{"id":12571,"date":"2024-01-05T17:12:26","date_gmt":"2024-01-05T17:12:26","guid":{"rendered":"http:\/\/lonecandle.com\/?p=12571"},"modified":"2024-01-05T17:12:26","modified_gmt":"2024-01-05T17:12:26","slug":"the-supreme-court-arguments-for-and-against-removing-trump-from-the-ballot-explained","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=12571","title":{"rendered":"The Supreme Court arguments for (and against) removing Trump from the ballot, explained"},"content":{"rendered":"\n

\n\n“The case turns on a previously obscure provision of the 14th Amendment, which provides that anyone who previously held a high office requiring them to swear an oath supporting the Constitution is forbidden from holding a similar office if they \u201chave engaged in insurrection or rebellion<\/a>\u201d against that Constitution.<\/p>\n\n\n\n

The Colorado Supreme Court concluded that Trump engaged in an \u201cinsurrection\u201d<\/a> because he spent months falsely claiming that the 2020 election was \u201crigged.\u201d He encouraged his supporters to \u201cfight,\u201d suggesting that Democrats would \u201cfight to the death\u201d if the shoe were on the other foot. And Trump named then-Vice President Mike Pence<\/a> as someone who should be targeted by the pro-Trump mob that invaded the Capitol.But there is precious little case law<\/a> laying out what this provision of the Constitution means, or defining key terms like \u201cinsurrection\u201d or what it means to \u201cengage in\u201d such an attack on the United States. Since the period immediately following the Civil War, there has not been much litigation involving disloyal public officials who joined an insurrection against the very system of government they swore to defend. So courts asked to interpret the 14th Amendment\u2019s Insurrection Clause \u2014 including the Supreme Court \u2014 must do so without the ordinary guideposts judges look to when reading the Constitution.”
…
“In addition to their legal arguments, Colorado Republicans also make a political argument for keeping Trump on the ballot \u2014 removing him would deny voters \u201cthe ability to choose their Chief Executive through the electoral process<\/a>.\u201d This purely political argument has garnered sympathy from many observers, including outlets such as the New York Times<\/a>.
This final argument, if taken seriously by a majority of the justices, could render the 14th Amendment\u2019s Insurrection Clause a dead letter \u2014 because it would prevent it from operating in the one circumstance when such a constitutional provision is needed.”
…
“allowing insurrectionists with significant public support to stand for office would defeat the whole point of the Constitution\u2019s Insurrection Clause.<\/p>\n\n\n\n

Unpopular insurrectionists will never get elected to office in the first place because they are unpopular<\/em>.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“The Colorado GOP does raise one fairly strong legal argument that supports deferring the question of whether Trump should be removed from the 2024 ballot until, at least, after he is convicted of a crime or otherwise determined to have engaged in insurrection by a federal trial court.<\/p>\n\n\n\n

In Ownbey v. Morgan<\/em><\/a> (1921), a case that admittedly had nothing to do with the Insurrection Clause, the Supreme Court said that \u201cit cannot rightly be said that the Fourteenth Amendment furnishes a universal and self-executing remedy.\u201d This means that private litigants ordinarily cannot sue to enforce this amendment, absent some state or federal statute authorizing such lawsuits.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“the Colorado Supreme Court determined that a state<\/em> statute permitting voters to challenge candidates\u2019 eligibility to run for office does permit suits seeking to enforce the Insurrection Clause<\/a>, and states often have the power to pass laws permitting their own courts to enforce the Constitution.”
<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“as the Colorado GOP warns the justices, the Colorado Supreme Court\u2019s decision also means that \u201cindividual litigants, state courts, and secretaries of state in all 50 states plus the District of Columbia have authority\u201d to determine which candidates must be removed from the ballot<\/a> for violating the 14th Amendment. And, while there is no reason to believe that Colorado\u2019s judges acted in bad faith when they removed Trump, it\u2019s not hard to imagine<\/a> what could happen in states with less responsible judges if the Colorado decision is allowed to stand.<\/p>\n\n\n\n

Imagine, for example, that the Florida Supreme Court \u2014 which is made up entirely of Republican appointees, most of whom were appointed by far-right Gov. Ron DeSantis<\/a> \u2014 were to invent some completely fabricated reason to accuse President Joe Biden of engaging in an insurrection, and then imagine that they invoked this pretextual reason to remove Biden from the 2024 ballot.”<\/p>\n\n\n\n

…<\/p>\n\n\n\n

“Trump wasn\u2019t exactly denied a trial altogether before he was removed from Colorado\u2019s ballot. But, as Justice Carlos Samour wrote in a dissenting opinion<\/a>, the process Colorado\u2019s courts used to determine that Trump engaged in an insurrection was unusually truncated. It lacked \u201cbasic discovery, the ability to subpoena documents and compel witnesses, [and] workable timeframes to adequately investigate and develop defenses.\u201d And, as Justice Maria Berkenkotter wrote in her dissent<\/a>, the Colorado courts relied on a process that \u201cup until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election.\u201d<\/p>\n\n\n\n

In any event, the Colorado GOP takes its argument that the 14th Amendment is not self-executing too far, suggesting that Trump cannot be disqualified unless he is convicted in a federal court specifically of violating a criminal statute that\u00a0uses the magic word \u201cinsurrection.\u201d<\/a>\u00a0But they raise valid points against allowing each state to have the final word on who can run for president, and against allowing Trump to be removed based on the limited process he received in the Colorado system.”<\/p>\n\n\n\n

https:\/\/www.vox.com\/scotus\/2024\/1\/3\/24022580\/supreme-court-donald-trump-ballot-insurrection-fourteenth-amendment-colorado-anderson<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

