Did you ever have a debate (okay – argument!) with someone and later on have the proverbial light bulb come on in your head? That slap your palm against your forehead in a “WHY didn’t I think to say THAT!” realization? Admit it. Like all the rest of us you have. I know I’ve experienced that more times than I care to remember. Or admit. Let’s be honest about something else, we think the same thing watching others debate/argue. And later on think “Why didn’t so-and-so say such-and-such?” Sometimes we think it in the moment. However we don’t want to get involved. Or we’re watching it on TV.
Or listening to oral arguments live (a rare thing) of a hearing before the U.S. Supreme Court where not only video cameras prohibited, even still cameras aren’t allowed. (Hence the title picture of the empty SCOTUS hearing room) As you no doubt know yesterday the appeal sought by both Trump and the State of Colorado was heard by SCOTUS, and it was one of those rare instances where they allowed a live audio feed. As I said here on PZ yesterday I thought Colorado blew it. I still do. Part of why relates to a couple of moments when different Justices expressed a similar concern about Colorado in effect dictating the outcome of the election. I said out load at my TV (at least I didn’t shout) “What about 2016? What about 2000? Let me explain.
The Hill has an article that recaps some of the key issues and moments of the hearing. I heard various pundits talk about this since oral arguments concluded (including discussion today) about these two moments but none of them said what I said yesterday which were “off-the-top-of-my-head” thoughts. So I’m here to tell you what they are. First I want to say Mr. Murray should have been prepared for this question. Have you ever watched an actual trial either on TV or in person? And seen several, or even a stack of legal pads in front of the “second chair” lawyer on either side? (Rest assured with well prepared lawyers there’s at least one briefcase with more under the table) Ahead of time they’ve imagined various witnesses, lines of questioning, strategies of the other side and those legal pads have how they will handle this or that when it comes up.
So, as I said when the issue that was sure to come up that went something like “Why should Colorado get to control how the election is run, or even decide the election?” Murray should have been ready. Now let’s get directly into what was asked. As The Hill’s reported Chief Justice Roberts expressed concerns:
Chief Justice John Roberts raised concerns that, if the court disqualifies Trump, other states may move in “very quick order” to boot Democratic candidates from the ballot.
“That’s a pretty daunting consequence,” said Roberts.
Although not in the article Roberts also spoke of only a few states deciding the outcome. But it gets better, or worse I guess depending on how you want to look at it:
Kagan, a liberal justice, suggested that the issue of whether to keep Trump on the ballot should be decided nationally, not by a state.
“Maybe put most boldly, I think there’s a question that you have to confront is why a single state should decide who gets to be president of the United States?” she said.
Both of these times Murray was offered a golden opportunity and he either took a pass (not wanting to piss off three of the Justices in particular for work they’d done in 2000?) or just wasn’t prepared. Or “choked” (to use a sports term) in a crucial moment. EITHER time he could have and should have said the following:
Might I respectfully remind the Justices that in 2016 the outcome of the election was decided by a total of 77,000 votes spread across only three states. However we can get even more specific. In 2000 it was clear before election day how crucial Florida would be and that the results there might well decide the outcome. As the recount was taking place Bush’s margin was less than 600 votes and the Justices on the Court in 2000 stepped in and halted it. This Court, or rather those who then sat where you now sit ruled that one state, in this case Florida would determine the outcome of an election, one in which the winner of the Electoral College LOST the popular vote. I beg the Court’s pardon for using this word, but the Court usurped the power of a State’s Supreme Court in 2000 and with the outcome of a Presidential election in the balance. What Mr. Trump’s lawyer is asking you to do is usurp the role of the Supreme Court of Colorado. Again, respectfully I submit that in the past elections have come down to a few states and slim margins in each, or even to a single state. As in 2000. Or 1960 (Illinois) for that matter. That is the nature of the Electoral College. Unless and until the Constitution is changed that will always be the case.”
At least in 2000 the five Justices who rode roughshod over the election (all Federalist Society members I might add, and three young lawyers named John Roberts, Brett Kavanaugh and Amy Coney Barret all worked on Bush’s legal team – all now Justices themselves!) but four appointees opposed them. This time even the (only three now) Democratic appointees are poised to join in with the Fascist Federalist Society appointees (only one – Thomas – was appointed by a President that won the popular vote) and usurp the power of the Colorado Supreme Court.
