Why Trump Will Almost Certainly Stay On The Colorado Primary Ballot
A few predictions that are going to disappoint just about everyone.
[Update – Below, long-time commenter SKI, who, unlike me, is a lawyer, takes me to task for a number of issues within this post. On the plus side, he agrees with my conclusion. On the minus side, he walks through everything I got wrong along the path to getting to said conclusion. I highly recommend reading it as its very informative. I’ve also struck through some of the more egregious errors.
SKI and Roger (who also chimed in), I’ll keep this lesson in mind the next time I start writing outside of my subject matter expertise area. A Country Lawyer and HL96****, I think I have learned my lesson… and I totally understand if you want to join in the pile on.]
As James has covered, the Colorado State Supreme Court issued its decision in Anderson v. Griswold early last night. At the core of the case is whether Trump’s actions in the wake of the 2020 election would lead to him being barred from holding federal office based on Section 3 of the 14th Amendment. In a split, 4 to 3 decision*, the Court ruled that Trump engaged in an insurrection and was therefore disqualified from running for President:
In this appeal from a district court proceeding under the Colorado Election Code, the supreme court considers whether former President Donald J. Trump may appear on the Colorado Republican presidential primary ballot in 2024. A majority of the court holds that President Trump is disqualified from holding the office of President under Section Three of the Fourteenth Amendment to the United States Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot. The court stays its ruling until January 4, 2024, subject to any further appellate proceedings.
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.
https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2023/23SA300.pdf
[MB: emphasis mine]
The first thing to note is that the Colorado Supreme Court has stayed this ruling until January 4th, the day before the Colorado Secretary of State must approve the Republican primary ballots. If the Tenth Circuit or the Supreme Court takes up the issue, the stay will most likely remain in place, and Trump will be on the ballot for the Republican primary. This will almost certainly be what will happen.
My first prediction today is that a higher court will maintain the stay, and Trump will be on the Republican Primary ballot in Colorado.
Some folks suggested last night that the Trump campaign might not contest this decision because Trump has never won Colorado. However, that is pure wish-casting. The former President has to appeal this for two major reasons. Leaving this uncontested would most certainly lead to other States considering similar actions. More importantly, as pointed out by Dr Derek Muller at the Election Law Blog, this decision harms Trump because it creates doubt in the mind of the electorate if he could ultimately assume the office even if he was to win the election:
Even temporarily being kept off the ballot has negative effects with voters. Do they want to risk voting for a candidate who’s been declared by a court to be ineligible? I think back to a recent dust up in Iowa in 2022, when a Senate candidate (and openly the front-runner) was barred from the ballot, briefly, for lacking enough signatures, only to have the decision reversed by the state supreme court days later. She then lost the primary to an upstart candidate who gained momentum those last six weeks as the campaign was seen in disarray and something of a risk.
https://electionlawblog.org/?p=140292
This will be appealed and almost certainly decided by the Supreme Court. I expect the Supreme Court to bypass the Tenth Circuit and take it up directly. As such, the remainder of this post will focus on some (grounded) predictions about the outcome of that review.
Spoiler alert: I predict the Supreme Court will rightfully overturn this decision.
The Colorado Supreme Court decision is long and detailed, containing much analysis. As such, I have not been able to read it closely (though I am looking forward to doing that in the days to come). I did read the three (far shorter) dissents. For this post, the dissents are far more valuable as they outline how the Federal Courts have several options for overturning this ruling.
Prediction: The ruling will be overturned without addressing whether 3 of the 14th Amendment applies to the President.
I don’t think there is any possibility that the Supreme Court will address this issue until they have absolutely no choice**. While Presidental Eligibility is the most important issue in the case, it’s also a political nightmare for the Court to decide, especially under our current conditions: a year out from a Presidential Election where one of the two leading candidates is under indictment for crimes that may fit under insurrection.
Following Dr. Muller, I suspect that the Court would feel that issuing such a decision prior to this Election would throw the process into chaos. Such a ruling risks pulling on a thread, or more accurately, setting up a series of conditions that could unravel the entire election if Trump is convicted prior to November 4th.
Do I think they should rule on this topic? Yes. And I also think that punting on Eligibility, at least for the moment, is probably the right thing to do. It’s also in keeping with the typical Federal court approach of defining the issue at hand as narrowly as possible and avoiding making major interpretations of the Constitution.
[Note to readers: Here is where our learned commenters–actual lawyers, mind you–feel things go off the rails. So if you are reading, grab a lot of grains of salt. HL96, if you are reading this, break out the booze and wait to swallow before you read].
