Aug 30Liked by James J. Heaney

I'm eagerly awaiting your review of Paulsen & Baude's arguments. I haven't read their paper either, but their conclusions naively seem plausible to me... but then, the vagueness you reference about potential "insurrections" during the Floyd riots would be concerning.

Also, are you by any chance considering filing that suit yourself?

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Sep 1·edited Sep 1Liked by James J. Heaney

The legal case to disqualify Donald Trump sounds convincing to this layman. But the "self-executing" claim seems dubious. If the secretary of state of any state were to disqualify Trump from the ballot on Section 3 grounds, a court case would immediately result. And that hearing would likely center on the facts of Trump's actions before and during January 6, 2021 and whether or not they constitution an "insurrection" since trump has not (yet) been convicted of any January 6 crime.

That is (and in the absence of that criminal conviction) an evidentiary hearing would have to be held. Can such a hearing be held in the absence of a law implementing Section 3? In the absence of such a law, a negative result would likely be appealed at every step, probably all the way to SCOTUS.

There is another consideration. There is already a possibility of political violence if Trump loses, even on the ballot in all 50 states. If he is removed from the ballot especially in a battleground state (even if a concerted effort is made to do so) -- look out.

None of which is to say Trump should be on the ballot. He should not. But it would take more than a long-dormant section fo the Constitution to keep him off.

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Sep 7Liked by James J. Heaney

So now I have actually read Paulsen-Baude's paper. They've convinced me on ~99% of their Constitutional reasoning: Section 3 does remain in force today, is self-executing, and does apply beyond those who take up arms. I'm dubious about some of the expansive scope they argue for based on things like Lincoln's letters, but the more definite scope is already quite sweeping.

What I object to is when they try to apply this to January 2021. They're right that someone could be disqualified for supporting the Confederacy even if he thought secession legal, but that's different from disqualifying everyone who supported Trump's legal schemes even if they thought his arguments were correct. (Much less alternate electors - they're an established legal practice, dating back to 1960 Hawaii if not 1876 Louisiana!) Arguments within the system are different from arguments outside the system.

This's a very interesting debate, and I'm looking forward to hearing more... or at least I would be if it wasn't threatening such worrisome consequences to our divided country.

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“If that list contains the name Donald Trump”… do us laypeople get to see the lists that get submitted?

Also, you say that this must be done quickly in January to prevent Trump’s name on the ballot but wouldn’t that only be true IF the goal was to remove his name from the primary ballot? Any submission between the primaries and the general elections would eventually do the job (providing the logic and legalize presented here is valid) of making sure DTrump is not elected as the preferred candidate from Minnesota

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