I suspect the Supreme Court will punt on Colorado...

[Wounded Bear]

Good part would be letting Colorado decision stand, but will not force red states to drop him as well.

Leave it as a "states rights" issue in the absence of legislation by Congress.

JMO, YMMV.

[bucolic_frolic]

1. They may well do that because if they rule against Trump the insurrectionist

They may drag a lot of GOP Congress critters along for the ride, and while that is what should be done, the GOP SCOTUS won't go there for sure.

They could also dictate their ruling applies only to Trump.

[WarGamer]

2. So which States drop Biden?

Did you think about that?

States Rights, right?

[dpibel]

7. The ones with evidence

Just like with Colorado and Maine.

If a state can provide a contested evidentiary hearing that provides proof that Biden engaged in insurrection, well, he should be off the ballot, no?

But you are arguing, as usual, for a post-law world in which bureaucrats and courts rubber stamp whatever is put before them.

If that's where we are, then we're in a heap of trouble. More trouble than we've been thinking.

One more time: Colorad and Maine didn't just say, "This is what we wanna do, and we're gonna do it."

Pretending it is what happened (and thus justifying red-state tit-for-tat) is disrespectful of what actually went on in those two states.

[WarGamer]

10. But there was no test of that evidence.

It never saw a Jury and no charges were ever filed.

Don't listen to me... just wait for the 9-0 decision.

The worst part of this is watching adults piss themselves in fear of facing Trump at th eballot box in 24.

We beat his ass once, we can do it again.

[dpibel]

12. I'm sorry, you really don't get it

Disqualification from office is not a criminal matter. So charges and juries are off the table right away.

Did you know that the Trump fraud trial in NY did not involve a jury? So I assume you are declaring any result from that trial to be invalid.

Different types of proceedings involve different levels of process and different standards of proof.

Your claim that "there was no test of the evidence" is just plain wrong. Both the Colorado trial and the Maine administrative proceeding involved contested hearings with evidence, testimony, briefing, and arguments.

That is a test of the evidence.

You may believe there should be a higher standard of proof, but that doesn't really change the law.

This is exactly like, for instance, an EEOC claim. There's no right to a jury. The standard of proof is either more probably than not or a preponderance.

You could be right about the 9-0 decision, although I wouldn't bet a cent on it. But I will close to guarantee you that it's not going to be decided on lack of a criminal conviction or, for that matter, lack of due process. If I'm wrong, you win all the gloating you can muster.

[WarGamer]

13. Hmmm...

A criminal conviction, in a Federal Court is a reasonable guideline.

Otherwise, it's an accusation.

But if it's a GOP AG in Texas... who makes a case in State Court and the Court ratifies it... then you'll be asking for higher Courts to step in and help, right??

Just be honest.

[dpibel]

22. "Just be honest"?

I'm not sure what cause you have to accuse me of dishonesty.

But, gosh. Do you read? Because just a couple of posts ago, I wrote these words: "If a state can provide a contested evidentiary hearing that provides proof that Biden engaged in insurrection, well, he should be off the ballot, no?"

Here's honest: I expect precisely the same level of review that Trump is getting. Perhaps you've missed the news that the Big Supremes are reviewing the Colorado case.

So how would it be dishonest for me to say, "If the Texass Supremes say Joe's off the ballot, I think the Big Supremes should have a look"?

Do you actually read what you write? Be honest.

Saying that anything but a criminal conviction in a Federal court is merely "an accusation," continues your display of your apparent inability to understand different process and different standards of proof. Neither Colorado nor Maine has declared Trump guilty of a crime. The 14th doesn't require a conviction.

So you are saying that you think a simple felony conviction is a good place to start. That's a truly bizarre point of view for what is essentially qualification (or dis- ) for a job.

[WarGamer]

23. Let's just agree to disagree. I'm on day 5 of COVID and dont want to argue.

Let's take this up again the week after 2/8

[DemocraticPatriot]

35. I hope you are well soon...

[DemocraticPatriot]

34. Some ex-Confederates were disqualified from serving in Congress after the civil war

due to this amendment, but they had never been prosecuted for insurrection, treason, or anything else....