“The case turns on a previously obscure provision of the 14th Amendment, which provides that anyone who previously held a high office requiring them to swear an oath supporting the Constitution is forbidden from holding a similar office if they \u201chave engaged in insurrection or rebellion\u201d against that Constitution.
\nThe Colorado Supreme Court concluded that Trump engaged in an \u201cinsurrection\u201d because he spent months falsely claiming that the 2020 election was \u201crigged.\u201d He encouraged his supporters to \u201cfight,\u201d suggesting that Democrats would \u201cfight to the death\u201d if the shoe were on the other foot. And Trump named then-Vice President Mike Pence as someone who should be targeted by the pro-Trump mob that invaded the Capitol.<\/p>\n

But there is precious little case law laying out what this provision of the Constitution means, or defining key terms like \u201cinsurrection\u201d or what it means to \u201cengage in\u201d such an attack on the United States. Since the period immediately following the Civil War, there has not been much litigation involving disloyal public officials who joined an insurrection against the very system of government they swore to defend. So courts asked to interpret the 14th Amendment\u2019s Insurrection Clause \u2014 including the Supreme Court \u2014 must do so without the ordinary guideposts judges look to when reading the Constitution.”<\/p>\n

…<\/p>\n

“In addition to their legal arguments, Colorado Republicans also make a political argument for keeping Trump on the ballot \u2014 removing him would deny voters \u201cthe ability to choose their Chief Executive through the electoral process.\u201d This purely political argument has garnered sympathy from many observers, including outlets such as the New York Times.<\/p>\n

This final argument, if taken seriously by a majority of the justices, could render the 14th Amendment\u2019s Insurrection Clause a dead letter \u2014 because it would prevent it from operating in the one circumstance when such a constitutional provision is needed.”<\/p>\n

…<\/p>\n

“allowing insurrectionists with significant public support to stand for office would defeat the whole point of the Constitution\u2019s Insurrection Clause.
\nUnpopular insurrectionists will never get elected to office in the first place because they are unpopular.”<\/p>\n

…<\/p>\n

“The Colorado GOP does raise one fairly strong legal argument that supports deferring the question of whether Trump should be removed from the 2024 ballot until, at least, after he is convicted of a crime or otherwise determined to have engaged in insurrection by a federal trial court.<\/p>\n

In Ownbey v. Morgan (1921), a case that admittedly had nothing to do with the Insurrection Clause, the Supreme Court said that \u201cit cannot rightly be said that the Fourteenth Amendment furnishes a universal and self-executing remedy.\u201d This means that private litigants ordinarily cannot sue to enforce this amendment, absent some state or federal statute authorizing such lawsuits.”<\/p>\n

…<\/p>\n

“the Colorado Supreme Court determined that a state statute permitting voters to challenge candidates\u2019 eligibility to run for office does permit suits seeking to enforce the Insurrection Clause, and states often have the power to pass laws permitting their own courts to enforce the Constitution.”<\/p>\n

…<\/p>\n

“as the Colorado GOP warns the justices, the Colorado Supreme Court\u2019s decision also means that \u201cindividual litigants, state courts, and secretaries of state in all 50 states plus the District of Columbia have authority\u201d to determine which candidates must be removed from the ballot for violating the 14th Amendment. And, while there is no reason to believe that Colorado\u2019s judges acted in bad faith when they removed Trump, it\u2019s not hard to imagine what could happen in states with less responsible judges if the Colorado decision is allowed to stand.<\/p>\n

Imagine, for example, that the Florida Supreme Court \u2014 which is made up entirely of Republican appointees, most of whom were appointed by far-right Gov. Ron DeSantis \u2014 were to invent some completely fabricated reason to accuse President Joe Biden of engaging in an insurrection, and then imagine that they invoked this pretextual reason to remove Biden from the 2024 ballot.”<\/p>\n

…<\/p>\n

“Trump wasn\u2019t exactly denied a trial altogether before he was removed from Colorado\u2019s ballot. But, as Justice Carlos Samour wrote in a dissenting opinion, the process Colorado\u2019s courts used to determine that Trump engaged in an insurrection was unusually truncated. It lacked \u201cbasic discovery, the ability to subpoena documents and compel witnesses, [and] workable timeframes to adequately investigate and develop defenses.\u201d And, as Justice Maria Berkenkotter wrote in her dissent, the Colorado courts relied on a process that \u201cup until now has been limited to challenges involving relatively straightforward issues, like whether a candidate meets a residency requirement for a school board election.\u201d<\/p>\n

In any event, the Colorado GOP takes its argument that the 14th Amendment is not self-executing too far, suggesting that Trump cannot be disqualified unless he is convicted in a federal court specifically of violating a criminal statute that uses the magic word \u201cinsurrection.\u201d But they raise valid points against allowing each state to have the final word on who can run for president, and against allowing Trump to be removed based on the limited process he received in the Colorado system.”<\/p>\n

https:\/\/www.vox.com\/scotus\/2024\/1\/3\/24022580\/supreme-court-donald-trump-ballot-insurrection-fourteenth-amendment-colorado-anderson<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[1586,790,431,221,372,198,1213,528,170],"class_list":["post-12571","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-colorado","tag-courts","tag-democracy","tag-donald-trump","tag-election","tag-elections","tag-judiciary","tag-supreme-court","tag-trump"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/12571","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=12571"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/12571\/revisions"}],"predecessor-version":[{"id":12572,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/12571\/revisions\/12572"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=12571"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=12571"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=12571"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}