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206

Supreme Court to consider whether Trump can be removed from primary ballot (www.npr.org)

submitted 10 months ago by [email protected] to c/politics

63 comments fedilink hide all child comments

The dispute comes from Colorado — but it could have national implications for Trump and his political fate.

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[–] kescusay 83 points 10 months ago* (last edited 10 months ago) (4 children)

Jonathan Mitchell, one of Trump's attorneys, is currently trying to argue the whole "president isn't an officer" garbage.

Edit: Mitchell is giving a master class on how to split inconsequential hairs.

Edit 2: Kavanaugh and Gorsuch have been asking some surprisingly good (and pointed) questions of Mitchell that make me wonder what their actual positions will ultimately be.

Edit 3: KJB picking at Trump's legal team's arguments pretty effectively.

Edit 4: Trump's team is done for now. Now the real lawyers are up.

Edit 5: Thomas asking for examples of national candidates being disqualified at the state level.

Edit 6: Thomas is such a gas bag when he deigns to speak.

Edit 7: Roberts clearly signals that he wants to punt this to Congress.

Edit 8: Multiple justices questioning whether this is a state-level decision.

Edit 9: Roberts bringing up the possibility of retaliatory attempts to remove candidates if Trump is removed. Seems awfully specious, but it's more signaling that he really doesn't want to make a decision on this.

Edit 10: Conservatives on the court spent the last five minutes or so arguing from a position that if Trump is held to be an insurrectionist, anyone can be held to be an insurrectionist.

Edit 11: Honestly, I think Jason Murray (lawyer for Colorado) is doing an absolutely phenomenal job with some extremely hostile - and ridiculous - questioning.

Final edit: That's it for live-blogging this, I have shit to do. But applause for Murray, he's rocked it.

[–] jordanlund 33 points 10 months ago (1 children)

The Congressional angle I don't understand.

The 14th states that Congress can CLEAR a candidate who would otherwise be barred, but that still means he would be barred otherwise.

[–] kescusay 23 points 10 months ago (1 children)

It's patently nonsensical. Not even Trump's own appointees seem to take that one seriously.

[–] jordanlund 23 points 10 months ago

That's what he's telling Gorsuch right now, the disqualification exists now and can only be removed by Congress.

[–] june 28 points 10 months ago

A Supreme Court justice making a slippery slope argument is wild to me.

[–] [email protected] 13 points 10 months ago

The most surprising thing to me, a non-lawyer, listening to this was that Mitchell (Trump's lawyer) was arguing Trump is ineligible to be president right now. But Congress could potentially vote to make Trump eligible to be president by voting to override the insurrectionist clause. So therefore Trump shouldn't be kept off the ballot now, because he could be made eligible later.

Murray (lawyer for Colorado) had a pretty good point on that later basically saying that any criminal conviction has the potential to be pardoned. That doesn't mean that we should act as if the conviction has no merit.

[–] [email protected] 10 points 10 months ago* (last edited 10 months ago) (1 children)

Mitchell's "officer" hair splitting is ridiculous.

Roberts'(?) Questions about military officers defying the order of a president after he committed insurrection has nothing to do with this case, does it?

Edit: I'm coming around a bit on the Officer /officer of question. A lot of constitutional law is about stupidly precise questions about the language, and as we saw under Trump's presidency, the laws really aren't written robustly and there are tons of things that have been assumed to be obvious but don't hold up.

[–] kescusay 20 points 10 months ago (3 children)

I don't think it does. Soldiers are already required to disobey illegal orders anyway.

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[–] [email protected] 37 points 10 months ago* (last edited 10 months ago) (1 children)

Wow, fascism is in its legal phase in America for sure. These judges are going to let him run, there is no actual penalty for insurrection. They guarantee a repeat of Jan 6 with this, may as well have a do over.

I have to shut this off, because it seems obvious where it is going.

[–] [email protected] 17 points 10 months ago

All of them opposed oversight with regard to ethics for the SC, so nothing surprises me anymore.

[–] jordanlund 37 points 10 months ago* (last edited 10 months ago) (2 children)

Fucking Clarence Thomas isn't going to allow it because there isn't any real example of it being used back in the day.

Looks like Alito and Roberts agree.

Edit Sounds like Kavanaugh too.

Edit Looks like there's AT LEAST 5 votes to overturn Colorado.

[–] kescusay 31 points 10 months ago

Yep. Thomas is, predictably, on the exact wrong side of this. As he is with every issue.

