Well, Colorado seems to be in the news today.

[Sue U]

https://thehill.com/policy/equilibrium- ... -ranchers/

Why, was there something else?

[BoSoxGal]

I predict those wolves get shot within a year - wildlife reintroduction is a noble effort but too many westerners still loathe wolves, nevermind the science (they’ve revitalized Yellowstone).

I also predict that SCOTUS will shoot down that other Colorado thing. They shouldn’t, but they are who they are.

I was 10 when Sandra Day O’Connor was appointed to the SCOTUS - and I lived in Arizona so as you can imagine it was a huge deal. It planted some seeds which eventually grew into a legal career. I would never have imagined what happened to the SCOTUS and what’s happening to our democracy as a whole.

Fun times! Thanks for the moment, anyway, Supreme Court of Colorado.

[Big RR]

BSG--I have to agree with you on what the SCOTUS will do, but I do think it is warranted; I really do not think states should be able to interfere with elections (especially national elections) and just exclude people from the ballot; the people should have the right to vote for who they choose. I also think that 14th amendment language is being misapplied here; it was written for persons who participated in the civil war, but if it is being applied here much more broadly, it could easily be used to bar any unpopular person from the ballot on the mere allegation they engaged in an "insurrection" (not defined). No court finding required of what the person did, "engaging" (also undefined) is enough (and don't get me started on giving aid or comfort to enemies)--if they engaged in any real capacity in national or state government. Are people who protested the Vietnam war "engagin"g in an "insurrection"; what about if they entered into a government building and refused to leave (I'll admit to having been a party to that activity) . Ditto for civil rights protesters and BLM demonstrators... It leaves the doors open for way too much mischief. I enjoy seeing Trump get kicked in the ass as much as anyone, but this is a much bigger issue.

[MajGenl.Meade]

All SCOTUS needs to do is . . . nothing at all. Just keep mulling it over until January 4 (when he must appear on the ballot according to the current decision to bar him) and then . . . what happens?

Then he gets a gazillion votes and if he's not declared winner Jan 6 will look like a teddy bear picnic.

Colorado can't take his name off the ballot after Jan 4, can they??? Or can they? Ditto on the picnic?

[BoSoxGal]

Yes, it’s the potential for civil unrest that unsettles me going into this new year.

I saw a piece on one of the news programs the other day about a GOP candidate running somewhere (Iowa?) and how many GOP voters were expressing fatigue with the MAGA/Trump phenomenon. But then there are the polls. It does feel like the temperature has come down, but the news doesn’t say that of course that’s not leading bleeding. It is hard to tell how much violence we might face should the wannabe dictator be rejected, but no doubt there will be some and any is too much and the whole situation still feels surreal yet intellectually I know we are teetering on the precipice here.

Imagine America going from fascist killer to fascist king in <100 years. Stay tuned, should be an interesting show either way.

[Sue U]

BSG--I have to agree with you on what the SCOTUS will do, but I do think it is warranted; I really do not think states should be able to interfere with elections (especially national elections) and just exclude people from the ballot; the people should have the right to vote for who they choose.

Yet the Constitution leaves the conduct of elections, including national elections, entirely to the states (as long as they are conducted in a manner that does not violate the Constitution). And the people do not have the right to vote for just anyone; there are Constitutional requirements for office (so no, you can't vote for either Arnold Schwarzenegger or Simone Biles for President) and there are additional state ballot access requirements that must be met (qualifying petition signatures, etc.). One of the Constitutional requirements is not having engaged in insurrection against the Constitution if you had previously taken an oath to defend it in your official capacity.

I also think that 14th amendment language is being misapplied here; it was written for persons who participated in the civil war, but if it is being applied here much more broadly, it could easily be used to bar any unpopular person from the ballot on the mere allegation they engaged in an "insurrection" (not defined). No court finding required of what the person did, "engaging" (also undefined) is enough (and don't get me started on giving aid or comfort to enemies)--if they engaged in any real capacity in national or state government. Are people who protested the Vietnam war "engagin"g in an "insurrection"; what about if they entered into a government building and refused to leave (I'll admit to having been a party to that activity) . Ditto for civil rights protesters and BLM demonstrators... It leaves the doors open for way too much mischief.