Prediction: The final decision will focus on specific procedural issues in the Colorado case, mainly if a State Court can find that a Federal Officer engaged in Insurrection.
That prediction is based on the dissents, which all take the same general approach to contesting the majority decision. The Colorado dissents focus on three key issues:
- Can a civil judge find that Former President Trump engaged in insurrection?
- Can Colorado Electoral Statutes be used to trigger this type of review?
- Is the 14th Amendment self-executing?
Of these, I expect the final decision will focus primarily on the first issue. And, probably to the disappointment of most readers, I believe the Colorado Courts overstepped their bounds in finding that Trump engaged in insurrection. In my eyes, this is the most vulnerable part of the decision.
There is a legal debate about how engaging in insurrection can be determined, particularly if a conviction is needed. My bias is that the finding is serious enough, especially in the context of Section 3 of the 14th Amendment, that it needs to be determined in a more formal process than as part of a state judge’s*** review of the case facts. I suspect the Supreme Court will agree and rule that such a determination can only be made at the Federal level.
The Supreme Court might even put some guardrails up around this. For example, such a finding might need to involve a criminal or impeachment conviction or an act of Congress. However, for the same reasons, I think they will avoid directly addressing Section 3 of the 14th Amendment, I think they will avoid being too specific about how such a finding is made. They are more likely to simply use existing precedent to determine only that this finding cannot be made at the State level.
Issue 2, because it is tied to State Law, is trickier. The Supreme Court cannot review the interpretation of State Law. The most they can do is consider whether or not the law, as interpreted by the majority of the State Supreme Court, is in keeping with the US Constitution. Doing so would ultimately bring them back to the issue of eligibility under Section 3 of the 14th Amendment, and as I said earlier, I think they punt on that.
Issue 3 could also be a place for the Supreme Court to rule. However, whether Section 3 of the 14th Amendment is self-executing (that it goes into effect or can be enforced after being created without anything else needing to be done) also gets into thorny territory that could disrupt the 2024 election. That said, it is possible that they can establish that the parties involved did not have standing to bring the initial suit without touching on the issue of self-execution.
In his post, James raises the possibility that this could be rejected because the question was about eligibility to participate in a primary election. I agree that primary elections are a party versus a State function (in fact, the Republican party could have switched to a caucus this year**** and rendered that part of the decision moot). However, because the finding went far beyond that initial question and found that Trump is ineligible under Section 3 of the 14th Amendment, I think it needs to be disposed of in a different way to clear that finding altogether.
In closing, I expect that, as with Jack Smith’s recent appeals in Trump’s DC trial, the Federal Courts will act quickly in this–most likely taking the case up within the next few days. Whether or not this jumps straight to the Supreme Court is up in the air. I can see arguments for and against the bypass. Either way, the stay will remain in place, and Trump will be on the ballot in Colorado. Finally, wherever the final decision is made, the case will ultimately be determined by ruling on procedural issues rather than the issue of Section 3 of the 14th Amendment.
* – A lot will most likely be made of the fact that the Justices were all appointed by Democrats and that they split on this. The indispensable election and criminal legal system publication Bolts Magazine provides a bit more detail on how those justices were selected:
The governor selects a nominee from a list of names prepared by a nominating commission, called the Supreme Court Nominating Commission. This body includes the chief justice and 17 other members named by some combination of the governor, chief justice, and attorney general. (The constitution specifies that no more than 9 of the members can be of the same political party.)
https://boltsmag.org/whats-on-the-ballot/state-supreme-courts/
The makeup of the court was created by a bi-partisan panel.
** – There are a few scenarios where I see the Supreme Court needing to make that ruling. The most obvious is if Trump is convicted in DC on Federal charges related to trying to overturn the 2020 election prior to the election (or, if he wins the Presidential election, prior to taking office). We will not know if either has a serious probability of happening until, at the very least, March of next year when Judge Chutkin sets the trial date.
The other option would be an extreme hail mary on the part of the Democrats that would require (1) Trump to win the Election and (2) the Democrats to hold the Senate and take back the House. At that point, since the new Congress starts before the new President, they could push through a resolution that the President-Elect had participated in an insurrection, thus forcing the Supreme Court to take up the issue. This is not at all likely, but still worth noting as an extreme possibility.
*** – Allowing State judges to make such a determination about a Federal Officer would open up a pandora’s box of political litigation. In fact, the fear of Federal officers being politically prosecuted at the State Level is why state cases can be removed to Federal Court.