[–] [email protected] 12 points 10 months ago

Gotta kiss the ring. Loyalty above all else. It's sickening.

[–] oDDmON 32 points 10 months ago (5 children)

This case, before a packed court and we should expect…?

[–] [email protected] 32 points 10 months ago (1 children)

You know exactly what to expect. Prepare for the worst.

[–] Cheems 12 points 10 months ago

I'm really fucking worried at the precedent it will set.

[–] [email protected] 25 points 10 months ago (3 children)

They are probably going to rule in Trump's favor, but I'll be curious to see their reasoning. There are reasons beyond the current situation that it might be bad to remove him from the ballot - for example observe the threats in other states to remove Biden from the ballot. While that is clearly retaliatory bullshit, how do we prevent, for example, Texas deciding that whatever Biden is doing or not doing on the border amounts to insurrection and so he's off the ballot? And Biden could sue to get on the ballot, but that could be costly and if there isn't a stay by the court it could take until after the election to prove he should've been on it. Without a way to forestall this, we run the risk of a victory over Trump today creating havoc in the future.

That being said, the court is packed with originalists, and if we just go by the letter of the law and precedent and figure it is for the legislative branch to fix the problems, then it's really hard to argue that a state is compelled to allow a candidate on the ballot that they deem has committed insurrection. Every hole you might poke in it has already been answered definitively. Is the law meant to apply to the President? Absolutely 100% as you can see from the record of congressional debate over it. Must the person be found guilty of a specific crime? No, that has never been the case and it was so applied at the time. Gorsuch himself ruled that a state may exclude from the ballot a candidate who is ineligible to serve.

Every single question of law seems to have been answered definitively. Plus, Trump is an albatross. He is destroying the Republican party from within and the adults in the room know it but are powerless (gutless, I think) to stop him. Behind the scenes they might well be praying to the Supreme Court to offer them a solution.

I believe it could go either way, but I'm going to assume they will restore Trump to the ballot because of politics and perhaps looking at the future it is the least-disruptive change. As much a I hate Trump and would love to guarantee he cannot be President, I'm not sure the future is best served by keeping him off.

What happens if states collude to deny one (or any) candidate 270 electoral votes? Well, then each state gets a single vote which will (as things currently stand) go to the Republicans every single time. There are states so gerrymandered that they have Democrat-majority populations but Republican-controlled legislatures, so this doesn't seem to me to be an unrealistic possibility. This would obviously be terrible if the Supreme Court rules against Trump without also somehow preventing this sort of thing.

Caveat: I'm not a lawyer or expert on any of this. My concerns about possible results of keeping him off the ballot might be completely unfounded.

[–] [email protected] 10 points 10 months ago (2 children)

Every hole you might poke in it has already been answered definitively. Is the law meant to apply to the President? Absolutely 100% as you can see from the record of congressional debate over it. Must the person be found guilty of a specific crime? No, that has never been the case and it was so applied at the time. Gorsuch himself ruled that a state may exclude from the ballot a candidate who is ineligible to serve.

I think Trump's entire argument is going to be a due process one - sure, 14A Section 3 applies to the President, sure it doesn't require being convicted of a crime as such and of course a state may exclude from the ballot a candidate who is ineligible to serve. But who makes that determination, and under what standard? Just realize however you answer that question, the GOP will use that answer to it's fullest extent against any Dem they can.

In the cases where it has been applied historically we were talking about public officials of an organization engaged in open rebellion against the US. There was no question of fact as to whether or not such a person was engaging in insurrection, as their public titles were leadership roles in a rebellion.

With Trump that's...murkier. It's not like he personally led an attack on the Capitol, he was too much of a pussy to do that. His speech at the initial rally is almost certainly constitutionally protected political speech, incitement is a very high bar to meet in the US. It's intentionally murkier so as to create levels of indirection and questions of fact to make it harder to pin him down legally in case it failed.

Or else they'll argue that a primary election is a private organization borrowing public infrastructure to decide who they want to back and thus the party is the only figure that should have any say who appears on their ballot. They could also choose to caucus instead, if they wanted. This would only apply for the primary ballot and not the general ballot, though.

Personally, I'm hoping for Trump to be barred from the general ballot, the GOP to throw 2nd place on it instead, and some Dems out there to be smart enough to pretend at being a fascist and try to convince GOP voters to write in Trump because "Those DeMoNRaT Leebruls Cant Stop the Trump Train!" which would do a fantastic job at splitting the GOP vote and guaranteeing a Dem win.

