This deserves a longer write up than I can give it right now, but Biden would be much better off arguing that Trump isn’t a valid candidate than arguing that we should pick him over Trump. He’s avoided it because he thinks Trump is his only argument, but he needs more if we’re gonna win this.
Trump v Anderson is much more vulnerable than it appears at first blush, and if I were a blue state AG, I would consider announcing that I won’t print ballots with his name because the Supreme Court says he’s disqualified. Invite Congress to intervene if they want to compel me to change.
Trump v Anderson. The Court’s sinister supermajority affirmed all six points of Trump’s disqualification, and skipped to the question: Did CO err in ordering Trump off of the ballot? That’s what their whole decision is based on. They said he was disqualified, but Congress had to enforce that.
No, this is false. The Court recounted the Colorado Supreme Court's decision that Trump was disqualified, but in no way did the Court claim any agreement (or disagreement) with this holding.
If they don’t challenge the holding, doesn’t it leave it standing? Or does it simply wipe it clear? Because if he’s not disqualified, then why does enforcement of Section 3 matter? They could just say there’s nothing to enforce, right?
I’m asking sincerely, because I don’t understand why they mention the grounds for disqualification at the beginning of the case and then move to the question of “who gets to disqualify?” if they weren’t basically conceding that he could be. But I’m a college dropout, lol.
All the Court is doing there is recounting the history of the case. That's not the same as agreeing with it. Their holding is that individual states don't get to enforce this prohibition; it's up to Congress to do so, and it should be a uniform, national decision as to a presidential candidate.
It is! It’s the 14th Amendment. My point is that states are allowed to hold candidates ineligible for the ballot. The Supreme Court left alone the question of whether Trump is disqualified, with CO as the last word. If simply rejecting him for the ballot is “enforcement,” litigants can make a case.
And it’s that states can’t “enforce” the 14th amendment. And they aren’t. There’s no legal right to be on a ballot when you’re ineligible to hold office.
No. When a court says "we don't need to review this part because it's irrelevant" it doesn't adopt that holding - it says "even if you're right it wouldn't impact the outcome so we're not wasting our time deciding whether it's right or wrong"
So the CO opinion on that issue hasn't been specifically rejected by SCOTUS - but it also hasn't been endorsed. From a "what does SCOTUS say about this issue" it's as though the case was never appealed to them in the first place
We call that "reversed on other grounds" - meaning that portion of the opinion is still binding on CO courts as a matter of Colorado law, or would be if there were any Colorado law issues to which it could apply. But it's not something that anybody in another state can rely on except as persuasive
Cool! Thank you for explaining that to me. So if someone argued that they won’t let him have ballot access because SCOTUS hasn’t ruled on his disqualification, and Colorado is the only rule they have, would that force a suit to put Trump on the ballot?
It would. But it would also immediately get resolved in Trump's favor, because SCOTUS has said states have no authority to exclude someone from the ballot merely because they are an insurrectionist.
Which ... I think is incredibly wrong, and was argued badly (if the state legislature has authority
They don’t have the power to remove someone from the ballot, but do they have the power to reject ineligible candidates? Because if someone is ipso facto not eligible (immigrants, for example) and that eligibility has been litigated, they don’t have to allow them on and then take them off, right?
But there are plenty of state laws that forbid ineligible candidates for state office from appearing on the ballot, and there the holding still has weight. It was reversed on other grounds. He is probably ineligible to run for governor of CO (though he might get a new shot at litigating the facts).
Sure. Here in PA, we have a state constitutional provision which prevents people convicted of "infamous crimes" (all felonies, more or less, and misdemeanors sounding in dishonesty) from serving in public office. We can enforce that via ballot access litigation as to state and local offices.
Yes. In Maine, we would probably need to start over at square one, though the Secretary of State’s findings from December could be introduced as evidence in a new challenge. Trump is actually still litigating here to have those findings vacated.
They ruled that Colorado had no power to do what it did and that states cannot, without an act of Congress, use §3 to keep a presidential candidate off the ballot.
(States are free to unilaterally enforce §3 against state offices though.)
They didn’t touch whether or not §3 DQs Trump because under the decision it’s irrelevant. Even if he is there’s nothing states can do absent a federal law saying how §3 is to be enforced — i.e. it’s not self-executing re: the presidency.
