States may move to keep Trump off the ballot based on 14th Amendment disqualification (1 Viewer)

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    superchuck500

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    Section 3 of the 14th Amendment:

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    There is a growing movement in some states to conclude that Trump is already disqualified under the 14th Amendment and they may remove him from the ballot. This would set-up legal challenges from Trump that could end up at the SCOTUS.

    The 14A disqualification doesn’t have any procedural requirements, it simply says that a person that does those things can’t serve in those offices. It a state says it applies to Trump, it would then be on Trump to show that it didn’t (either because what he didn’t doesn’t amount to the prohibited conduct, or that president isn’t an “officer” as intended by the amendment).

    States are in charge of the ballots and can make eligibility determinations that are subject to appeal - there is actually a fairly interesting body of cases over the years with ballot challenges in federal court.


    More on the legal argument in favor of this:


     
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    I suppose you could say the states can put Trump on the ballot, but the Constitution says he can't serve.
    My fault, I was unclear. As those above have pointed out with the signature criteria and if we follow the SCOTUS Dobbs ruling, shouldn't the states have the discretion to exclude him based on the 14th as well?
     
    I don’t want Trump anymore than most, but I am troubled that he may be banned without a conviction. Furthermore, there may be disagreement among states on whether what he did was an insurrection. I think it should be determined by the Supreme Court. If another state rules that it wasn’t an insurrection, then I think the Supreme Court would have to rule on it, and it would justify removal from all ballots. We would have even more problems if we allow states to ban people without a conviction. It would weaken Democracy more to have bans based on disparate individual state judgements.

    I think this is reasonable. Banning someone from running for office should have a high bar... but we aren't defining what that bar is, or how it's supposed to be met.

    I'd be more comfortable with a ruling that Trump did not engage in an insurrection (or rather that some standard has not been met to make that determination) and therefore shouldn't be banned by an individual state.

    What I'm afraid of is they'll just say something like a state can't ban someone from the ballot even if they did engage in insurrection without making some sort of declaration on how someone gets banned for national office when they do engage in insurrection.

    Obviously, there's something to be said that the Senate failed to convict him for this very thing, and that was the proper path for this sort of thing.
     
    I think this is reasonable. Banning someone from running for office should have a high bar... but we aren't defining what that bar is, or how it's supposed to be met.

    I'd be more comfortable with a ruling that Trump did not engage in an insurrection (or rather that some standard has not been met to make that determination) and therefore shouldn't be banned by an individual state.

    What I'm afraid of is they'll just say something like a state can't ban someone from the ballot even if they did engage in insurrection without making some sort of declaration on how someone gets banned for national office when they do engage in insurrection.

    Obviously, there's something to be said that the Senate failed to convict him for this very thing, and that was the proper path for this sort of thing.
    Exactly. We shouldn't just allow someone that HAS been convicted to of insurrection to run and potentially get it right the next time. However, it would be best to settle that he IS an actual insurrectionist, and therefore constitutionally banned.
     
    Exactly. We shouldn't just allow someone that HAS been convicted to of insurrection to run and potentially get it right the next time. However, it would be best to settle that he IS an actual insurrectionist, and therefore constitutionally banned.

    The problem I have is that the 14th amendment was originally used to bar a lot of Confederates from holding office even though they were never convicted of an participating in an insurrection. Now, clearly the Civil War was much more obviously an insurrection than January 6th, and participation levels can make that even more clear... BUT if you're a strict constructionist like many of the Justices claim to be - then the standard isn't a conviction.

    I want them to make it clear what kind of behavior is acceptable and what isn't.

    What is Biden allowed to do now? What is Kamala Harris allowed to do? and so on
     
    Exactly. We shouldn't just allow someone that HAS been convicted to of insurrection to run and potentially get it right the next time. However, it would be best to settle that he IS an actual insurrectionist, and therefore constitutionally banned.
    But isn’t that exactly what CO did?
     
    Obviously, there's something to be said that the Senate failed to convict him for this very thing, and that was the proper path for this sort of thing.

    Except that the Senators who voted not to convict used the rationale that Trump wasn't in office any longer (when the vote came up) so that impeachment wasn't warranted. So the SC can't really use that as part of their rationale. Not to mention that the 14th amendment doesn't require it.
     
    Elena Kagan once referred to Jonathan Mitchell sarcastically as “some genius”. That was in oral arguments surrounding SB8, the bounty-hunter abortion ban that Texas succeeded in passing before the overturn of Roe v Wade, which Mitchell wrote, pioneering a cockamamie scheme for evading judicial review.