Thus by precedent, a criminal conviction is not necessary.

[Fiendish Thingy]

26. And yet, this SCOTUS could overturn the CO ruling because of the absence of a conviction

The last two cases in which a person was disqualified under the 14th, in 2023 and before that, in 1920, both occurred following a relevant conviction. When the 1920 case had the conviction overturned, the disqualification was also reversed.

[dpibel]

28. Misdemeanor trespass

As we've discussed before, you never quite mention that the "relevant conviction" for Cuoy Griffin was misdemeanor trespass.

I do not believe that is equivalent to insurrection.

Yes, there was a bunch of evidence of Griffin's insurrectionary activities.

But the same is true of Trump.

I still don't get why you're so sure this SCOTUS will graft language onto the 14th. Seems that would be hard to pull off even for this gang of joker originalists.

But we've had this discussion before. I won't change your mind and you won't change mine.

I think there's a high likelihood that the Supremes will reverse the CO court. I think trying to guess which imaginative hook they will hang their hats on is pretty much reading tea leaves.

[Fiendish Thingy]

29. You omitted some important information

During Griffin’s trial, evidence was introduced of social media posts and private messages of him saying he intended to overthrow the government.

Through the due process of the trial, that evidence became established as a legal finding of fact, which the judge then used to disqualify him under the 14th.

There are three possible rulings, only two of which are likely:
1) SCOTUS rules Trump is disqualified, but only in CO - not likely because of the total chaos it would cause. If SCOTUS wanted this outcome, they would have simply denied cert and refused to take the case.
2) they overturn the CO case on some legal flaw, including, whether anyone likes it or not, the absence of a relevant conviction to establish a legal finding of fact.
3) they uphold the CO case, and rule that it applies nationwide. (This would thwart red states from attempting to disqualify Biden, unless of course they can present as strong a case as the plaintiffs did in CO…which they can’t)

At this point, I won’t venture any further prediction, but eagerly await the Feb 8 hearing.

[LudwigPastorius]

41. "...trying to guess which imaginative hook they will hang their hats on..."

Last edited Sat Jan 6, 2024, 01:14 AM - Edit history (1)

I'm guessing it will be something like, "We're the Supreme Court conservatives, and we're the motherfucking majority, so take it, you b__ches."

[pfitz59]

46. I'm with you

"We can't bite the hand that feeds us." Where will they get their presents and perks if they piss off the Trumpets?

[Zeitghost]

45. The disqualification process

Is civil. But the clause in question mentions a specific crime.

If the 14th barred murderers, would it require a murder conviction? Of course it would.

If it barred arsonists, would it require an arson conviction? Of course it would.

Why would the specific crime of insurrection, which was on the books at the time the 14th was ratified and which specifically lists prohibition from serving in public office as one of its punishments be any different?

If you want to legally declare someone an insurrectionist, you need to convict them under the insurrection act.

[kcr]

50. If my aunt had wheels, she'd be a bicycle

[Zeitghost]

65. Surely you can understand

That two specific felonies have more in common than your aunt and a bicycle.

It's a pretty horrible analogy.

[MichMan]

32. The 14th also disqualifies someone found to have "given aid and comforts to the enemies , thereof"

"If a state can provide a contested evidentiary hearing that provides proof that Biden engaged in insurrection, well, he should be off the ballot, no?"

What enemies ? What constitues aids and comforts? That is a much potentially broader definition than the word insurrection.

It's not outside the realm of possibility that a few red states could justify disqualifying Joe Biden based on their interpretation.

[dpibel]

36. About those enemies

Very often when some hapless person right on this website would say Trump had committed treason, they would be told by a multitude of scolds that a mere adversary is not an enemy for purposes of treason, but there must instead be an actual war on, hence Mr. Trump ought not be accused of treason.

