Prof. Rick Hasen on the Colorado S. Ct. Trump Disqualification Ruling

From Election Law Blog, about today's Anderson v. Griswold decision:

I am traveling and so I offer only some brief and initial thoughts here about what the United States Supreme Court may and should do in light of the Colorado Supreme Court's determination that Donald Trump is ineligible to serve as president under Section 3 of the 14th amendment for encouraging insurrection.

My bottom line is that the Colorado opinion is a serious and careful opinion that reaches a reasonable conclusion that Trump is disqualified. Nonetheless the opinion reaches many novel legal issues that the U.S. Supreme Court could decide the other way should that court reach the merits. (The three dissenters on the Colorado court did not really reach the merits.) Trump would need to prevail on only one of these legal issues to win on any appeal, so in some ways the legal odds are with him.

It is far from clear that the U.S. Supreme Court will reach the merits—there are many legal doctrines like ripeness and mootness that would give the Court a way to avoid deciding the issues in the case. But it is imperative for the political stability of the U.S. to get a definitive judicial resolution of these questions as soon as possible. Voters need to know if the candidate they are supporting for President is eligible. And if we don't get a final judicial  resolution before January 6, 2025 a Democratic-majority Congress could decide Trump is disqualified even if he appears to win the electoral college vote. That would be tremendously destabilizing.

In the end the legal issues are close but the political ramifications of disqualification would be enormous. Once again the Supreme Court is being thrust into the center of a U.S. presidential election. But unlike in 2000 the general political instability in the United States makes the situation now much more precarious.

Ilya Somin has posted a much more detailed analysis. I expect that Josh Blackman, Will Baude, or both will likewise blog about the case in much more detail (their work was cited in the opinions). I agree that this is a question of national importance, and that the U.S. Supreme Court should therefore review the Colorado Supreme Court's decision. [This paragraph was revised to include the link to Ilya's post.]

Comments

[SomeGuy 2]

And if we don't get a final judicial resolution before January 6, 2025 a Democratic-majority Congress could decide Trump is disqualified even if he appears to win the electoral college vote.

Anything is possible, but this is pretty unlikely. The new Congressional term starts on January 3rd. Democrats have to defend 23 Senate seats (counting independents who caucus with them). Republicans only have to defend 10. The incumbent President's party also tends to lose house seats if they run for reelection (whether that President wins or loses). The White House may indeed stay in Democratic hands, but Republicans holding both congressional houses is highly likely. I don't exactly like the gridlock, but honestly it's preferable to letting either clown show govern.

[jb]

Indeed. It's very hard to imagine a scenario in which Trump wins the electoral college but the Dems hold onto the Senate, and it's pretty unlikely they'd regain the House even with some favorable redistricting.

Having said that, it would indeed be good to get some relatively authoritative ruling on this by the Supreme Court to minimize uncertainty in this already very polarized process and environment.

[Brett Bellmore]

I don't think they necessarily have to hold onto the House to prevail there, if they can manage to send the dispute to the House.

It's hardly a secret that a lot of Republican members of Congress privately loath Trump, though they hardly dare come out and say so when he's popular with their constituents. If they arrange for the vote in the House to be by secret ballot, I wouldn't count on there being no defectors among state Republican delegations.

[Dr. Ed 2]

Can it BE by secret ballot? And how long secret?

[Brett Bellmore]

Nothing in the Constitution says it can't be by secret ballot, and there were serious proposals to hold the impeachment vote in the Senate that way in order to get more Republican votes.

[Rossami]

I disagree only with your final statement. Gridlock is a feature, not a bug. And that's true whichever party of clowns wins.

[Darth Buckeye]

Depends who counts the votes. Remember that the Dems and their purportedly non-partisan non profit organizations are going to fill county boards of election with purportedly non-partisan helpers from the purportedly non-partisan non profit organizations that will get volunteers to just the right households (those picked by data mining and assured to cast votes for Dems) to make sure they register for absentee ballots and give their ballots to those volunteers to turn in for them. There will be an additional 10 million to 20 million additional votes cast this way and the vast majority of them will be for Democrats.

If Dems get enough of a majority in the Senate and they take the House, they will probably move on their wish list to abolish the filibuster. After that who knows. Statehood for DC and Puerto Rico...maybe even the US Virgin Islands. Federalize all ballot measures. Outlaw ballot integrity measures. They will do whatever it takes to make our Republic safe from Democracy.

[David Nieporent]

Don't forget the reeducation camps and the sterilization of all conservatives, and the creation of the Federal Property Agency to guide the process of confiscating all land in the country for the government.