    Mitchell, a far-right lawyer currently vying for a spot in the second Trump administration, is a fan of this kind of bald, legal bad faith: you can’t quite call him duplicitous, because he never quite pretends that the law really leads him to the conclusions he’d like to reach.

    He’s more about coming up with novel legal schemes to get to his desired outcome and trusting that the federal judiciary, captured as it is by Federalist Society acolytes and wingnut cranks, will go along with him because they share his political proclivities.

    That’s what worked for him with SB8: the supreme court allowed Texas’s abortion ban to go into effect long before Dobbs: not because Mitchell made a convincing argument, but because he offered them an opportunity to do what they wanted to do anyway.


    Something similar happened in Thursday’s oral arguments in Trump v Anderson, a question about whether Donald Trump is disqualified from holding federal office under section three of the 14th amendment.

    The case reached the supreme court after a Colorado court found that Trump’s actions on January 6 disqualified him. The court wanted to disagree and was desperate to find a way to restore Trump to the Colorado ballot without addressing the underlying question of whether Trump committed an insurrection or not.

    Mitchell, Trump’s lawyer, gave them very little help: he gave a shoulder-shrugging argument to the justices, after filing a bizarre and strained brief that primarily focused on the absurd claim that the president is not an “officer.” Left to their own devices, the justices went fishing, looking for an argument that could plausibly allow them to exit the case, since Mitchell did not provide them one.

    The winning entry came from Justice Samuel Alito, who first offered the suggestion that a state like Colorado did not have the authority to enforce section three of the 14th amendment without congressional permission. The rest of the justices seemed to like the sound of that and were soon all asking questions about the scope of state authority over the administration of federal elections.

    It was a bit of an odd argument: the court recently came close to embracing a much more wide-reaching vision of the authority of state legislatures to govern federal elections in their borders, in its address of a rightwing legal curiosity called the “independent state legislature theory”.

    And the notion that section three of the 14th amendment requires congressional action to go into effect is on its own peculiar: no other section of the amendment has been found to require such instigating legislation from Congress, and the language of the amendment itself suggests that the disqualification of onetime insurrectionists is something that Congress has to act to turn off, but not to turn on………

     
    They seem to have settled on their off-ramp: states don’t have the right to restrict a federal candidate.


    Then who would have the right to?

    Congress? the Supreme Court? (Isn't that what this case is ultimately about? Does the 14th amendment apply to Donald Trump and January 6th?)
     
    Then who would have the right to?

    Congress? the Supreme Court? (Isn't that what this case is ultimately about? Does the 14th amendment apply to Donald Trump and January 6th?)
    I don’t agree with it. It looks like that’s what they’re going to do though.
     
    But isn’t that exactly what CO did?
    Yes, I believe Colorado did convict Trump of insurrection, but other states have deemed that Trump is eligible to remain on their ballots. The Supreme Court needs to adjudicate whether he was an insurrectionist and determine that he is constitutionally banned. I don't think it is a good idea to allow individual states to make that determination. It would take us down a road of disintegration of the United States. We're getting closer and closer to that every day, but this would precipitate that disintegration.
    The problem I have is that the 14th amendment was originally used to bar a lot of Confederates from holding office even though they were never convicted of an participating in an insurrection. Now, clearly the Civil War was much more obviously an insurrection than January 6th, and participation levels can make that even more clear... BUT if you're a strict constructionist like many of the Justices claim to be - then the standard isn't a conviction.

    I want them to make it clear what kind of behavior is acceptable and what isn't.

    What is Biden allowed to do now? What is Kamala Harris allowed to do? and so on
    Yes, it was meant to prevent confederates from taking office, but like you said, that was obviously an insurrection. The problem in Trump's case is that while there is a lot of evidence, it isn't as overwhelming as it would be if he was actually breaking glass and leading the charge into the Capital, which is analogous to what the confederates did. I think Trump definitely gave aid and comfort to the insurrections, but does that make him an insurrectionist? I think the Supreme Court needs to adjudicate whether he was an insurrectionist, so that it would be adjudicated for all states, and also whether the 14th amendment applies, since there is a question about whether the President is an officer of the U.S.
     
    [...]