[–] [email protected] 8 points 10 months ago* (last edited 10 months ago) (1 children)

With Trump that's...murkier.

I will reluctantly agree with this. While I think it's clear the attack on the Capital was an insurrection and Trump led it (he had several opportunities to talk them down or otherwise stop things, and he refused, which speaks to intent), it is indeed quite a bit murkier than a civil war.

Or else they'll argue that a primary election is a private organization...

Gorsuch would have to reverse a ruling he has already made to make this call. I think this is unlikely reasoning.

Personally, I'm hoping for Trump to be barred from the general ballot...

Yes, but I'm also looking down the road. Trump is a present danger, but a bad ruling would be a perpetual problem. If they rule against Trump but also don't screw up the future, that would be clearly ideal.

[–] [email protected] 7 points 10 months ago (1 children)

While I think it’s clear the attack on the Capital was an insurrection and Trump led it (he had several opportunities to talk them down or otherwise stop things, and he refused, which speaks to intent), it is indeed quite a bit murkier than a civil war.

Not doing enough (really anything) to stop it once in motion isn't the same thing as leading it. That's kind of part of what I mean - you can readily show that he gave a (definitely 1A protected) speech that got them riled up, you can readily show that he didn't do enough to try to stop it and that there was a lot more he could have done, but that's not the same as leading it himself - protected speech and sitting on your hands is almost certainly not what is meant in 14A. Again, he was too much of a pussy to openly do that. It's possible (frankly very likely) he was leading it from the back - giving marching orders to people directly in charge of it through one or more layers of indirection, but the argument is that you'd have to peel away those layers of indirection to be sure.

Yes, but I’m also looking down the road. Trump is a present danger, but a bad ruling would be a perpetual problem. If they rule against Trump but also don’t screw up the future, that would be clearly ideal.

Ideally SCOTUS provides a firm answer to the due process argument Trump is likely to make (probably one that leaves him eligible in the primary), and then we push things along fast enough that he's ineligible under whatever standard SCOTUS sets before election day.

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[–] [email protected] 7 points 10 months ago* (last edited 10 months ago) (2 children)

I am not a lawyer.

He's absolutely responsible for the jan 6 2021 insurrection. But he's not actually legally guilty of it yet, no?

I suspect that they might rule that only someone convicted of insurrection can be removed from the ballot; regardless of the actual letter of the law nor requiring that.

[–] FlowVoid 13 points 10 months ago* (last edited 10 months ago) (1 children)

Keep in mind that the SCOTUS majority have spent decades advocating the doctrine of "originalism".

Originalists think that the 14th means whatever the Reconstructionists who wrote it thought it meant. And it's abundantly clear that Reconstructionists did not intend to prosecute former Confederates but still wanted to keep them out of office.

If the SCOTUS majority ignores what Reconstructionists thought in order to help Trump, it would be like the Pope ignoring Catholic doctrine in order to help Trump. They can do it, but they know their legal theory will never be taken seriously again. And that's a big deal, since Justices are ultimately remembered for their legal theories.

[–] Nobody 6 points 10 months ago (2 children)

True, but politics tends to put an asterisk by justices' rulings. In Bush v. Gore, the Ds were arguing states rights, while the Rs were arguing federal supremacy. Completely against their usual positions, but everyone knows why.

[–] [email protected] 5 points 10 months ago

True, but politics tends to put an asterisk by justices’ rulings. In Bush v. Gore, the Ds were arguing states rights, while the Rs were arguing federal supremacy. Completely against their usual positions, but everyone knows why.

Bush v Gore came down to two things, and it's hard to find real fault with either.

The first is an Equal Protection claim - Gore wanted to recount certain parts of the state under different rules than the rest of the state was counted under. The argument was that doing so violated equal protection under the law and the entire state should be counted under one standard.

The other is that election deadlines are legal and enforceable. SCOTUS was actually really quick in handling Bush v Gore (Gore started his final recount on a Friday, injunction in less than 24 hours, oral arguments Monday, decision on Tuesday morning) and they still only released their opinion 2 hours before the deadline for election results to be certified.

Ironically, based on studies done by others after the election Gore still would have lost had his last recount been allowed to go through as planned (presuming he didn't demand further recounts after that), but he might potentially have narrowly won if the entire state were recounted under the standard he wanted to use, but that wasn't a recount he ever called for and it wasn't a recount that could realistically have been completed under the deadline.

