The justices, wanting to restore Trump to the ballot, didn’t address the underlying question of if he incited an insurrection
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.
Kagan said that this sounds like a national issue and states maybe shouldn’t decide elections.
And I’d maybe agree with her if it wasn’t for Bush v. Gore.
Colorado didn’t declare every state is required to take it off. It decided to take his name off their ballot. I don’t get the argument. It’s true if enough states do it it has a national outcome but so what? That is deciding it nationally. States decide how to run their own elections, I don’t know why states rights aren’t being claimed here given how popular that move usually is lol.
I was being a little facetious, I just wanted to show how her argument was wrong based on Bush v. Gore alone, which was decided by the judicial body she is now a member of, but yeah, there are a lot of reasons why it’s wrong.
I’d maybe agree with her if she weren’t flat-out wrong. The US Constitution gives state legislatures power to choose Electors – full stop. Never mind deciding who is or isn’t eligible to be on the ballot in that state; they don’t even have to hold a popular vote at all in the first place. All 50 states currently do, but that’s squarely because of state law each state passed for itself, not anything imposed by the Federal government. A state could repeal its popular vote law tomorrow and have the legislators appoint Electors themselves* and neither Congress nor the Supreme Court could (legitimately, at least) do anything about it.
(* which is what the founding fathers intended, BTW – it’s basically like choosing a prime minister in a parliamentary system, but with added federalism by having state legislatures do it instead of Congress)
A state could repeal its popular vote law tomorrow and have the legislators appoint Electors themselves
Republicans have already tried once. Thankfully, SCOTUS shot them down.
No, that blatantly-corrupt wishful thinking bullshit isn’t what I’m talking about at all.
For reference, here’s what your article says “independent state legislature theory” is:
The dispute hinges on how to understand the word “legislature.” The long-running understanding is that it refers to each state’s general lawmaking processes, including all the normal procedures and limitations. So if a state constitution subjects legislation to being blocked by a governor’s veto or citizen referendum, election laws can be blocked via the same means. And state courts must ensure that laws for federal elections, like all laws, comply with their state constitutions.
Proponents of the independent state legislature theory reject this traditional reading, insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections. The result? When it comes to federal elections, legislators would be free to violate the state constitution and state courts couldn’t stop them.
What I’m saying is not that state legislatures could ignore the results of the state’s popular vote and send fraudulent electors or whatever (i.e. the second-paragraph case), but that a state could decide to repeal its popular vote in the legitimate way (i.e. the first-paragraph case) if it wanted.
TL;DR: all I’m saying is that the way a state chooses Electors is a matter of its own state law, not Federal law. I’m not saying a state legislature doesn’t have to follow its own state laws!
That’s a different matter and thankfully they made the right decision there. The question was whether or not a state legislature has the sole power to decide election rules AND they supercede the governor and state constitution.
The US Constitution gives state legislatures power to choose Electors – full stop.
Well that was talked about. Kagan and Alito both touched on plenary power and the degrees that applies to Colorado’s assertion. But in all that was debated Colorado couldn’t find de facto application. Kagan even asked if there was any method that didn’t rely de novo. The argument keep getting into “well this is so unique”. And that’s when it headed into how State’s executed elections post 1860 but pre 1880.
The thing is, even if there was an application to the novel assertion of federalization here… I mean you heard it right there towards the end, “this is a feature not a flaw”. The Court’s couldn’t be remedy to enforce uniformity. I mean just look at Colorado here for a second. You have three cases in the State plus SCOTUS, that’s four hearings. Multiply that by fifty and by three or four major parties that have codified ballot access in the various States. The court’s couldn’t handle that and elections would become “who has enough money for litigation?” Which is kind of the opposite of “having less money in elections”.
And then there comes from that a desire of “Well then Congress could come up with some limit as to what can be litigated before the courts for elections” and then boom, as indicated “how’s that different than where we’re at?” If the idea is that eventually some de facto appears by Congress, why allow novel approach now with the expectation that we’ll get law later when we can equally say why not wait for law today and allow novel to come later based on that?
And Colorado couldn’t find a specific reason why the order should or shouldn’t be reversed outside of “well State’s rights!” And that’s what prompted the question of “well how plenary is plenary to join Article II to 14A S3?”
And another thing that you said in a different comment is:
but that a state could decide to repeal its popular vote in the legitimate way
No. Or at least I don’t think so because doing so would be really hard to justify. Article IV, Section 4. Now the degree can vary because as it was before that only land owners could vote. But then the Naturalization Act of 1790 allowed the frontier folk the ability to vote. The thing is a vote is always required BUT the definition of who it applies to is up to the State, except that 15A, 19A, and 26A further limit the restrictions that States can apply.