**** – Thank you to Jen for her correction that this wouldn’t be as simple as I made it out to be:
Yes, they could potentially do this, but no, because this would require a meeting of the central committee to make a bylaw change, and the GOP central committee in Colorado has hsignificant challenges in getting to the necessary thresholds to change the bylaws.
https://www.outsidethebeltway.com/colorado-supremes-ban-trump-for-insurrection/#comment-2848659
Thanks! Good observations and ones that are, alas, probably spot on. ☹️
Let me concur with Matt and James: I see no way this ruling survives appeal.
I enjoy that decision cites newly minted since 2020 14th amendment Insurrectionist Michael Bellesiles like scholars and the January 6 committee report which was due process personified.
This is pure BS.
We must follow the self executing text of the 14 amendment exactly as written but will fill in any gaps we find.
@Paul L.:
Quick question: was Michael Bellesiles cited in that decision? I did a quick search but couldn’t find the work of that disgraced scholar cited in the majority decision. If not, why do you pull that deep cut to include in your ad homem based gish gallop attack on the decision?
Is there another scholar quoted who had similar findings made against them?
Why focus on that when there are so many more glaringly problematic legal aspects to it (see the content of the post)?
@Matt Bernius:
LOL Old News Defense.
Notice Michael Bellesiles like
I don’t see SCOTUS over turning this. “It is a political question we can’t decide on it.”
Actually, like the emoluments clause, Section 3 of the 14th Amendment is worthless without some defined means of enforcement. They both need to go.
@Paul L.:
Off topic, low-energy Gish Gallop as usual Paul. Sad!
You are charging that the majority decision cites disgraced scholars that have been investigated and found to have made up material (i.e. “like Bellesiles”–your words, not mine). So put up–list some evidence that demonstrates they are like Bellesiles.
Again, this is ad hominem attacks because you are attacking the people, not the argument. Further, it’s weak tea ad hominem because you haven’t proven that anyone cited in the decision fits the accusation you are making. In fact, all you are doing is continuing to further document the issues with Bellesiles, who you admit has nothing to do with this decision.
Look we all know that Bellesiles touches on your 2nd-Amendment-above-all-else (I’ll vote for who greatly extends the police state, despite my hating the police state virtue signaling, so long as I keep my gun rights) and anti-expert fetishes… but do you really need to textually masturbate to those in public? Please think of the children!
Which get to how this is your usual crank “We didn’t start the fire” textual diarrhea to distract from not having a serious argument.
The Gish Gallop, for those not familar is “is a rhetorical technique in which a person in a debate attempts to overwhelm their opponent by providing an excessive number of arguments with no regard for the accuracy or strength of those arguments.” https://en.wikipedia.org/wiki/Gish_gallop
Feel free to gish gallop all you want Paul. All you are doing is demonstrating how, in keeping with the name of your blog, you rule over a very small Kingdom of Idiots (population: you).
If you decide to bring an actual argument, I’m happy to engage.
@Paul L.:
Well, at least we have this down in pixels so we can remind you of it when this ultimately is overturned at the federal level.
Or wait, is this one of those times that because you included that quote we are supposed to know that you actually think it IS going to be overturned because… reasons?
As someone who really, really doesn’t want Trump to become president ever again, the best outcome is probably just for Trump to lose in a straight fight, and not to be prevented through legal procedure, even if it’s valid.
Imagine the turbo-boosters keeping him off the ballot would fix to the conspiracy theories and belief in the deep state of the MAGAts, and how it would set up a precedent for elected GOPs state supreme court justices to constantly do the same to any Dem nominee (in much the same way the ridiculous impeachment articles against Biden have been brought basically as a tantrum against Trump having been legitimately put up for impeachment).
Of course there’s a massive danger that in a straight fight Trump will win. His whole existence is poison to democracy, he either wins and trashes it, or he loses, or is kept from running, and poisons the well and radicalizes a whole swath of voters. There are no positive outcomes to his involvement in politics.
I am charging that History professors will circle the wagons to defend the newly minted since 2020 14th amendment Insurrectionist scholarship.
Just like Bellesiles scholarship that debunked all Second Amendment arguments showing it only applies to National Guards troops and Muskets.
@Chris:
Agreed, but unfortunately this is third-cup-from-the-same-bag level of weak tea, because Trump and his traitorous followers will never accept any defeat, no matter how legitimate or resounding.
@Paul L.:
Continuing a Gish Gallop based on a hypothetical you are admitting is made up? SAD!
From this point on, I can’t waste any more time arguing with the voices in your head.
As I said, if you decide to engage on something else, I’m happy to discuss it.