You throw out election deadlines, and we'd have Trump still to this day trying to legally challenge Biden's election. You'll notice he stopped doing that in early December and switched to just being a bloviating blowhard trying to rile up his followers over it for that sweet, sweet scam money and maybe an off chance at a successful overthrow of the government that he ideally could plausibly deny if it went wrong.

[–] FlowVoid 5 points 10 months ago* (last edited 10 months ago) (3 children)

States rights is associated with Republican elected politicians, but not so much the SCOTUS majority. There are many examples of Roberts et al ruling against states rights, in fact they recently sided against Texas in the state v federal border dispute. And they ruled against the independent state legislature theory last year.

Originalism, on the other hand, is near and dear to their hearts. They have basically never embraced another doctrine.

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[–] [email protected] 5 points 10 months ago (1 children)

I can't argue with that. I said I expect them to rule in Trump's favor, but the specifics will be interesting. It's also not unimaginable that they would rule in Colorado's favor. There is a tremendous amount of law and precedent that states run their own elections (plus everything I said above about the specific section of the Constitution in question) and I feel like the Supreme Court could be loathe to intercede any more than necessity demands.

Whichever way the ruling goes, I think the answer will be less interesting than the reasoning behind it.

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[–] thisorthatorwhatever 4 points 10 months ago (5 children)

At what point does the U.S.A need to start amending the constitution? I'll bet within in the next 20 years, they'll have to be serious amendments. Soon as the Boomer generation starts to lose politically. The U.S.A. seems to be in a holding pattern at the moment.

[–] [email protected] 9 points 10 months ago (1 children)

We can't while the Republicans control most of the states. Today we are far more likely to codify abortion bans, racism, and assignment of guns to every child born.

[–] MegaUltraChicken 7 points 10 months ago

Yeah a constitutional convention would be an absolute nightmare at this point.

[–] captainlezbian 6 points 10 months ago

The problem is that there’s a lot of power held by people who are dedicated to acting in bad faith

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[–] [email protected] 16 points 10 months ago

Yeah, this is why Conservatives love Trump so much. He stacked the court for decades to come in their favor. Majority or no majority. They have the power to overturn every law or regulation they might not like.

[–] FlyingSquid 7 points 10 months ago (1 children)

This is why I didn't bother listening. I didn't want to hear them fellate Trump for an hour or however long this hearing was.

[–] [email protected] 5 points 10 months ago (1 children)

It was actually 2 and a half hours (https://www.youtube.com/live/-HjgmO9C52c). I think it was worth a listen if you have the time, because if anything else, it allows you to hear the case without any media spin added. The biggest thing that surprised me is that there was no argument against Trump having engaged in an insurrection. That was basically taken as a fact. Instead the arguments were about whether or not a state has the ability to keep someone off the ballot for a federal election.

From the questioning, it seems to me (as a layman) that the court is going to find that states don't have the power to keep someone off a federal ballot. Which is going to leave the door open for a shit show if Trump wins the election and then there are cases saying that he's ineligible to be president. The court and the lawyers seem aware of the chaos that will cause, but I feel like they're going to kick the can down the road and cross their fingers that he doesn't win.

[–] MegaUltraChicken 6 points 10 months ago

The biggest thing that surprised me is that there was no argument against Trump having engaged in an insurrection. That was basically taken as a fact.

Shout out to my state supreme court homies for making a solid finding of fact on the insurrection question.

[–] meshuggahn 22 points 10 months ago (2 children)

Someone help me out with some legal definitions here. If I am not mistaken this lawsuite is about Trump's eligibility to be on the Primary ballot. Not the actual election ballot. What is to stop the supreme Court from saying the constitutional requirements do not apply to the primary ballots because those ballots don't elect a president. The RNC could nominate a golden retriever as their nominee in the primary if they want, it just wouldnt be eligible in the general election.

We are just going to have to go through this all again ahead of the general election arent we.

[–] FlowVoid 17 points 10 months ago (1 children)

The Colorado supreme court said that Trump is not eligible to be president, which means he can't be on the general ballot either.

The SCOTUS agreed to hear an appeal. That means they will have to decide whether the Colorado ruling was correct or incorrect. Either way, they will determine whether Trump will appear on the general ballot in Colorado.

[–] meshuggahn 5 points 10 months ago* (last edited 10 months ago) (1 children)

From what I can find the lower court rulings had 3 points of order:

1: Whether trump engaged in inurection - CO says yes he did.

2: Whether the insurrection clause applies to the office of the President- CO says it does.

