The New Election Interference Strategy

[gil]

Maybe it could get somewhere, this is from the Federalist Society. We have an originalist leaning supreme court these days

“We thought: ‘We’re constitutional scholars, and this is an important constitutional question. We ought to figure out what’s really going on here.’ And the more we dug into it,” he said, “the more we realized that we had something to add.”

What they added were 126 pages of airtight argument, from a conservative, originalist perspective, for the case to disqualify Trump. Federalist Society co-founder Steven G. Calabresi lauded it as “a tour de force.”

Yet making that case and enforcing it are two separate things. As a like-minded constitutional expert, Mark A. Graber, wrote in an earlier and shorter dive into Section 3, “The only question that remains is whether — and how — that will happen.”

Baude and Paulsen say the enforcers should be “anyone whose job it is to figure out whether someone is legally qualified” to hold office and to be included on state ballots — that is, state election administrators, typically the secretaries of state.

Which is exactly what the lawsuit is about

Yes we do have an originalist leaning SCOTUS - though some people invoke originalism when it suits them, and I doubt they would if this question ever came to them.

I suspect that there will not be any serious attempt to keep Trump off the ballot in any state. A lot of noise, maybe, but amounting to zero. The 14th amendment was intended to address the people who participated in the Civi War on the side of the Confederacy ... correct? If Trump is found guilty of all the things he is charged with (by the Special Counsel and the Fulton County DA) I think there would be a case to be made that he was lying and being fraudulent about the 2020 election, but I'm not sure that is the same thing as trying to overthrow the government or start a new country (as in the case of the Confederacy). Maybe I'm missing something.

[Donn Beach]

I have no idea, I'm not that familiar with the constitution sadly to say. It does actually sound like an interesting originalist question. That's what originalism is about. But I don't believe it has to do with his being found guilty of something. I think it's that he is disqualified now.its interesting, I might look into it some more

[Mel Bradford]

CREW, the group who filed suit under the 14th amendment to essentially keep former President Trump off the ballot are what we would call textualists...not originalists.

Simply put a textualist takes law language, divorces it from context or original intent and in this case even precedent and reinterprets the language to mean something otherly and often expedient and entirely political, not legal. All they need is a judge with a signature and up the flag pole it goes.

America is the land of frivolous law suits. But the Plaintiffs bar could care less if they clog the system. In this case a handful of communist policy-wonks living off tax free foundation money live for headline to confirm their cause celeb, keep the spigot open, and pretend its for the greater good. A high stakes game where the real perpetrators win either way.

14th amendment court decisions by way of the High Court have obliterated the distinctions between state and federal jurisdiction by "re-imagining" three clauses: .....equal protection clause , privileges and immunity clause, and the due process clause. The process has ensued since 1920 and has completely reorganized America government and society....over time and practically unnoticed by the American public.

[Donn Beach]

Excuse me, but I don't recall anybody here claiming CREW were orginalists, it's the Federalist Society members that are in support of the challenge by CREW that would be considered the orginalists.

Here is where originalism comes into play...

conservative legal scholars William Baude and Michael Stokes Paulsen wrote in a law review paper that Section 3 is "self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress".

Mr Trump could therefore be rendered ineligible for the ballot "by every official, state or federal, who judges qualifications", the pair concluded.

Mr Baude and Mr Paulsen are members of the Federalist Society, a highly influential, conservative advocacy group.

In terms of the influence of the federalist society

It vetted President Donald Trump's list of potential U.S. Supreme Court nominees; in March 2020, 43 out of 51 of Trump's appellate court nominees were current or former members of the society.

Of the current nine members of the Supreme Court of the United States, at least five are current or former members of the organization, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Chief Justice John Roberts previously served as a member of the steering committee

But then on the other hand you have prominent liberals attacking it, basically viewing it as voter suppression

In an opinion piece for Bloomberg, liberal professor Noah Feldman wrote: "Donald Trump is manifestly unfit to be president. But it's up to voters to block him. Magic words from the past won't save us."

The topper is probably a challenge in new Hampshire could be funded by a card carrying Trump supporter. He wants it decided by the court before he goes and votes for him.

The New Hampshire challenge is notably being touted by Bryant "Corky" Messner, a top Republican attorney who ran for the US Senate in 2020 with Mr Trump's endorsement.

Mr Messner, who intends to finance any 14th Amendment challenges to Mr Trump in his state, wants the courts to deliver their verdict before he can decide on whether to support Mr Trump.

"To me, it's purely about the Constitution," he said. "The US Constitution is more important than any one individual, be it Donald Trump or anyone else."

