The Constitutionality and Legality of States Banning Trump from the Ballot

Discussion in 'Law & Justice' started by kazenatsu, Feb 11, 2024.

  1. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    Right now two states in the U.S. are attempting to remove Trump's name from the ballot, so people in those states cannot vote for him, in the election for U.S. President.

    This raises some complicated legal and Constitutional issues, which the U.S. Supreme Court is considering right now.

    If I was on the Supreme Court, here is what I would do.

    If I was the judge, I would rule that the state has to hold TWO elections, one with Trump on the ballot and one without. Or they could just hold one election with Trump on the ballot, of course. Either that or the state would have to actually pass a law specifically banning Trump from the ballot. (Something that has not happened, so far it has only been a ruling from the state's Supreme Court)

    Then the state would have to pass another law specifically saying the names of the electors it has decided to send to the Electoral College, otherwise its votes would not count. (Something that normally does not happen)
    (Though in the event the same candidate ended up winning in both parallel elections, then that candidate would be recognized, of course)

    This would still theoretically allow the state to take Trump off the ballot, but would create a higher burden.



    When it comes to holding elections for state officials, it is possible for it to be Constitutionally appropriate for federal courts to become involved. This is because of Article IV, Section 4 in the U.S. Constitution:
    "The United States shall guarantee to every State in this Union a Republican Form of Government"

    But this would not apply to election for U.S. President, since that is not part of the state government.

    The election held for U.S. President within each state is not a federal (U.S.) function. This may sound paradoxical but it is due to the way the selection of President is set up in the Constitution.

    A traditionalist Constitutional Conservative would believe, correctly, that a state should be able to cast whatever electoral vote for president that individual state wishes.
    This idea that the public has a right to vote for President is not actually in the U.S. Constitution.

    If the state of Colorado wants to ban Trump on the ballot simply because they do not like him, that is the state's right under the U.S. Constitution.

    Now, is it legal and does it violate the people's rights under the Colorado state Constitution and law? That is a separate question. But one which the U.S. Supreme Court should not get involved in, because they do not have proper jurisdiction over that area.

    The state Supreme Court in Colorado is trying to use the U.S. Constitution to justify their decision, but they are wrong. The U.S. Supreme Court could give their opinion about that.

    The one holdout is that the U.S. Supreme Court could perhaps block the state Supreme Court's decision, but if the state were actually able to pass a law banning Trump from the ballot, then that should be the end of the matter, as far as the federal government is concerned.
    The U.S. Constitution says the state decides the electors, but we could argue over what exactly is "the state"?

    Perhaps the U.S. Supreme Court could refuse to allow any electors to be recognized unless the state is able to pass a law specifically recognizing the choice of those electors.
    Right now, the state has laws in place that delegate those decision-making powers to certain state officials.

    It could be possible the U.S. Supreme Court might interpret that "the state" has not actually decided electors, because those electors were not actually correctly chosen according to the state's own law.

    The Constitution says the states choose electors. And there's very good reason things are set up that way, under the Constitution, in my opinion. It greatly helps mitigate the problem of election fraud and disputed national elections. In a winner-take-all system with each state running their own elections, there is no incentive for the majority to suppress the votes of the minority. And the Presidential election, so far as the U.S. Constitution is concerned, is nearly impossible to dispute, even though it could be disputed within each state.
     
    Last edited: Feb 11, 2024
  2. OSC(SW/AW)

    OSC(SW/AW) Newly Registered

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    interesting theory but misses one important part, under the 14th amend the state can not remove a persons rights without due process, so being that trump has not even been charged with insurrection they can not remove him from the ballots stating that he committed insurrection. in order to do what they are trying he has to be charged, tried and convicted.
     
  3. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    That is a very interesting perspective.

    I'm not sure that the "due process" part in 14th Amendment was originally intended to be applied that way, but it can likewise definitely be argued that the "insurrection" part in the 14th Amendment that state judges are attempting to use against Trump was definitely not intended to be applied that way either.

    In my opinion, Trump does not actually have a right under the federal government to be on the ballot in each state, but that may not matter. As you would try to argue, if states have already passed their own laws about holding statewide elections for U.S. President, then they could conceivably be denying Trump his rights under the 14th Amendment to equal protection of the law and due process (at least an argument could be made so).

    In my opinion, the fact that the two are both found in the same Constitutional Amendment that was passed at the same time strengthens the argument that the "due process" part might be applicable as a defense against the "insurrection" part.
     

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