FWIW, this is from a Law Review note on the subject.

An enemy, for purposes of the treason clause, is defined as only “subjects of a foreign power in a state of open hostility” towards the U.S.[6] Finally, the crime of treason by aiding an enemy can only be committed during a time of war.[7] Thus, to be convicted of treason by aiding an enemy, a person must give aid or comfort to a subject of a foreign power openly at war with the U.S. and the person must do so with an intent to betray the U.S.

Given the strong parallel between the language of Article III, Section 3 and 14th Amendment, Section 3, I think there'd be little doubt that people crossing the border do not constitute an enemy for Constitutional purposes.

I really think at some point we have to stop arguing against doing the right thing because MAGA will do the wrong thing. MAGA will do the wrong thing regardless.

And the fact remains: Courts all over the country, in blue states and red, rejected all of the Trumpist lawsuits about the 2020 election. I'm not sure why people are so certain that the outcome would be different with a frivolous 14th Am. DQ case against Joe Biden, or a Democrat to be named later.

[MichMan]

39. It's a moot point because President Biden will beat any Republican on the ballot by 20 points

I never said the case against removing Joe Biden from the ballot would be successful, just that I wouldn't be surprised if some states attempted to do so.

Perhaps you are right, that the SC will rule since Trump committed an insurrection, he is therefore ineligible in all 50 states, even those that already ruled he was eligible, and that any attempt to remove Joe Biden in a similar matter would be shut down immediately by the same SC.

[MOMFUDSKI]

21. Boots here in Floriduh is checking into

removing Biden from the ballot because illegals came.

[kcr]

49. So which foreign country can put up their own candidate?

Did you think about that?

No disqualification based on facts, right?

[yagotme]

62. Sure, they can put them up.

They just need to meet the 3 qualifications listed in the Constitution.

[pinkstarburst]

52. Exactly

I think 45 deserves to be in jail, but removing a major candidate from the ballot and effectively swinging the entire election is not for one or two states to decide. This sets too dangerous a precedent. If this is allowed to go forward, then yes, red states will find some asinine reason to remove Biden from the ballot, or any other major democrat in the future.

The amendment as I understand it says that this matter is to be decided by congress, not individual states.

[NoRethugFriends]

55. Just "no" to all that

[treestar]

57. Biden did not participate in an insurrection

There has to be some reason.

[FBaggins]

59. So you say

But if there's no due process requirement to prove it beyond a reasonable doubt to a unanimous jury... then a majority of a state supreme court saying that he did is good enough.

[Polybius]

60. Exactly

There must be a conviction. We didn't need one with Civil War insurrectionists because it was obvious.

[yagotme]

61. A big thing that a lot here seem to miss also. we were actually at war, then. nt

[FBaggins]

64. One small disagreement there

Most on DU will say that this time is obvious too.

Believing that it's "obvious" simply isn't good enough. Frankly - if it was obvious he would have been indicted and convicted of the crime some time back.

Convictions weren't needed after the Civil War because there had been a civil war. There were signed declarations of secession, military commissions, and elections (and oaths) under their own constitution.

[walkingman]

3. I agree - the older I get the more I dislike the US concept if "United" States.

Im today's world there is nothing "united" about the US. Each State is truly like a separate country. You can live near a state border and be subject to a completely different set of rules, laws, healthcare, education, taxes, social programs, etc. Just imagine going to jail based for something that would not even be an offense if you were 100 yds over the adjoining state line. It is insane.

I think it might have been a good design at some point but in contemporary America I think it is ridiculous. Some will say, just move...it is not that easy based on family, jobs, financial considerations, etc. Much like our electoral college its "used by" date has passed.

I realize there is nothing that can be done about it but I think it is ridiculous.

[dpibel]

8. Entirely agree

The idea that there's something magical and sacrosanct about borders that were drawn, arbitrarily or for political gain, a century or two ago is nuts.

And the idea that the small states need to be protected from the big ones is similarly loony, especially given the fact that the large states tend to be donors to the small ones.