Sigh. While the conclusion is correct, this is full of wrongness.
and
The 10th can’t take it up. It is a decision of the state’s supreme court, it goes to SCOTUS or it stands.
Seriously? You think it will be *rightfully* overturned but you haven’t actually read the majority opinion carefully? rolleyes The reality is that the majority’s opinion is pretty persuasive. You may want to try reading something before opining on it. And you also may want to choose only to opine on things when you have the experience and knowledge to know what you are talking about.
No and definitely not this SCOTUS. States get to control who is on their ballots and state legislatures decider how for that state. Article II, Section 1. Black letter.
No, they aren’t. State legislatures control who can appear on general ballots AND that includes authorizing various ways, including primaries, that parties may put forward candidates.
This is just wrong. NONE of the three dissents contested the factual finding that Trump did engage in insurrection. They just ignore it and decide on procedural grounds. SCOTUS will almost certainly do the same.
1. SCOTUS can’t overturn on Berkenkotter’s theory (that the CO election code doesn’t grant authority to decide Section 3 challenges) because it is a state supreme court opining on state law.
2. It could grant cert to challenge Boatright’s theory (the expedited nature of the CO Election Code disqualification proceedings is too short/expedited to grant due process) but it likely won’t because the limitations (time for discovery) is even less available in criminal and immigration cases and opening that can of worms isn’t something they are going to want to do.
3. MY Prediction: It will grant cert and follow Samour’s theory (only Congress can establish procedures to effectuate Section 3 insurrection challenges) to overturn the decision.
They could also grant and overturn on this as a “political question” but I don’t think there is a majority for that insanity, especially when they can get the same result by saying that Congress has to establish procedures.
Bottom-line. I think it gets overturned in an opinion mostly following Samour’s dissent (which is pretty persuasive in its own right).
I also think folks without any subject matter knowledge shouldn’t opine, particularly off the cuff before they have even read the underlying opinion.
@SKI:
Oof… harsh but fair. Thanks for checking “my math” and marking things up. Critique accepted in the spirit it was given. I occasionally forget that I am not a lawyer. And I should have done more checking. I’m going to link to this at the top of the post.
One legit question I have, and I’ve spent the last half hour trying to research this and not getting a clear answer: Why does this go straight to the Supreme Court? I thought you were going to call me out on skipping the district level courts.
I’m glad to see that we agree that:
I tried to state that, but it might not have been clear enough.
Likewise we totally agree on:
I agree that Justice Samour’s dissent was the strongest.
We say “innocent until proven guilty” so often we view it as some underlying principle of the universe. It is not. It applies to criminal trials and penalties. It does not apply to civil cases. It does not apply to job applications. The presidential campaign is a long job application. We don’t want to put him in jail, we just don’t want him to get a job he’s shown he’s not suited for. As a matter of common sense, a presumption of guilt should apply in the case of an oath breaker applying to be prez. And to a prez suspected of improper influence by a foreign government.
(I made a similar comment at Volokh on a case involving denial of a security clearance to a guy with III%er and Q stickers on his car. ‘I just thought they looked neat. I don’t know nuthin ’bout ’em.’ The only response on Volokh amounted to “Whuut?”)
@SKI:
HA HA HA HA HA
The decision quotes on page 119 the overturned Schenck v. United States (1919) as valid case law.
The decision cites newly minted since 2020 14th amendment Insurrectionist Michael Bellesiles like scholars and the January 6 committee report.
This is like citing Tom Nichols “qualified . . . as an expert on Law Enforcement” that police know much more about the law than judges and lawyers so all S1983 cases such as arrests of people recording the police should be dismissed under qualified immunity.
WAPO has a useful article this morning on the few examples of actual application of the 14th.
One Couy Griffin was removed as a NM County Commissioner. He was charged in J6, but convicted only of trespass.
Madison Cawthorn (R-N.C.) was taken to court, but the case was dismissed as moot after he lost his primary.
The Senate refused to seat Confederate officer Zebulon Vance of NC, but a few years later the government handed out amnesty “like candy”, largely mooting the whole issue post war, and he was later elected and seated. He had, as far as I know, never been convicted of anything.
In 1918 Socialist Party Congressman Victor Berger was convicted of “disloyal acts” under the Espionage Act. While out on appeal he tried to take his seat and was rejected by Congress. His conviction was overturned after the war and the First Red Scare had faded and he later served three terms.
Precedent is thin, but only the county commissioner and Socialist were convicted of anything, and only the Socialist of anything like “insurrection”. (There would seem to be a number of morals to that story.)
