Now we're talking: Maine and Colorado say Trump can't run for president while Michigan and California say he can. No matter how you come down on this question, it really does seem like it needs a definitive national answer. Supreme Court, here we come.
64 thoughts on “Trump is now 2-2 in the Insurrection Bowl”
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Being a Maniac myself, I was originally supportive of blocking him from the ballot. Now I’m not so sure… Slippery slope?
I know we have discussed this ad infinitum in previous posts, but now that it is my state, I dunno.
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Well, Chris Christie is off the ballot, so why not Trump?
(Yes, I know the reasons were totally different).
Anyhow, maybe all the Trump supporters in the 2nd District will decide to defy the ballot and write him in.
This is the first I've heard about a California decision. Michigan didn't say that Trump can run for president; they said he can run in the presidential primary whether or not he's qualified for the office, and the question of his qualification, or lack thereof, for the general election can be litigated if he gets the nomination. Several state courts, starting with Wisconsin, have ruled the same way. They're putting themselves under an awfully tight time constraint to decide the issue between the Republican National Convention and the date ballots must be finalized.
Minnesota’s Supreme Court has also declined to bar Trump from the primary ballot, without ruling about his qualification for the general election.
California's Sec. of State rejected an attempt to remove TFG from the March primary ballot. So, similar to the other states you mentioned. She can obviously revisit the issue when he gets the nomination.
So, could someone who is under the age of 35, or who is a naturalized citizen, run in a party primary in those states?
That "whether or not they are qualified for the office," seems like a foolish compromise.
That's pretty much what various courts have said. A teenager, or an immigrant, can legally run in the primary in those states. It would appear that the relevant legislators just assumed that unqualified people wouldn't run, and didn't bother to make a law prohibiting them from running.
Aren't the individual parties, in their own capacity, among themselves, private entities?
Why would government, state or federal, have a say in who may or may not be on their primary ballot?
The general election is obviously a different matter.
Also, it seems to me, if a state had a primary ballot that was ranked choice voting it would be a different matter as well because where everyone participates it's a public thing.
How about States that do not require Party registration to vote? (Like my own State, WA)
It seems like it would be still a private thing, like a fan club. Football fans don't have to register with the government.
Even a closed primary is a state-run election, so states have an interest in checking eligibility.
IANAL, but my understanding is that since the state is actually carrying out the primary -- and devoting a lot of financial and personnel resources to it -- they certainly do get a say in the rules. If the party wants to chose their convention delegates by caucus, on their own dime, then they can set the rules pretty much any way they want.
i think it's because states administer primaries. that's why colorado GOP said they would switch to caucuses if trump was banned from the primary ballot, since they can run those on their own, theoretically at least.
Would it be legal if a state tried to ban someone from using roads, bridges or sidewalks?
States literally do ban people from using roads. State laws lay out a set of qualifications and requirements for operating a motor vehicle. Anyone who fails to meet them is not permitted to use public roads.
Operating a vehicle, yes, but can they ban them from riding in one?
What about apples? Can a state ban an individual from eating apples?
If not, what dramatic oranges can we draw from these apples?
Can a state ban an individual from using a pen? What about watching someone else use a pen?
How about a ruler?
If you're a ruler you can use any pen or eat any apple you want, because you make the rules.
I'm thinking you might analogize it to house arrest but it seems extreme and arbitrary in the absence of a court order.
But if that were the case it would still be more of a restriction on the free expression of the people in the party in a private circumstance, as if the state were telling priests what color their outfits could be.
And if that were the case they could extend it to banning any candidate from a ballot on any kind of pretext, 'credible allegations', 'preserving public order', etc.
Re operating a motor vehicle: I agree. The first thing a person has to do to get a driver's license is pass a knowledge test with a whole bunch of questions confirming they know the rules of the road. Is it too much to ask someone who wants to be the most powerful person on the planet to pass a knowledge test with one "do you promise not to be an insurrectionist" question?
Why would government, state or federal, have a say in who may or may not be on their primary ballot?
States obviously have a "say" in their own operations. Primary elections are administered by the states. They're paid for with tax money, and make use of government property like schools, voting machines, and party registration records.
There's a case to be made that state governments ought to get out of the business of being involved with the nominating processes of political parties. But that's a subject for another day.
I don't think so. What would happen if a "private entity" political party allowed citizens under the age of 35, or naturalized citizens, or presidents who have already served two terms to appear on the ballot?
Parties may be private, but elections for public office are public.
The primary is an election within the party to find someone to represent them who then becomes a public candidate.
