Whether courts can disqualify presidential candidates under Section 3 of the Fourteenth Amendment is a legal *and political* minefield that the U.S. Supreme Court will now have to navigate
You said "the Congress is the arbiter of the qualifications of someone to be president". That's what I was responding to. Now you're talking about who counts the votes.
OK, I get the distinction. But for Congress to decide not to count CO's electoral votes, they would have to follow the ELECTORAL COUNT REFORM ACT OF 2022 (https://www.collins.senate.gov/imo/media/doc/one_pager_on_electoral_count_reform_act_of_2022.pdf) in doing so. It requires one-fifth of the duly chosen and sworn members of both the House of Representatives and the Senate to sustain an objection. AND, under this Act, they are required to defer to slates of electors submitted by a state’s executive pursuant to the judgments of state or federal courts. I think that means if the court has ruled the electors are valid, Congress can't object to them.
So I don't see it happening as you've described it.
There is an entire body of jurisprudence relating to Constitutional “bribery” in the Impeachment clause that has nothing whatsoever to do with the jurisprudence of federal statutory “bribery.” You’re similarly conflating the two different applications of the same term (insurrection) for completely different purposes. As with the bribery duality, insurrection can either relate to a political process (disqualification) or a criminal process.
The plaintiffs in the CO lawsuit claimed that he incited the insurrection and the CO court found that he definitively, as you put it, engaged in an insurrection. The finding was based on extensive factual findings that included "substantial evidence in the record that even before the November 2020 election, President Trump was 'laying the groundwork for a claim that the election was rigged.' Trump invited his supporters to come to Washington on January 6 and, once there, repeatedly called on them to go to the Capitol and 'fight like hell.' He told them that, given the circumstances, they weren’t subject to normal rules. They needed to 'show strength,' or it would be the end of the country. He then refused to call them off, even when he was aware of the threat of violence. In fact, when told that the Capitol mob was chanting, 'Hang Mike Pence,' Trump responded that perhaps the vice president deserved to be hanged.
"He did not just incite the mob, he continued to 'aid the unlawful purpose of stopping the peaceful transfer of power' by demanding that Vice President Pence refuse to perform his constitutional duty, calling senators and demanding that they stop the count, and speaking to his followers. For many hours, he succeeded in his aim of delaying the count" (https://www.cato.org/blog/agree-it-or-not-colorado-supreme-courts-opinion-disqualifying-trump-triumph-judicial).
He also offered no evidence to counter the plaintiffs' claim.
It's interesting to look back at this discussion from November, 2025, long after the Supreme Court *unanimously* ruled in Trump v. Anderson that "States lack the power to enforce Section 3 against Presidential candidates." (1)
Could the Supreme Court hand down opinions on both this (reversing Colorado on whichever grounds) and the Presidential Immunity case (holding it doesn't exist) on the same day as a mechanism to generate the appearance of splitting the baby?
Would another exit ramp for SCOTUS be that Trump has not been charged with insurrection, so for him to be found 'guilty' of insurrection w/o having had his day in court violates the principle of due process?
I have the same question. The Co. SC's ruling relies on a finding of engaging in insurrection by a Co. district court judge. Since insurrection is a federal criminal crime, and requires a guilt finding by a jury, isn't that an off-ramp for the Court, as Ken notes as a matter of due process?
It should not be, because the interpretation of the term insurrection in the 14th for purposes of ballot exclusion should not be controlled by the use of the same word by a later Congress for a different purpose, criminal prosecution. The latter use could shed light of the former interpretation, but cannot by definition establish what the 14th's framers meant.
As to the "conviction" point, that word is used elsewhere in the Const. for various purposes, and it is reasonable to presume that the 14th's framers choice to use "engaged in" instead was deliberate.
Holding political office is restricted in many ways (age, term limits, citizenship, prior convictions etc). The burden to the people/state of electing an insurrectionist is higher than the burden to the individual who is restricted from doing something that the vast majority are never afforded the opportunity to do.
I do not believe the burden for this should be as high as the burden for conviction.
This is something many raise but the provision is not about being "guilty" of insurrection, requiring a unanimous jury to so decide beyond a reasonable doubt.
That would have been a near impossible barrier to the general purpose to block those involved in the Civil War from office (if they took an oath beforehand). It was applied without conviction. The word "guilty" is not in the amendment. Quite logically.
It would be quite hard for those appealing to history to apply such a rule when the path taken at the time was such things as civil warrants or legislatures by their own power not sitting people they found to have been disqualified.
[It's a disqualification, not a punishment, so beyond a reasonable doubt is not constitutionally required.]