[MichMan]

33. Do you oppose states being allowed to legalize marijuana in violation of federal laws?

[walkingman]

43. No, I think it should be legalized in every state. Actually I would prefer decriminalized

and take the capitalistic incentive out of the equation. I think it would be a positive if the federal government was more willing to intercede in many more issues that it does now. This attitude of "States Rights" seems to lend itself towards segregating themselves for one reason or another.

Maybe my experience of living in the South makes me more cynical when it comes to States Rights?

edited to maybe correct my statement -

What is the difference between decriminalized and legalized?
Decriminalization means it would remain illegal, but the legal system would not prosecute a person for the act. The penalties would range from no penalties at all to a civil fine. This can be contrasted with legalization which is the process of removing all legal prohibitions against the act.

I never knew thought decriminalization would mean it was still illegal?

[MichMan]

44. But since it isn't legalized on the Federal level, is it ridiculous for states to do so ?

"I realize there is nothing that can be done about it but I think it is ridiculous."

[walkingman]

58. Absolutely not. ☮ Just another example that each state is like another country.

In a state like Texas, the rural population controls state politics because in the more heavily populated urban areas they split the voters for political advantage by gerrymandering. Whoever came up with that concept should be castrated so they can produce no more like-minded offspring.

[yagotme]

63. Governor Gerry of Mass., 1812

https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/

[pfitz59]

47. I live in Washington State

and women are crossing over from Idaho daily, for needed healthcare. Idaho tried to make it a crime for women to enter Washington. The Washington AG told the Idaho pricks (in so many words) to go F themselves. Similar situation with Texas and neighboring states. SCrOTUS has thrown a screw in the works re: The Supremacy Clause.

[maxsolomon]

4. I think they'll say that enforcement of Section 3 needs to be legislated by the US Congress

via the requirements of 14th Amendment Section 5, and since Congress hasn't legislated any enforcement, he can't be kept off the ballot.

Section 5
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

[dpibel]

11. Too bad about that due process and equal protection

Do you believe that the second sentence of Section 1 of the 14th has been fully enacted by Congress?

I kinda think those are self-executing provisions that have mostly depended on courts for enforcement.

[maxsolomon]

14. Section 4 hasn't been legislated, either. See: the annual debt-ceiling farce.

I believe that's how SCOTUS will wiggle out of it, that's all.

[Maru Kitteh]

18. That is the only thing I have seen so far that seems reality-based and plausible.

So you're saying a very narrow ruling that it's not self-executing? That makes sense to me.

[J_William_Ryan]

5. "So which States drop Biden?"

They don’t. There’s no legitimate, lawful, Constitutional reason to remove President Biden from a state’s ballot.

That’s not the case with Trump.

[Maru Kitteh]

20. Yeah. The confederate states will totally agree with that and forget the whole thing.

nope.

[Fiendish Thingy]

27. Which is why SCOTUS won't rule this as a states rights issue

They will either disqualify him nationwide, or overturn the CO ruling.

Ruling it as a states rights issue would create total chaos.

[Shrek]

53. It doesn't even require changing the ballot

Article 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

New hypothetical state law: No Elector shall cast a vote in the Electoral College for any candidate currently holding the office of President.

The Electoral College gives states a lot of room for mischief if they're so inclined. They can leave Biden on the ballot and simply prohibit their Electors from voting for him.

And yes, there would be screams of disenfranchisement, but in fact no one is entitled to vote for President except Electors appointed by the legislature. If a legislature chose some nutty scheme of appointing Electors, who could stop it and on what grounds?

[Prairie Gates]

6. LOL...they will absolutely shoot down Colorado 6-3

There's going to be decades of this kind of nonsense.

[Walleye]

9. From listening to Trump's lawyer, I would say that the fix is in

[B.See]

16. Of COURSE it is. And if anyone is expecting anything nobler from Trump's MAGA SCOTUS...

then they haven't been PAYING ATTENTION.

