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re: Dems float 14th amendment to bar Trump from running "Conviction isn't needed to qualify"
Posted on 9/5/23 at 12:22 pm to Indefatigable
Posted on 9/5/23 at 12:22 pm to Indefatigable
quote:
This is not an honest argument, IMO. I would argue that its entirely inherent that a determination by a finder of fact is required to establish that someone participated in "insurrection."
I can buy a due process argument. But we are talking about the basic qualifications for holding office, and I'm not sure where the burden lies
Let's say you have a birth certificate proving Ron Desantis was born in Kenya and is ineligible to be President. You present your evidence to the state SOS.
If the SOS ignores your evidence and keeps DeSantis on the ballot, then you sue the SOS and try to prove your case in Court.
But what if the SOS agrees with you? What is he supposed to do with this information? Does the SOS not have the power to remove his name from the ballot because he failed to meet the qualifications for office? In practice, I imagine the SOS would inform DeSantis his application to be on the ballot is in danger of being rejected, and DeSantis can either present his case to the SOS or bring a lawsuit.
2
Posted on 9/5/23 at 12:25 pm to Dday63
quote:That seems most likely.
In practice, I imagine the SOS would inform DeSantis his application to be on the ballot is in danger of being rejected, and DeSantis can either present his case to the SOS or bring a lawsuit.
Or in my scenario, tell him about the birth date question and issue something like a "show cause order," giving him the opportunity to present evidence that the certified copy of the birth certificate is not the REAL birth certificate, etc.
Posted on 9/5/23 at 12:29 pm to Dday63
The whole god damnmed Trump thing is persecution on a third world banana republic scale.
anyone attempting to justify code for such a thing is also third world persecution level
anyone attempting to justify code for such a thing is also third world persecution level
Posted on 9/5/23 at 12:30 pm to AggieHank86
I think things like age are different than the situation here because evidence of age is derived from self-authenticating legal documents that have a presumption of accuracy, etc. The SOS is allowed to depend on those records as a matter of law.
And I think you guys are correct in that the candidate would be able to take that decision to court and have the court sort out which document rules the day of there is a dispute.
However, here the issue involves whether a person engaged in a specific act that is a criminal offense under federal law.
Swap out the word insurrection with “murder” in the 14th. How would a determination that murder occurred and the person participated in it not be required there?
And I think you guys are correct in that the candidate would be able to take that decision to court and have the court sort out which document rules the day of there is a dispute.
However, here the issue involves whether a person engaged in a specific act that is a criminal offense under federal law.
Swap out the word insurrection with “murder” in the 14th. How would a determination that murder occurred and the person participated in it not be required there?
This post was edited on 9/5/23 at 12:40 pm
Posted on 9/5/23 at 12:30 pm to AggieHank86
quote:
tell him about the birth date question and issue something like a "show cause order," giving him the opportunity to present evidence that the certified copy of the birth certificate is not the REAL birth certificate, etc.
Speaking of questionable birth certificates....
Posted on 9/5/23 at 12:32 pm to RaoulDuke504
They sure do like setting precedents dont they?
Posted on 9/5/23 at 12:33 pm to AggieHank86
quote:
As I read it, the boldface language would include POTUS.
Oh. I wasn't arguing against that.
But now that you mention it, there is a legal argument that "President" is not an "office" as that term is used in the Constitution. The President appoints Officers, meaning he isn't one himself.
The authors of that Federalist Society deal with that argument, but I don't recall the details.
Posted on 9/5/23 at 12:37 pm to RaoulDuke504
I would say that those that want this to happen are a cult. Is that how this works?
Posted on 9/5/23 at 12:38 pm to AggieHank86
quote:
Why? It has happened before. Lincoln was excluded from the ballot in ten states in 1860.
You are referencing an election in which Lincoln won?
Posted on 9/5/23 at 12:40 pm to Indefatigable
quote:I think you must look at the very specific language of the Amendment
Swap out the word insurrection with “murder” in the 14th. How would a determination that murder occurred and the person participated in it not be required there?
quote:Unfortunately, the Amendment does not tell us the burden of proof as to "engaging" in insurrection or rebellion. Strikes me as a lot like "high crimes and misdemeanors," leading to a lot or court deference.
No person shall ... hold any office ... under the United States ..., who ... shall have engaged in insurrection or rebellion against the same ....
Posted on 9/5/23 at 12:43 pm to moneyg
quote:Obviously.
Why? It has happened before. Lincoln was excluded from the ballot in ten states in 1860.quote:
You are referencing an election in which Lincoln won?