[NOVA Lawyer]

How does statehood for DC undermine democracy?

How does statehood for Puerto Rico undermine democracy?

These are two very different questions, neither of which has an obvious answer, but they do have a common theme: Both are likely to have Democratic Senators and Representatives. Your thesis seems to be that voters choosing Democrats is not a democratic outcome.

I don't think you understand democracy. It isn't: "People vote and my side wins."

[David Nieporent]

.

but they do have a common theme:

They'd be likely to elect minorities?

[Zarniwoop]

EugeneV sez:

I expect that Josh Blackman, Will Baude, or both will blog about in much more detail the case (their work was cited in the opinions)

I look forward to Prof Baude's thoughtful views on the subject, and expect Prof Blackmun to, well.

[SimonP]

... to start with a personal anecdote, take potshots at the justices' reasoning, and respond with a not-entirely-coherent counterargument?

[NOVA Lawyer]

At best.

[AtR]

These are the kinds of decisions that foment revolutions. We live in very dangerous times.

[Defenderz]

I hope so. The American tree of liberty is thirsty, indeed.

[Sarcastr0]

Or baby tantrums.

[Defenderz]

The people you hate produce most of what America runs on. Do you think you fairies who produce graphics design, tiktok movies, and gay sex (to completion, bareback) can sustain a society?

[Sarcastr0]

I think there is no way you produce anything useful. Probably make your living as a computer toucher.

I also think you've never met a farmer in your whole life.

[not guilty]

Defenderz, does the thought of a male/female couple engaging in (consensual) anal sex disturb you to the same extent as two men engaging in similar conduct? Why or why not?

[SimonP]

When you troll this hard, Defenderz, it barely even registers. Take it back a notch, and you might find that more people fall for it.

[Josh R]

I can see SCOTUS taking the other side on whether 14.3 is self executing or requires a process other than the one used in Colorado. But, does SCOTUS have jurisdiction to determine standing or ripeness since the case was brought under Colorado state law?

[CountmontyC]

Since it involves a federal office I would say yes.

[Zarniwoop]

The ultimate basis of the CO S.Ct.'s decision is the 14th Amendment to the Federal Constitution. That is a topic that SCOTUS definitely has jurisdiction over.

[Voize]

SCOTUS has no authority to override a state court's determination of standing under state law unless it involves a federal question, but since the petitioner is attempting to review the state court judgment in an Article III court a separate question of federal standing arises.
Note though the federal standing in question is that of the petitioner, and involves the case as presented by the petition, both of which may differ from the original complaint. Ref. Asarco Inc. v. Kadish, 490 US 605 (1989) (cert. to the Arizona Supreme Court):

Although respondents would not have had standing to commence suit in federal court based on the allegations in the complaint, they are not the party attempting to invoke the federal judicial power. Instead it is petitioners, the defendants in the case and the losing parties below, who bring the case here and thus seek entry to the federal courts for the first time in the lawsuit. We determine that petitioners have standing to invoke the authority of a federal court and that this dispute now presents a justiciable case or controversy for resolution here.

[Dr. Ed 2]

0ne percent of 80 M is 800,000 -- the US Army has only 452,689 active duty soldiers....

[Sarcastr0]

Heard that before.

If anything pops off, Internet tough guys like you will have nothing to do with it.

[Al S]

I hope the Supreme Court doesn’t take the case. Not because I think it was right or good, and not because I oppose Trump (although I’ve never voted for him and won’t vote for him). But because courts like Colorado ought to have to face the consequences of their actions, and not be bailed out by SCOTUS.

And by consequences, I mean things like:
1. Lots of GOP states disqualifying Biden. (Section 3 doesn’t only disqualify for insurrection. It also applies to providing aid and comfort to the enemy. Which is something Biden does every day, at places such as the Southern border. And I’d guess there can be judges persuaded that’s the case.)
2. Have the Colorado judges committed federal criminal acts in preventing votes? Yeah, I’d say so. Seems to me that the incoming Trump DOJ, after processing the pardons for all J6 protestors, will be looking for some enemies to go after. If Trump wins.
3. Newly blue Colorado ought to be bracing for some political retribution too. I wouldn’t think they ought to be counting on their fair share of much from there federal government in 2025. Again if Trump wins.

[Al S]

Also, of course, if the GOP holds the House, Colorado’s electoral votes will never be counted. They will be challenged and disqualified. So Biden, who obviously would win Colorado even if Trump is on the ballot, will receive 10 fewer electoral votes than he otherwise would have received.