    The winning entry came from Justice Samuel Alito, who first offered the suggestion that a state like Colorado did not have the authority to enforce section three of the 14th amendment without congressional permission. The rest of the justices seemed to like the sound of that and were soon all asking questions about the scope of state authority over the administration of federal elections.

    [...]
    This part is really irritating. This was the basis of Dobbs, right?
     
    Then who would have the right to?

    Congress? the Supreme Court? (Isn't that what this case is ultimately about? Does the 14th amendment apply to Donald Trump and January 6th?)
    I think the Supreme Court may skirt their responsibility, because I do think it is their responsibility to determine whether the 14th amendment applies to the President. If they agree that it applies, then I think they would either have to overrule Colorado's conviction of insurrection to allow him to remain on the ballot, or they must allow Colorado to remove him from the ballot, and other states should follow suit.
     
    The winning entry came from Justice Samuel Alito, who first offered the suggestion that a state like Colorado did not have the authority to enforce section three of the 14th amendment without congressional permission. The rest of the justices seemed to like the sound of that and were soon all asking questions about the scope of state authority over the administration of federal elections.
    This sets up an insurmountable conflict of interest, similar to the current state of presidential impeachment, where it will be impossible to get a 2/3 majority to act against the presumptive nominee of the party.

    Article 3 will be unenforceable.

    Congress should not be the arbiter of whether or not someone is eligible for the presidency. Eligibility is a Constitutional question and should be determined by a court if challenged.
     
    I'm wondering, in order to bypass 'congressional permission' could a state have a law essential identical to the 14th amendment? Or would the supreme court invalidate that law? Would each state have to enact some type of similar law (maybe some do already?) All this tells me is, I don't think the founding fathers ever considered someone like trump.
     
    Yes, I believe Colorado did convict Trump of insurrection, but other states have deemed that Trump is eligible to remain on their ballots. The Supreme Court needs to adjudicate whether he was an insurrectionist and determine that he is constitutionally banned. I don't think it is a good idea to allow individual states to make that determination.
    Why not? Each state can only control their own state's ballots. They can't do anything about the ballots in other states.

    States have different standards on what prerequisites have to be met to get on their ballots. That means the precedent is there for states to independently determine who does and doesn't get on their ballot. What harm has come from that? The answer is none.

    Point me to anything in the Constitution that guarantees anyone the right to be on a state's ballot for any office or that guarantees all voters the right to have who they want on a ballot. Keep in mind that the status quo already allows states to set different standards that they can individually use to keep people off of their ballots. Ballot discrimination is part of the status quo. It is not something new.

    Conversely, the Constitution makes clear who is disqualified from running for president, including those how have engaged in insurrection as according to the Fourteenth Amendment Section 3.

    The Constitution clearly states that any power or authority not specifically delegated to a specific branch of the federal government, remains the power and authority of each individual state within their boundaries. Quote the part of the Fourteenth Amendment Section 3 that delegates specific enforcement powers or authority to any branch of the federal government. It does not which means that the enforcement power resides with each state within their borders.

    The only thing granted is that Congress can vote to override ballot disqualification on the grounds of the Fourteenth Amendment Section 3. So, it's actually questionable if the Supreme Court has any standing in this instance. Also, since the amendment gives Congress override authority, but doesn't give it the authority to enforce, that means Congress was not intended to be the enforcing authority.
    But Congress may by a vote of two-thirds of each House, remove such disability.

    The Supreme Court should send it to Congress for a vote and if two-thirds of both chambers votes to lift CO's disqualification, then so be it. The "conservative" justices know that wouldn't happen which is why they are not going to follow the Constitution on this matter.

    All of the judges are starting from their ruling and then desperately trying to rationalize plausible sounding legal reason for their decisions. I think the "conservative" justices are ignoring the Constitution, because the want to try to perpetuate and reinforce Republican minority control over the country. I think the "liberal" justices are ignoring it, because they are afraid of triggering a violent political backlash.

    Corruption and cowardice kills democracy and the Supreme Court is about to turn it up to 11 by blatantly and unanimously ruling against the actual words of the Constitution, which will render it a dead document and a dead ideology.
     
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    In the end, the supreme court justices displayed little interest in the finer details of constitutional law, which normally pays their salaries and over which the country has been obsessing now for days.

    Who is an “officer of the United States”? Leave that to one side. Should the 14th amendment’s disqualification of insurrectionists in federal posts apply only to office holders or can it also be deployed against electoral candidates? Let’s come back to that.