3: If 1 and 2 apply then Trump is ineligible to be on the primary ballot.

The supreme Court is not obligated to comment on each point. They could come back and say 'We are not ruling on points 1 and 2 but we will over turn point 3as an ineligible person is still allowed on a primary ballot since a primary doesn't elect them president.'

This would leave CO in a spot where they could still attempt to keep him off the general ballot but the appeal on 1 and 2 would still be unsettled.

Am I missing something?

[–] [email protected] 6 points 10 months ago (1 children)

Listening to the arguments, it sounds like they basically conceded point 1. There was some semantic arguing over point 2, but nothing serious.

The real arguments were on point 3. I think that the court is going to find that states don't have the ability to keep a candidate for a federal election off the ballot. If someone is elected to a federal office and is ineligible to hold said office, it will be up to Congress to do something. Basically, it sounds to me like they're punting and then hoping they don't have to address this again in November.

[–] NotMyOldRedditName 5 points 10 months ago (1 children)

So by overturning 3, he's not allowed to be president unless he wins AND congress allows it by 2/3 vote?

If congress doesn't vote 2/3rd to allow it, then he becomes disqualified and Biden wins?

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[–] [email protected] 12 points 10 months ago

Ok first of all, a golden retriever would never support the GOP. A shit covered sewer rat however, fits the bill perfectly.

[–] Nightwingdragon 20 points 10 months ago

I'm actually surprised by this hearing. I'm not surprised that the GOP judges are going along with it, but that the 3 liberal judges also seem to be on board. Of course, what they'd be saying by doing this is that the 14th amendment is essentially worthless and unenforceable. But that's the direction they seem to be going by the questioning even the liberal judges were giving.

[–] kescusay 17 points 10 months ago* (last edited 10 months ago)

This is being live-streamed by MSNBC on YouTube here.

Edit: WaPo actually has a better one that shows who's talking: https://www.youtube.com/watch?v=ULjkYY9xTMg

[–] jordanlund 13 points 10 months ago

Pinning this one up since this will be the big news today.

More info here:

https://www.theguardian.com/us-news/2024/feb/08/us-supreme-court-donald-trump-eligibility-2024-election

@[email protected] has already shared the link for when the streaming begins on Feb 8 @ 10am ET

https://www.supremecourt.gov/oral_arguments/live.aspx

In case that link gets the Internet hug of death (and it may!) other news organizations will carry the stream live. MSNBC for one has already pledged to have it.

Let's keep it all contained in this thread instead of having 8 or 10 separate posts on it.

[–] [email protected] 11 points 10 months ago

The Supreme Court is going to allow Trump's Beer Hall Putsch: Zweiter Teil.

[–] [email protected] 9 points 10 months ago (1 children)

Trump only needs to be removed from the ballot of so few states and hopefully some of those states where it's barred from writing in an ineligible candidate.

Once he loses any state, few or more, he's automatically lost. Also, Colorado is like 10 votes to the electoral college, which is a decent chunk of the votes.

[–] jordanlund 11 points 10 months ago* (last edited 10 months ago)

There would have to be enough to deny him the 270 count, Colorado wasn't going to Trump anyway, so -10 there doesn't necessarily hurt him.

If he gets removed from red states or toss-up states like Pennsylvania, Michigan, Wisconsin, Georgia, Arizona, Nevada, and so on that would be the make or break.

[–] [email protected] 4 points 10 months ago

This is the best summary I could come up with:

The justices will consider whether Republican front-runner Donald Trump can be disqualified from a state primary ballot because he allegedly engaged in an insurrection to try to cling to power, after he lost the 2020 election to Joe Biden.

"Those who drafted section 3 of the 14th Amendment back in the 1860s were very clear that they understood this provision not just to cover former Confederates but that it would stand as a shield to protect our Constitution for all time going forward and so this is not some dusty relic," said Jason Murray, their lawyer.

"In an ideal world, it would have been great to have years to build cases in different states and different parts of the country regarding defendants at different levels," said Noah Bookbinder, the president of Citizens for Responsibility and Ethics in Washington, which is backing the lawsuit.

Murray said there's a reason to revive dormant language in the Constitution now, in this case: "No other American president has refused to peacefully hand over the reins of power after losing an election," he said.

The case puts the Supreme Court in the middle of the presidential election for the first time since it stopped the Florida recount and handed the White House to George W. Bush in 2000.

The Supreme Court hasn't offered a time table for its decision, but some legal experts think the justices could rule before the Super Tuesday primaries, in early March.

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