[Darth Buckeye]

Lawfare all the way down! Let's stop everything! Let's have a revolution that makes the French Revolution look like a panty party. I think the lawfare advocates won't like the system very much when non-lawyers get tired of the sophism and start separating heads from bodies.

[Brett Bellmore]

It's not outside the realm of possibility, though, that Republicans might become so pissed off about this as to drive up their turnout, while Democrats are demoralized by having Joe Biden at the top of the ticket, and Trump barely pulls off a win there.

Not likely, but it would be a hilarious result.

[BadLib]

I've never voted for Trump and couldn't previously imagine a scenario where I would.

However if I lived in a state where the state Supreme Court attempted to keep a legitimate, albeit distasteful, candidate off the ballot and thereby deprive the voters of their choice that might motivate me to vote for that distasteful candidate (as a write-in should the state court ruling stand) just to register my desire for fair democratic elections rather than mandates from the bench.

[Life of Brian]

Even more reason the Supremes should step in now and nip this nonsense in the bud. Letting that sort of 50-state race to the bottom play out would turn the entire election into chaos, and at that point it would be a lot harder to fix.

[Brett Bellmore]

If the removal of Trump from the ballot stands, we pretty much have to remove Biden from the ballot in at least a matching number of states, just to make clear to the Democrats how important it is that they not go there.

Even though it would be a futile gesture, as they're incapable of learning that sort of thing at this point.

[Nige]

They already know you'll do anything for your Emperor.

[David Nieporent]

1) What "enemy" at the Southern border?
2) No. This has been yet another episode of Simple Answers to Stupid Questions.
3) Repeatedly saying, "Trump will be a psychotic dictator bent on revenge if he wins" is not really a good argument against the Colorado court's decision.

[not guilty]

(Cross-posted on Prof. Somin's comment thread.)

The Colorado Supreme Court stayed its own order until January 4, 2024, with the caveat that “If review is sought in the Supreme Court before the stay expires, it 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.” The date of the Republican presidential primary in Colorado is March 5, 2024.

My prediction: Team Trump will file a petition for certiorari with SCOTUS on January 3, 2024. The content of the petition will be a political screed, long on butthurt and short on legal analysis. Trump’s sycophants on the Court will see that the petition is relisted at conference for as long as necessary. In late February, SCOTUS will issue a per curiam order granting cert, vacating the Colorado Supreme Court decision and remanding for further proceedings pursuant to Purcell v. Gonzalez, 549 U.S. 1 (2006). The per curiam order will assiduously avoid the merits, but Justices Clarence Toady and Sham Elite Oh! will write separately that mustering the insurrectionists and giving them their marching orders is insufficient to constitute engaging in insurrection.

[Z Crazy]

There was no insurrection!

[David Nieporent]

Did you not watch the news?

[Mr. Bumble]

Hahahaha, Neosporin made FUNNY.

[Joe_dallas]

I am not going to vote for trump in 2024.

However it is a serious stretch of the english language to characterize Trumps call for a peaceful protest an insurrection. Granted several protesters got out of hand, but the vast majority were peaceful and significantly more peaceful that the majority of the anfita / blm protestors.

[F.D. Wolf]

With all due respect to Prof. Rick Hasen, what a load of horseshit. After years of unleashing an unprecedented level of lawfare on Trump and his allies that has now reached Stage 4 cancer levels, partisan Democrats don't merit the benefit of the doubt that they're just impartially interpreting the law as opposed to acting in a nakedly political matter.

The current RCP average has Trump leading Biden 47.2% to 44.2 %. For four Democrat state judges to blithely presume to tell those 47.2% of Americans, on an interpretation of moribund legal arcana, too bad, you don't get to vote for your choice, is perverse. If that happened in another country, the U.S. would condemn it and threaten sanctions, as it did barely a month ago when the Venezuelan Supreme Court disqualified the winner of the opposition party's presidential primary from the ballot.

[NvEric]

I agree.
I never focused on Trump until 2020, and after the month of March I concluded the utter rot seen - political and media degeneracy aimed at sitting president Trump.

[Nige]

Weird how Trump's lies about the election, attempting to fraudulently overturn the election, his violent mob, his corruption, his assorted and varied threats, his stealing of government documents, his promises to act as an authoritarian asshole if elected, never turns anyone off Trump. It's always people who point out those things that turn people TO Trump. Presumably they like what they see.

[Brophy]

The decision only applies in Colorado but not to the entire 47.2%. Trump would be clobbered in Colorado even if he were on the ballot so Biden should be removed from the ballot in Utah and Idaho.

