The GOP is griping that to use the 14th Amendment of their revered Constitution to disallow Trump from the ballot “disenfranchises millions of voters who should rightfully decide in a US election.”
Ever notice they're only interested in voting rights when it's their own candidate on the chopping block?
They are missing a key fact, they may not vote for someone, like Anna Paulina Luna from Florida, because she is note eligible for president. Aren't they being denied the right of choice in that case? Well no, they are not because she is not eligible for that office. Just like AOC isn't eligible.
The government may not abridge our fundamental rights without due process. A fundamental right is the right to vote. We are not guaranteed the right to vote for our preferred candidate, only the right to vote for a candidate.
This sun's mething maga is missing and honestly conflating. You are right, when it comes to the constitution, they only care if they are being denied rights (or can make an argument that they are)
Voters must not be given the chance to vote for an insurrectionist or any other legal prohibition from holding office. Never ever should Trump’s name appear on any ballot for any post.
"Ever notice they're only interested in voting rights when it's their own candidate on the chopping block?"
Like they were only NOT interested in voting rights when it's the other candidate on the chopping block on January 6th? (Plus Pence in the hangman's noose).
Well-argued POV, Jay, and admittedly trying to tease out possible SCOTUS rulings on §3 - or non-rulings, for that matter - is a straight path down the proverbial judicial rabbit-hole. Yes, ultimately it DOES come down to us the voters, but we do need a big lift from the justice system, such as a conviction or two to cement the notion that voting for tRump is voting for a convicted criminal. Sure, his MAGA faithful would consider criminal convictions equivalent to the crucification of Christ, but, do you know what? - eff them, the better side of the average voter will carry the day, and we finally may be rid of this malignancy come next November.
Lance....I say a big DITTO to your comment! If TFG isn’t the poster child for the 14th Amendment/ Section 3 then I can’t imagine what human would be! The Supremes should think really deeply about the consequences of permitting a malevolent, sociopathic , that incited a insurrection & with 91 Indictments pending , to be candidate for president! It only opens Pandora’s Box for Democracy in the USA to go down the toilet and support every psycho autocrat that aspires to run our country on the State level all the way up to the Presidency. TFG and his MAGATS need a big blow...a strong message sent that America is a Democracy not an Autocracy.
As discussed in Jay's yesterday's post on voting rights and convicted felons, we don't allow felons to vote even after they had served their sentence. We also don't allow naturalized citizens to run for President - a dumb rule, I find, since a lot of us are much more knowledgeable about matters of state and much better qualified for a job. In that light, allowing someone like Trump ANY form of participation in any election - let alone on the ballot - is a slap in the face.
I'm interested in seeing if Mr. Ginny Thomas will recuse himself. Additionally, aren't the GOP all about states rights? I would think they'd be delighted that states are exercising that right.
It has to be said. Due process for the PRIVILEGE of appearing on a ballot is much different and far be it less important than due process for ones fundamental freedoms of person and property. He is not fighting to remain free, he is fighting for elected office. One in which, arguably, nobody has a fundamental right to possess.
5A (and 14As1 reaffirms this same right, adding any person equal protection under the law) guarantees nobody shall be deprived of life liberty or property without due process. He is being denied none of these things by being denied w place in the ballot.
Yeah, that's Laurence Tribe's argument. Once he's in office, it's tough to knock him out. But there is no RIGHT to be listed as a candidate. That's not spelled out anywhere, really. If these SCOTUS hypocrites follow the FEDERALIST constitutional model that Scalia was so fond of harping on about, they must let the individual states apply their own laws to the matter.
It also goes without saying that he is free right now because of the 5A and 14Ap1, which guarantees due process. Running for office is not a substitute for robust due process which he is already receiving
Appearing on a ballot isn't a privilege, though. Ballot access for all is a fundamental right in a democracy, even if certain *universal* qualifications are imposed.
Appearing on the ballot is still regulated and has eligibility requirements.. Show me where in our constitution that running for office is a fundamental right that cannot be abridged without due process?
Jay admire your tenacity in dissecting all the puts and takes of our state and federal judicial systems..and emphasizing the Constitutional background. Grateful for your rational and measured approach in helping to clear the noise. Protecting our democracy is and will be an onging struggle. Thank you!
Thanks for this excellent analysis, Jay. Your last paragraph sums it up perfectly. Voters must decisively vote BLUE at every level, from school boards to governors to president. We can't let fascism get a foothold at any level.
I'm thinking of a thought experiment in which Trump is disqualified based on the 14th amendment.
