“Panorama of United States Supreme Court Building at Dusk” by Joe Ravi is licensed under CC-BY-SA 3.0
THE COLORADO BALLOT CASE: A TRUMP VICTORY OR A ROAD MAP TO ANOTHER CIVIL WAR IF CONGRESS BLOCKS THE ELECTORAL COLLEGE COUNT IN THE EVENT HE WINS
OVERVIEW & INTRODUCTION
This summer in Trump v. Anderson, 144 S.Ct. 662 (2024), the Supreme Court, in a 9-0 decision, blocked an attempt by the cognizant officials in Colorado to keep Trump off the state ballot in the 2024 presidential election on the basis that he had “engaged in insurrection,” therefore disqualifying him from holding federal office. The Colorado Supreme Court affirmed this nonsense in a decision that again saw politics cloud the fair application and interpretation of the law. The Supreme Court immediately, and for obvious reasons, intervened to prevent this from becoming an epidemic and weaving the patchwork decisions of state-level political hacks across the country into true threats to democracy. January 6th has become the most controversial issue in recent political and constitutional history. Some background is in order.
THE JANUARY 6TH COMMITTEE WAS POLITICAL THEATER, NOT OVERSIGHT, AND IT IS NOT OVER
In what I view as a subversion of the true oversight role of Congress, Nancy Pelosi engineered a politically expedient means to prevent Trump and his voters, as well as his appointed officials and advisers, from ever having a voice or from ever holding elected office. Attorneys who advised the GOP on election challenges and those, like John Eastman, who dared to point out the flaws in the Electoral Count Act (it was quietly reformed in 2022 because of the very ambiguities that he and others pointed out) or to challenge the ministerial role of the Vice President in the vote count on January 6th were indicted and disbarred. Significant questions of what REALLY happened on that day and the run-up to it were not answered. Evidence was destroyed. The FBI was utilized to serve subpoenas and intimidate witnesses, and the result was light years from the truth. Congress became a force multiplier for the DNC’s agenda, and the political goals were clear. The committee had no real bipartisan membership. It subverted the separation of powers and served as a de facto executive branch. Its composition was challenged, and Pelosi squashed that while making millions on her husband’s insider trading. Jack Smith was deployed to indict Trump, and the White House and the DOJ coordinated with state prosecutors in Georgia and Arizona to launch state-level indictments to continue a political narrative that had a weak foundation in the actual law. The cries of “insurrection” never faded even when Jack Smith, who had the means, could not secure an insurrection indictment against Trump. It is because he did not engage in insurrection as contemplated by either the law or the Fourteenth Amendment’s Section 3 “Insurrection Clause, “designed to prevent those who supported the Confederacy and secession from holding office. Fast forward to the 2024 primary season.
IN AN ATTEMPT TO DISENFRANCHISE TRUMP VOTERS COLORADO SIMPLY CHOSE TO REMOVE HIM FROM THE PRIMARY BALLOT
In the wake of the Civil War, Congress acted to not only abolish the institution of slavery with the 13th Amendment but enforced the integration of the newly freed citizens into civil society with the 14th Amendment and its Equal Protection provisions enforceable against the States, who at least in the South would surely place roadblocks to such entry. So significant was this to ordered liberty that 1868 is considered a second founding by constitutional scholars. Its Section 3 clause was intended to ensure that Southern populists reeling from defeat would not reconstitute secession mentality by regaining power. Congress enacted the Enforcement Act of 1870 to achieve this purpose and to protect the civil rights of newly freed slaves. It has since lapsed or was repealed. The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. The Enforcement Act was such an enactment. The Section 3 provision at the core states;
“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.”
Utilizing this provision, the Colorado officials made such a finding and determined that Trump, having taken the oath in 2017, violated such an oath by “insurrection” and was disqualified. The path to the Supreme Court was clear. I quote heavily from the opinion herein.
The Supreme Court held that states only have the right under their reserved powers to disqualify state officers or potential office holders from state offices and that principles of federalism did not reserve to the states the right to disqualify potential federal office holders. They explained as follows:
“In our federal system, the National Government possesses only limited powers; the States and the people retain the remainder.” Bond v. United States, 572 U.S. 844, 854, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014). Among those retained powers is the power of a State to “order the processes of its own governance.” Alden v. Maine, 527 U.S. 706, 752, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). In particular, the States enjoy sovereign “power to prescribe the qualifications of their own officers” and “the manner of their election … free from external interference, except so far as plainly provided by the Constitution of the United States.” Taylor v. Beckham, 178 U.S. 548, 570-571, 20 S.Ct. 890, 44 L.Ed. 1187 (1900). Although the Fourteenth Amendment restricts state power, nothing in it plainly withdraws from the States this traditional authority. And after ratification of the Fourteenth Amendment, States used this authority to disqualify state officers in accordance with state statutes. See, e.g., Worthy v. Barrett, 63 N.C. 199, 200, 204 (1869) (elected county sheriff); State ex rel. Sandlin v. Watkins, 21 La.Ann. 631, 631-633 (1869) (state judge).