[Z Crazy]

Brandon aided and abetted the Taliban.

Section 3 of the 14th amendment says that those who aid and abet enemies are disqualified.

Therefore, Brandon’s disqualified.

Is that too hard to understand?

[not guilty]

Uh, Joe Biden adhering to the troop withdrawal that Donald Trump negotiated with the Taliban is not aiding and abetting insurrection or rebellion against the Constitution of the United States by either President.

[Kleppe]

"Uh, Joe Biden adhering to the troop withdrawal that Donald Trump negotiated with the Taliban..."

Trump's negotiated withdrawal was scheduled for May 2021. Biden unilaterally broke it and rescheduled the date to a hollow and pointless symbolic date months later (but Democrats love their hollow and pointless symbology, don't they?)

[Z Crazy]

The aid and abet part comes from leaving behind American weapons and equipment.

Withdrawing from a base in a FRIENDLY country like Canada or the Philippines means taking all the weapons and equipment and sensitive documents. An officer in command of a withdrawal who left behind documents would be reprimanded! How much more when withdrawing from enemy territory?

[David Nieporent]

.

The aid and abet part comes from leaving behind American weapons and equipment.

That's not what those words mean.

[not guilty]

Where is the insurrection or rebellion against the Constitution of the United States? Who were the insurrectionists or rebels? You may want to check Article I, § 2, ¶1: "The President shall be Commander in Chief of the Army and Navy of the United States[.]"

[Defenderz]

He's the Commander in Chief of shitting his diapers.

[Litoky]

The draft-dodger in chief.

[Z Crazy]

Looks like Cuntala’s disqualified too!

https://twitter.com/KamalaHarris/status/1267555018128965643

[ThomasHuff]

Prof. Volokh - Would be very curious to hear your thoughts on the Colorado Supreme Court's Brandenburg analysis, should you be inclined to opine!

I was really interested in the amicus brief you filed a few years ago in Sineneng-Smith, comparing the doctrines of incitement (under Brandenburg) and solicitation (e.g., under Scalia's opinion in Williams). Among other things, Williams highlighted the First Amendment's protection of "abstract advocacy" and thus required criminal solicitation to be highly specific to be actionable (even offering the statement "I encourage you to obtain child pornography" as an example of protected abstract advocacy). Brief here for reference: https://www.supremecourt.gov/DocketPDF/19/19-67/124856/20191209115753057_19-67acVolokh.pdf

Am curious if you think these doctrines raise unique complications with someone like Trump, who is accused of "speaking in code" to his followers and causing "imminent lawless action" through words that might otherwise be common political rhetoric ("fight like hell"). Should the question of whether such speech "is directed to inciting or producing" violence be a pure determination of fact, effectively unreviewable by higher courts (save for clear error)? Or should Brandenburg also require some degree of specificity (or maybe "directed" advocacy) - as a legal matter - to protect certain forms of abstract political rhetoric?

[Brett Bellmore]

It's not clear to me how, under Brandenburg anything Trump said on the Mall can be relevant, when you consider that the break in at the Capitol was premeditated and was begun by people who didn't attend the speech, well before he was done speaking.

And anything he said prior to the speech on the Mall can't survive Brandenburg analysis because it's not proximate enough to the break in to be imminent.

Really, to pin the break in on him under pre-existing legal standards, they need to prove he actually ordered it. Which is why they're avoiding criminal trials, in favor of judicial 'findings'.

[Jason Cavanaugh]

Good thing we have the text messages and emails now showing that they knew he'd 'spontaneously' direct them to march to the Capitol.

It must suck to be as ignorant as you.

[BadLib]

The question is not what "they" (the rioters) thought, it's what Trump actually said/texted/emailed that matters.

Did I miss the texts from Trump directing the rioters to break into the Capitol or engage in violence to overthrow the government? Pls provide a cite.

And using the word "fight" is not necessarily a call for violence - not when used by those supporting a "Fight for $15" and not when used by those advocating people to "fight for civil rights".

As well, insurrection seems to require an intent. Simply calling for protesters to be vocal about their desire to see to it that election law (as you interpret it) is followed is hardly insurrection (and, in fact, is arguably a call for stopping an insurrectionist act).

And a President standing by and doing little to stop violence that is taking place in an area directly and indirectly controlled by Congress via their control of D.C. and of the Capitol Police, and explicitly NOT the Administration, is hardly insurrection. As well, providing "aid and comfort" is an active behavior -- such as providing food and shelter rather than failing to do everything in one's power to stop a criminal act. One is not giving "aid and comfort" to a shoplifter when they just step aside and let them exit with stolen merchandise.