What then would be considered aiding/providing comfort? Would the 14th amendment apply to those in congress that have promoted the "Big Lie"? How about those that gave tours of the Capitol just before the insurrection? Just a thought ...
Included in that would be his handmaidens who organized and delivered fake electoral ballots....? And would that mean new and separate charges for those who have already been convicted for storming the Capitol?
"handmaidens who organized and delivered fake electoral ballots...."
Those folks are currently getting charged in various jurisdictions already, and some have already copped pleas. The Congressvermin accomplices may or may not be held accountable at a later date, after the insurrectionist-in-chief has been dealt with.
IF TFG is finally dealt with permanently, either their constituents may well tire of their crap and vote them out, or they themselves will decide there is no percentage in continuing the charade. Alternatively, having obtained conviction(s) of himself, Mr. Smith may then turn his attention to the enablers.
We have a LONG way to go with all of this, and unfortunately there are no shortcuts. Continue to contribute to sane candidates and vote Blue!
It is truly amazing that one human being (purportedly) could create this kind of conundrum for the other 330+ million residents/citizen of the USA. I know he is just the front man for a whole movement of aggrieved people, but still they and he exist and they have torn a chasm in the US body politic. He is already telling us that he has no intention of accepting any but one outcome of the election. They are better armed than us. unless there is a landslide without historical precedent, next year I fear for the future of our country.
Yeah. The law seems stacked to protect the ability of one single individual to tear the whole thing down rather than for the nation to protect itself against that individual.
I have come to the same conclusion, Jay. I want and expect that the rule of law will be upheld in ALL matters regarding Donald Trump, including the criminal cases before him and the ballot eligibility issue . For the future of our country, any president who clearly violates the law (with impunity in Trump’s case) must be held accountable exactly as any other citizen of the country would be. No more so, no less so. Trump has already been accorded far more deference than we should be giving him. Candidate or not, move forward resolutely with all legal matters being adjudicated against him. Let him figure out how to campaign under the strictures imposed upon him as a defendant under the law. He brought these problems upon himself; show him zero accommodation. Zero.
Regardless of how many ballots he's allowed to be on, we must vote for Democrats on all levels. Every Republican, national, state and local, have show that their loyalties lie with trump and his base, not with our country. They all must be soundly defeated in Nov. It's the only thing we have. SCOTUS, in its current makeup, cannot and must not be trusted to do the right thing. When this shakes out, hopefully with Democrats fully in charge, SCOTUS must be expanded to 13 and at least Thomas and Alito need to be impeached. That'll be a good start to cleaning this trump stain off of our country.
"we must vote for Democrats on all levels" - with one exception. All Democrats should re-register to vote in the Republican primaries because that's a good way to prevent TFG to get into the general.
Except all of the Republicans running are horrible people who will burn us down to satisfy the cult. Regardless of who the nominee is on that side, we must outnumber them by a lot in the general.
You are right, of course, but that's fraught with peril. The Democrats did that in 2016 with their superdelegate machinations, and it did not go over well.
Jay, can you please revisit the part about the Senate acquitting Trump over January 6th? I feel that this decision has zero credibility as anything based on truth and the rule of law, and legitimizing it hurts democracy's prospects:
Wasn't it 149 House members that voted AGAINST certifying Biden's win? Then 11/8/22, 120 of those coup supporters were reelected. In the Senate Republican, there was and is similar widespread denial of observed events and established facts.
When cult members follow their leader, those members' decisions should not be normalized or given credence.
Clearly TFG participated in an insurrection against the United States and clearly that invalidates him from holding office again under Section 3 of the 14th Amendment. It’s meant to be self executing, but other parts of the Constitution leave election administration to the states.
Additionally, Title 5 U.S. Code 7311 which makes for a confusing read for those not trained in the code language of revoking and amending, but it seems subparagraphs (1) and (2) more than codify the insurrection clause of Section 3 of the 14th Amendment.
How will the U.S. Supreme Court find or side step the issue? IMHO they will side step the insurrection definition as it applies to TFG and decide primary elections and caucuses are run by states and political parties and let each decide on their own. This kicks the can down the road to the general election.
Interestingly, since the current Supreme Court lives in the 1920’s or 1850 depending on the issue, they could take the pre reconstruction way out and decide its state by state for the general election. In 1860, Lincoln did not appear on the ballot in ten southern states. Ballots were supplied to the electorate by the political parties or printed as a public service by newspapers. No individual(s) or newspaper dared do that in the southern states. An exception was South Carolina which did not at that time have a popular vote election as electors to that state’s delegation to the electoral college were selected by the state legislature.