    Even the big question – did Donald Trump engage in insurrection in luring his supporters to the US Capitol on 6 January 2021 – barely got a look in at Thursday’s historic oral arguments.

    Only one of the nine justices, the liberal-leaning Ketanji Brown Jackson, asked a single question of Trump’s lawyer, Jonathan Mitchell, inviting him to state his position on such a vexed and burning issue.

    No, Trump did not, Mitchell predictably replied, in part because an insurrection had to be “an organized, concerted effort to overthrow the government”.

    Jackson shot back with the forensic wit that in her 18 months on the mahogany bench has become her trademark.

    “And so a chaotic effort to overthrow the government is not an insurrection,” she said. It was a rare moment of release in more than two hours of dense legal discussion.…….

     
    Guess this can go here
    =================

    Nearly two years ago, an elected official from New Mexico was convicted on charges for his role in the attack on the US Capitol on January 6, then removed from office under a constitutional clause banning anyone who “engaged in insurrection” from holding office.

    The case of Couy Griffin, a now-former Otero County commissioner, is in front of the US Supreme Court, just days after Donald Trumpchallenged a Colorado court’s decision that disqualified him from 2024 ballots under the same rule.

    Justices are scheduled to consider Griffin’s case in a private conference on Friday.

    How the justices ultimately decide whether that case moves forward, if at all, could signal their decision in the challenge facing Mr Trump.

    Griffin, the founder of the pro-Trump group Cowboys for Trump, was convicted on misdemeanour charges for his role in the Capitol riots on 6 January 2021, when he was captured in video footage calling on then-Vice President Mike Pence to “do the right thing” and reject the 2020 election results that reflected the votes of millions of Americans.

    He climbed a toppled fence and another barrier to reach the steps of the Capitol, where he called on the mob to pray.

    On 6 September 2022, after a lawsuit and a bench trial in state court, a judge removed him from office, marking the first time in more than 100 years that a court disqualified a public official and the first time an elected official was removed from office for their role on January 6.

    New Mexico Judge Francis Mathew noted the “irony” of Griffin’s attempts to defend his actions and urge the court against “applying the law” despite participating in an “insurrection” with a “mob whose goal, by his own admission, was to set aside the results of a free, fair and lawful election.”

    Judge Mathew wrote that Griffin’s attempts “to sanitize his actions are without merit” and “amounted to nothing more than attempting to put lipstick on a pig.”

    Griffin and his group spent “months normalizing the violence that may be necessary to keep President Trump in office” and urged supporters to travel to Washington DC to join what he compared to a “war” to keep the defeated president in office, the judge wrote.

    The 14th Amendment was among a suite of civil rights amendments enacted in the volatile aftermath of the US Civil War. It was intended to grant equal protection under the law to all citizens, including formerly enslaved people, with a broadly written clause aimed at preventing Confederates from returning to a government they were in rebellion against.


    Section 3 of the 14th Amendment holds that “no person” can hold any office, “civil or military, under the United States”, if they “engaged in insurrection or rebellion against the same”.

    Judge Mathew ruled that a potential officeholder needs only to have taken an oath to uphold the Constitution, as Griffin did when he was elected as a county commissioner, and then broken it by engaging in an insurrection.

    The authors of the amendment “did not understand an insurrection to require actual violence; intimidation by numbers sufficed,” he wrote. “The mob that arrived at the Capitol on January 6 was an assemblage of persons who engaged in violence, force, and intimidation by numbers.”

    In his latest brief to the Supreme Court, an attorney for Griffin argued that he was “exercising his Constitutional rights to free speech and assembly” on January 6, and his removal from office violates the First Amendment.

    “If the decision … is to stand, at least in New Mexico, it is now the crime of insurrection to gather people to pray together for the United States of America on the unmarked restricted grounds of the Capitol building,” according to the filing. “This Court cannot let this stand.”

    He also argued that “the bar for engaging in an insurrection is not trespassing on government property.”

    “If it were, any sit-in inside or outside of the Capitol could be considered an ‘insurrection,’” according to the filing.

    The arguments mirror those supporting the former president, who was rendered ineligible to appear on 2024 ballots by Colorado’s Supreme Court last year..........




























































    New Mexico Judge Francis Mathew noted the “irony” of Griffin’s attempts to defend his actions and urge the court against “applying the law” despite participating in an “insurrection” with a “mob whose goal, by his own admission, was to set aside the results of a free, fair and law

     

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