A thought. In two of these examples Congress refused to seat the subject. The analog for prez would be the EC. There’s some sort of charge in most states that can be brought against an “unfaithful” Elector. Woudn’t voting for someone facially unqualified count?
@gVOR10:
As I noted in the other thread, 14-3 makes no mention of conviction. That logic follows from the “innocent until proven guilty” mindset that the government can’t just declare you an insurrectionist, they have to prove it beyond a shadow of a doubt. Ummm, no they do not. They just need to declare you sus enough that you can’t qualify for the little things you need in order to do something. The sideways approach to stopping a problem is to use a different procedure to halt something rather then “proper” one and the government is great at it.
The No-Fly list is a legal document that functionally prevents people from a constitutional right based on some iffy data. You do not need to be convicted of anything to be added but it affects your legal ability to do things. You CAN still travel, it’s not illegal but they hobble you severely and gives the law an excuse to look at you funny
Your credit score is a extra-legal NGO that governs your entire life, right down to if you can get a job or house. You do not need to be convicted of anything to have your score tanked but it affects your legal ability to do things. You CAN still dabble in cash only but a low score is gonna ruin your life for years potentially through no fault of your own if their database is wrong. The government allows it because it means certain outcomes they might want can be achieved without actual policy on their part.
14-3 is unclear in precise wording but pretty damn clear in intent – try a coup, no office for you. Thank you for your time applicant but we’ve decided to go down another path. You’re free to apply but that resume’s going right into the trash bin as it should.
@Matt Bernius:
Because of 28 USC §1257, which authorizes a writ of certiorari when a decision is made by the highest state court in which such a decision could be made regarding a federal constitutional question. There are essentially two ways to get a state court’s interpretation of a federal constitutional question to the U.S. Supreme Court: (1) the state’s Supreme Court (or whatever places like New York call their highest appellate court) rules, and the U.S. Supreme Court grants certiorari; or (2) the route of most habeas litigation: a litigant exhausts his/her/their state court remedies, then files a claim in federal district court, which is next heard by the federal court of appeals, after which the Supreme Court grants certiorari.
I’m trying to think of a way to say this that doesn’t sound snide or condescending (though my wife tells me that condescending is my native tongue, so this may be a hopeless quest). I have learned so much on this site, both from the main posters and the commenters, about subjects in which I am very interested but have limited knowledge, but almost invariably posts about court cases leave me pulling my hair out because of the lack of appreciation of even the basics of legal analysis, much less the subtleties. The process by which a case gets to the Supreme Court is the most basic of 1L subjects. It is so basic that the failure to understand it makes me question the remaining analysis in a post. Having said that, for what it’s worth coming from a lowly medical malpractice lawyer with no expertise in constitutional law, I, too, found Samour’s dissent the most straightforward way for this decision to be reversed, and expect that to happen.
This is a case that breaks in two opposite ways for me.
On the one hand, the political and social repercussions of allowing this ruling to stand would be severe and significant in a bad way and put us into banana republic territory.
Say Trump is removed in several blue states, but wins the Presidency because the remaining states give him enough EC votes. The popular vote – EC disparity would be massive. And considering how popular Trump is, it would be blatantly anti-democratic. It would open the door to what we often see in failed democracies, which is by “winning” elections by disqualifying opposition candidates. That’s not a road we should want to take a single step down, especially on the basis of novel legal arguments decided entirely by state courts.
On the other hand, the legal merits do not strike me as entirely unreasonable. When you have several respected legal minds and analysts say the court decided the issue correctly, then I don’t think the legal merits can easily be dismissed. Ilya Somin, a legal mind I personally respect, is one of those and does a decent job of explaining why the Colorado Supreme Court correctly decided the case.
@Paul L.:
I have to temporarily ignore my promise to ignore your Gish Gallops to show exactly what a gish gallop looks like.
So the voices in Paul’s head decided to add another element to his Gallop. Hence we get:
Wow, sounds seroius doesn’t it?! A state supreme court quoting and overturned case! Clearly they don’t know what they are talking about.
Then you grab the excerpt:
Reading that we see that the court cites Schenck in its historical context (i.e. that its the first time the court addresses the issues of “advocacy of illegal conduct”) and that it recognized the importance of looking at context.
While the voices in Paul’s head believe that once a case has been overturned at the Supreme Court it should never be mentioned again, that simply isn’t the case. Nor is using a quote from said overturned decision citing it as valid case law.
And what I have had to do to correct Paul, is why the gish gallop is so popular. The voices in Paul’s head lead him to spew out some textual diarrhea. Responding to the error takes a few paragraphs to do.