Thank you, Professor Vladek. Extremely thoughtful, mature discussion of a very difficult situation. However, I would think it a transparent dodge for Court to rule that XIVth is not self-executing or that it does not apply to presidential candidates. If they’re going to slip out the side door on this (and there may be noble, time-honored reasons to do so), perhaps better to say federal conviction is a necessary predicate for disqualification. That would link in section 5.
Whatever they do, I pray it is unanimous or a 6-3 or better ruling. Please, dear God.
Please give more consideration to the relevance of Marbury. The doctrine of judicial review gets established, but the trade-off is acceptance of partisan power politics never anticipated by the framers and the naming of “the political question” as a definite basis for disqualifying standing. Still, the rhetorical critique of Jefferson and Madison for their denial of Marbury’s fundamental rights as well as the disrespect of legal actions by a sitting president serves as an authoritative warning or reminder on political decorum, the importance of civility, especially obeying necessarily inferential rules of the game. Trump’s disingenuous denials of the results of the 2020 election and current remarks indicating that if elected in 2024, he’d continue in office, evidence his contempt even for the electoral process he’s mastered with a subgroup of eligible American voters. Let’s remember that in the fall of 2020, he lost 60 of 61 court challenges. He’s put the American judicial system on trial. Does the Constitution of the United States undergird the entire political system of the United States or doesn’t it? Section 3 of the 14th Amendment anticipated a major threat to the Constitution. Doesn’t Trump’s irrepressible defiance plainly pose such a threat?
Your assumption here seems to be that a majority of these 'fraudulent' ballots were against Trump. Most seem to be in the category of assisting someone in filling out a ballot. Are you aware that assisted living and nursing facilities assist their residents in filling out ballots? I'm not sure your assumptions hold.
Aaron, States differ in their procedures for reporting absentee ballots cast early. In Ohio, early votes get announced first. Lately, that’s means that Democrats appear to have done very well, but, as day of voting ballots get counted and reported, Rs tend to overtake Ds. Next, for lots of reasons, OH isn’t the bellwether state it once was. We are less diverse, and the Rs have far outpaced and out organized Ds, especially in rural and ex-urban counties. Please explain how and why Trump failed to meet standing requirements in his legal 2020 alleged fraud challenges. The GOTV operations are complex, for sure. But ever since Alexander Hamilton obsessively established high standards for data collection and accurate counting of votes, there was advocacy and serious effort to assure accurate counting of votes as well as legal voting in the first place.
Trump lost the popular vote in 2016. In an intense mobilization effort that happily increased voter turnout nationally in 2020, he lost again. It’s important that any president be elected with a majority of votes per the intent of the 12th Amendment. Eventually, I hope that states will implement rank-choice voting for Presidential elections as well as other offices.
Uhh... did you read the article? It goes against everything you say. Like That 'shadow campaign', according to the article, made the election secure, accurate, and 'bestest'. Also, there are not 44,000 electors. There are 538. I get that it's difficult to read long articles from Time and stay awake, but you only have to read the first few paragraphs to get the gist. If you're going to cite sources, make sure that they agree with you.
"The Heartland Institute is an American conservative and libertarian public policy think tank known for its rejection of both the scientific consensus on climate change and the negative health impacts of smoking."
A correction 74 million voted for Trump not 75 million, &5 is right wing propaganda
and yes the fascist Trump humpers are a sub group, but a very large cult, If the rest of us can vote and have our votes counted, his threat will be mitigate, What worries me besides the voter nullification laws enacted by Republican legislatures, is the voter suppression that will take place with armed militia poll watchers, restrictions on voting booths and drop boxes and MAGAt election officials. The real problem is those petulant minorities, like idiot leftists, students, Muslims and young black males that will either not vote for vote for a third party, thus guaranteeing the loss of their and our freedoms.
While the Supreme Court affirming the Colorado decision that Trump is an insurrectionist is comforting, letting him stay on the ballot because this clause of the 14th amendment is not self executing would render the finding to be moot. From a political standpoint, it also means a court has ruled that an insurrectionist can run for president. Let’s wrap our hands around that.
I'm relieved to see that *someone* has noticed that under the Colorado SCt's weird stay order, Trump's name will certainly remain on the Colorado primary ballot, as long as Trump files a cert petition by January 4.
This mess is the result of Trump and his group of encouragers. Had he been raised with a little bit of humility or sense of right, then this would have never happened and our country might not be on the precipice.
Some states don't have Colorado's structure. My state, Washington, is like Colorado. We have Section 29A.68.013. Colorado has Section 1-1-113.
Arguably, if the 14th Amendment really is "self-executing" then our WA Secretary of State will have 10 days per 29A.68.013 to have a hearing to determine Trump's eligibility. I assume the timer will start the date the Supreme Court publishes the case, but if the 14th Amendment really has been self-executing this whole time then our Secretary of State has been acting unconstitutionally for 100+ years. So in practice it'd be ASAP.
