Posted on 12/21/2023 8:18:19 PM PST by SeekAndFind
People (including our own Ed Morrissey) have been saying this since the decision appeared Tuesday but I’m still a bit surprised to see the Washington Post‘s editorial board making the same case. After laying out the basis of the Colorado decision under the 14th Amendment, the board points out “the law is not so clear.” The board argues that section 3 of the Amendment should probably apply to the president (which is what the Colorado Supreme Court found) but says that doesn’t really matter unless you’ve also concluded that President Trump did in fact commit insurrection in connection with Jan. 6. And on that point, the Colorado court is way out on a limb.
The armed mob that forcibly entered the Capitol with the purpose of preventing the peaceful transfer of power, they say, was surely carrying out an insurrection. By fomenting myths of election fraud; by urging supporters at least 12 times to travel to D.C.; by exhorting them to “take back our country” when they arrived; by ignoring pleas to tell them to leave; Mr. Trump “engaged,” they say, in that insurrection, too.
As Justice Samour points out in his dissent, however, what’s missing from the majority’s analysis is due process of law. Not only has Mr. Trump not been convicted of insurrection either by a jury of his peers or from the bench by a judge; he hasn’t even been charged with it. Tellingly, Justice Department special counsel Jack Smith has brought an aggressive case against the former president for conspiracy to defraud the United States, obstruction of an official proceeding and more — but not for violating the federal law against insurrection. The penalties for that, by the way, include disqualification from “any office under the United States.”
As the board warns, once you start down the road where any court can disqualify any candidate without due process, it won’t be just the progressive left jumping on this bandwagon.
Disqualifying a candidate based on an accusation, albeit one blessed by a state court judge as in the Colorado case — but not an actual conviction — is dangerous. What’s to stop a Republican politician from seeking to bar his Democratic opponent because the opponent attended Black Lives Matter protests, claiming that those protests, some of them nominally in service of abolishing the police, qualify as insurrection?
The answer of course is nothing whatsoever. All we need is a state supreme court made up of Republican appointees who can decide by a bare majority that, for instance, Kamala Harris gave aid to an insurrection by raising bail money for arrested BLM supporters who were burning down police precincts.
Now it may be true that Harris is a bit of a dunce and that the bail fund was used to spring people I’d rather sat in jail for a while, but it’s a long way from there to tossing her off the ballot in Texas or Florida. The editorial concludes, “In the absence of clarity, a body of unelected officials should be reluctant to prevent the country’s citizens from choosing an elected official to lead them. The Supreme Court, hopefully, understands that.”
I think that’s understating it a bit. Based on their own argument I think you could put it this way: In the absence of due process, a body of unelected officials should absolutely not be involved in preventing citizens from choosing an elected official.
In addition to the editorial from the board, the Post also published a similar take from columnist Ruth Marcus about the same time yesterday.
The three dissenting justices each wrote separately. The most interesting came from Justice Carlos Samour Jr., who said barring Trump from the ballot without legislation from Congress implementing Section 3 violates Trump’s due process rights, especially because Trump has not been charged with insurrection.
“More broadly, I am disturbed about the potential chaos wrought by an imprudent, unconstitutional, and standardless system in which each state gets to adjudicate Section Three disqualification cases on an ad hoc basis,” Samour wrote. “Surely, this enlargement of state power is antithetical to the framers’ intent.”…
…there is no world in which the justices are going to empower states to throw Trump off their ballots. Given that, the court should keep in mind: This is a moment it should aspire to be the unanimous court of Brown v. Board of Education, not the splintered, party-line body of Bush v. Gore.
On that last point, I agree. Now would be a nice time to see a 9-0 decision knocking the Colorado Supreme Court flat on their bums. Kurt Schlichter summed up the ideal result.
The ideal result – for the country – would be a devastating repudiation of this disgraceful CO ruling by a 9-0 SCOTUS, with the unequivocal and forceful reversal opinion written by Justice Sotomayor.
Hey, a patriot can dream, right?@hughhewitt @JonathanTurley
— Kurt Schlichter (@KurtSchlichter) December 20, 2023
The ballots were simply lists of names of the Electors who were pledged to the candidate. The voter would "vote" the list. The candidates would distribute the lists and the people would vote the one they preferred.
In the southern states, printers refused to print ballots for the Lincoln campaign, and people were afraid to submit them for fear of being shunned or physically attacked.
It was intimidation tactics like this that section 2 of the 14th Amendment was intended to address.
From Wikipedia: 1860 United States presidential election:
Excerpt:
One key difference between modern elections and those of the mid-nineteenth century is that at the time the state did not print and distribute ballots. In theory, any document containing a valid or at least non-excessive number names of citizens of a particular state (provided they were eligible to vote in the electoral college within that state) might have been accepted as a valid presidential ballot; however, what this meant in practice was that a candidate's campaign was responsible for printing and distributing their own ballots (this service was typically done by supportive newspaper publishers).-PJMoreover, since voters did not choose the president directly, but rather presidential electors, the only way for a voter to meaningfully support a particular candidate for president was cast a ballot for citizens of his state who would have pledged to vote for the candidate in the Electoral College. In ten southern slave states, no citizen would publicly pledge to vote for Abraham Lincoln, so citizens there had no legal means to vote for the Republican nominee. In most of Virginia, no publisher would print ballots for Lincoln's pledged electors.