But the voices in Paul’s head, which have convinced him he’s always the smartest person in the room, shrug tell him that he’s not really wrong because of… well… reasons, and give Paul more textual diarrhea to put into the comments. The resulting firehose of diarrahic misinformation overwhelms the person trying to rebut and the galloper declares success (as do people whose personal biases lead them to mistake Paul’s diarraha for chocolate… they love it too).
So continue on with the low energy Gish Gallop Paul. You are totally winning us over and demonstrating that you really understand* what you are talking about.
—
* – Note, I realize after SKI’s comment I should be careful in calling someone out about not knowing what they are talking about. That said (a) I’m pretty sure that SKI, who is an authority on this will agree with what I wrote above, and (b) acknowledging that one was wrong and learning from it is something that a Gish Galloper never does.
@Roger:
TY, that’s so basic that it’s hard to search for (and as soon as you named it I remember learning that in my First Amendment Review class).
I think that’s entirely fair and a critique I take to heart.
As I didn’t go through law school, and most of my legal knowledge comes through very narrow bands of the law and classes that focused more on theory than process, I have huge gaps of very basic knowledge.
And that, of course makes me a perfect candidate for the Dunning Kruger Effect in said area. That clearly happened today.
I really appreciate you and SKI taking me to task for it. Seriously. I will work on that in the future and do my best to avoid writing articles that are focused on legal stuff that is far beyond my pay grade (I make no promises about my participation in comments).
While I agree, Andy, with your deep reservation about disqualifying a candidate and your concerns about where that leads, the whole point of 14th 3 is anti-democratic since it stands as a check on the democratic right of anyone to elect an oath-breaking insurrectionist. Nobody was ever going to have to elect a former Confederate to office. The concern clearly was that people would, so we constitutionally decided we wouldn’t let them.
Still, it is a hard road to “disqualify” democratic choices.
@Matt Bernius:
Historical context would point out Schenck was overturned by Brandenburg.
Maybe the court didn’t know because CREW’s attorneys are too dishonest to acknowledge that and Trump’s attorneys are too incompetence to bring it up.
You are not a lawyer loses its sting when you notice that Michael Cohen, Ben Meiselas, Imani Gandy(an election is just like discovery in a legal case), Jennifer Rubin and Glenn Kirschner are lawyers.
Prosecutors and government lawyers: We respect the 1st Amendment but you can’t record courthouses and police stations from traditional public forums.
@Matt Bernius: Sorry for the harshness. Like @Roger, I find the snark oozes out, especially when frustrated.
For this post, I’m pretty sure I’m not an expert in Con Law or election law but yes, you are right and Paul is just badly ignorant. Cases whose holding (or one of their holdings) have been overturned are often cited for other aspects.
One final comments on Steven L. Taylor‘s assertion that
While I think this is correct, from a purely legal perspective, it probably should stand. Andy highlighted Ilya Somin’s post about the merits and from a pure application of facts to law, it is tough to dispute. That said, it should be clear to everyone by now that SCOTUS is primarily a political body, not an academic legal one and from a domestic political perspective, there is no way that Trump is prevented from running. What that says about the majority of republican-voters is damning but there it is.
@SKI:
Seriously, there’s no need to apologize. I was wrong (and my brain also, wasn’t making connections on basic Federal Procedures), and I really needed to be corrected. So I appreciated it.
One last time on the Gish Gallop ride just to illustrate things…
Remember when I wrote:@
Paul, as if on cue (I know you and the voices in your head can’t quit me Paul, but I’m just not into you in that way) responds with:
A perfect goal post moving Gish Gallop’s response. So perfect because literally the next sentence in the majority decision quote I used… references Brandenburg as being one of the last major rulings from the court on the topic. So the court apparently knew about Brandenburg.
But the voices tell Paul he’s still right… Maybe they knew Brandenburg existed but didn’t read it (because, as the Voices remind Paul, no lawyer knows as much about the law as he does). So the Gallop goes on. And as predicted, more textual diarrhea to create further issues:
Again, the majority decision cites Brandenburg throughout the legal discussion… but the Court didn’t know what it said… It’s like clockwork and so easy to spot once you understand the Gish Gallop.
Also note that even Trump’s lawyers are implicated in this theory now!