Yes, it would be tough to write a decision upholding the state of Colorado (and Maine too for that matter) that would ensure states didn’t go doing what Roberts was concerned about – making up bogus excuses to kick Biden off the ballot. Hell, I live in NC which is arguably the most outrageously gerrymandered states in the country. We’ve got a Democratic Governor but a veto proof GOP super-majority in both the state’s House and Senate. Despite voter registrations being evenly split (for a very long time) between Democrats, Republicans and Independents. I get the concern.
However, SCOTUS has smart people. Okay, so most use their brainpower for evil rather than good but they are smart. I’m sure they can if they want write a ruling establishing a standard, a precedent that will hold up and allow them to easily swat aside a state like mine, or perhaps Wisconsin to name another that might try to pull a stunt that could tip the election.
Well, that’s my opinion and I’m sticking to it. If you’ve read this far I thank you. And look forward to your comments whether you agree or think I’m full of shiite.
I also heard Glenn Kirshner mention the justices basically refuted the Constitution concerning the states right to run their election saying it would create chaos…you mean the kind of chaos created by overthrowing Roe vs Wade and allowing red states to lock women up for wanting control over their own bodies? That kind? I wonder when the majority of us WILL GET SICK OF THIS HYPOCRISY AND DO SOMETHING ABOUT IT?
If I’d been arguing in front of the Court (not a lawyer, so that’ll never happen), and Kagan brought up that “the issue of whether to keep Trump on the ballot should be decided nationally, not by a state,” I would’ve simply responded “Your honor (or whatever the appropriate address would be for a SCOTUS Justice), I feel I must respectfully remind you and this Court that states are ALWAYS (and, yes, I would’ve emphasized this word–probably very loudly) deciding whether to allow people on a presidential ballot. There are many states where parties can’t simply appear on a ballot even though they are nationally recognized parties; they’re forced to get signatures on petitions in varying numbers. In some states, it may be a simple number; in others, the required number is a percentage of the votes received in a statewide race in a prior election. The real argument here is not whether a state has the authority to permit someone on its ballots but rather, whether the actions of the individual in question disqualify that individual from appearing on the state’s ballot. As for any “retaliatory” actions by states wanting to disqualify President Biden, if those states have CONSTITUTIONAL merit in their disqualification efforts–which is the very heart of THIS hearing–then they should be allowed to do so. President Biden’s name was not on the New Hampshire Democratic primary ballot because the state willingly chose to violate the Democratic National Committee’s primary schedule and President Biden chose to put the Party’s rule ahead of any personal gain and yet he won that primary by a WRITE-IN vote. If Colorado–or any other state–chooses to deny a candidate’s name from its ballot, there is NOTHING to prevent a voter’s writing in that name; well, nothing beyond a voter’s inability to write. The Federal government has decided that issues of voting, beyond who has a right to vote–and, it should be noted, that some of the primaries and caucuses currently allow people to vote even though they are not *currently* of legal voting age but who will be 18 on November 5 of this year–are left to the STATES. Abraham Lincoln’s name did NOT appear on the ballots of roughly a dozen states in the 1860 election. In that same election, the Democrats named two different men as their Presidential candidate, depending on who supported them–North or South. And, as recently as 1964, the name of the incumbent President, Lyndon Johnson, did NOT appear on the Alabama presidential election ballot. This court CANNOT simply change the Constitution; that is NOT within its power. It can only rule on Constitutional matters brought before it. And, as Section 3 of the 14th Amendment declares that ONLY Congress–by a two-thirds majority vote in each House–can remove the “disability” of any candidate’s running for office when that candidate EITHER engaged in rebellion or insurrection OR gave aid or comfort to such persons, and from his own recorded actions on not only January 6, 2021 but the two months preceding that date, Donald Trump CLEARLY “gave aid or comfort” to a group of insurrectionists, including hundreds who are either currently serving prison sentences or who are awaiting trials and/or sentencing for their actions on January 6.”