Trump Booted Off of Colorado Ballot

The Supreme Court of Colorado has finished reviewing a lower court's ruling, and has ruled 4-3 that Donald Trump is ineligible to appear on the Colorado ballot in 2024.

Trump is not going to win in Colorado in 2024. Or, if he does, it will mean a wave so red that Colorado's EVs don't matter. So, the main significance of yesterday's ruling is that it effectively forces the U.S. Supreme Court to take up the question. Had every state struck down challenges to Trump's eligibility, SCOTUS might have remained above the fray. Clearly, they really don't want to get involved here. But now, there's a serious constitutional question on which states have disagreed (Minnesota, recall, has already ruled that Trump could stay on the primary ballot). Recognizing full well that an appeal is coming, the Colorado supremes stayed their decision pending that appeal.

Assuming that SCOTUS takes the case—and, again, how can they avoid doing so?—they have three basic options:

1. Broadly Overturn the Decision: If you had to bet, this is probably the outcome you should bet on, since the Court is 6-3 conservative, and since allowing the Fourteenth Amendment to be applied like this opens many cans of worms. To make this work, the Court would have to come up with a compelling reasoning for why the Fourteenth doesn't apply to Trump. Basically, they would have to argue that: (1) it wasn't an insurrection, or (2) it was an insurrection but Trump didn't support it, or (3) it was an insurrection and Trump did support it, but that's not disqualifying for him. Option #3 is probably the most viable; the Colorado decision that was just overturned was based on the judge's observation that the Fourteenth Amendment says this:

   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.

   Note that while presidential electors are mentioned, presidents are not. That said, the presidency is clearly a civil office, and Trump clearly took an oath to defend the Constitution of the United States, so you have to squint very hard to argue that his current run for office is not covered by the Fourteenth Amendment. But again, one (Democratic-appointed) judge already did so, so...
   
   It is also worth pointing out that if SCOTUS does rule that it wasn't an insurrection (#1) or that it was an insurrection but Trump didn't support it (#2), that would effectively gut Jack Smith's Washington D.C. case.
   
   There might be one way out for SCOTUS if the justices want to get rid of the Colorado decision without upending Jack Smith's case. They could declare that the president is in a special category because the Constitution specifically describes the president and the powers the president has. Therefore, he is not an officer, like, say, the secretary of the treasury. This would be slightly tricky because the oath Trump took reads:

   I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

   This strongly suggests that the president will occupy an Office as soon as he finishes this little speech. Normally, one thinks of a person who occupies an office as an "officer." However, if the Court wants to weasel out, it could rule that millions of people go to an "office" every day and are not "officers." In this interpretation, the "Office of President of the United States" is a room at 1600 Pennsylvania Ave., NW, D.C., not the job of being president. It's iffy, but if you are grasping at straws, you can't be picky about which straw you grasp.
   
   
2. Broadly Affirm the Decision: Alternatively, SCOTUS could affirm the Colorado decision. That would have a... profound effect, as Trump would then be tossed off the ballot everywhere, or nearly everywhere. After all, if SCOTUS has affirmed that he is subject to the terms of the Fourteenth Amendment, then the ACLU or some other group will file lawsuits in every state arguing he's ineligible. And what can lower-level judges say, other than "I guess you're right." Even if a few rogue judges try to strike out on their own, he'd still be off the ballot in so many states that 270 EVs would be impossible.
   
   We presume SCOTUS does not want to get involved in deciding yet another election, particularly in a way that would hurt the Republican Party. So, we find this particular outcome to be unlikely. That said, if SCOTUS does uphold Colorado, then the Supremes damn well better provide a clear definition for what constitutes "insurrection." Otherwise, you're going to see a million lawsuits every election cycle, from here on out, and from Democrats and Republicans, spinning all sorts of different words and actions into "insurrection."
   