[Prairie Gates]

19. The fix is that they have a supermajority on the Supreme Court and can do whatever they want

Thomas, Alito, Gorsuch, and especially Kavanaugh are not people of good character. They're raving ideologues. ACB is probably a decent person, but she's a complete fanatic. Roberts doesn't mind being at the head of a court that tranforms the nation along the hard conservative lines of his Federalist Society heroes for generations.

They can literally do whatever they want, then just appeal it until it reaches that crew.

[Polybius]

38. 8-1

It won't be close.

[FBaggins]

48. That could be a very interesting dissent. nt

[tritsofme]

15. I'm starting to think they will use the political question doctrine to say courts cannot determine whether Trump

is disqualified, and that the responsibility belongs only to Congress on 1/6/25.

But I don’t think the “state’s rights” argument has any cache. States do not get to decide eligibility requirements for federal candidate, if there is an answer, there is only one.

[dpibel]

24. Fun fact

One of the cases the CO Supremes relied on to dispute the argument you're making (states can't decide federal qualification) was authored by one Neil Gorsuch back when he was on the Court of Appeals.

Check out Section 5, starting at page 32, of the Colorado opinion. https://d3i6fh83elv35t.cloudfront.net/static/2023/12/23SA300.pdf

[Silent Type]

17. SCOTUS might vote against trump on this one because Crows, Kochs, etc.,

— who are supposedly over trump — tell them too. There’s enough ambiguity in Constitutional to justify either position.

If left to states, red ones will have trump on ballot. Solid Blue, maybe not.

[Fiendish Thingy]

25. Ruling that he's disqualified only in CO would create chaos.

And every Red state would move to disqualify Biden.

Now that they have accepted the case, they either have to disqualify him nationwide, or overturn the CO case on some legal flaw in the case.

[AkFemDem]

30. I don't expect them to do that

In fact, I suspect even the liberal side of the court will join in to rule against the CO decision on the grounds there hasn't been a conviction of anything that qualifies as insurrection.

The high court will require some court, any court, convict him first.

[bucolic_frolic]

51. SCOTUS is being asked to give definite meaning to 14A

not to rule on cases already adjudicated. SCOTUS at one time defined pornography, and there were many laws against lewdness and other aberrant behavior, but they still had to put boundaries to the term. The term "conviction" is nowhere in 14A Sec 3. All that's required is to apply the reality to the description to protect the State from people who fought the very existence or in this case rules of succession of the State, or aided enemies of the State who did.

Biden painted SCOTUS into a corner of sorts yesterday. Justices have to choose America, or side with Trump.

[Buckeyeblue]

31. Section 3 is poorly written

I think the SC will say there is no way to interpret or enforce it. That will be their punt.

[dpibel]

37. Like they do with the 2nd?

I mean, talk about a poorly written amendment.

But seriously. I think one thing we can count on the Supremes not to do is declare a portion of the Constitution to be beyond interpretation and thus a nullity.

[Buckeyeblue]

40. The second amendment is a mess as well

And if the majority was intellectually honest, they would say it means nothing anymore. We don't have militias. We have a professional army, so there is no need for constitutional protection to allow civilians to be armed.

But think if you think about it, I think they'll say it was written specifically to prevent confederate leaders from holding office, so it's outdated. They'll use the same argument that should be used on the second amendment.

I actually think part of our issue as a country is that the constitution is too old and too difficult to amend. 27 (really it's 17) amendments in 235 years is too few. The world had changed too much.

[moondust]

42. Too much ambiguity

makes it easy for them to dodge and fudge.

[Patton French]

54. Didn't they just agree to hear the case?

Seems like not punting.

[getagrip_already]

56. Its not the voting that is at issue here.... it qualification to serve

What I want them to rule on one way or another is whether he is qualified to serve.

THAT is the crux of the matter. Appearing on the ballot can be a states rights issue, but if scotus agrees that he is ineligible to serve, then being on a ballot is a moot point.

That is what they need to decide here. Will they?