That's not true. It applies only to those "who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same." Further, the trial court in this case held a five-day hearing/trial to determine the facts as to whether Trump "engaged in insurrection," finding that he did (as we had all seen live on TV anyway). The case went to court specifically for the question of eligibility for office, and was brought by a group of Republican and independent voters who would be eligible to vote in the state Republican primary.

I will here point out that nothing in the Constitution compels the Colorado GOP to hold a primary election conducted by the state Secretary of State. But if you're going to use the state's machinery, you have to play by the state's rules, and again, the state gets to set the rules about who appears on its ballots as long as those rules are within Constitutional bounds.

All SCOTUS needs to do is . . . nothing at all. Just keep mulling it over until January 4 (when he must appear on the ballot according to the current decision to bar him) and then . . . what happens?

Then he gets a gazillion votes and if he's not declared winner Jan 6 will look like a teddy bear picnic.

Colorado can't take his name off the ballot after Jan 4, can they??? Or can they? Ditto on the picnic?

The decision itself says: "If review is sought in the Supreme Court before the stay expires on January 4, 2024, then the stay shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court." So it is the application for Supreme Court review that triggers a stay of the ruling, and Trump will presumably appear on the ballot until the federal Supreme Court rules otherwise.

The only "problem" (if it is indeed a problem) is that different states might reach different conclusions about the Constitutionally disqualifying fact of having "engaged in insurrection." Unlike being 35 years of age and a natural born citizen, "engaged in insurrection" might leave a bit more latitude in determination. But the ultimate question for purposes of the presidential election is not how many states had your name on the ballot, but how many Electoral College electors you got pledged to you. That's the sole "federal" issue in electing a president.

[MajGenl.Meade]

No, I wasn't commenting on a national election, the Electoral College or insurrection on January 6 (or whenever certification day is) 2025 and I know that the application keeps the stay in place past Jan 4.

If SCOTUS rejected Trump's appeal and upheld the State ruling before Jan 4 and he's not on the ballot in Colorado, there's a great likelihood of a worse "Jan 6" taking place there and across the country. Isn't there?

And what if he is on the ballot (printed) after Jan 5 and then somehow SCOTUS determined some time before March 25 that he shouldn't be . . . can his name actually be removed from the ballots as a practical matter. Print new ones without him? Is there time? Put duct tape over the name? Just not count votes for that name?

OK neither of those are going to happen . . . but in either case, riots begin. So SCOTUS will either take the bull by the horns and rule in Trump's favor or think about it until June 27th. And Trump will win the primary in Colorado.

[Big RR]

[But the ultimate question for purposes of the presidential election is not how many states had your name on the ballot, but how many Electoral College electors you got pledged to you. That's the sole "federal" issue in electing a president./quote]

Point taken Sue, but suppose a state a while back decided that Obama was not a natural born citizen and left his name off the general election ballot, keeping the possibility of him getting the electoral vote of that state as zero; I don't think it is what the Constitution intended to permit a state to unilaterally eto a candidate for national office. I think it is too dangerous a power to give the individual states.

[Sue U]

Point taken Sue, but suppose a state a while back decided that Obama was not a natural born citizen and left his name off the general election ballot, keeping the possibility of him getting the electoral vote of that state as zero; I don't think it is what the Constitution intended to permit a state to unilaterally eto a candidate for national office. I think it is too dangerous a power to give the individual states.

If a state election official had decided to exclude Obama from the ballot as not being a natural born citizen, then Obama and/or the Democratic Party would (presumably) file suit, present evidence of his place of birth, and seek a judgment. (The Colorado case is kind of the opposite: Trump was on the ballot and some Republican and independent voters sued to get him off.)

States "unilaterally" veto candidates for national office all the time. Candidates who don't meet state filing deadlines, don't pay filing fees, don't meet petition signature requirements or other party-specific requirements (if seeking to run in an established party's primary) simply don't get on the ballot. You can mount a write-in campaign and those votes must be counted, but Pat Paulsen never did get elected (even though he actually did qualify for a few state ballots in his many campaigns, as a candidate in both Democratic and Republican primaries). The Socialist Party USA is not on the ballot in every state, nor in every election, and last time around they joined with the Green Party to jointly nominate Howie Hawkins in a "left unity" campaign. And still they were on the ballot in only 30 states. (He didn't win either, but he didn't send any mobs to the Capitol to try to overturn the results and hang Mike Pence.)