In the end Paul also leaves us with a great reminder about why trying to debate a Gish Galloper is useless:
Because Paul thinks 5 lawyers are bad then we should disregard ALL lawyers. In his defense I agree that 3 of those lawyers aren’t that great. The other guy is a liberal activist (gasp) and I suspect that Paul’s biggest issue with Gandy is she’s not only a liberal but also a woman and Black. Prediction btw folks: This will be used as the foundation for a new Gallop on Gandy and all the reasons that Paul thinks she’s a bane on our country that totally have nothing to do with her being a her and the color of her skin. Probably abortion will be brought up. And how abortion is the real racist. And then Margaret Sanger, eugENICS, VACCINE, ENGLAND’S GOT A NEW QUEEN!!!!
Oops, got caught up in the moment there.
Also, as for prosecutors and goverment lawyers, this is Paul’s usual virtue signaling. Remember that he’s a Trump defender who likes to hand wave away Trump’s record on the Justice Department. Sure Sessions and Barr did a lot of overreach at the Justice Department, but who is to blame for them? Also RUSSIAGATE, BENGHAZI, DUKE LACROSS, CHINA’S UNDER MARTIAL LAW, ROCK AND ROLL, THE COLA WARS, I CAN’T TAKE IT ANY MORE!!!!!
Now what happens next is that Paul, because the voices in his head make it constitutionally impossible for him to walk away, will again throw up (poop out?) more textual diarrhea onto the forum for someone to correct. Thus the cycle begins again. Again sad! and so predictable.
As for me, I’m stepping off the Gish Cycle for the time being. The need to respond loses it’s urgency once you notice the Gallop in play (and that the person using it is to intellectually insecure to consider they might be wrong).
British journalist and Hamas apologist Mehdi Hasan suggests using these three steps to beat the Gish gallop:
1 Because there are too many falsehoods to address, it is wise to choose one as an example. Choose the weakest, dumbest, most ludicrous argument that your opponent has presented and tear this argument to shreds (also known as the weak point rebuttal).
2 Do not budge from the issue. Don’t move on until you have decisively destroyed the nonsense and clearly made your point.
3 Call it out: name the strategy. “This is a strategy called the ‘Gish Gallop’. Do not be fooled by the flood of nonsense you have just heard.”
Trying those steps with old news that progressives have declared verboten as the narrative is too toxic, insulting and hurtful.
Correction I was wrong about Imani Gandy who is both black and a woman saying “an election is just like discovery in a legal case.”
she said “A Presidential election is just like discovery in a legal case.” So Mitt Romney/Donald Trump should release all their financial records.
Unless the Supreme Court reverses this decision, it will open a new chapter in the slow collapse of the US experiement in democracy. The loathsome Lt Governor of Texas has already floated the idea of banning Joe Biden from appearing on his state’s ballot in retaliation. Do Democrats want legal attempts to disqualify each other’s candidates from appearing on the ballot to become a new front in electioneering? What if the supreme court of North Carolina, or Alabama, or Florida, were to agree next year that the House’s impeachment articles were proof Biden gave aid and comfort to the enemies of the United States, and is therefore not entitled to appear on the 2024 ballot? A decision that would imply he’s disqualified from the office now, with God knows what ramifications.
It would be one thing to rule Trump ineligible if and when he had been found guilty of insurrection after a full court jury trial, and exhausted his appeal options. As things stand today, he has not even been charged with insurrection, but four Colorado judges found him guilty anyway after a trial lasting a few days. We have already entered an era of tit-for-tat presidential impeachments, which will apparently become the main projects for every new House majority should the other party hold the White House. God forbid the Supreme Court permits tit-for-tat ballot eligibility cases to become the norm.
@Matt Bernius: FWIW, I’ve lately changed my perspective on where things like the Gish Gallup come from, at least in most cases. I think there are people who hold strong opinions a priori, in this case that Trump is wonderful. There’s a certain subset of those who also feel strangely compelled to visit sites where people hold the opposite opinion and occasionally argue with those people. The reasons for their Trump worship vary from case to case but typically involve things like the fact that he is a swaggering bully and they secretly wish they had the courage to act like him, the laughably incorrect belief that he built some sort of real estate empire, thereby proving he is a masterful businessman, and the fact that he expresses absolutely certainty about literally everything and inadequate people are attracted to such things. Proof that it is the certainty and not the content that is attractive? The fact that Trump can express absolutely certain about A in one sentence and then a few moments later directly contradict it with equal certainty, and it doesn’t even register with his sycophants. When trying to join in the discussions here they quickly realize expressing those positions here just brings on laughter. However, the ones drop by OTB often enough eventually notice certain themes and interests that we have in our discussions, and a certain rhythm in our dialog. When they come across something that is pro-Trump and seems to have some of the same words or rhythm to it, they drag it over here and put it on display, but in kind of a cargo cult fashion, in which they don’t really even understand what it is they are offering.