But given Art. II S.1 one could literally read:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…
But in all States the manner is defined by the State’s Constitution meaning that the Citizens would have to vote to amend their process to give up their right to vote and even then, it’s possible such is a violation of Art. IV S.4. It would absolutely be a Court case. But it’s highly unlikely that SCOTUS would permit a State in the Union to operate on a system that denied voting to everyone outside of the political process as that’s kind of the whole premises of the Revolutionary War and that specific part of the Constitution. They would need to include at least ONE person not a sworn officer of the State and given the restrictions of 15A, 19A, and 26A I don’t see how they uphold 14A S1 and keep on the correct side of those other amendments. It would be difficult to say, this one person over the age of 18 is cool to vote AND still uphold 14A S1 equal protection and deny OTHER 18 year olds. It would definitely be an exercise.
States have rights, but SCOTUS is the first place to tell someone, “No right is absolute”. And multiple justices brought that up plenty of times with the perceived plenary that Colorado attempted. I would love Colorado’s reading, but SCOTUS has a point, Colorado needs to define a line in the sand and not just be like “Well that’s what SCOTUS is here to do, draw lines”. I mean given the track record recently, I don’t think we should let SCOTUS draw lines. And yeah, funny time for them to suddenly adopt that mantra. But that’s the thinking I agree with, which is why WV v EPA was such bullshit in my opinion. But I cannot think both WV v EPA was bullshit and Colorado is correct here. That just doesn’t jive. I get inconsistent SCOTUS is frustrating, but at least questioning where that line is from Colorado is the correct move, not leaving it up to SCOTUS to dictate.
https://www.archives.gov/founding-docs/constitution-transcript#2-1
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Only States decide presidential elections, by selecting electors, and every single one of those Justices knows it.
The electoral college should have been immediately invoked to squash that argument.
The National popular vote has nothing to do with the presidential election at this point. It’s decided by 1 of 3-4 swing states unless there are landslides like Obama or Biden in 2020.
States didn’t decide Bush v Gore. The Supreme Court did.
Right, but their ruling essentially said that not recounting the ballots in a single state can and should decide a presidential election.
If we had a National Popular Vote I would agree but the Presidency is decided by a convoluted contest of contests. As shitty as it would be I unfortunately think a state government deciding the winner regardless of the election results is Constitutional. That’s more or less how it was at the start of our nation and no Federal law or amendment says that the electors must be chosen by voters of each state.
They’re ignoring precedent. Section 3 has been self enacting in the past. This court is illegitimate on its face. Ignoring actual text of the Constitution and precedent makes them illegitimate.
The Constitution is 100% clear on the issue. Anyone who says otherwise is just being a dickhead. Everyone knows he’s disqualified. But this illegitimate Supreme Court is going to just fucking ignore the incredibly clear wording of that specific part of The Constitution. They consistently danced around the heart of the case, insurrection, so they could weasel some bullshit decision. Roe v Wade all over again. These Republican fucks have said they’d prefer a Republican dictatorship over a democratically elected alternative. Fucking traitors. Thomas does not even have the integrity to recuse based on his insurrectionist asshole wife. Fuck them all, and fuck anyone who supports these jackasses.
Not only that, but the question “Why should Colorado decide for everyone?” is also complete bullshit. Anyone who asks it is either a moron or a liar. Colorado has not decided for everyone. Colorado has decided for Colorado, and has every right to do so. It would be unconstitutional to prevent Colorado from determining who is elligible to be on their ballots.
This entire court is illegitimate.
It’s not even the general ballot they kept him off of, it’s the primary ballot, but when has this court ever let facts get in the way of their decisions?
The Supreme Court sucks Putin’s cock as they suck Trump’s.
Okay I’m going to say it. This is a really bad opinion piece on what actually happened yesterday. The biggest thing that stood out was this.
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
SCOTUS is not a fact finding court in this case. I don’t think I can say this enough and geez has this been some very basic facet that lots of people have missed: “Did Trump commit impeachment or not? The Supreme Court DOES NOT RULE ON THAT.”
The best way to think of what came before SCOTUS yesterday was this question: “Does Colorado have authority to execute section 3 of the 14th Amendment?” That’s the question. Not, “did Trump commit treason?” I don’t know why this continues to be a missive for commentators on this case. What’s being argued is how much power is indeed vested into States for their election. This is why when the question was actually asked “did Trump commit insurrection?” Justice Jackson spoke and then that was the last anyone heard about it. Because it’s a moot point for what is before the court.
