Monday, February 05, 2024

Marty Lederman and Bruce Ackerman Are Both Right!

Mark Tushnet

How can that be? Because Marty focuses on the purely legal consequences of a decision affirming the Colorado Supreme Court and Bruce on the practical effects of such a decision as it's likely to be presented to the public.

First, pro-Marty: All that affirming the Colorado Supreme Court decision means, legally, is that it's constitutionally permissible for a state to conclude, through its authorized processes, that Trump is disqualified from appearing on the ballot pursuant to state law regulating ballot access. It wouldn't mean, legally, that Trump cannot appear on any ballot anywhere in the country--and indeed, as I argued earlier, it doesn't even mean that were the Republican electors to win a majority of Colorado's votes in November they couldn't vote for Trump in December.

But second, pro-Bruce: There's no question in my mind that a large swathe of the public, misinformed by both mainstream and politically tilted media, will interpret a decision affirming the Colorado Supreme Court as a holding that Trump can't appear on the ballot anywhere in the country. Were there a chance of a "shakedown" period in which that misunderstanding could be overcome, perhaps the consequences Bruce and others fear might be tempered, but I seriously doubt that there would be such a shakedown period or that the tempering efect would be large.

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