In the late nineteenth century, political party provided ballots and those printed in general circulation newspapers were replaced as states started using secret ballots as a method of disenfranchising black voters and illiterate whites. It became illegal for someone to provide voter assistance or view another person’s ballot.
That's the only ballot I care about. The party will nominate who they want, regardless of primary results. Assignment of delegates via primary is a rule, not a law. And in any case, the party certainly can, and no doubt will, encourage all "right-thinking" conservatives to write him in anyway.
If he is finally determined by SCOTUS to be ineligible to serve, that will be all she wrote. Otherwise, he must be both convicted and defeated.
I want to point out that the Senate decided not to convict a SITTING president for insurrection, whereas the 14th amendment addresses citizens who aspire to elected office. Mr Trump, for all his bombast, is a former president with limited residual privileges, otherwise an ordinary citizen. These officials in various states, consistent with their specific state statutes, are REQUIRED to follow the law and the constitution, which includes the 14th amendment. It should be the obligation of the candidate to argue that he ISN’T disqualified by his prior and very public behavior, from access to the ballot.
That reasoning is common sense, but it misses the point about why some people (falsely, IMO) claim the impeachment matters. Their reasoning is: the impeachment was a trial, therefore the question of insurrection has already been decided, and can't be brought up again in a new trial. For that evaluation, what job the accused has or had is completely irrelevant.
Of course, this reasoning falls flat for another reason: impeachment is not a criminal trial, and in fact the Constitution explicitly allows a separate criminal trial.
On the other hand, the House proceedings featured prodigious evidence of his insurrectionist behavior that the Supreme Court has no right to ignore. And its conclusions, led in no small part by a Republican, are there in plain sight for SCOTUS to see.
The GOP is griping that to use the 14th Amendment of their revered Constitution to disallow Trump from the ballot “disenfranchises millions of voters who should rightfully decide in a US election.”
Ever notice they're only interested in voting rights when it's their own candidate on the chopping block?
That is rich isn't it coming from the party that has made voter disenfranchisement a central component of their political campaign strategies?
They are missing a key fact, they may not vote for someone, like Anna Paulina Luna from Florida, because she is note eligible for president. Aren't they being denied the right of choice in that case? Well no, they are not because she is not eligible for that office. Just like AOC isn't eligible.
The government may not abridge our fundamental rights without due process. A fundamental right is the right to vote. We are not guaranteed the right to vote for our preferred candidate, only the right to vote for a candidate.
This sun's mething maga is missing and honestly conflating. You are right, when it comes to the constitution, they only care if they are being denied rights (or can make an argument that they are)
Voters must not be given the chance to vote for an insurrectionist or any other legal prohibition from holding office. Never ever should Trump’s name appear on any ballot for any post.
An exception is for prison block president.
"Ever notice they're only interested in voting rights when it's their own candidate on the chopping block?"
Like they were only NOT interested in voting rights when it's the other candidate on the chopping block on January 6th? (Plus Pence in the hangman's noose).
Well-argued POV, Jay, and admittedly trying to tease out possible SCOTUS rulings on §3 - or non-rulings, for that matter - is a straight path down the proverbial judicial rabbit-hole. Yes, ultimately it DOES come down to us the voters, but we do need a big lift from the justice system, such as a conviction or two to cement the notion that voting for tRump is voting for a convicted criminal. Sure, his MAGA faithful would consider criminal convictions equivalent to the crucification of Christ, but, do you know what? - eff them, the better side of the average voter will carry the day, and we finally may be rid of this malignancy come next November.
Lance....I say a big DITTO to your comment! If TFG isn’t the poster child for the 14th Amendment/ Section 3 then I can’t imagine what human would be! The Supremes should think really deeply about the consequences of permitting a malevolent, sociopathic , that incited a insurrection & with 91 Indictments pending , to be candidate for president! It only opens Pandora’s Box for Democracy in the USA to go down the toilet and support every psycho autocrat that aspires to run our country on the State level all the way up to the Presidency. TFG and his MAGATS need a big blow...a strong message sent that America is a Democracy not an Autocracy.
As discussed in Jay's yesterday's post on voting rights and convicted felons, we don't allow felons to vote even after they had served their sentence. We also don't allow naturalized citizens to run for President - a dumb rule, I find, since a lot of us are much more knowledgeable about matters of state and much better qualified for a job. In that light, allowing someone like Trump ANY form of participation in any election - let alone on the ballot - is a slap in the face.