We are not discussing the result of the election. We are discussing the precedent of multiple states excluding a major candidate from the ballot.
Posted on 9/5/23 at 12:43 pm to AggieHank86
Let’s set aside the “participation” aspect for a second.
Swap “insurrection” for “murder”. It now says
Are you saying that we couldn’t ascertain from that language what the burden of proof would be for determining whether a murder occurred?
I’m all for textualism, but this seems like ignoring well-established DP concepts related to deprivation of rights and privileges.
I can’t get around the need for the disqualifying act to be established as a matter of law—something a random state official cannot unilaterally do.
Swap “insurrection” for “murder”. It now says
quote:
No person shall ... hold any office ... under the United States ..., who ... shall have engaged in murder ....
Are you saying that we couldn’t ascertain from that language what the burden of proof would be for determining whether a murder occurred?
I’m all for textualism, but this seems like ignoring well-established DP concepts related to deprivation of rights and privileges.
I can’t get around the need for the disqualifying act to be established as a matter of law—something a random state official cannot unilaterally do.
This post was edited on 9/5/23 at 12:46 pm
Posted on 9/5/23 at 12:44 pm to RaoulDuke504
quote:
They're doing this because they want him to be the nominee because they know he didn't win in 2020 and can't win in 2024
-quote above taken from inside the mind of some idiot reading this thread
Posted on 9/5/23 at 12:46 pm to antibarner
quote:
Let's say that our learned barrister is right and we get the following scenario.
Trump wins the GOP nomination which is not unlikely as it stands at present
They are going to play this card before then. It’s going to be an attempt to keep him off the primary ballot.
That’s why Desantis is still in the race. He’s counting on it. That’s what they mean when they say “I’m certain Trump will never be elected. “
Posted on 9/5/23 at 12:47 pm to VOR
quote:
The odds are that Trump never becomes president again, although I suppose there could be unforeseen events between now and the election that alter the probability. I’m not certain what that would be
Dems are counting on it as well.
Posted on 9/5/23 at 12:49 pm to Indefatigable
quote:The difference (in my mind) is that 14.3 is not depriving anyone of liberty. As such, I think it is more analogous to (for instance) eminent domain (certainly a deprivation of property rights) ... with its civil ("preponderance") BoP, rather than criminal ("beyond reasonable doubt") BoP.quote:Are you saying that we couldn’t ascertain from that language what the burden of proof would be for determining whether a murder occurred?
No person shall ... hold any office ... under the United States ..., who ... shall have engaged in murder ....
Posted on 9/5/23 at 12:51 pm to Indefatigable
I think you edited to add this while I was typing:
As an aside, this is the sort of discussion (both interesting and civil) that I wish we saw here more often.
quote:I agree with you that a state SoS procedure that does NOT provide due process would probably not meet muster.
I can’t get around the need for the disqualifying act to be established as a matter of law—something a random state official cannot unilaterally do.
As an aside, this is the sort of discussion (both interesting and civil) that I wish we saw here more often.
This post was edited on 9/5/23 at 12:54 pm
Posted on 9/5/23 at 12:55 pm to AggieHank86
quote:
The difference (in my mind) is that 14.3 is not depriving anyone of liberty. As such, I think it is more analogous to (for instance) eminent domain (certainly a deprivation of property rights) ... with its civil ("preponderance") BoP, rather than criminal ("beyond reasonable doubt") BoP.
I can get there on the BoP’s, though I think “engaging in insurrection or rebellion” being a specific codified federal crime (18 USC 2383) muddies the water. I would argue that a determination that a specific crime was committed by a particular individual should require the criminal standard. But I see your point.
But let’s say you’re right and it’s a lesser BOP…….. a preponderance standard would still require a an adversarial proceeding and a court’s determination—would it not?
Posted on 9/5/23 at 1:01 pm to Indefatigable
quote:I don't know. I think it would depend upon the administrative procedure of each state. There are certainly regulatory proceedings that would qualify as "adversarial" and in which "due process" requirements are probably met.
let’s say you’re right and it’s a lesser BOP…….. a preponderance standard would still require a an adversarial proceeding and a court’s determination—would it not?
A judicial determination would be clearest, but a determination by something like an administrative judge might well be adequate. Honestly not my bailiwick.
I certainly haven't researched the applicable standards in 50 states and DC!
Posted on 9/5/23 at 1:05 pm to AggieHank86
quote:
A judicial determination would be clearest,
Legal analysis aside, I worry that there would be violence if anything less than a state or federal court decision is used to try this.
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