Trump may be (well, is) an unqualified idiot (just like a substantial swath of Americans) but the rules of law apply to him just as they do to anyone - and that includes burdens of proof and assumptions of innocence.

[Sarcastr0]

As our detailed recitation of the evidence shows, President Trump did not merely incite the insurrection. Even when the siege on the Capitol was fully under way, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. These actions constituted overt, voluntary, and direct participation in the insurrection.

[Darth Buckeye]

At this point, I don't see how the Supreme Court can avoid this case. Ripeness? If the case is not ripe, does that not also apply to the issue before Colorado state courts?

Mind you, I would be happy if Trump is not the Republican nominee...almost any other Republican would win against Biden.

[Defenderz]

The leftish establishment is pushing Haley for a reason. I wonder why.

[Brett Bellmore]

Eh, I'd be happy if Trump weren't the nominee, given the plausible alternatives. I'm not sure they'd all win against Biden, though; I'm not sure they've really internalized just how dirty the Democrats are going to be fighting.

[BadLib]

Of the current four remotely credible Trump challengers, I think Biden might be able to beat Ramaswamy. With respect to the other three, I'd bet against Biden.

[David Nieporent]

1. Vivek is a joke.
2. DeSantis has proved himself to be the Michael Dukakis of 2024, completely unable to translate local popularity into national office, leading people to say, "What did his state's voters actually see in him?"
3. Christie could beat Biden in a vacuum, but obviously not in a campaign where he has spent months "disloyally" attacking Trump. A significant portion of the GOP electorate would stay home rather than voting for the newly-minted anti-trumpet.
4. Haley, yes.

[Yogis_dad]

Now that's funny! I don't care who you are.

[Yogis_dad]

Surely you jest!

[Darth Buckeye]

Please, don't call me Shirley. And I find your lack of faith disturbing.

[AtR]

I understand the desire ... but the law is not mathematics. Nothing about the law is clear cut, and justices have to consider the ramifications of their decisions.

[Sarcastr0]

And threats of violence are NOT something they should take into account; that would wreck rule of law sure as anything else.

Luckily Internet toughs don't have a common history of their threats coming to pass.

[AtR]

In Jewish law, there is a principle that one should refrain from saying things that will be ignored (Sefer Hachinuch, Mitzva 239). I suspect there is a parallel in common law.

[Purple Martin]

Cassandra disagrees, not that it did her much good.

[Sarcastr0]

I Googled your citation. It looks to be incorrect.
Mitzvah #239 is the obligation to reprove your kinsfolk when they don't act properly.

[AtR]

Look down further within the text ... based on Yevamot 65:2. Loosely translated (because the blog won't let me enter Hebrew text):

"Just as it is an obligation to to say something when it will be heard, so it is an obligation to shut up when it will not be."

[Don Nico]

"As the Gemara expresses this idea: Just as it is a mitzvah to say something that will be heeded, so it is a mitzvah to refrain from saying that which will be disregarded (Yevamos 65b). "

[Sarcastr0]

"if the one rebuking sees that there is no benefit at all found from the words of his rebukes — from the greatness of the sinner’s evil, or that he is deaf [to it] and extremely evil and [the rebuker] is afraid of him that he not stand against him and kill him — that he is not obligated in this commandment with this man. "

This isn't looking like it says what you're offering it for.

[Don Nico]

S_0,
If you think that you are going to win a Talmudic argument, you should go to bed.

[Sarcastr0]

Someone comes at me with a shit cite I can tell with Googling, I'm going to call them on it.

Fuck you for gatekeeping what is less a debate and more someone trying to be cute and failing.

[Don Nico]

S_0,
You're losing your temper because you tried to one-up another commenter. You likely even found plenty of length commentary commentary about Tochacha and just quoted a piece that sustained you comment of a "shit quote."
So I am calling you for your "shit quote." If I like playing gatekeeper with respect to some matters, that is my choice not yours. Stamp your feet, yell "fuck you." it does not change anything. AtR had an easily defendable interpretation.
Are there others yes.
And so the argument goes. If.... and if.... and if...., then...., BUT... and.... Then comes the rebuttal, and the counter rebuttal. It was late. I advised you to go to sleep rather than carry on a Talmudic debate. So lighten up.
The Orange Clown is off one state ballot after Jan 4 unless he appeals. And then we'll see.