I'm interested in seeing if Mr. Ginny Thomas will recuse himself. Additionally, aren't the GOP all about states rights? I would think they'd be delighted that states are exercising that right.
Mr. Ginny is too busy restocking the booze in his Federalist Society camper that he can't drive because it's bigger than the New Jersey Turnpike.
It has to be said. Due process for the PRIVILEGE of appearing on a ballot is much different and far be it less important than due process for ones fundamental freedoms of person and property. He is not fighting to remain free, he is fighting for elected office. One in which, arguably, nobody has a fundamental right to possess.
5A (and 14As1 reaffirms this same right, adding any person equal protection under the law) guarantees nobody shall be deprived of life liberty or property without due process. He is being denied none of these things by being denied w place in the ballot.
Yeah, that's Laurence Tribe's argument. Once he's in office, it's tough to knock him out. But there is no RIGHT to be listed as a candidate. That's not spelled out anywhere, really. If these SCOTUS hypocrites follow the FEDERALIST constitutional model that Scalia was so fond of harping on about, they must let the individual states apply their own laws to the matter.
But it goes without saying that he is Fighting for elected office To Remain Free, from prosecution...
It also goes without saying that he is free right now because of the 5A and 14Ap1, which guarantees due process. Running for office is not a substitute for robust due process which he is already receiving
Appearing on a ballot isn't a privilege, though. Ballot access for all is a fundamental right in a democracy, even if certain *universal* qualifications are imposed.
Appearing on the ballot is still regulated and has eligibility requirements.. Show me where in our constitution that running for office is a fundamental right that cannot be abridged without due process?
Jay admire your tenacity in dissecting all the puts and takes of our state and federal judicial systems..and emphasizing the Constitutional background. Grateful for your rational and measured approach in helping to clear the noise. Protecting our democracy is and will be an onging struggle. Thank you!
Thanks for this excellent analysis, Jay. Your last paragraph sums it up perfectly. Voters must decisively vote BLUE at every level, from school boards to governors to president. We can't let fascism get a foothold at any level.
Great summary of what is a complex situation.
I'm thinking of a thought experiment in which Trump is disqualified based on the 14th amendment.
What then would be considered aiding/providing comfort? Would the 14th amendment apply to those in congress that have promoted the "Big Lie"? How about those that gave tours of the Capitol just before the insurrection? Just a thought ...
Included in that would be his handmaidens who organized and delivered fake electoral ballots....? And would that mean new and separate charges for those who have already been convicted for storming the Capitol?
"handmaidens who organized and delivered fake electoral ballots...."
Those folks are currently getting charged in various jurisdictions already, and some have already copped pleas. The Congressvermin accomplices may or may not be held accountable at a later date, after the insurrectionist-in-chief has been dealt with.
IF TFG is finally dealt with permanently, either their constituents may well tire of their crap and vote them out, or they themselves will decide there is no percentage in continuing the charade. Alternatively, having obtained conviction(s) of himself, Mr. Smith may then turn his attention to the enablers.
We have a LONG way to go with all of this, and unfortunately there are no shortcuts. Continue to contribute to sane candidates and vote Blue!
I also am wondering that.
It is truly amazing that one human being (purportedly) could create this kind of conundrum for the other 330+ million residents/citizen of the USA. I know he is just the front man for a whole movement of aggrieved people, but still they and he exist and they have torn a chasm in the US body politic. He is already telling us that he has no intention of accepting any but one outcome of the election. They are better armed than us. unless there is a landslide without historical precedent, next year I fear for the future of our country.
Yeah. The law seems stacked to protect the ability of one single individual to tear the whole thing down rather than for the nation to protect itself against that individual.
Gonna be wild he was right about that. Hope America survives as a democracy and not too many lives are sacrificed in the turmoil.
They are not better armed than us. They think they are....
Everyone acts as if all gun owners are Republicans and no Democrats own guns. ...
I have come to the same conclusion, Jay. I want and expect that the rule of law will be upheld in ALL matters regarding Donald Trump, including the criminal cases before him and the ballot eligibility issue . For the future of our country, any president who clearly violates the law (with impunity in Trump’s case) must be held accountable exactly as any other citizen of the country would be. No more so, no less so. Trump has already been accorded far more deference than we should be giving him. Candidate or not, move forward resolutely with all legal matters being adjudicated against him. Let him figure out how to campaign under the strictures imposed upon him as a defendant under the law. He brought these problems upon himself; show him zero accommodation. Zero.
Zero accommodation - yes!!
Appeasement didn't work before. It won't now.