While a citizen without access to a ballot for Lincoln could theoretically have still voted for him by means of a write-in ballot provided his state had electors pledged to Lincoln and the voter knew their identities, casting a ballot in favor of the Republican candidate in a strongly pro-slavery county would have incurred (at minimum) social ostracization (of course, casting a vote for Breckinridge in a strongly abolitionist county ran a voter the same risk).
Should the SC not find 9-0 against colorado sc, I pity the fool(s)
“armed mob”???
Color me amazed it took 19 posts into the thread to point out that foundational error in the WaPo editorial. Everything written after that was just mental masturbation, i.e. the usual outflow from that “journalistic” sewer.
It wasn’t an insurrection, it was a riot.
Did anyone at the time declare an insurrection ??? The DC mayor ?? The Maryland Governor ???? The President ????
You can’t just say something was an insurrection without meeting certain criteria, especially since we have examples of actual insurrections to compare too. All of them involved organized conspirators working in unison for a specific common cause, all of them lasted more than a few hours (more often years), all of them involved planned violence, all of them involved prolonged resistance to Federal authority and in all cases the conspirators refused to stop their actions even after notice was given to cease or they refused to negotiate a cessation of hostilities until forced to by military action.
There is no interpretation of the Tenth Amendment that allows a state legislature or court to violate the constitutional rights of a person. Otherwise, a state could legitimately bar black people or women from serving as electors or running for public office.
Among all the disastrous proceedings surrounding the 2020 election fiasco, the Supreme Court got that one right. One state has no legal standing to petition a Federal court to enforce another state’s laws.
I’m agreeing with the Washington Compost? Did Hell freeze over?
SCOTUS over throw of the CO decision is not good enough. The CO judges should be disbarred, scorned and humiliated for convicting Trump without a trial. The dirty commie Co judges made their decision based on mob rule.
Someone please enlighten me... how does a state court have standing in a matter of federal law at all?
It is a reserved State issue.
But is a plenary power of State Legislatures, not State courts.
The ONLY necessary people to appoint the President are State Legislatures and the Electors they appoint.
They most certainly should not throw out that case, what they should do is throw out the jurists
Mile high isn’t just for the mountains.
Has anything like this ever happened before
Allowing for mild generalization of the 'like this,' Yes!
How many times before have states banned major party Presidential candidates from their ballot?
IIRC, ten times
That many times! What were the partisan makeups of the officials doing the banning and the banned candidates?
IIRC, in all cases it has been Democrat party election officials banning Republican party candidates.
How well did those bans work out in those elections?
Not very well. The banned candidate, Lincoln, won the election!
Was there insurrection?
* Yes! In pretty much every case of the earlier banning the officials were guilty of insurrection.
Should the new banners be worried about that?
Yes, the Colorado judges banning Trump are arguably at least as covered by Section 3 of the 14th Amendment as was President Trump.
* Most, if not all, of those state officials banning Lincoln from their ballots subsequently seceded from the Union and supported the Confederacy during the Civil War against the Union they'd previously sworn to uphold. Whether their actions just in banning Lincoln from their ballots, prior to secession, were enough to constitute 'insurrection' depends on how broadly one defines 'insurrection.' The Colorado judges used it very broadly and officially banning an otherwise qualified candidate just because they didn't like what he had freely, Constitutionally, spoken is a much stronger action than any action taken by Trump on J6.
According to the Constitution, the selection of Electors is a State Legislatures issue ... the Colorado court is overstepping its authority.
https://www.heritage.org/sites/default/files/2022-04/LM301.pdf
Amnesty Acts of 1872 and 1898. Four years after the Fourteenth
Amendment’s ratification, Congress exercised its power under Section 3
and passed the Amnesty Act of 1872 with the required two-thirds vote in
each House.15 The Act provided
[t]hat all political disabilities imposed by the third section of the fourteenth
article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of
the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military,
and naval services of the United States, heads of departments, and foreign
ministers of the United States.16
But Congress may by a vote of two-thirds of each House, remove such disability.
They did remove the disability.
https://www.heritage.org/sites/default/files/2022-04/LM301.pdf
Amnesty Acts of 1872 and 1898. Four years after the Fourteenth
Amendment’s ratification, Congress exercised its power under Section 3
and passed the Amnesty Act of 1872 with the required two-thirds vote in
each House.15 The Act provided
[t]hat all political disabilities imposed by the third section of the fourteenth
article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of
the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military,
and naval services of the United States, heads of departments, and foreign
ministers of the United States.16
The scotus needs to rule that the 14:3 is now repealed via the amnesty acts.
https://www.heritage.org/sites/default/files/2022-04/LM301.pdf
Amnesty Acts of 1872 and 1898. Four years after the Fourteenth
Amendment’s ratification, Congress exercised its power under Section 3
and passed the Amnesty Act of 1872 with the required two-thirds vote in
each House.15 The Act provided
[t]hat all political disabilities imposed by the third section of the fourteenth
article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of
the thirty-sixth and thirty-seventh Congresses, officers in the judicial, military,
and naval services of the United States, heads of departments, and foreign
ministers of the United States.16
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.