The Court held that this power lies solely within Congress:
“It is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the amendment, Congress enacted the Enforcement Act of 1870. That Act authorized federal district attorneys to bring civil actions in federal court to remove anyone holding nonlegislative office—federal or state—in violation of Section 3, and made holding or attempting to hold office in violation of Section 3 a federal crime. §§ 14, 15, 16 Stat. 143-144 (repealed, 35 Stat. 1153-1154, 62 Stat. 992-993). In the years following ratification, the House and Senate exercised their unique powers under Article I to adjudicate challenges contending 670*670 that certain prospective or sitting Members could not take or retain their seats due to Section 3. See Art. I, § 5, cls. 1, 2; 1 A. Hinds, Precedents of the House of Representatives §§ 459-463, pp. 470-486 (1907). And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§ 2, 3, 12 Stat. 590. A successor to those provisions remains on the books today. See 18 U.S.C. § 2383.”
The Court went on to state that Congress can create further enforcement legislation. It observed that there is no current legislation enforcing Section 3, and the current election will set the stage for what calamity may follow. A Democrat-controlled Congress driven by Jamie Raskin’s recent murmurings on Bill Maher’s show about supporting the result only if the election is “free and fair” MAY be portent. Read on.
THE LIBERAL WING OF THE SUPREME COURT IMPLIED IN THAT SAME OPINION THAT SUCH LEGISLATION IS NOT REQUIRED AND THAT CONGRESS CAN ACT ON THE CLAUSE ALONE
On November 6th or 7th, or even, dare I say, on the late evening of November 5th, Donald Trump is declared the winner and is the presumptive 47th President of the United States. He gets 270 Electoral College votes to Harris’s 268 and the lawfare continues into the post-election period, but the results stand. The January 6th prosecution is still pending, and Jack Smith, before being fired by Trump, continues to file submissions that fuel the flames of “insurrection.” United States District Court Judge Chutkan, who presides over the case, has no problem with releasing these submissions and, after all, had been the strictest sentencing judge in the prosecutions of the January 6th rioters and was previously a principal in David Boies law firm, litigating political issues for the DNC with Boies himself representing Gore in the Bush v. Gore case. Congress, however, in a stunning upset, turns blue with a bicameral majority seething over this Trump victory and seeking to do politically what the law cannot bring them. The following from the liberal justices, in the SAME opinion, gives them cover:
“…Section 5 gives Congress the “power to enforce [the Amendment] by appropriate legislation.” Remedial legislation of any kind, however, is not required. All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation. City of Boerne v. Flores, 521 U.S. 507, 524, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997); see Civil Rights Cases, 109 U.S. 3, 20, 3 S.Ct. 18, 27 L.Ed. 835 (1883). Similarly, other constitutional 674*674 rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation. See, e.g., Art. II, § 1, cl. 5 (Presidential Qualifications); Amdt. 22 (Presidential Term Limits). Nor does the majority suggest otherwise. It simply creates a special rule for the insurrection disability in Section 3.
The majority is left with next to no support for its requirement that a Section 3 disqualification can occur only pursuant to legislation enacted for that purpose…”
A DEMOCRATIC CONGRESS MAY WELL USE THE FOREGOING ANALYSIS TO FAIL TO ALLOW THE ELECTORAL COLLEGE RESULTS TO BE CERTIFIED OR TO SIMPLY IMPEACH TRUMP AFTER HE TAKES OFFICE
When three Justices, you know who, say that Section 3 is “self-executing,” they mean it. They knew that it would be difficult if not impossible to pass legislation given the current composition of the Congress in the post-election period up to January 20th. However, with a radical change in the majorities, Congress would have significant authority to either block the certification during the joint session on January 6th or quickly move to impeach afterward. Legislation isn’t needed; they will argue they can simply invoke Section 3. The same actors who sidelined Biden in a coup can engineer another. Why would Harris campaign with Liz Cheney and Adam Kinzinger, both booted from office for their sham January 6th Committee actions, and have “Threat to Democracy” as a slogan unless this was to set the stage for such dangerous and destabilizing actions? This, despite the reality that the American public, by voting Trump into office, simply exonerated him. Would Harris buck the protesting members of Congress and perform her ministerial role? Would she verify the count while secretly harboring the knowledge that an impeachment vote would soon follow?
CONCLUSION
Never underestimate the fear and hatred many in the Democrat power structure have for Trump. If he takes office, he will tear down their carefully crafted administrative state and their assault on the separation of powers. He will see to the truth of January 6th and the complicity of Pelosi’s party in fanning those flames and the corruption that led to those sham proceedings. He and Vance will return transparency to government again and unleash an economic engine unchoked by climate hysteria. Do not forget that in 2017, Democrats in Congress rose to block the Electoral College count. Why wouldn’t it happen again? If they succumb to these urges, the blood of the unrest will be on their hands. It will not stand, I fear. If Harris wins, the first order of business should be to pardon Trump if she really means to move forward, and that is if Biden doesn’t already do it in a package deal rolling in Hunter. We will see. VOTE.
Mike Imprevento
October 2024