   
3. Rule Narrowly, for Colorado Only: Every state has its own unique rules for elections, and Colorado is no different. So, SCOTUS could affirm or reject the decision, but only as it applies to Colorado. For example, the Centennial State has a mechanism built into the state election code that allows for citizens to challenge the validity of candidates. This mechanism is not unique, but it's not common. So, SCOTUS could find that this part of Colorado election law is not legal, and thus the suit against Trump was invalid. Or, SCOTUS could find that Colorado acted lawfully, but only because they have the provision allowing candidate challenges. Either way, the decision would only be relevant to Colorado, or to a small handful of states.
   
   This outcome seems more likely than the Court broadly affirming the Colorado decision. That said, it would probably end up kicking the can down the road. Now that one state has disqualified Trump, surely another will follow suit.

In short, it's a big mess, and reasonable minds can disagree about what the correct approach is. Indeed, while we are used to seeing a 4-3 vote from a court, and thinking that the vote split along party lines, the fact is that all seven Colorado justices are Democratic appointees.

Needless to say, politicians often struggle to acknowledge that both sides might have some merit. That is particularly true of today's Republican politicians. And so, Trump's enablers in the GOP spent yesterday pitching a fit. Speaker Mike Johnson (R-LA) called it "nothing but a thinly veiled partisan attack" and a "reckless decision." Sen. Thom Tillis (R-NC) promptly introduced legislation that would withhold federal election funding from "states that abuse the Fourteenth Amendment." Rep. Elise Stefanik (R-NY) said the ruling was the work of "four partisan Democrat operatives" (ignoring the fact that the other three votes also came from Democrats), while predicting that the ruling "will backfire and further strengthen President Trump's winning campaign."

Whether this will actually help Trump is an interesting question, though we think Stefanik's prediction is likely incorrect. Everyone who is inclined to see Trump as a victim is already on board the S.S. MAGA, and while the decision will fuel their anger, they still only get one vote each. Further, if SCOTUS sweeps the Colorado decision aside, then it will largely be forgotten after the dozens of "outrages" that will surely come down the pike in 2024. Meanwhile, if Colorado is upheld, it could plausibly de-fang, or even end, Trump's campaign.

In short, we just can't see a way yesterday's ruling ends up as a win for Trump, while we can certainly see a way it ends up as a big loss. At the moment, though the biggest loser is Chief Justice John Roberts, who really, really wants to avoid this hot, hot potato. Well, OK, it's Colorado and not Idaho. So, this hot, hot proso millet. (Z)

Whither the Biden Economy?

Right now, Joe Biden is getting beaten up on the economy, since people see themselves paying more for things, while their income is not keeping up. This said, getting beaten up in December 2023 matters very little. Getting beaten up in October 2024 matters a great deal. To that end, The Bulwark's Jonathan Last, building on the arguments of economist Noah Smith, predicts that the picture will be very different in late 2024 when it comes to perception of the economy.

To start, it's a widely accepted truth that perceptions of the economy lag the actual performance of the economy by 8-12 months. The current upturn in the economy became noticeable about 6 months ago. So, if people are going to get bullish on the economy, we really wouldn't expect to see that until spring of next year.

Businesses, by contrast, tend to follow trendlines more closely, and it looks like they like what they are seeing. Inflation is down and interest rates aren't going to change anytime soon, and so businesses are preparing to unleash massive investment. Goldman Sachs just issued a report that says that while 2024 was already expected to be a good year, it's now shaping up to be a GREAT year.

The minor point here is that the apparent incongruity between "the state of the economy" and "people's perceptions of the economy" may resolve itself, to the benefit of the President and the Democrats. Of course, economic predictions often go up in smoke, and it's also possible that the dislike/resentment of Biden is sui generis, but it's also well within the realm of possibility that what is currently a liability for the President could turn into a strength.

The major point here is that there are a dizzying array of unknowns heading into the 2024 presidential election. Let's start with a list of five unknowns that we've written about today, or in the past few days:

1. What do approval numbers really mean these days?
2. How would a Trump conviction or convictions affect the election?
3. What will happen in polls once the possibility of dumping Biden has faded?
4. Will Trump be able to stay on the ballot in all/enough states?
5. What will perceptions of the economy look like 9 months from now?