However it's not even a red v. blue state thing. Some states simply don't have a state law that makes ballot decisions "wrongful acts.”
All to say, if the 14th Amendment is self-executing then how does that happen? Do federal judges start crafting “relief” in whatever way makes sense to them in their district?
I think this summarizes things generally well. Thank you.
Various Republican senators said they did not convict because the Senate did not have the jurisdiction to try the case after Trump left office. The argument they "acquitted" him & thus he's immune is doubly wrong. There is no double jeopardy bar anyway.
[To address an argument some make]
It would have been advisable -- a bill was offered, and the 1/6 Committee Report referenced it -- for Congress to pass enforcement legislation. Republican senators (57 convicting & others like Mitch McConnell not denying he was guilty) also could have voted on such a law and/or a resolution with a "whereas" stating Trump committed insurrection. Another way we could have avoided this.
If we are dreaming, what they should do is pass a joint resolution that he engaged in insurrection and is disqualified. They could have done that in February 2021 & Republicans would not have had a "Trump's not in office, so we can't try" him dodge.
It is time for the Court to remember justiciability and specifically the political question doctrine. They could hold all three points but still strike down the Colorado ruling and stay out of the mess. If only they had in Bush v. Gore such an out would be more credible here. They can grant cert but hold that it is not their decision to make. It was the Senate's at the time of the impeachment trial. The time has passed. Keeping the favored major party candidate off the ballot is anti-democratic even if he's a traitor. This is the rare case where doing the "right" thing may cause more harm to the country, its democracy and the Court. Although these days the Court seems most determined to harm itself. Perhaps they will simply shrug off with a "Let them eat cake" bon mot. They created this mess with wading way too far into politics and they don't seem to know or care. The Court cannot solve all problems and at the moment it should be focused on the very real harm the more than appearance of impropriety of the justices has caused.
"Keeping the favored major party candidate off the ballot is anti-democratic even if he's a traitor." Sure it's "anti-democratic," more properly anti-majoritarian. THAT'S WHAT PRETTY MUCH ALL of the prohibitions in the Constitution, the Bill of Rights and many subsequent amendments (including the 14th) are ABOUT: no matter that a majority may support (e.g.) racial or religious or sex discrimination, or to silence certain political or social views, or to re-elect someone who has already been "elected to the office of the President . . . twice" (as tfg claims to have been), or for that matter to make tfg President for Life, it MAY NOT implement those preferences. And even if a majority of voters were to favor returning an insurrectionist to office, he or she is DISQUALIFIED.
But you are missing the larger point that there are questions of a political nature the Court is not qualified to hold. Empowering these 9 to take the selection of candidates from the people is more than any framer could have dreamed, even including the drafters of the 14th Amendment.
Seems to me I read somewhere that it is emphatically the province and duty of the Court to say what the law is. Whether tfg is disqualified by Amend. 14 is just as much a question of law as would be the question whether Obama could be elected Pres again despite Amend. 22. It is not the 9 but the framers and ratifiers of the amendments that "take the selection of the candidates from the people."
They already are empowered, meaning they have the Constitutional authority, to find that a candidate the people want is disqualified. They are taking the selection of ONE candidate - not candidates - based on the Constitution.
One point that has gone mostly unsaid is that regardless of left/right political philosophy divisions, Trump is so thoroughly dishonest and unpredictable that he is not a good (or valid) avatar of any political philosophy. In practice, a second term in office could easily be a disaster for honest conservatives, for Republicans, for democracy, for the country, and for the world. If the right-wing members of the Court are genuinely conservative, they might conclude that letting Trump stay on the ballot does not serve the interests that they value, and thus they might not, in their heart of hearts, want him to stay on the ballot. If so, they have off ramps.
Thank you. I too find myself conflicted. He is unquestionably guilty, of sooo much, and accountability for his conduct is unquestionably overdue, including bar from public office, and bars between him and the general public. But, I fear nothing short of a resounding loss in the election will end this nightmare, and avoid martyrdom.
William, it would be a nightmare if he wins in November. As long as he is kept away from the Oval Office, and he would be if the SC finds that incited the insurrection, the MAGA nightmare would continue, but I can live with that.
Really? I don't see that because the mechanism they use to dismiss court decisions (it's all rigged against him, our dear victim who feels victimized like we do which is why we identify with him) will continue to operate. The only thing I see snapping them out of it is seeing they were conned. This is how the movie, "A Face in the Crowd" ends. The main character's fans adore him until the live mic after one of his TV performances shows them what he really thinks of them - they're idiots.
Here's another example. (I remember hearing the story but I can't find the actual.) It was a Klan leader in the 1950s who was accused of misusing funds. He took the 5th. In the 1950s, taking the 5th is what, the Klan members believed, Communists did. And they rejected him for both the misuse of THEIR money and taking the 5th.