To argue with someone who doesn’t even understand the position they are expressing is an exercise in futility.
@Matt Bernius: Oh, I forgot Paul was our guy with a worrisome obsession with cases where women accuse men of rape and his need to shout from the rooftops that ‘the bitches be lying’ in virtually every discussion, no matter what its about. I didn’t see any such references this time, but then again I skipped almost everything past the first sentence.
[Edit: Curious, I went up to read his latest post and it makes no sense that I can see. If he hadn’t been around a number of years I’d say he was a generative AI bot. About all you can say is that all of the words he uses are real words, but he seems to put them together randomly.]
@MarkedMan:
Good points. To be fair, I’m a big believer in Harlon’s Razor. So it’s entirely possible that Paul–or even Gish for that matter–are not doing this intentionally.
Heck, even Rudy Guillani’s lawyer put forward the “Rudy’s a flat earther when it comes to the election and nothing can help him” defense.* So Paul may not even realize that he’s doing it (fables tell us that the ruler of the Kingdom of Idiots–again, seriously the name of his blog–often fails to see that makes him an idiot too).
—
* — BTW, this is a great example of where everything collapses into a singularity with Paul. We have Rudy Guilliani who was a lawyer (gasp) and a Federal Prosecutor (GASP!) launch unsubstantiated claims against two election workers. Of course, said election workers were government employees (gasp) and BLACK WOMEN (GASP!). Who to trust less?!
As it turns out those latter factors are particularly damning–have you seen his pamphlet on Duke Lacrosse?–so the burden of proof that those two women didn’t steal the Georgia election is on the Government (WON’T THEY RELEASE THE TAPE?! RUSSIA GATE! ROCKERFELLER! CAMpenella?… ok, that’s one time too many… for now).
Point out that Rudy refused to comply with any discovery or that neither has True the Vote which has made a lot of claims and produced zero evidence since they started making those claims… well that just proves that the Government has something to hide. Also… can anyone help him understand how Bill Barr and Jeff Sessions were appointed to be Attorney General. I mean Paul is deffo supporting Trump in 2024 but he doesn’t want whoever nominated those police state prosecuting attorney MFers anywhere near the Oval Office.
Also whoever keeps approving the hiring of these Trump Campaign Attorneys needs to go too. First of all, that guy trusts lawyers. And also he only hires incompetent people.
@Matt Bernius:
You are the one in full gish gallop attack bringing up Ruby Freeman and her daughter Wandrea ArShaye “Shaye” Moss now.
When Government officials uses the police (state) SOP tactics of hiding documents and video from the public, I get a little suspicious.
But nothing must undermine the narrative that the 2020 Presidential election was the most fortified, most fairest and most honest election ever.
If you say otherwise expect a visit from the FBI.
@Paul L.: @Matt Bernius: Thank you, both, for this exciting demonstration of how argument in a vacuum works. 😉
I’ve been having this feeling for a few months, that I’ll get an alert from The Guardian saying Adolph dropped dead, or was gunned down.
I put no stock in such feelings. I don’t think they are premonitions. I don’t believe in such thing as premonitions. But I had similar feelings that indictments would drop. and then, of course, they did. In a way this was inevitable. Adolph faced so many varied criminal investigations, that at least one indictment was all but certain. And one having been filed, others were more likely to follow.
So, nothing mysterious.
And yet the feeling lingers. My subconscious seems convinced Adolph will die, one way or another, before the election.
I won’t claim anything special if this happens. After all, he’s not in good physical condition, and so many people hate him and would love to see him dead, that the odd thing is there have been no known attempts on his life so far.
@just nutha:
Fair and compliment (?) accepted.
Unless, of course, that was an insult that went over my head. In that case, up yours!
@mattbernius: Fair enough, either way.
Hahahahaha….this thread has honestly kept me entertained all day. And then we get to “I know you are, but what am I?” at the end, and he doesn’t even know he’s just proved the point Matt was making all along. Classic.
@Jax:
Truly. I started reading this, got a couple of comments, left chuckling, came back later, read a few more… Lather/rinse/repeat. Best laughs I’ve had this holiday retail hell season. Matt and all the supporting cast, all y’all are the greatest!
@Paul L.:
Schenck hasn’t been overturned; it’s been modified by subsequent opinions, most notably Brandenburg v. Ohio. Schenck is still useful, though, is that it applied to the Espionage Act whereas Brandenburg pertains to the larger issue of speech that could plausibly lead to violence.
@James Joyner:
I stand corrected.
Excellent, so protesting the Draft is still illegal because Shooting Fire in a Crowded Theater.