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this post was submitted on 08 Feb 2024
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Kagans reasoning is so fucking stupid. No one has the right to run for president and kicking one person off doesn't "decide who is president" it means they're not qualified. If I was 34 and tried to run they would say I'm not qualified...not that the state was deciding I couldn't be president.
Exactly. Saying that one state doesn't have the right to make the call is basically saying they can't enforce constitutionally based rules. If that is the case then everything would have to go to federal court, and the states would have a lot less control over their own electoral process.
Sounds like a win for a conservative stacked judiciary
Well I’d note that technically speaking what they’re saying is NOT that states may not decide who can be elected president but rather that they cannot decide who runs.
One of trumps arguments is that he can run and be elected and appear on the ballot EVEN IF he is not eligible for president. Isn’t that great?
The constitution is very clear about who is eligible to be president.
Constitutionally, aside from those who don’t qualify, yes everyone does have the right to run for president.
There are a couple arguments regarding “the office” and “an official” and “participated in an insurrection” that may or may not disqualify someone from being federally permitted to “be” president or permitted to be on a state election ballot. States already have different rules to make it onto a ballot. Just in the past couple weeks, Biden wasn’t on the NH primary ballot (he won as a write in).
If all the red states decided they didn’t want Biden on the ballot, they could decide who would be president before the election even took place. To prevent that from happening, it needs to be determined what the rules are and the legal precedent needs to be established for state courts to decide the legal battles.
We all know what happened on January 6th. But there’s a lot of people who want to misrepresent that history. I can’t believe this is the case but it is now reasonable to assume that a state could make up new history and say Biden was a participant in insurrection or guilty of treason and disqualify him from being on the ballot.
If a state wanted, it could just decide to let the state legislature pick the electors and not hold a popular vote at all. The US Constitution just says that each state appoints electors "in such Manner as the Legislature thereof may direct." It's only state laws and state constitutions that create requirements to let the people vote, so a state could repeal those for itself unilaterally.
For example, here's the relevant section of law in Georgia (OCGA § 21-2-10):
("Electors of this state" means the voting public, while "presidential electors" means the people getting nominated to the Electoral College.)
All GA would have to do is repeal that paragraph and then the General Assembly could pick whatever presidential electors they wanted, public preference be damned (at least until the legislators themselves were up for re-election).
I was surprised this wasn't raised as a counterargument by the Colorado attorney when the "one state could determine who's elected" argument was made. (If it was, I missed it.) The justices are worried that states (let's just say it: "red states") could make up some frivolous reason to keep someone off the ballot and disqualify them, but the brutal reality is that they could do it already by screwing with the electors. (Hell, Trump and his co-conspirators tried sending fake electors from some states.) Setting a precedent allowing states to use Section 3 of the 14th Amendment just give states another way to accomplish this. "Oh, Biden tripped walking up to a podium? That's insurrection!"
What's really sad/outrageous is that Trump and the GOP have so terribly warped and perverted the political norms in this country that we have to even consider the possibility of states fabricating frivolous reasons to keep someone off the ballot. We can't keep a 91 felon count indicted insurrectionist, fraudster, and rapist from getting elected and destroying democracy because his friends may avenge him by abusing and misapplying the law in the future. This really sucks.
This is a very interesting point.
Congrats on reading part of the applicable sections of the Constitution. Now read the one that actually applies here.
The part about insurrection. It is already clear based on congressional oversight of the executive branch that he is an insurrectionist. That's what the bi partisan j6 commission determined. There is no need for the courts here at all as nowhere does it say he needs to be convicted.
In fact former uses of this law didn't require a conviction. There's already case law supporting that fact.
I understand all that. I believe the issue is how this is handled. Is it up to the states? Is it up to congress? Is it up to the presidential electors? Is it up to the DNC / RNC? Who's the entity that determines who is and is not on the ballot?
As I think I understand it, the issue at hand is if a state has the authority to unilaterally bar a 'presidential candidate' from a 'general election ballot' for this reason.
Does the state get to determine on their own that the candidate is illegible? What is it in the state's constitution that says so? Shouldn't such a fact be established on a federal level to prevent the candidate from appearing on all ballots? These things aren't clear in the constitution.
The word you're looking for is ineligible.
Noticed this in your other comment and thought it was a typo but now you've forced my hand lol. Illegible means not legible, as in scrawled handwriting or bad print that is too sloppy to read.
This would require the state courts to all agree and then the Supreme Court to concur. Colorado isn't getting the final word on who can be president, they're dutifully interpreting the Constitution, making a ruling, and then letting the highest court in the land review it. It's like the Maine case writ large, it needs to start somewhere, but just because that case started with a single person making a decision doesn't mean that's the whole process or that the process itself is illegitimate. There's nothing unilateral about this, but the Supreme Court sounds like it wants to dodge responsibility for deciding whether Colorado is right or not by questioning whether they should have even been able to start the process.
Saying "Congress could just do the thing the plaintiff wants" is their tried and true dodge for things they know quite well can't or won't be done by Congress. They're quite happy to implement law without Congress's help when it's something they want and quite happy to pretend they're just deferring responsibility when it's something they don't.
I'm reiterating the argument(s) laid out in the hearing. I believe it was Justice Jackson who presented this hypothetical.
Hey, just chiming because we might both get downvoted to hell for this. After reading your comments i have altered my mindset on this somewhat and i agree that this is a presedent you dont want to go over easily. Its a knife that cuts both ways an can be used to cut you, once both parties see its possible. It would also be a funny moment when people vote for a canidate in their state, only for their spokesperson to not be able to vote for said canidate, making him, or her, not the president.
Whatever happens, the power hungry of all sides need to follow the rules, and just like everything about trump is a fucking presedent that we need to analyse and handle very carefully...
Agreed on the careful handling. With how partisan so many issues have been in the past few years, I can see this opening the door to more significant incidents in the future. Not to go "tin-foil-hat-civil-war," but I can see an example of Massachusetts, New York, and California doing XYZ while Texas, Georgia, and Florida have done ZYX that'll just add fuel to the fire.
Look at the diversity of states' positions after the overturn of Roe v Wade. It has eerily similar vibes as free and slave states did 160+ years ago. Ugh, at this point, it's time for me to meditate and read a book or something to relax.
Bingo.