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I wouldn't count this as over just yet. it makes sense that the judges would reserve their harshest questioning for the side that feels they must upend an election. Even the Liberal justices were wary of that.
They spent very little time on the topic of whether Trump was engaged in insurrection. To me, that means their minds are made up on that, one way or the other. You would think if they were going to let him off the hook based on that, though, they would ask more questions.
I think they will rule that individual states can't use the amendment to keep candidates off of primary ballots. That much is clear. I wonder if they rule that Trump must remain on the ballot, but cannot serve if he wins -- unless waived by Congress. It would make the discussion of Trump's VP much more interesting.
I hope you're correct in your analysis.
To me the argument was leaning more into the idea that it would be a violation of Stinky's rights to prevent him from being in the ballot. I think it's nuts to say, allow a traitor to run and be elected, then they can attempt to have their disability removed by Congress.
If they rule to overturn Colorado's decision, they will have essentially nullified section 3.
I don't think the reconstructionists ever imagined that a large number of people would look at someone who pointed a cannon at the Constitution and say that person should definitely hold office. If section 3 is not self-executing I struggle to see how it could be effectively used in any scenario.
Which is an absolute horseshit argument. Is it a violation of the rights of a 33 year old person to say he's constitutionally ineligible to be President?
No, because that's literally one of the conditions for office the Constitution requires.
There is no due process violation because there's no process at all- if you try to overthrow the government that is a prima facie disqualifier for being President. You don't have to be convicted, the same way you don't get convicted of being under 35 or convicted of not spending 14 years in the US.
To say otherwise means there's a lot of dead Confederates the US government owes an apology to.
The main shortcoming of that is that it's easily definable and determinable that someone is under 35yrs old, or hasn't lived in the US for 14yrs.
But the definition of participation in insurrection is a little more loosy-goosy, and then you have to be (legally speaking) explicit in what constitutes proof that a potential candidate has participated in such an insurrection. Otherwise it will devolve into anyone accusing the candidates they don't like of having participated in attempted insurrection.
To be clear, I'm not advocating that Trump should be allowed on the ballot or to be president, because he absolutely shouldn't. I'm just pointing out that it's not as simple as saying a candidate is younger than 35.
Yes, you're absolutely correct.
But Colorado already decided that. The court found, as a matter of fact and using previous judicial case law, that Trump does meet all of the requirements necessary for disqualification under the 14th. It's not just a single person choosing to keep Trump off the ballot.
Besides that, we literally have
But the challenge isn't that he's not eligible to run in the primary. The challenge is that he's not eligible to run for President. So if they rule that he isn't, and they do it quickly, states will have to leave him off the ballot in September(ish) when early ballots are printed.
If he's eligible to be on the ballot, he's eligible to run for President. There's no mechanism where SCOTUS can say "yes you can run, but we say you can't be sworn in." Their only opening is on the eligibility question, which is a simple yes or no.
It can't be a simple yes or no, though, because the eligibility restriction can be waived. And the amendment says "No person shall ... hold any office", which says nothing about running for office. There's nothing that says that waiver has to come before declaring any candidacy.
I would not put it past them to say something like "He is currently ineligible. If he runs anyway, then Congress can wait to decide to waive it until after the election". Kicking the can as far down the road as possible, in the hopes that Trump loses and none of this is necessary.
The nuance you're missing is that Congress by 2/3rds majority can vote to essentially nullify ineligibility part of the 14th amendment. So he could theoretically get elected and Congress could vote that he could still serve despite leading an insurrection.
Would Congress ever vote on that? Not a chance. But it still leaves open eligibility, which is the issue. If he could be eligible to be president, can he really be kept off the ballot?
There is a near 0 chance SCOTUS will rule beyond what is in front of them. And in this case that is the question if the states have the right to keep candidates off the ballots for the federal election based on article 14 section 3 as this is the justification that was chosen by colorado.
The subjects that will not be touched in this case:
It is an interesting question, as this asks if the states have the right to determine the answers to the 3 questions above for themselves.
And this is what the main questions today seemed to be about. Because a "yes, states can define this themselves' would lead to potentially different answers based on the states.. and that seems to be an undesired outcome.
The probable outcome is "no states cannot decide" I doubt they will even a sweet "if not states then who" but probably congress. But then..if congress decides.. why can they decide to overrule with 2/3 majority?
And how would this then have worked during the post civil war era? As I said.. interesting.. I'm curious how SCOTUS will answer.. especially the motivation.
And this also allows the conservative judges to leave the 3 questions unanswered for another day....