I wish the Supreme Court would come down with a decision on whether what transpired on January 6, 2021 was an insurrection within the meaning of the 14th Amendment and whether the states can bar Donald Trump from the ballot under Section 3 of that Amendment and that they would do so well before Super Tuesday and with a 9-0 or 8-1 verdict. As usual I expect to be disappointed.
My predictions:
1. The Colorado decision will be reversed on one of three grounds:
a. Section 3 does not apply to a President;
b. Section 3 is not self-enforcing (citing Chief Justice Chase’s opinion in Griffin) and therefore since the 1948 repeal of the Enforcement Act of 1870 there is no implementing statutory authority, unless it’s a conviction under the federal Insurrection Act; or
c. Whether or not there was an insurrection, its incitement is insufficient to “engage in” it, at least consistent with modern First Amendment restrictions on “incitement” (Brandenberg).
2. None of those grounds require SCOTUS to determine whether an “insurrection” occurred on Jan. 6th and I don’t expect them to unless they rule against Trump.
3. None of those grounds would permit any State to take Trump off any ballot, with the possible exception of issue (c) if there is additional evidence not in the SCOTUS record (which I doubt).
4. The grounds for reversal chosen will depend on the votes available. I don’t know that any of those issues cross obvious lines for the Democrats, other than an opinion as to issue (c) that emphasizes how “fight” language is commonly used among today’s politicians.
5. I’ll guess a decision is issued at least two weeks before Super Tuesday. Bush v. Gore was decided by SCOTUS within a week of granting Cert.
I wouldn’t be surprised if it took longer.
Any decision that isn’t 9-0 or 8-1 will further undermine the court so I expect Roberts to do everything he can to reach a unanimous or near-unanimous decision.
If the Court wants to fudge; they could rule the Colorado Supreme Court is very premature.
Because technically, Colorado voters weren’t banned from voting for Trump as President; or voting for Trump as the Republican nominee for President; but voting for delegates who will pledge themselves to vote for Trump as the Republican nominee at the Republican National Convention. If it reaches that point the Republican party of Colorado needs to pick a slate of electors which the voters can vote in the general election to vote for Trump as President in the electoral college.
Since the delegates likely didn’t participate in Jan 6th and delegates at a Republican convention isn’t a formal government position (appointed or elected); how could the 14th amendment apply?
Curious, if the Court wanted to go that direction they simply didn’t need to do anything. The Colorado Supreme Court stayed its ruling, directed the Secretary to keep Trump’s name on the ballot, unless and until SCOTUS directs otherwise. When the Secretary certified the ballots on the January 4th deadline, the case arguably became moot. (I believe the matter falls under an exception to mootness)
Colorado votes by mail and ballots are mailed out to registered voters no sooner than February 12th. It’s a Super Tuesday state, but theoretically voting might begin February 13th? SCOTUS oral argument is scheduled February 8th. They are likely already preparing the opinion, could they issue a decision Feb. 13th? In Bush v. Gore, the SCOTUS accepted certiorari on December 9th, oral arguments were held on December 11th, and opinions were issued December 12th. So it’s possible. One might think that people concerned about the issue would wait at least a bit.