We'll see maybe. That's my assessment. Schoolchildren learn early cheaters ruin the game. Fundamentally this is what this is. And.it'll be tough to sustain the idea a 6-3 Conservative Court is the Deep State..you're into deep paranoia.
"1. President Trump did, in fact, engage in “insurrection” through his efforts, both before and on January 6, to encourage the use of both subterfuge and force to subvert the results of the 2020 presidential election—and to prevent the transition of power to his (duly elected) political opponent."
While facially tRump's actions subsumed "insurrection", or "giving aid and comfort...", at this moment it's an opinion, not a dispositive fact, at least not one decided in a court of law by a jury of tRump's peers. Insurrection, of course is a federal crime - 18 U.S. Code § 2383 - but tRump has not been charged accordingly, and therefore his actions as insurrectionary remain as those in the eyes of the beholder. Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion, but as yet there has been no hard-and-fast determination of tRump's actions as insurrectionary, other than several Colorado judges proclaiming them just so. Would that suffice for SCOTUS? I'm inclined to think not, certainly absent a conviction. And without the latter, tRump walks, IMHO.
I'm sorry, it's incoherent to say that "Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion," yet demand that Trump be formally adjudicated as an insurrectionist. Why isn't Trump also one "by definition?" Because he did not personally take up arms against the Capitol police? Neither did most Confederate state officeholders. If some guilty behavior is provable by the evidence of everyone's eyes--and some is--then Trump's behavior qualifies.
Also, remember that criminal conviction of insurrection is necessary for depriving the accused of life, liberty or property, but disqualification from political candidacy is a civil matter, not a criminal penalty. Criminal due process is a non-issue here. This is closer to a determination that Trump was in reality not a natural-born citizen, or--despite his appearance--not yet 35 years of age.
Early uses of Section 3 were just that Congress refused to seat ex-Confederates who had been elected to the House. The point is that there was no requirement for a statute to be passed by Congress that they had that power, or that some court first needed to declare the incoming reps as insurrectionists.
On the broader question of whether Section 3 is "self-executing," I here quote from a persuasive article by Mark Brown, a law professor at Capital:
"Section 1983 was passed in 1871 to correct state and local abuses of freed slaves throughout the Reconstructed South. It awarded, and still awards, the victims of unconstitutional conduct a private action against the offending government official. It has in modern times (defined as since 1961) become the premier mechanism for vindicating federal wrongs perpetrated by state and local officials.
"But before modern developments beginning in 1961, constitutional provisions (including those in the Fourteenth Amendment) were always understood to be enforceable without federal enforcement statutes like section 1983. As explained by Professor Anne Woolhandler, “positive,” “direct,” “offensive” constitutional litigation in state and federal courts long preceded the adoption of the Fourteenth Amendment in 1868, section 1983 in 1871, and general federal question jurisdiction in 1875. “Throughout the nineteenth century, both before and after Reconstruction,” she explains, “the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it.” Consequently, “much of the Supreme Court’s development of individual rights and remedies took place without reliance on either federal question jurisdiction or statutes such as § 1983, but rather under the rubric of diversity jurisdiction.” Congressional enforcement mechanisms and federal question jurisdiction did not exist, were not used and were unnecessary. Constitutional provisions were fully enforceable without congressional assistance."
Yes. There has been in depth analysis of the history that spells out what "insurrection" entails & Trump's acts apply. The district court had a hearing on the question. The provision historically and by nature does not require a criminal trial process.
The historical analysis has cited that interference of the transfer of power -- which is one of the counts in the D.C. case (interference with the 1/6 proceeding) -- as a form of insurrection. If Vice President Breckinridge, instead of becoming a Confederate general, tried to stop Lincoln from being president by interference of the electoral count, I think he would have been disqualified as well.
It was not several Colorado judges proclaiming them just so. It was the finder of fact, the trial judge, who heard all the evidence over a 5-day trial at which Trump's interests were defended by competent counsel. The trial judge ruled, not proclaimed, that the evidence showed that he engaged in insurrection. Anyone can disagree, but that is a lot different than saying several judges - or, a few guys/gals - simply proclaimed.
How is Congress the arbiter? It's the Constitution that names the qualifications.
You said "the Congress is the arbiter of the qualifications of someone to be president". That's what I was responding to. Now you're talking about who counts the votes.
OK, I get the distinction. But for Congress to decide not to count CO's electoral votes, they would have to follow the ELECTORAL COUNT REFORM ACT OF 2022 (https://www.collins.senate.gov/imo/media/doc/one_pager_on_electoral_count_reform_act_of_2022.pdf) in doing so. It requires one-fifth of the duly chosen and sworn members of both the House of Representatives and the Senate to sustain an objection. AND, under this Act, they are required to defer to slates of electors submitted by a state’s executive pursuant to the judgments of state or federal courts. I think that means if the court has ruled the electors are valid, Congress can't object to them.
