Not just this. Let’s say in some parallel universe that what Trump said is true. He actually did win the election yet through fraud somehow it was stolen by Biden and he got a second term fraudulently.
I don’t think you could bar him from seeking office. It wouldn’t take a court very long to rule that the law was never intended to be a way to punish a person who was kept from office due to fraud.
I heard one talking head remark recently that he was persuaded SCOTUS would reverse the Colorado decision, but would not likely rely on defining ‘insurrection’. More likely they would hang their hat on an argument about due process. I’m not entirely sure I understand what that means in this instance. Does due process involve a conviction? If so, that’s never been applied to section 3 of the 14th Amendment before to my knowledge.
California SOS has decided to keep Trump on the ballot there:
Agreed. I’ve just requested that change.
Due process, in this context, would refer to the procedures in place to ensure that fairness was done. The court, for example, can say that a person has not committed insurrection unless convicted of that, or a similar offense, in a criminal court of law (meaning, the evidence had to be proven beyond a reasonable doubt, which is more stringent than in the civil context).
The uncertainty about what process is due here is the entire issue. The Constitution doesn’t specify, and on a strict textualist reading does not seem to preclude the situation that we have now, where different states are applying their different laws, and states could even simultaneously come to separate and contradictory findings of fact about whether insurrection took place (and will likely do so along partisan lines).
If they are to be consistent, the textualists/originalists on the SC should say that it’s not their place to specify (i.e. invent) some due process applicable to 14A that will apply consistently across all states. But if they refuse to do so, the result will likely be chaos and a failure of democracy.
You could argue that this situation is a reductio ad absurdum that highlights the ridiculousness of this legal philosophy, turning it in to a suicide pact for democracy.
You know, I still half-expect Trump — any week now — to produce a full pardon, to himself and from himself, bearing a handwritten date that may or may not reflect the day he actually signed it, who can say?
And he’s probably got some leftover white House stationery to write it on.
Or the back of a Top Secret memo.
Hey, waste not, want not!
I don’t think this is correct (IANAL). Courts follow the laws as written. They don’t follow the laws as they ought to be, or what the lawmakers meant to write.
There have been several cases where a misplaced comma changed the legal meaning of a law as written. The courts followed the written laws, not the intentions of the lawmakers.
So, the US Constitution says that someone can be elected only twice. There is no exception in law for a stolen election. If a stolen election happened, the courts would follow the laws as written.
purposivistically ?
I’m referring to textualism vs. purposivism, two opposing doctrines in jurisprudence for how the text of a law ought to be interpreted. Different judges may favour different doctrines, and to different degrees, which is why you sometimes get rulings (like the ones you mentioned) that hinge upon pedantic literal readings of a statute, punctuation and all, and other times you get rulings (like one that a bicycle is a car as far as drunk-driving laws are concerned) that privilege the presumed purpose or intent over the literal meaning of the text.
So, I was wondering if anyone has done the math here. We have several states banning Trump from the ballot, and we have speculation that some other states will therefore ban Biden in retaliation.
Given the states likely to do one or the other of these things, and the states that either won’t or can’t take such actions, what do the numbers look like in the Electoral College? Is there some combinations of bannings that hand the election to Biden, or Trump, or that make it impossible for either of them to get enough EC votes to win?
No EC majority means it goes to the House and it’s Trump on a simple majority vote, right?
If the GOP keeps their current majority in the 2024 election, yes. But, my understanding is that the new Congress is seated before January 6th (when the EC votes are tallied, and the presidential election is finalized); if the Democrats manage to flip the House next November, it’d be a different story.
Nope.
Ah yes, I vaguely remember that there was something weird about it. Does each state just get one vote then? How is that vote determined among the various Congresspeople from that state?
Pointless, since his chance of winning CA is precisely zero.
Since the 14th Amendment specifically states:
Section 5 Enforcement
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
How could the Supremes assume power not given to them in the Constitution by placing requirements (such as a Criminal prosecution) on top of what Congress (and the people by ratification) have written? That is, if the SC tried to say that a criminal conviction was required, couldn’t the State of Colorado question why the Civil conviction did not meet the requirements of Due Process?
I mean, look at the clear facts. Trump called for an assembly of individuals in DC on Jan 6 (Not illegal, but also indisputable). The told that assembly that their rights had been stolen from them by a crooked election, an argument based on lies (again, the 1st Amendment protects the rights of such a moral and god-fearing citizen to spread lies, so this is not illegal). He encouraged the members of that assembly (some of which he knew were armed) to protest, to fight like hell to save their country specifically in an attempt to overturn the results of an election that had been certified by each state.
While Trump can claim he never intended the assembly to attack the Capitol (he even told them to be peaceful), based on the whole of his words and actions they did, with the specific intent to disrupt the official proceedings so that the results of the election could be overturned. That is, while Trump may not have committed any criminal acts when the Capitol was attacked, it is obvious that he engaged in insurrection by creating the situation which resulted in criminal acts.
What exactly are the terms of the “appropriate legislation” some Congress has already enacted and some president has already signed into law?
If there are none on this narrow topic then Congress has chosen to remain silent as is their right. Which may mean it’s left up to the states and may mean it’s up to SCOTUS to divine a path through the Constitutional ambiguities. Or to punt as is their absolute right.