"If he ends up being the nominee of the Republican Party and he's not disqualified, I'll vote for him."

The new Hampshire challenge is interesting in that since it's the first state to vote it could be the case that's heard. And new Hampshire is anything but a lib state. I can respect Mr messner in that he believes the constitution of the united states is what's important here. He does seem to have a brain and seems interested in using it

[gil]

Excuse me, but I don't recall anybody here claiming CREW were orginalists, it's the Federalist Society members that are in support of the challenge by CREW that would be considered the orginalists.

Here is where originalism comes into play...

conservative legal scholars William Baude and Michael Stokes Paulsen wrote in a law review paper that Section 3 is "self-executing, operating as an immediate disqualification from office, without the need for additional action by Congress".

Mr Trump could therefore be rendered ineligible for the ballot "by every official, state or federal, who judges qualifications", the pair concluded.

Mr Baude and Mr Paulsen are members of the Federalist Society, a highly influential, conservative advocacy group.

In terms of the influence of the federalist society

It vetted President Donald Trump's list of potential U.S. Supreme Court nominees; in March 2020, 43 out of 51 of Trump's appellate court nominees were current or former members of the society.

Of the current nine members of the Supreme Court of the United States, at least five are current or former members of the organization, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Chief Justice John Roberts previously served as a member of the steering committee

But then on the other hand you have prominent liberals attacking it, basically viewing it as voter suppression

In an opinion piece for Bloomberg, liberal professor Noah Feldman wrote: "Donald Trump is manifestly unfit to be president. But it's up to voters to block him. Magic words from the past won't save us."

The topper is probably a challenge in new Hampshire could be funded by a card carrying Trump supporter. He wants it decided by the court before he goes and votes for him.

The New Hampshire challenge is notably being touted by Bryant "Corky" Messner, a top Republican attorney who ran for the US Senate in 2020 with Mr Trump's endorsement.

Mr Messner, who intends to finance any 14th Amendment challenges to Mr Trump in his state, wants the courts to deliver their verdict before he can decide on whether to support Mr Trump.

"To me, it's purely about the Constitution," he said. "The US Constitution is more important than any one individual, be it Donald Trump or anyone else."

"If he ends up being the nominee of the Republican Party and he's not disqualified, I'll vote for him."

The new Hampshire challenge is interesting in that since it's the first state to vote it could be the case that's heard. And new Hampshire is anything but a lib state. I can respect Mr messner in that he believes the constitution of the united states is what's important here. He does seem to have a brain and seems interested in using it

Thanks for this post. Much to think about.

I'm not sure what "self-executing" means in a practical sense. Officials would still need to decide to keep a candidate off the ballot, wouldn't they? And those decisions/actions could be challenged in court.

Interesting to see the involvement of the Federalist Society. Their success in championing conservative legal thought/influence is one of the great political stories of our generation.

[Donn Beach]

Yeah, they aren't lightweights, this goes back to his impeachment. I'm gonna guess self executing means even though congress didn't act on it then it's still there. The court would act on it, requiring the official to remove trump's name. I'm really reaching. My brother's a lawyer, I'm gonna get his opinion.

[Mel Bradford]

Sorry, but the 14th amendment clause is NOT self executing. Due process means there must be a conviction , i.e. a judgement against Trump defined as "insurrection". Then Congress can act upon and 'disqualify' him from all ballots....period.

No legislature or judge or State Executive branch can wave a wand and declare IT so. There must be a conviction.

We should appreciate the high hurdle required in our American system to prevent filthy politics, smears, inuendo, and false law suits from ruling outcome. Whatever checks and balances are left may be sufficient. But as Michael Knowles said....we may have crossed the rubicon of the divide between the legal and political spheres of government. Trump is the canary in the coal mine. If the Swamp prevails.....its just a matter of time before the whole system collapses.

[Donn Beach]

The swamp being a pair of constitutional scholars from the federalist society... interesting swamp being it's the one Donald swims in. That's what's interesting, the irony, these are the sorts of folks Donald brought in to clean up the swamp

43 out of 51 of Trump's appellate court nominees were current or former members of the society.

[gil]

Here is a blog from a professor of law at Cornell discussing what "self executing" means. My understanding from what he said is that there is NOT a requirement for a conviction and there is NOT a requirement for legislation from Congress or anyone else. The author offers the hypothetical example of an election official deciding in 2008 that John McCain was not qualified to be president because he was born in the Canal Zone (Panama). McCain would have had the right to challenge this, with his defense being that he was born to parents who were American citizens.

https://www.dorfonlaw.org/2023/08/what- ... -3-of.html

[Donn Beach]

Interesting, so I was in the ballpark