Regardless of how many ballots he's allowed to be on, we must vote for Democrats on all levels. Every Republican, national, state and local, have show that their loyalties lie with trump and his base, not with our country. They all must be soundly defeated in Nov. It's the only thing we have. SCOTUS, in its current makeup, cannot and must not be trusted to do the right thing. When this shakes out, hopefully with Democrats fully in charge, SCOTUS must be expanded to 13 and at least Thomas and Alito need to be impeached. That'll be a good start to cleaning this trump stain off of our country.
"we must vote for Democrats on all levels" - with one exception. All Democrats should re-register to vote in the Republican primaries because that's a good way to prevent TFG to get into the general.
Except all of the Republicans running are horrible people who will burn us down to satisfy the cult. Regardless of who the nominee is on that side, we must outnumber them by a lot in the general.
The RNC can and probably will nominate t regardless of the outcome of the primaries.
You are right, of course, but that's fraught with peril. The Democrats did that in 2016 with their superdelegate machinations, and it did not go over well.
Jay, can you please revisit the part about the Senate acquitting Trump over January 6th? I feel that this decision has zero credibility as anything based on truth and the rule of law, and legitimizing it hurts democracy's prospects:
Wasn't it 149 House members that voted AGAINST certifying Biden's win? Then 11/8/22, 120 of those coup supporters were reelected. In the Senate Republican, there was and is similar widespread denial of observed events and established facts.
When cult members follow their leader, those members' decisions should not be normalized or given credence.
Excellent analysis and commentary by Jay.
Clearly TFG participated in an insurrection against the United States and clearly that invalidates him from holding office again under Section 3 of the 14th Amendment. It’s meant to be self executing, but other parts of the Constitution leave election administration to the states.
Additionally, Title 5 U.S. Code 7311 which makes for a confusing read for those not trained in the code language of revoking and amending, but it seems subparagraphs (1) and (2) more than codify the insurrection clause of Section 3 of the 14th Amendment.
https://www.law.cornell.edu/uscode/text/5/7311
How will the U.S. Supreme Court find or side step the issue? IMHO they will side step the insurrection definition as it applies to TFG and decide primary elections and caucuses are run by states and political parties and let each decide on their own. This kicks the can down the road to the general election.
Interestingly, since the current Supreme Court lives in the 1920’s or 1850 depending on the issue, they could take the pre reconstruction way out and decide its state by state for the general election. In 1860, Lincoln did not appear on the ballot in ten southern states. Ballots were supplied to the electorate by the political parties or printed as a public service by newspapers. No individual(s) or newspaper dared do that in the southern states. An exception was South Carolina which did not at that time have a popular vote election as electors to that state’s delegation to the electoral college were selected by the state legislature.
In the late nineteenth century, political party provided ballots and those printed in general circulation newspapers were replaced as states started using secret ballots as a method of disenfranchising black voters and illiterate whites. It became illegal for someone to provide voter assistance or view another person’s ballot.
Thank you for the analysis.
Okay, we've got the states ballots situation all squared away and figured out for the primaries.
(pauses for laughter).
What about the general election, if the Mouth of Methane gets that far?
That's the only ballot I care about. The party will nominate who they want, regardless of primary results. Assignment of delegates via primary is a rule, not a law. And in any case, the party certainly can, and no doubt will, encourage all "right-thinking" conservatives to write him in anyway.
If he is finally determined by SCOTUS to be ineligible to serve, that will be all she wrote. Otherwise, he must be both convicted and defeated.
I want to point out that the Senate decided not to convict a SITTING president for insurrection, whereas the 14th amendment addresses citizens who aspire to elected office. Mr Trump, for all his bombast, is a former president with limited residual privileges, otherwise an ordinary citizen. These officials in various states, consistent with their specific state statutes, are REQUIRED to follow the law and the constitution, which includes the 14th amendment. It should be the obligation of the candidate to argue that he ISN’T disqualified by his prior and very public behavior, from access to the ballot.
That reasoning is common sense, but it misses the point about why some people (falsely, IMO) claim the impeachment matters. Their reasoning is: the impeachment was a trial, therefore the question of insurrection has already been decided, and can't be brought up again in a new trial. For that evaluation, what job the accused has or had is completely irrelevant.
Of course, this reasoning falls flat for another reason: impeachment is not a criminal trial, and in fact the Constitution explicitly allows a separate criminal trial.
On the other hand, the House proceedings featured prodigious evidence of his insurrectionist behavior that the Supreme Court has no right to ignore. And its conclusions, led in no small part by a Republican, are there in plain sight for SCOTUS to see.