And now, let's add five more that we've written about in past weeks and months:

6. What will happen with the situation in Israel?
7. What will happen with the situation in Ukraine?
8. What will happen with the situation at the border?
9. Will the Supreme Court throw another grenade into the election by trying to ban mifepristone?
10. Will either presidential candidate have a major health scare?

And this list is hardly comprehensive. But all of this is why, right now, presidential polling numbers don't mean much of anything. (Z)

The Missing Piece of the Puzzle: Clarence Thomas

This week, we learned one more bit of information about Clarence Thomas' finances, and how said finances were buoyed by the intervention of "concerned" friends.

It would seem, back in 2000, that the justice was having trouble making ends meet on his salary of $173,600 (which, today, would be equivalent to $300,000+). In fact, he was hundreds of thousands of dollars in debt. How did that happen? Well, purchases like a $267,000 RV might have had something to do with it, though we'll have to check with the staff accountant to be sure.

In any event, Thomas began complaining, to select people, that he was drowning financially and that he was thinking about resigning from the Court and going into the private sector, where a much larger salary would be possible. Keeping in mind that this was 2000, that was a threat that made conservatives' hair stand on end. The Court, at that time, had three reliable conservatives (Thomas among them), three swing votes, and three reliable liberals. Had Thomas stood down, there was every chance that his replacement would be chosen by Bill Clinton, or maybe by Al Gore, giving the liberals a much firmer grip on the Court.

Although Thomas did not speak to too many people about his financial concerns, he clearly spoke to the right people, because the news quickly made its way throughout conservative circles. And not long thereafter, the parade of gifts and other forms of support and assistance commenced. Easy-peasy!

These things were not bribes, per se, as they apparently weren't offered in exchange for specific concessions. But Thomas is clearly still a bought man. And he's an honest man by the definition of former (wildly corrupt) Secretary of War Simon Cameron: "one who, when he is bought, will stay bought." That said, the odds that Thomas ever suffers even the slightest punishment for any of this appear to be vanishingly slim. (Z)

Today in B.S. Polling

Readers of this site are well aware of push polls—polls whose purpose isn't really to collect information, but instead to communicate misleading/false and potentially damaging information to respondents. For example: "Would it change your opinion of Joe Biden if you learned that he was once a member of a Satanic cult?"

Today, courtesy of D.S. in Cleveland Heights, OH, we bring you an example of what you might call a "trap poll," one designed to cause respondents to reveal information that is misleading/false and potentially damaging. This particular poll is courtesy of Heartland/Rasmussen, and its finding is "One-in-Five Mail-In Voters Admit to Committing at Least One Kind of Voter Fraud During 2020."

That would be pretty shocking, if it was true, but for it to be in the same universe as "true," you have to commit gross offenses against data analysis. Just to start, as most readers know, Rasmussen is probably the most partisan pollster in operation right now. Meanwhile, Heartland claims to be a "free-market think tank." We are not sure how much thinking goes on there, but the "free-market" part of that is not terribly on point. As a name like Heartland suggests, they are MAGA populist reactionaries, and very pro-Trump. Anyhow, add it up, and you should take any product of a Rasmussen-Heartland collaboration with several oceans' worth of salt.

So, how did they produce this one-in-five result? Obviously, they did not ask people if they had committed voter fraud, since nobody would admit to that. Instead, the pollster (Rasmussen, in this case), asked about various behaviors that would constitute fraud... in some states. For example, 21% of respondents said that they had helped a friend or family member fill out their ballot. That is indeed "fraud" in some places, but not in all.

To take another example, 17% of mail-in voters reported that they voted "in a state where you were no longer a permanent resident." What this conveniently overlooks is that, in nearly all cases, that is only illegal if you also cast a ballot in another state. One of us, (V), has voted dozens of times in a state (California) where he is no longer a permanent resident, and can assure you it's not a crime, because he doesn't vote in any other state.