So I don't see it happening as you've described it.
That has nothing to do with qualifications.
There is an entire body of jurisprudence relating to Constitutional “bribery” in the Impeachment clause that has nothing whatsoever to do with the jurisprudence of federal statutory “bribery.” You’re similarly conflating the two different applications of the same term (insurrection) for completely different purposes. As with the bribery duality, insurrection can either relate to a political process (disqualification) or a criminal process.
Concession acknowledged. Layman are always the most emotional.
The plaintiffs in the CO lawsuit claimed that he incited the insurrection and the CO court found that he definitively, as you put it, engaged in an insurrection. The finding was based on extensive factual findings that included "substantial evidence in the record that even before the November 2020 election, President Trump was 'laying the groundwork for a claim that the election was rigged.' Trump invited his supporters to come to Washington on January 6 and, once there, repeatedly called on them to go to the Capitol and 'fight like hell.' He told them that, given the circumstances, they weren’t subject to normal rules. They needed to 'show strength,' or it would be the end of the country. He then refused to call them off, even when he was aware of the threat of violence. In fact, when told that the Capitol mob was chanting, 'Hang Mike Pence,' Trump responded that perhaps the vice president deserved to be hanged.
"He did not just incite the mob, he continued to 'aid the unlawful purpose of stopping the peaceful transfer of power' by demanding that Vice President Pence refuse to perform his constitutional duty, calling senators and demanding that they stop the count, and speaking to his followers. For many hours, he succeeded in his aim of delaying the count" (https://www.cato.org/blog/agree-it-or-not-colorado-supreme-courts-opinion-disqualifying-trump-triumph-judicial).
He also offered no evidence to counter the plaintiffs' claim.
He has been convicted by this judicial process.
It's interesting to look back at this discussion from November, 2025, long after the Supreme Court *unanimously* ruled in Trump v. Anderson that "States lack the power to enforce Section 3 against Presidential candidates." (1)
[1] https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf
Not in the CO case. The suit that was filed was about Trump on the primary ballot.
Could the Supreme Court hand down opinions on both this (reversing Colorado on whichever grounds) and the Presidential Immunity case (holding it doesn't exist) on the same day as a mechanism to generate the appearance of splitting the baby?
Would another exit ramp for SCOTUS be that Trump has not been charged with insurrection, so for him to be found 'guilty' of insurrection w/o having had his day in court violates the principle of due process?
I have the same question. The Co. SC's ruling relies on a finding of engaging in insurrection by a Co. district court judge. Since insurrection is a federal criminal crime, and requires a guilt finding by a jury, isn't that an off-ramp for the Court, as Ken notes as a matter of due process?
It should not be, because the interpretation of the term insurrection in the 14th for purposes of ballot exclusion should not be controlled by the use of the same word by a later Congress for a different purpose, criminal prosecution. The latter use could shed light of the former interpretation, but cannot by definition establish what the 14th's framers meant.
As to the "conviction" point, that word is used elsewhere in the Const. for various purposes, and it is reasonable to presume that the 14th's framers choice to use "engaged in" instead was deliberate.
Holding political office is restricted in many ways (age, term limits, citizenship, prior convictions etc). The burden to the people/state of electing an insurrectionist is higher than the burden to the individual who is restricted from doing something that the vast majority are never afforded the opportunity to do.
I do not believe the burden for this should be as high as the burden for conviction.
This is something many raise but the provision is not about being "guilty" of insurrection, requiring a unanimous jury to so decide beyond a reasonable doubt.
That would have been a near impossible barrier to the general purpose to block those involved in the Civil War from office (if they took an oath beforehand). It was applied without conviction. The word "guilty" is not in the amendment. Quite logically.
It would be quite hard for those appealing to history to apply such a rule when the path taken at the time was such things as civil warrants or legislatures by their own power not sitting people they found to have been disqualified.
[It's a disqualification, not a punishment, so beyond a reasonable doubt is not constitutionally required.]
Good point. I look forward to hearing how the conservatives on the SC will use their favorite phrase, history and tradition, to guide their decision.
Thank you, Professor Vladek. Extremely thoughtful, mature discussion of a very difficult situation. However, I would think it a transparent dodge for Court to rule that XIVth is not self-executing or that it does not apply to presidential candidates. If they’re going to slip out the side door on this (and there may be noble, time-honored reasons to do so), perhaps better to say federal conviction is a necessary predicate for disqualification. That would link in section 5.
Whatever they do, I pray it is unanimous or a 6-3 or better ruling. Please, dear God.
ArtI.S4.C1.1.1.1.1 Role of the States in Regulating Federal Elections
states cant remove a president
Don’t think anyone has argued that they can.
