real when the news is dominated by which Republican witness is testifying to what in that case. It will be an optic that will turn the close polling numbers on their head. As weak as Biden is, people don’t want a deluded criminal with his finger on the button.

    AJ_Liberty (86f7df)


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