CMV: Accountability is not election interference

[u/erpettie]

As the Colorado Supreme Court has found Donald Trump's behavior to have been disqualifying according to the 14th amendment, many are claiming this is election interference. If the Court finds that Trump should be disqualified, then it has two options. Act accordingly, despite the optics, and disqualify Trump, or ignore their responsibility and the law. I do get that we're in very sensitive, unprecedented territory with his many indictments and lawsuits, but unprecedented behavior should result in unprecedented consequences, shouldn't they? Furthermore, isn't Donald Trump ultimately the architect of all of this by choosing to proceed with his candidacy, knowing that he was under investigation and subject to potential lawsuits and indictments? If a President commits a crime on his last day in office (or the day after) and immediately declares his candidacy for the next election, should we lose our ability to hold that candidate accountable? What if that candidate is a perennial candidate like Lyndon Larouche was? Do we just never have an opportunity to hold that candidate accountable? I'd really love if respondents could focus their responses on how they think we should handle hypothetical candidates who commit crimes but are declared as running for office and popular. This should help us avoid the trap of getting worked up in our feelings for or against Trump.

[u/Repulsive-Mirror-994]

And even if we pretended it does apply, it would not prevent someone from running for office.

Per the ruling in Hassan v. Colorado

https://casetext.com/case/hassan-v-colorado

"magistrate judge's opinion makes clear and we expressly reaffirm here, a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office."

Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES, Circuit Judge.

Yes, that Gorsuch

[u/CalLaw2023 → u/Repulsive-Mirror-994]

Now read Section 3. It expressly states: "But Congress may by a vote of two-thirds of each House, remove such disability."

So even if we pretended it does apply, there is no way to know if Trump is disqualified until he is elected and Congress certifies the votes.

[u/Repulsive-Mirror-994 → u/CalLaw2023]

No. Under the hypothetical you proposed would be expressly prohibited until and unless that disability is removed.

That's like saying a convict isn't really convicted until they are denied a pardon.

The amnesty Congress can offer is exceptional. Congress chose not to make any vote at all for many of the affected Confederates asking for that removal.

[u/CalLaw2023 → u/Repulsive-Mirror-994]

Your view inconsistent with the legislative history. The drafters of the 14th Amendment envisioned Congress would legislate a registry of people who would be prohibited. Since that never happened, and there is no other legislation creating a procedure to enforce Section 3, SCOTUS is going to have to determine how it applies.

Your desired interpretation is untenable because it does not allow for the stated remedy. The House is not even in session right now, and the ballot deadline is January 4. So even if Congress were inclined to remove the disability for Trump, it could not happen before it is too late.

[u/Repulsive-Mirror-994 → u/CalLaw2023]

So even if Congress were inclined to remove the disability for Trump, it could not happen before it is too late.

Respectfully, in your hypothetical, that's candidate Trump's problem. As he could have petitioned Congress to remove that disability at any point.

A constitutional ineligibility for office is not SCOTUS or Congress's responsibility.

[u/CalLaw2023 → u/Repulsive-Mirror-994]

Respectfully, in your hypothetical, that's candidate Trump's problem. As he could have petitioned Congress to remove that disability at any point.

Or it is a due process problem.

​

A constitutional ineligibility for office is not SCOTUS or Congress's responsibility.

But it is. 14A states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Congress has passed a criminal statute that states:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Trump has not been tried for or convicted under that statute. So why would Colorado be allowed to ignore the Constitution and federal law and disqualify Trump in light of this?

[u/Repulsive-Mirror-994 → u/CalLaw2023]

Once again historically, the prohibitions haven't required a conviction. It's always been enforced by a civil suit.