If they should choose someone not qualified then the time to remove them would be after that, from the general election ballot, which is an election for a public position.
If the state primary were some kind of wide open or ranked choice format where all candidates of all parties are fielded together that would be different.
(realizing I am repeating myself)
It will be interesting to see the Supremes wiggle their way out of this one....
Though there was an article in...Sltate?...sorry don't have the link available...that argued that States can only rule for state only races, e.g. congressman and senator, but not for national races. Still a case for the Supremes....
Yes, I found the Lawrence Lessig piece in Slate to be persuasive. Seems a stretch that "any office" includes POTUS/VP, the only offices elected by several states, when those could've been enumerated like the others.
14A3 does not, in fact, specifically identify any offices. Senator and representative are not offices, they're "seats". Electors of the president have less clear status, but they could be seats rather than offices, which would appear to be why they're mentioned. The upshot is that 14A3 specifically identifies positions it applies to that are not, or may not be "offices", and then covers all offices, including the presidency, in one phrase. It doesn't actually enumerate ANY office.
The idea that the drafters of the 14th A thought we should bar insurrectionists from every federal office EXCEPT for President and VP is ludicrous on its face. I, of course, have some admiration for anyone who can make the argument without breaking out into spasms of uncontrollable laughter, though.
Yup.
If they had added “including President and Vice President”, then the same crowd would be saying “Well, they didn’t mention mayor, so it shouldn’t apply there”.
“All offices” seems like it covers this nicely without ambiguity.
IANAL, but... That's an interesting argument, but I don't get it. The members of the Electoral College are chosen within each state, by whatever rules the state sets up, and then they get together (well, together at a distance) and elect the President. So you and I don't really vote in a national election, we vote in a state election to choose our state's electors. I don't see the difference between that and electing a Senator or House member.
Whose names are on the ballot in presidential elections? It's not the names of the elector candidates.
True, but I think that's just simplifying shorthand for the benefit of voters: you're still just voting for a slate of electors who are pledged to the particular individual whose name appears on the ballot. (In fact, though, I have voted in an election in which the ballot included the names of the slate of electors pledged to each candidate. That was long ago, and I doubt that state does it anymore.)
It will be interesting to see the Supremes wiggle their way out of this one....
I dunno. I think they'll just say something like "Article 14 bars insurrectionists from federal office, but the authors of that amendment clearly anticipated a role for Congress to specify how this works. Congress has thus far failed to do so. Blah blah."
And in fairness it would be preferable for Congress to set up a uniform process, at least when it comes to the presidency. Like, maybe 14th amendment ballot blocks by states should be required to be implemented before a certain date (call it May 1st). That way there's time for the courts to review any such decisions prior to the national conventions, and there's time for the parties to select a different nominee if need be.
I personally think Trump should be barred from ballot access by any state that determines he engaged in insurrection against the United States. But I hold little hope that five justices agree with me.
If Trump is disqualified by the US Constitution from becoming president (again) then he's disqualified everywhere that Constitution applies, which is to say everywhere in the US. It would be ridiculous in the extreme if he were disqualified in some states but not others.
It still boggles that the parties in each state still come to the conclusion that he's a viable candidate - scratch that. It's they that are boggled.
I see various people claiming this fight helps Republicans. They argue disqualifying Trump is exactly the sort of elite/deep state meddling MAGA hates, and it will generate a pro-Trump backlash that increases Trump's chances.
I doubt it.
If the Supreme Court qualifies Trump (isn't this like 99% likely?) they confirm they are partisan hacks in the most high profile way possible. They further discredit themselves, and that helps the long-term project of Court reform. MAGA won't be inflamed, they won the battle. It is anti-MAGA that will be energized.
In the unlikely event they disqualify him there will be a huge fight, but Trump and his cult of personality are off the ballot. That's good enough for me. I am willing to pay the price of social comity so long as the legal case for disqualification is better on the merits, and everything I read tells me it is. Rule of law and all that.
I see no reason to think SCOTUS will rule in favor of Trump. He consistently loses there, and there is no reason to think that's about to change.
on an issue this high profile i think the conservative justices will be genuinely scared for their own and their families safety if they rule against trump.
Agree on personal safety, but even if you set that aside few people choose to alienate themselves from life-long relationships and attachments.
If they rule against Trump they will be HATED with a white hot passion by their own tribe. Look at how few Republicans have been willing to be publicly anti-Trump.
If you try to get 5 votes against Trump:
Kagan
Sotomayor
Jackson
Roberts? Kavanaugh? Barrett? Gorsuch?
