Law Professor Marty Lederman Explores Deeper Implications of Trump v Anderson

Marty Lederman, a law professor and former Deputy Assistant Attorney General of the United States, has this interesting analysis of Trump v Anderson, the March 4 decision of the U.S. Supreme Court on Colorado ballot access for persons accused of insurrection.


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Law Professor Marty Lederman Explores Deeper Implications of Trump v Anderson — 38 Comments

  1. You linked the group blog, not the article. At the moment, it’s at the top, but I’d recommend updating your link for those who might read this later. What did you find interesting about it?

  2. The implications in case someone challenges Trump after he is sworn in a second time (if that happens), and whether a court could do anything.

  3. “The majority opinion also does not mention, let alone call into question, the possible power of the Joint Session of Congress, pursuant to the Twelfth Amendment and/or the Electoral Count Reform Act, to refuse to count electoral votes of a person who is disqualified under Section 3—”

    Just as I mentioned in the earlier thread, we may have to wait until the joint session of Congress to count the Electoral Votes for the final resolution of these issues. January 6, version 2.0.

  4. This Presidential election could hinge on which party controls Congress Expect ferocious campaigns in swing districts and states.

  5. “—or possible action by Congress, even absent enforcement legislation, to enforce the prescription of section 3 of the Twentieth Amendment that “if the President elect shall have failed to qualify [by Inauguration Day], then the Vice President elect shall act as President until a President shall have qualified.”

    Another wrinkle: if the President-elect does not qualify, then the Vice-President-elect becomes President. It could be pivotal to the outcome of this election as to WHO the Vice-Presidential candidates are.

  6. Moreover, as my colleague Josh Chafetz noted on X yesterday, state presidential ballots often differ in terms of which candidates’ names appear: “Just a reminder that states have different people on the presidential ballots all the time. Cornel West will likely be on some ballots but not others. Ditto for RFK, Jr.”

    As I have also mentioned in an earlier thread, the whole problem of creating a “patchwork effect” of different states with different candidates on the ballot already exists with third party and independent candidates for President.

  7. Of course Trump will be sworn in a second time. There’s no serious doubt by anyone who is not delusional as to that fact. If anyone challenges President Trump after he’s sworn in, the challenge will fail, and that person or group will be reviled in infamy, both by history and contemporaneously.

  8. Big red wave in November. Trump landslide will have long coattails. Former swing states and districts will be solidly Republican, as will an additional tier or two.

  9. Trump has never had long coattails. This is why both Houses of Congress are split pretty much 50-50.

  10. TOOK 750,000 DEAD TO END SLAVERY AND 3/5 MATH RE SLAVES AND BLACK VOTERS IN 13-14-15 AMDTS

    MILLIONS DEAD TO GET-

    UNIFORM VOTER DEFINITION
    PR- MAJORITY RULE
    APPV – NONPARTISAN EXECS/JUDICS
    TOTSOP ???

  11. Walter, that was then. This is now. Around 10% of Biden voters from 2020 are currently leaning toward Trump, and the trend is only accelerating.

    Trump is significantly more popular, and Biden less, especially among blacks, Hispanics, independents, people under the age of 30, and women than in 2020. The same is true of Republicans vs Democrats in general.

    Biden is considered to be unfit due to age and declining cognitive abilities by a majority of every demographic and ideological group polled. Trump isn’t doing great in that regard either, but clearly better than Biden.

    More importantly, Trump and GOP in general are strongly and increasingly outperforming Biden and Democrats on almost all the issues that most voters find most important, including the top two – economy and immigration. Democrats lead only on abortion in the top ten issues for voters, and far fewer voters are naming that as their top issue, or among the top two or three, than in 2022.

    Biden is the least popular incumbent seeking reelection since Herbert Hoover.

    Presidents that unpopular, both personally and on the issues, do not win second terms. If the Democrats had a better candidate who was actually willing to run, they’d already have retired president Biden. They do not.

  12. MORE DROOLING IN DETROIT. crAZy THOMAS IS OFF HIS MEDS AGAIN. WE DO NOT VOTE FOR PRESIDENT, WE VOTE FOR PRESIDENTIAL ELECTORS. THE P.E.S ARE THE ACTUAL ELECTORS. STATE BALLOTS ARE ONLY PLACEHOLDERS FOR THOSE SLATES.

  13. We will see on election day.

    As far as i can see, either candidate is only gaining votes in states that each won easily last time. Their supporters are only reinforcing themselves within their own enclaves. Red states are getting redder, and blue states are getting bluer. So, the supporters of each easily convince themselves that they are winning because “everyone I know is voting for X>” The overall electoral vote count hasn’t changed that much.

    But we shall see.

  14. Walter, try doing a deep dive into a wide variety of recent polls and trends. You can start at 538 or realclearpolitics. You can argue those are largely accurate or biased towards Biden and Democrats. You can’t seriously argue based on any recent election results that they’re heavily tilted towards Trump and Republicans.

  15. “Swing” state polls clearly show Trump leading in all or almost all of them, by clear and widening margins, across a broad selection of polls and polling outfits.

  16. There is a process going on in this country called “The Great Sort” What is happening is that folks are moving from states where they feel uncomfortable socially, and into states where they feel more comfortable socially. This is making blue states bluer, and red states redder. People are gathering in enclaves where everyone thinks like they do, and getting the feeling that everything in the country is re-enforcing their own values and moving in their direction.

  17. I think that the biggest takeaway from this and prior Supreme Court decisions is simply this:

    (1) A state cannot keep a candidate for president off the ballot based on insurrection (as defined by the 14th amendment).