If SCOTUS rejected Trump's appeal and upheld the State ruling before Jan 4 and he's not on the ballot in Colorado, there's a great likelihood of a worse "Jan 6" taking place there and across the country. Isn't there?

I would certainly hope not. If the riot of January 6, 2021 had any lesson, it's that the FBI (and your fellow citizens) will hunt you down and bring serious criminal charges against you, and you will go to jail.

And what if he is on the ballot (printed) after Jan 5 and then somehow SCOTUS determined some time before March 25 that he shouldn't be . . . can his name actually be removed from the ballots as a practical matter. Print new ones without him? Is there time? Put duct tape over the name? Just not count votes for that name?

OK neither of those are going to happen . . . but in either case, riots begin. So SCOTUS will either take the bull by the horns and rule in Trump's favor or think about it until June 27th. And Trump will win the primary in Colorado.

I doubt there will be any riots, at least not like Jan. 6. For one thing, even Trump isn't stupid enough to try that again, and his co-conspirators are all busy copping pleas. For another, where would the mob(s) focus their attention? And what would be the magic date on which they must act? Trump may very well win the primary in Colorado if he's on the ballot, and if he's not, I understand the GOP is making contingency plans to convert to a caucus system so they can nominate their Orange Julius anyway. (And then we'll see if he gets on the ballot for the general election.)

[Big RR]

States "unilaterally" veto candidates for national office all the time. Candidates who don't meet state filing deadlines, don't pay filing fees, don't meet petition signature requirements or other party-specific requirements (if seeking to run in an established party's primary) simply don't get on the ballot. You can mount a write-in campaign and those votes must be counted, but Pat Paulsen never did get elected (even though he actually did qualify for a few state ballots in his many campaigns, as a candidate in both Democratic and Republican primaries). The Socialist Party USA is not on the ballot in every state, nor in every election, and last time around they joined with the Green Party to jointly nominate Howie Hawkins in a "left unity" campaign. And still they were on the ballot in only 30 states. (He didn't win either, but he didn't send any mobs to the Capitol to try to overturn the results and hang Mike Pence.)

Grue, but the rules you show there are ministerial--one either get the required number of signatures or files on time or (s)he does not. This is different--this is a state applying some federal mandate which is not defined (what is insurrection anyway and when does one engage in it? And, how must this be shown) and has not been applied (at least since the civil war so far as I know) in a national election. And as for who it can be applied against, the number of people is quite broad; officers are far more than elected officials and include executive appointees such as police, likely military, maybe persons who work in government position--many of them take or sign some sort of oath (I know I did in the army and when I joined the PD office as a contractor--I cannot recall if I took similar oath when I was sworn into the federal and bars I am admitted to). The number of persons this can be applied against is quite likely broad and not limited to elected officials.

[ex-khobar Andy]

The Constitution leaves it very much up to the states how they conduct their elections within certain constraints - Pres has to be 35, natural born etc., all citizens over 18 allowed to vote (but states can have different rules about felons, absentee ballots etc provided they are not otherwise discriminatory). Maine and Nebraska have different rules about how they allocate electoral votes and there is no federal unease about this. My prediction is that SCOTUS will say (and maybe this is wishful thinking) - nothing to see here; Colorado has decided and it's not against any US constitutional proscription; end of story. Or the originalists will have to tie themselves into knots. If they do decide to take it, Thomas of course should recuse himself. He won't.

[Joe Guy]

I think the SCOTUS needs look at it and determine whether or not an insurrection actually occurred and if so whether or not Trump engaged in it. Then the rules would be established for all states.

Welcome back, Andy. I hope all is well with you.

[Sue U]

I think the SCOTUS needs look at it and determine whether or not an insurrection actually occurred and if so whether or not Trump engaged in it. Then the rules would be established for all states.

It's not an appellate court's job to make a factual determination; that's what a trial court is for. An appellate court (including the Supreme Court) does not hear evidence at trial, but only determines whether the law was properly applied. At least, that's the formal theory. Here, the trial court found as a fact that Trump had "engaged in insurrection," but found as a matter of law that the 14th Amendment's disqualification provision did not apply to the President. The Colorado Supremes did not reconsider the factual finding but ruled that the 14th did apply to the office of the President.