Who would break ranks? A split decision just makes the hatred stronger.
Arguably it is in the long-term best interest of the Republican party to be rid of Trump. I suspect that even the most conservative SCOTUS judges will agree. I also don't think the judges care about being hated; certainly their recent decisions don't indicate that's important to them.
There is a huge difference between being hated by your enemies and hated by your friends.
lots of articles out there saying let the american people decide
but wasn't the 14thA specifically passed to prevent that from happening?
also, allowing him on the ballot tells any future trump wannabe that scotus is a-ok with what he did
from what i've seen, none of the 'let the electorate decide' articles address this as a even a possible concern
finally... i would feel better about the electorate deciding if it wasn't rigged by the electoral college which exists to explicitly put a thumb on the scale for guys like trump
Yeah. I also keep coming back to the fact that Trump got a minority in 2016, and a defective constitutional provision put him in office (funny how naturally "office" rolls off the tongue).
But when a perfectly defensive constitutional provision disqualifies him it is time for furious pearl clutching.
and to the people who say damn the constitution, let the electorate decide, i guess they'd be ok if we put obama on the ballot, right?
i've never seen the punditry discuss why 'two and out' is sacrosanct but 'no insurrectionists' is somehow up for debate
They are intimidated by the lawlessness they see on the right. They worry about social breakdown.
Because the lawlessness is on the right they do not worry about anger left of center. Bush v Gore, Citizen's United, Shelby County, Rucho, stolen SC seat, Trump's EC 'win', I could keep going. They assume people left of center will keep on taking it indefinitely.
It should be obvious this is not sustainable. We'll either lose our democracy or the left will truly radicalize, or both. It is safer to stand up now than let more outrages pass by.
they used the same excuse for opposing the filing of any charges, but charges were filed and lo and behold, no one cared much
they also pretend that you can't imprison an ex-president because they apparently believe there's some super-secret constitutional prohibition on the secret service performing their duties in the specially constructed 'trump wing' of a federal prison
there's always some reason or other why trump's criminal behavior gets a pass with these guys
rostenkowski and blagojevich were both provided with appropriate federal accommodations, there's no reason trump couldn't be given his three squares and a bunk just like any other criminal
Yes, exactly! I wanna vote for Obama too.
And the argument that an election would be more widely accepted might be persuasive if Biden’s nearly 8 million vote victory margin had been accepted by the MAGA crowd.
It’s distasteful to have to rely on the courts but the precedent might tamp down future Jan 6ths.
The Electoral College is little more than affirmative action for republicans these days.
lots of articles out there saying let the american people decide
but wasn't the 14thA specifically passed to prevent that from happening?
also, allowing him on the ballot tells any future trump wannabe that scotus is a-ok with what he did
The punditariat has been unusually smugly, glibly self-satisfied and stupid in their insistence that the constitutional tools we have at our disposal to protect our democracy--and that we're arguably commanded to use by the same--are somehow forbidden to us. It boggles the mind.
Every state can decide for itself. And only congress, by 2/3 vote, can remove the disqualification. It’s not a crime. It’s a character flaw.
Idk, but it sure seems to me that if the SCOTUS wants to leave the matter of abortion to the states, then they'll want to leave this matter to the states, too, right? /s
A few notes on the issue.
1. Gavin Newsom: "In CA, we defeat candidates at the polls." A fine sentiment. Let's stand up for democracy! We don't want to be perceived as obstructing the will of people to decide in a free and fair election. But that's bluster, not a legal argument. Democracy is exactly the right principle, which is exactly why an earlier generation ratified the 14th Amendment, to prevent people like Confederates and like Trump, who subvert our democratic institutions, to hold office. It is exactly Trump's efforts to overturn a fair election that disqualify him. Let him complain, but why grant him an exception to the 14th? If you want to argue that politics overrides the Constitution, there is a political remedy. Section 3 allows Congress to make an exception by 2/3 vote. It's not a decision for governors or for the Supreme Court to carve out exceptions for political considerations.
2. Some people have argued that if states are allowed to keep Trump off the ballot, "he's done." I don't think so. The only states where Trump is likely to have his name removed are states where he is unlikely to win anyway. He's still get red states' electoral votes. Unless he is kicked off the ballot in battleground states, removing his name will have little effect on the November election.
3. #2 applies only if the SC rules that states can make decisions themselves about Trump's eligibility. Will the SC decide he is in fact qualified to hold office again? Then the question would be, On what authority? It's really outside any documented powers they have, or any precedent either. They may instead claim the states (CO, ME ... maybe others) have failed to meet the standard disqualification requires. But there is none mentioned in the Constitution. Precedent (post-Civil War cases, a few since) would side with the states.