    (2) However, a state can keep a candidate for president off the ballot for a slew of other reasons including failure to collect a certain number of signatures, barely missing a filing deadline, being a “sore loser,” and a host of technical reasons that are routinely used to keep third party candidates off the ballot.

    This unequal treatment regarding ballot obstacles is an absurdity—unless minority party candidates can use this ruling to obtain ballot access in situations in which they have been previously defined.

  18. You’re incorrect. Or, I should say, partially correct. Politics is one reason people move. There are others – ability or inability to work remotely, taxes, crime, quality of schools, weather, business climate/available jobs, following family members or life partners, etc.

    There are other important trends at work:

    1. Immigration and safety/ law and order. Even Democrats (or people historically disposed to vote for them) are concerned about this, and this issue is working heavily towards Trump and Republicans. This is true even in, for example, NYC and Chicago.

    2. Legacy establishment media are increasingly losing their share of people who turn to them for news or entertainment (or take their opinions seriously when they do).

    3. As groups which were historically disadvantaged become more prosperous on average, they tend to vote more like groups which were historically more well off.

    4. Inflation really hurt a lot of people, except for those who are financially well off or better. Biden and the Democrats get most of the blame for that, regardless of whether you agree with whether they deserve it or not.

    5. The more the establishment attacks Trump – multiple lawsuits, investigations, hearings, impeachments, indictments, etc, etc, the more it seems like coordinated and unfair attacks to everyone who’s not solidly encapsulated in the establishment/legacy msm infotainment ecosystem – and, as mentioned above, that’s more and more people – not just long term or diehard Trump fans and/or ideological conservatives and/or long time loyal Republicans, but lots of people in the middle, former Democrats, independents, etc.

    There’s more, but these factors are working together to add up to much more than the one you mention.

  19. RFK Jr, Cornell West, No Labels if they nominate (we’ll know Friday or Saturday), Stein et al are only going to end up helping Trump and the GOP on net. Does anyone here need an explanation as to why?

  20. Education is an important issue for parents.

    Woke BS in the schools, including but not limited to transgender attacks in bathrooms, trans athletes in girls sports, critical race theory, DEI, etc are immensely unpopular. This includes “swing” states.

    School closures over exaggerated covid panic, especially as it becomes clear to more and more people they were unnecessary, are unpopular. This includes “swing” states.

    Children of illegal and unvetted immigrants, ditto.

    Abortion and “democracy” don’t even remotely measure up to such bread and butter kitchen table issues. If you think otherwise, you’re delusional.

    2022 gives Democrats and Democrat learners false hope because 1) Trump and Biden weren’t themselves on the ballot (and thus, only relatively more motivated voters turned out) and 2) the Dobbs decision was still pretty new at that point.

    They can keep staking 2024 on abortion and “democracy.” It’s not going to work out well for them.

  21. 1. THE ANTI-DEMOCRACY UN-EQUAL BALLOT ACCESS LAWS FOR PARTISAN OFFICES CONTINUE.

    2. THE ANTI-DEMOCRACY MINORITY RULE EXTREMIST PRIMARIES CONTINUE.

    3. THE ANTI-DEMOCRACY MINORITY RULE GERRYMANDERS CONTINUE.

    3 STRIKES AND O-U-T — INTO CIVIL WAR II ???

    PR
    APPV
    TOTSOP

  22. Kremlin, Porcus, WMCT, No Lube, Pig Farmer, and Realist make good points an and are completely correct.

  23. Yes, I agree with them and Smart Home Information Technology. These points are true and incontrovertible. There’s no need for the jury to retire. Trump! TRUMP ! TRUMP !!! Finish the wall!

  24. Trump will win bigly with yooge coattails. YOOGE !!!

  25. NOOOO JUDICIAL POWER IN CONGRESS HACKS TO RULE ON LEGALITY OF 12 AMDT EC VOTES —

    ONLY TO COUNT THEM.

    IF EC VOTES ARE ILLEGAL IN A COURT JUDGEMENT, THEN CAN REMOVE ILLEGAL PREZ/VP AND INSTALL LEGAL PREZ/VP.

    ALL MORE REASONS TO ABOLISH THE MINORITY RULE EC.

  26. I agree with the 3 comments preceding the latest AZbot sputter.

  27. NYT/Sienna: 97% of Trump 2020 currently intend to vote for him again in 2024. 83% of Biden 2020 voters currently intend to vote for him in 2024.

  28. RCP current averages

    Trump vs Biden national average Trump +2.0%; with Kennedy, West and Stein included Trump +2.8

    “Battleground” states: Georgia Trump +6.5%, Wisconsin Trump +1.0, Arizona Trump +5.5, Nevada Trump +7.7%, Michigan Trump +3.6, Pennsylvania Biden +0.8

    Biden job approval underwater nationally by 17.2%, worst in poll history for any president at this point in his tenure. Polls go back to Truman. Given Roosevelt 1936 results, it’s safe to say that Biden is the least popular President seeking reelection during March of the election year since Herbert Hoover.

    Direction of country: underwater by 43.2% (66.8 to 23.6)

  29. RE 541 PM — ADD NC

    WHAT EMERGENCY DONKEY CAN REPLACE BIDEN AT DONKEY COMMIE NATL CONVENTION ???

  30. None. Michelle Obama said no. Kampala Mau Mau Harris is even more underwater than Biden. But pushing her aside will alienate too many black females. Senile dementia Biden is the D nominee. Without him, they’re even more cooked than with him. They’re cooked either way.

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