Please give more consideration to the relevance of Marbury. The doctrine of judicial review gets established, but the trade-off is acceptance of partisan power politics never anticipated by the framers and the naming of “the political question” as a definite basis for disqualifying standing. Still, the rhetorical critique of Jefferson and Madison for their denial of Marbury’s fundamental rights as well as the disrespect of legal actions by a sitting president serves as an authoritative warning or reminder on political decorum, the importance of civility, especially obeying necessarily inferential rules of the game. Trump’s disingenuous denials of the results of the 2020 election and current remarks indicating that if elected in 2024, he’d continue in office, evidence his contempt even for the electoral process he’s mastered with a subgroup of eligible American voters. Let’s remember that in the fall of 2020, he lost 60 of 61 court challenges. He’s put the American judicial system on trial. Does the Constitution of the United States undergird the entire political system of the United States or doesn’t it? Section 3 of the 14th Amendment anticipated a major threat to the Constitution. Doesn’t Trump’s irrepressible defiance plainly pose such a threat?
Your assumption here seems to be that a majority of these 'fraudulent' ballots were against Trump. Most seem to be in the category of assisting someone in filling out a ballot. Are you aware that assisted living and nursing facilities assist their residents in filling out ballots? I'm not sure your assumptions hold.
Aaron, States differ in their procedures for reporting absentee ballots cast early. In Ohio, early votes get announced first. Lately, that’s means that Democrats appear to have done very well, but, as day of voting ballots get counted and reported, Rs tend to overtake Ds. Next, for lots of reasons, OH isn’t the bellwether state it once was. We are less diverse, and the Rs have far outpaced and out organized Ds, especially in rural and ex-urban counties. Please explain how and why Trump failed to meet standing requirements in his legal 2020 alleged fraud challenges. The GOTV operations are complex, for sure. But ever since Alexander Hamilton obsessively established high standards for data collection and accurate counting of votes, there was advocacy and serious effort to assure accurate counting of votes as well as legal voting in the first place.
Trump lost the popular vote in 2016. In an intense mobilization effort that happily increased voter turnout nationally in 2020, he lost again. It’s important that any president be elected with a majority of votes per the intent of the 12th Amendment. Eventually, I hope that states will implement rank-choice voting for Presidential elections as well as other offices.
Uhh... did you read the article? It goes against everything you say. Like That 'shadow campaign', according to the article, made the election secure, accurate, and 'bestest'. Also, there are not 44,000 electors. There are 538. I get that it's difficult to read long articles from Time and stay awake, but you only have to read the first few paragraphs to get the gist. If you're going to cite sources, make sure that they agree with you.
This is the sponsor/creator of this "poll".
"The Heartland Institute is an American conservative and libertarian public policy think tank known for its rejection of both the scientific consensus on climate change and the negative health impacts of smoking."
https://en.m.wikipedia.org/wiki/Heartland_Institute
Point 2 is flatly a lie, Trump was ruled against in numerous cases.
A correction 74 million voted for Trump not 75 million, &5 is right wing propaganda
and yes the fascist Trump humpers are a sub group, but a very large cult, If the rest of us can vote and have our votes counted, his threat will be mitigate, What worries me besides the voter nullification laws enacted by Republican legislatures, is the voter suppression that will take place with armed militia poll watchers, restrictions on voting booths and drop boxes and MAGAt election officials. The real problem is those petulant minorities, like idiot leftists, students, Muslims and young black males that will either not vote for vote for a third party, thus guaranteeing the loss of their and our freedoms.
While the Supreme Court affirming the Colorado decision that Trump is an insurrectionist is comforting, letting him stay on the ballot because this clause of the 14th amendment is not self executing would render the finding to be moot. From a political standpoint, it also means a court has ruled that an insurrectionist can run for president. Let’s wrap our hands around that.
What happens if the insurrectionist wins?
I'm relieved to see that *someone* has noticed that under the Colorado SCt's weird stay order, Trump's name will certainly remain on the Colorado primary ballot, as long as Trump files a cert petition by January 4.
You left out one more person/group at fault.
This mess is the result of Trump and his group of encouragers. Had he been raised with a little bit of humility or sense of right, then this would have never happened and our country might not be on the precipice.
Re: “self-executing,”
Some states don't have Colorado's structure. My state, Washington, is like Colorado. We have Section 29A.68.013. Colorado has Section 1-1-113.
Arguably, if the 14th Amendment really is "self-executing" then our WA Secretary of State will have 10 days per 29A.68.013 to have a hearing to determine Trump's eligibility. I assume the timer will start the date the Supreme Court publishes the case, but if the 14th Amendment really has been self-executing this whole time then our Secretary of State has been acting unconstitutionally for 100+ years. So in practice it'd be ASAP.