In fact, what really makes the Colorado decision interesting to me is whether it can be used under doctrines of "res judicata," "collateral estoppel" or "judicial estoppel" in other courts around the country, should the underlying fact issues remain undisturbed. These doctrines essentially mean that once a court has decided an issue (and the opportunity for appeals has run its course), it cannot be re-litigated by the same party in a different court. If the Constitution's "full faith and credit" clause means anything, it should mean that the judicial determination that Trump "engaged in insurrection" should be honored by other courts; the only further decision to be made is what that fact means for each state's election rules.

Welcome back, Andy. I hope all is well with you.

Ditto.

[BoSoxGal]

res judicata?
stare decisis?

Silly antiquated notions of a time gone by. With this SCOTUS, it’s no holds barred.

[Big RR]

If the Constitution's "full faith and credit" clause means anything, it should mean that the judicial determination that Trump "engaged in insurrection" should be honored by other courts; the only further decision to be made is what that fact means for each state's election rules.

Good point, but I would imagine that the Supreme Court could provide a definition to the terms "engaged in" and "insurrection" (I think they might do this) and perhaps even prescribe the standard of proof necessary for such a finding (I doubt they'd do this, but who knows?) and then remand. Or they could punt to Congress per the elections clause and just not act (I doubt they would do this as well). I guess we'll see.

BSG--

[Joe Guy]

It's not an appellate court's job to make a factual determination; that's what a trial court is for. An appellate court (including the Supreme Court) does not hear evidence at trial, but only determines whether the law was properly applied......

Are you saying that since the Colorado courts decided that an insurrection occurred and Trump engaged in it, the SCOTUS can't disagree with that? If that's true, then why would they even take the case?

[Sue U]

It's not an appellate court's job to make a factual determination; that's what a trial court is for. An appellate court (including the Supreme Court) does not hear evidence at trial, but only determines whether the law was properly applied......

Are you saying that since the Colorado courts decided that an insurrection occurred and Trump engaged in it, the SCOTUS can't disagree with that? If that's true, then why would they even take the case?

They could say that the process the trial court used was flawed, or that the standard it applied was wrong, or that the 14th Amendment does not apply to the office of the president. Or they could take it to affirm the Colorado Supremes' ruling and throw Donald Trump on the dustbin of history, insh'allah. Or they might have some broader guidance on how the 14th Amendment should work. We won't know until we get there, but until we do, we can speculate and wish-cast.

[liberty]

I think it's too dangerous a power to give to any government state or national; only the people should decide such things. And those who engaged in acts of violence protest during the Vietnam era of the Cold War were engaged in an insurrection and they were giving aid and comfort to the enemy, but they would never punished.

[Bicycle Bill]

I think it's too dangerous a power to give to any government state or national; only the people should decide such things. And those who engaged in acts of violence protest during the Vietnam era of the Cold War were engaged in an insurrection and they were giving aid and comfort to the enemy, but they would never punished.

Disagree with you there, lib.  Sure, a lot of people got away with shit, but there were enough others who were prosecuted...  like the four guys who detonated that bomb at Sterling Hall on the UW-Madison campus, f'rinstance.  Unlike Pokemon, though, they couldn't catch 'em all.

The other thing is that these anti-Vietnam protestors — or insurrectionists, as you choose to label them — weren't sitting in the Oval Office as a lame-duck president trying by any means possible to hold on to power, either.

-"BB"-

[MajGenl.Meade]

I think it's too dangerous a power to give to any government state or national; only the people should decide such things.

What are these "such things" that only "the people" should decide?
This question is asking for a list of "such things"

For example: The people should decide whether or not Trump's name is on a ballot. Or the people should decide whether Harriet Tubman's image should be on a $20 bill

By what mechanism should "the people" decide?
This question is asking for a description of the physical means the state should employ to determine which outcome "the people" desire.

For example: should the state run a plebiscite to see whether Donald Trump caused, aided and abetted an insurrection - majority vote decides? Should the WWE organize a gigantic death cage event in which the entire population takes turns until there's one man (or woman or child or dismorph) standing?