I get we want to toss this treasonous slime ball into jail. But every case that exists with him isn’t boiling down to this aspect. There are times when we have to have separate cases to establish different things that eventually build up to that. We’ve not really had something like this before and so new things need good foundations. So a treasonous President is going to spawn lots of SCOTUS cases that ask questions about the foundations of different arguments.
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
If you listened to the Justices yesterday, you could tell in their voice that none of them felt comfortable with the entire case in general. Because this has massive ramifications. For all the justice that people want, a bad call with poor foundations makes it insanely easy for future people to rampantly abuse this. Multiple times various justices hinted at how Florida is just chomping at the bit to charge Biden with treason and how even if they know they’ll lose, they’ll use every method of litigation to drain his election funds. And SCOTUS gave every hint that Congress does not have the Judicial setup to handle that and likely because of the political ramification, Congress would just kick the can until we’re literally fighting each other.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish
— Article III Section 1 US Constitution
Congress gets to mold the Court system as they see fit and SCOTUS was indicating, the Courts cannot do this “feature of federalization” that Colorado was attempting to indicate. That States should be allowed to apply limitations as they see fit and have the Courts figure out the collateral damage. And it’s highly likely that Congress wouldn’t act to fix it so that the Court could. And so bad faith actors would absolutely wreck the election process. And what they were looking for was a reason why they should believe otherwise. That Congress would enact something to punish bad faith actors, or setup the Courts to handle this, or create procedures that could be litigated at the State level, or literally anything outside of the one thing in Title 18 that’s for criminal treason.
I get that nobody likes that answer. It shitty to see that most Justices easily see that Trump did indeed commit treason and that the various Courts are just left with “oopsie Congress forgot to give anyone any power to do anything about it.”
And yeah, let’s talk about Bush v Gore, because that sounds outright like the same thing.
Here, Bush indicated that different counties in Florida were using different methods for the recount because of the hanging chad issue. Here it was the 14th Amendment Section 1, Equal Protection Clause. SCOTUS had ruled that the various counties couldn’t come up with various standards for a recount, that there needed to be a common standard, to which Florida and Gore couldn’t come to single standard for the recount. It wasn’t a question of “who won Florida” it was a question of “how do we have a unified standard for which a recount of this nature can be done?” And the answer was (and this is the part that was controversial) we couldn’t and still make the “safe harbor” date. The “safe harbor” date and ensuring we made it was the biggest debate point. To which for those still sour about that, you have The Electoral Count Act of 1887 to thank for putting SCOTUS into that position.
All the anger that gets directed to SCOTUS, and some of it is rightly so, Elections have a lot of Congress induced defects. Keep that in mind.
And just to make clear. This doesn’t mean, “Oh no the Constitution has a defect and thus we’re helpless Trump is going to surely win now!” It means that when we come across unclear parts of the Constitution, we don’t obtain clarity easily or within a very short period of time. We have always known this. This is the part that should have you all upset about those Senators that didn’t disqualify Trump during his second impeachment.
We all knew, that the Senate kicking the can, kicked it into a darker alley with less illumination on what exactly we’re all supposed to do. We knew when they punted on that, it was going to get murky on how to hold Trump accountable for what he did. That should have been the most upsetting part.
And so here we are. We’re having to do the murky part. It’s not going to be easy, there are no slam dunks, you will hear “de novo” a lot because all of this is new ground, Congress was supposed to handle this and didn’t. So now we’re going to have to go the very frustratingly long path. No court wants to hand a nuke to the Republicans but every bad call that the court’s could make can potentially just wreck things. That’s how big a deal all of this is. One bad call and we are bad footing.
So yes, I get it, SCOTUS hasn’t inspired the greatest of confidence. You’ll hear no argument about that from me. But yesterday’s en banc hearing, that was not on display. I’m giving credit where credit is due, this is something that was being talked about very carefully yesterday by the Justices. I know everyone wanted a slam dunk, but this shit ain’t it. There’s going to be no slam dunks with this issue. So anyone convinced of such, really needs to get a firm grasp of reality of what’s in front of us. Trump’s bullshitty lawyers likely think this is all a joke, but the rest of the system is not laughing. This is serious stuff. There’s not going to be any easy answers.
This is the best summary I could come up with:
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.
One point that several of the justices touched on, and which has been taken up by those skeptical of the Colorado case and similar efforts to disqualify Trump from office on 14th amendment grounds, is the notion that his disqualification would be somehow anti-democratic, disenfranchising the people who would like to vote for him and would not get a chance to.
But democracy means more than the simple ability to vote; it requires a commitment to constitutional principles – to the limits of an office, to the rights of the minority, to the separation of private and public interests among those in power and to the willingness to place the dignity of the country before the petty preferences of the man who leads it.
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