4. An argument some (inc. me) have made: what if red states decide to kick Biden off the ballot? That possibility exists, but the Constitution still authorizes DQ only for those who "shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof." No one in their right mind can claim that applies to Biden. But anyone in their right mind can read that language and know it sure does apply to Trump. He is exactly who the 14th, Sec. 3, was ratified to disqualify.
I think you're failing to appreciate the upside down and backward world of wingnuts, they'll say it was Biden led a coup and 'the facts are undeniable!'
Gavin Newsom: "In CA, we defeat candidates at the polls." A fine sentiment. Let's stand up for democracy! ...But that's bluster, not a legal argument. Democracy is exactly the right principle, which is exactly why an earlier generation ratified the 14th Amendment, to prevent people like Confederates and like Trump, who subvert our democratic institutions, to hold office.
Agreed. Newsom isn't being very reflective here, or, maybe he's thinking of national office, and wants to nurture a "centristy" brand for himself. And the whole "we defeat insurrectionists only at the ballot box" meme is just idiotic. Obviously the framers of the 14th amendment thought the ballot box might not always be sufficient, else they'd have refrained from including that provision. And, were they wrong to do so? It seems to me there are plenty of examples of would-be tyrants gaining power through elections.
A modicum of evidence demonstrating that presidential candidates won't quickly proceed to snuff out democracy if elected doesn't seem like a very big or unreasonable ask.
Harbin, good thoughts:
3. On what authority does the SC qualify Trump? Marbury vs. Madison held the SC determines what the law is... Yes, judicial review isn't in the constitution but it has stood since 1803. Anything the SC does is without precedent, an insurrectionist presidential candidate is unprecedented.
That doesn't mean their decision is without cost. Judicial review was shaky for a while after Dred Scott vs Sandford, Lincoln for office questioning it. FDR made noises as well. Both times the SC took positions that weren't sustainable in the public at large. This could be another.
I doubt the SC can see it, but disqualifying Trump is a sustainable ruling, although there will be violence. Qualifying Trump is the ruling that threatens democracy exactly as you write in your first note.
Any Republican Justice will blow up their very comfortable life if they vote to disqualify. Courage is rare and hard to predict. If only one vote was needed I'd give it decent odds, but two?
kurt lash's nytimes headline: Trump Should Not Be Disqualified by an Ambiguous Clause
(not gonna link to that, you know where it is)
just to clarify, professor lash reserves 'punishment by ambiguous clause' for ob-gyn's
there's an easy way to correct this; republicans could pass a law making it clear to biden and all future presidents that they're free to do exactly what trump did wrt j6 as well as the phone call to ukraine withholding military support in return for ratfucking their political opponents
in fact, we should ask prof lash if he'd favor eliminating all of this ambiguity and support this law (hahahahaha! i kid...)
Is there any law that actually restricts state legislatures or whoever controls state elections from barring anyone from a ballot on any pretext?
Like age and residency?
Those are qualifications. Have they ever been waived for anyone?
Age and residency are things you acquire if you live long enough, the sanction of the 14th Amendment is a restriction overruling qualifications.
That's a distinction without a difference. All three are bars to taking office. There are also three living men who are barred because they've already served two terms as president. Isn't the two term limitation "a restriction overruling qualifications"?
The two term limit is just that, yes.
The Constitution establishes something and then amendments, laws, precedents add caveats. Nothing is absolute or existing in a vacuum.
SCOTUS can't pass this down to states' rights. It's a federal constitutional question that cannot have split interpretations, lest SCOTUS sets the precedence for states to ignore SCOTUS' past, present, and future interpretations on the constitutionality of states' laws.
SCOTUS will have to ascertain the validity and scope of 14A Section 3.
Attempting to limit Section 3's pertinence to Confederates would render that part of the Constitution dead. Other than an amendment repealing/striking a section, such an act by SCOTUS would be ironically unconstitutional, taking us down the path of frequently and selectively killing parts of the Constitution until it has no value and Democracy is dead.
They can't risk the selective expansion of Executive power to suit Trump's needs of mooting the application of Section 3 without also invalidating Smith's DC case and the convictions of hundreds of "peaceful protesters".
They can make a stupid, political argument in favor of "elections" over the judiciary "making choices for us", citing Bush v Gore as a reason for not getting involved. So that's what I expect SCOTUS to do.