However it's not even a red v. blue state thing. Some states simply don't have a state law that makes ballot decisions "wrongful acts.”
All to say, if the 14th Amendment is self-executing then how does that happen? Do federal judges start crafting “relief” in whatever way makes sense to them in their district?
I think this summarizes things generally well. Thank you.
Various Republican senators said they did not convict because the Senate did not have the jurisdiction to try the case after Trump left office. The argument they "acquitted" him & thus he's immune is doubly wrong. There is no double jeopardy bar anyway.
[To address an argument some make]
It would have been advisable -- a bill was offered, and the 1/6 Committee Report referenced it -- for Congress to pass enforcement legislation. Republican senators (57 convicting & others like Mitch McConnell not denying he was guilty) also could have voted on such a law and/or a resolution with a "whereas" stating Trump committed insurrection. Another way we could have avoided this.
If we are dreaming, what they should do is pass a joint resolution that he engaged in insurrection and is disqualified. They could have done that in February 2021 & Republicans would not have had a "Trump's not in office, so we can't try" him dodge.
It is time for the Court to remember justiciability and specifically the political question doctrine. They could hold all three points but still strike down the Colorado ruling and stay out of the mess. If only they had in Bush v. Gore such an out would be more credible here. They can grant cert but hold that it is not their decision to make. It was the Senate's at the time of the impeachment trial. The time has passed. Keeping the favored major party candidate off the ballot is anti-democratic even if he's a traitor. This is the rare case where doing the "right" thing may cause more harm to the country, its democracy and the Court. Although these days the Court seems most determined to harm itself. Perhaps they will simply shrug off with a "Let them eat cake" bon mot. They created this mess with wading way too far into politics and they don't seem to know or care. The Court cannot solve all problems and at the moment it should be focused on the very real harm the more than appearance of impropriety of the justices has caused.
"Keeping the favored major party candidate off the ballot is anti-democratic even if he's a traitor." Sure it's "anti-democratic," more properly anti-majoritarian. THAT'S WHAT PRETTY MUCH ALL of the prohibitions in the Constitution, the Bill of Rights and many subsequent amendments (including the 14th) are ABOUT: no matter that a majority may support (e.g.) racial or religious or sex discrimination, or to silence certain political or social views, or to re-elect someone who has already been "elected to the office of the President . . . twice" (as tfg claims to have been), or for that matter to make tfg President for Life, it MAY NOT implement those preferences. And even if a majority of voters were to favor returning an insurrectionist to office, he or she is DISQUALIFIED.
But you are missing the larger point that there are questions of a political nature the Court is not qualified to hold. Empowering these 9 to take the selection of candidates from the people is more than any framer could have dreamed, even including the drafters of the 14th Amendment.
Seems to me I read somewhere that it is emphatically the province and duty of the Court to say what the law is. Whether tfg is disqualified by Amend. 14 is just as much a question of law as would be the question whether Obama could be elected Pres again despite Amend. 22. It is not the 9 but the framers and ratifiers of the amendments that "take the selection of the candidates from the people."
Really well said. If only O could be elected again, that would solve all our problems in 2024.
They already are empowered, meaning they have the Constitutional authority, to find that a candidate the people want is disqualified. They are taking the selection of ONE candidate - not candidates - based on the Constitution.
Really well said.
One point that has gone mostly unsaid is that regardless of left/right political philosophy divisions, Trump is so thoroughly dishonest and unpredictable that he is not a good (or valid) avatar of any political philosophy. In practice, a second term in office could easily be a disaster for honest conservatives, for Republicans, for democracy, for the country, and for the world. If the right-wing members of the Court are genuinely conservative, they might conclude that letting Trump stay on the ballot does not serve the interests that they value, and thus they might not, in their heart of hearts, want him to stay on the ballot. If so, they have off ramps.
Thank you. I too find myself conflicted. He is unquestionably guilty, of sooo much, and accountability for his conduct is unquestionably overdue, including bar from public office, and bars between him and the general public. But, I fear nothing short of a resounding loss in the election will end this nightmare, and avoid martyrdom.
William, it would be a nightmare if he wins in November. As long as he is kept away from the Oval Office, and he would be if the SC finds that incited the insurrection, the MAGA nightmare would continue, but I can live with that.
I see disqualification as very possibly the "snap out of it!" slap in the face. MAGA needs. Hard to see what else could be.
Really? I don't see that because the mechanism they use to dismiss court decisions (it's all rigged against him, our dear victim who feels victimized like we do which is why we identify with him) will continue to operate. The only thing I see snapping them out of it is seeing they were conned. This is how the movie, "A Face in the Crowd" ends. The main character's fans adore him until the live mic after one of his TV performances shows them what he really thinks of them - they're idiots.