So, the numbers here are very obviously being cooked. But the overall implications, of which there are two, are even more problematic. To start, if grandma wants to cast a ballot for Joe Biden, and you help her fill out her mail-in ballot because her sight isn't so good anymore, that's either perfectly legal (most states) or it's only technically fraud, in states that have passed overly restrictive laws for reasons that may have nothing to do with actually combating fraud. In either case, an American citizen who is entitled to vote has registered their preference for the candidate they want. That is what ballots are supposed to do. In other words, Heartland/Rasmussen are equating real fraud (votes that never should have existed) with not fraud/not really fraud (votes that accurately expressed voters' intent).

In addition, Heartland/Rasmussen really, really want you to believe that all of these allegedly fraudulent ballots were cast for Biden. However, roughly 40% of mail-in ballots in 2020 were cast for Donald Trump. If you really wanted to prove that fraud, or even "fraud," somehow changed the election result, you would need to know which candidate the ballots were cast for, and in which state they were cast. Heartland/Rasmussen does not seem to have collected that data, however. We can't tell for sure, because they did not see fit to share their questionnaire or their crosstabs. Such a lack of transparency is yet another great sign.

So, the lessons today: (1) Don't pay attention to presidential polls yet (see above), and (2) don't pay attention to results that seem impossible, particularly if they are from a garbage pollster working for a hyperpartisan client. (Z)

NY-03 Is the Gift that Keeps on Giving

Well, it's the gift that keeps on giving to those who write about politics, at least. As we have noted a couple of times, local Republican organs settled last week on a candidate for the special election to serve the remainder of "George Santos'" term. They chose Mazi Melesa Pilip, who is:

• Black
• Jewish and Israeli
• A veteran (of the Israeli Defense Forces)
• An immigrant
• A mother of seven

Anyone involved with this decision who claims this choice wasn't, at least in part, about checking a lot of very desirable boxes is simply not telling the truth. On some level, Pilip feels like a person who was designed using CandidateCAD.

That said, it has now come to light that Pilip also checks a box that you would think would be disqualifying for a Republican candidate for office. To wit, she's a registered Democrat, and has been for a decade. It's true that she has been elected to local office as a Republican, but it's also true that she refused last week to commit to re-registering with the GOP. Oh, and she doesn't have an opinion on whether abortion should be legal.

What it amounts to is a race with a very Blue Dog Democrat in Tom Suozzi up against someone who appears to be a Democrat in all but name in Pilip, and who may well be more liberal than Suozzi on many subjects. It should be an interesting test of how much policy matters, versus how much the (R) and (D) next to the name matter.

Also, as long as we are on the subject, New York Republicans hired three different law firms to do background checks on candidates and to make sure the final choice, namely Pilip, was squeaky clean. It would seem that those firms didn't do a great job, because it took Politico roughly 48 hours to dig up some dirt. Pilip's husband's medical practice, where Pilip served as operations director, is at least $70,000 in arrears on rent.

If this is the only skeleton, it's a pretty minor one. But once you find one five-figure debt in a candidate's background, it is often the tip of the iceberg. So, we'll have to wait and see. Meanwhile, are there no Republicans in this district who don't have financial red flags? Apparently not. The good news for Pilip is that, if things break right, she'll be able to knock out that $70,000 in debt with just a few weeks of doing Cameos. (Z)

A December to Rhymember, Part XIII: More Haikus

Haikus are among our favorites, and many readers seem to share that view. So, we'll return to that form today. Haiku #1 is from D.C. in Portland, OR:

"Poison in the blood" —
While I was sweetly napping
Did the Nazis rise?

And the author of haiku #2 is T.B. in Santa Clara, CA:

Haley, DeSantis,
Ramaswamy, Chris, or Trump?
None of the above!

More tomorrow; send your submissions here. (Z)

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