Here's another example. (I remember hearing the story but I can't find the actual.) It was a Klan leader in the 1950s who was accused of misusing funds. He took the 5th. In the 1950s, taking the 5th is what, the Klan members believed, Communists did. And they rejected him for both the misuse of THEIR money and taking the 5th.
We'll see maybe. That's my assessment. Schoolchildren learn early cheaters ruin the game. Fundamentally this is what this is. And.it'll be tough to sustain the idea a 6-3 Conservative Court is the Deep State..you're into deep paranoia.
"1. President Trump did, in fact, engage in “insurrection” through his efforts, both before and on January 6, to encourage the use of both subterfuge and force to subvert the results of the 2020 presidential election—and to prevent the transition of power to his (duly elected) political opponent."
While facially tRump's actions subsumed "insurrection", or "giving aid and comfort...", at this moment it's an opinion, not a dispositive fact, at least not one decided in a court of law by a jury of tRump's peers. Insurrection, of course is a federal crime - 18 U.S. Code § 2383 - but tRump has not been charged accordingly, and therefore his actions as insurrectionary remain as those in the eyes of the beholder. Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion, but as yet there has been no hard-and-fast determination of tRump's actions as insurrectionary, other than several Colorado judges proclaiming them just so. Would that suffice for SCOTUS? I'm inclined to think not, certainly absent a conviction. And without the latter, tRump walks, IMHO.
I'm sorry, it's incoherent to say that "Confederate army officers and Confederate state officeholders were by definition insurrectionists and promoters of rebellion," yet demand that Trump be formally adjudicated as an insurrectionist. Why isn't Trump also one "by definition?" Because he did not personally take up arms against the Capitol police? Neither did most Confederate state officeholders. If some guilty behavior is provable by the evidence of everyone's eyes--and some is--then Trump's behavior qualifies.
Also, remember that criminal conviction of insurrection is necessary for depriving the accused of life, liberty or property, but disqualification from political candidacy is a civil matter, not a criminal penalty. Criminal due process is a non-issue here. This is closer to a determination that Trump was in reality not a natural-born citizen, or--despite his appearance--not yet 35 years of age.
Early uses of Section 3 were just that Congress refused to seat ex-Confederates who had been elected to the House. The point is that there was no requirement for a statute to be passed by Congress that they had that power, or that some court first needed to declare the incoming reps as insurrectionists.
On the broader question of whether Section 3 is "self-executing," I here quote from a persuasive article by Mark Brown, a law professor at Capital:
"Section 1983 was passed in 1871 to correct state and local abuses of freed slaves throughout the Reconstructed South. It awarded, and still awards, the victims of unconstitutional conduct a private action against the offending government official. It has in modern times (defined as since 1961) become the premier mechanism for vindicating federal wrongs perpetrated by state and local officials.
"But before modern developments beginning in 1961, constitutional provisions (including those in the Fourteenth Amendment) were always understood to be enforceable without federal enforcement statutes like section 1983. As explained by Professor Anne Woolhandler, “positive,” “direct,” “offensive” constitutional litigation in state and federal courts long preceded the adoption of the Fourteenth Amendment in 1868, section 1983 in 1871, and general federal question jurisdiction in 1875. “Throughout the nineteenth century, both before and after Reconstruction,” she explains, “the Court saw diversity jurisdiction as an appropriate vehicle to raise federal questions, sometimes providing an expansive scope to diversity explicitly to accommodate this use of it.” Consequently, “much of the Supreme Court’s development of individual rights and remedies took place without reliance on either federal question jurisdiction or statutes such as § 1983, but rather under the rubric of diversity jurisdiction.” Congressional enforcement mechanisms and federal question jurisdiction did not exist, were not used and were unnecessary. Constitutional provisions were fully enforceable without congressional assistance."
https://www.jurist.org/features/2023/10/12/trump-and-section-3-of-the-fourteenth-amendment-an-exploration-of-constitutional-eligibility/
Yes. There has been in depth analysis of the history that spells out what "insurrection" entails & Trump's acts apply. The district court had a hearing on the question. The provision historically and by nature does not require a criminal trial process.
The historical analysis has cited that interference of the transfer of power -- which is one of the counts in the D.C. case (interference with the 1/6 proceeding) -- as a form of insurrection. If Vice President Breckinridge, instead of becoming a Confederate general, tried to stop Lincoln from being president by interference of the electoral count, I think he would have been disqualified as well.
Excellent point: disqualification from political candidacy is a civil matter.
It was not several Colorado judges proclaiming them just so. It was the finder of fact, the trial judge, who heard all the evidence over a 5-day trial at which Trump's interests were defended by competent counsel. The trial judge ruled, not proclaimed, that the evidence showed that he engaged in insurrection. Anyone can disagree, but that is a lot different than saying several judges - or, a few guys/gals - simply proclaimed.