Tag Archives: Michigan

Insurrection Ineligible

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Under the United States’ federal form of government, elections are administered by the states. Why are state constitutions being left out of the picture?

The Colorado Supreme Court has put state courts front and center for 2024, ruling Donald J. Trump ineligible for the ballot in Colorado, pending appeal to the U.S. Supreme Court.

January 6, 2021

As everyone not living under a rock knows, at issue is Section 3 of the 14th Amendment:

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. (July 9, 1868)

Constitution of the United States

Shortened to pertinence, the section reads,

“No person shall […] hold any office, civil or military, under the United States, […] who, having previously taken an oath […] as an officer of the United States […] to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same[.]”

The section seems clear to a non-lawyer but is being characterized as vague or not spelled out. Setting aside definition of “officer of the United States” for now, the key term is insurrection.

The U.S. Constitution itself refers to insurrection only briefly—very, very briefly—in enumerating powers of Congress: in Section 8, Congress can call forth the militia to “suppress insurrections.”

No definition is given for “insurrections,” suggesting that none was considered necessary; and suppressing insurrections is a power of Congress, not only of the Commander in Chief. (Sadly, the D.C. Code states that local authorities in Washington, D.C., can call upon the Commander in Chief for help in suppressing riots. An update may be needed.)

The brief statement on insurrection in the U.S. Constitution is reinforced by state constitutions. This is not a federal-government-versus-state-government issue.

For the record, the state constitutions of Colorado, Iowa, Maryland, Virginia, North Carolina, South Carolina, Texas, Florida, Oklahoma, Utah, Wyoming, Mississippi, Alabama, Louisiana, Idaho, New Mexico, Nevada, and Arizona all refer to “insurrection,” not favorably but as a self-evident ill to address. So do the constitutions of Pennsylvania, New Jersey, and Massachusetts.

I have not gotten to the other 29 state constitutions yet, but so far an unshakeable pattern has emerged. To summarize, in the states named, without exception,

  1. The governor has power to suppress insurrection.

  1. The state can take on public debt and/or appropriate funds against insurrection.

In regard to public debt and insurrection, North Carolina goes farther.

Section 3 (4): “Certain debts barred.  The General Assembly shall never assume or pay any debt or obligation, express or implied, incurred in aid of insurrection or rebellion against the United States.”

Section 4 (4): “Certain debts barred.  No county, city or town, or other unit of local government shall assume or pay any debt or the interest thereon contracted directly or indirectly in aid or support of rebellion or insurrection against the United States.”

Variations of language do not disrupt the patterns, the state powers to address insurrection. For example, the governor can call out the state militia and put down insurrection even where, as in South Carolina, Arkansas, or Pennsylvania, the same section does not explicitly designate him “commander in chief.”

Also, for whatever historical reasons, the state constitutions of Texas, Alabama, Louisiana, Maryland, and Arizona do not contain the word “rebellion,” often in other states associated with “insurrection” or “invasion.” But as said, they all address “insurrection.”

There are two more overall patterns to mention here.

  1. Many state constitutions—though not all—say that the right of habeas corpus shall not be suspended except in connection with insurrection, rebellion, or invasion.  The state constitutions of Texas, Alabama, Louisiana, Arizona, and Maryland do not have this provision but say flatly that habeas corpus shall not be suspended.

  1. No state constitution uses the word “convicted” in connection with insurrection, rebellion, or invasion. (If an example turns up, I will include it in a later post.)

With all due deference to Rep. Phillips, none of the references to insurrection or rebellion in any state constitution say anything about being convicted. When the word “convicted” is used about public officials, it mainly refers to offenses like bribery and embezzlement.

Obviously, some state constitutions were written or rewritten after the Civil War, with the Confederacy in mind, although provisions against insurrection pre-dated the Civil War in older states. There was little need for conviction on Civil War actions, when the actions were highly public; the identities of Jefferson Davis et al. were widely known.

In this respect, Donald J. Trump’s actions are indeed analogous to the highly public actions of southeastern states after Fort Sumter. Trump’s actions are always highly public—televised, videorecorded, ongoing even after January 6; trumpeted in rallies, on Trump’s own social media, and at Mar-a-Lago; used flamboyantly in fundraising appeals coast to coast.

Speaking of being convicted, or not, on the related topic of impeachment, the state constitutions create another unshakeable pattern:

  1. As in the U.S. Constitution, punishment in impeachment extends only to removal from office and disqualification from serving in public office in the future. Neither the U.S. Congress nor state legislatures can jail a convicted individual, and rightly not. BUT, also as in the U.S. Constitution, the outcome of an impeachment trial does not protect an official from prosecution or from other actions of the law after office. This provision is stated clearly in the constitutions of Colorado, North Carolina, Virginia, Florida, Texas, New Mexico, Nevada, Arizona, South Carolina, Georgia, Mississippi, Louisiana, Arkansas, Pennsylvania, Massachusetts, New Jersey, Idaho, Wyoming, Utah, and Iowa.

Trump’s weakest ground is his weird insistence that he is immune to prosecution because he is out of office but was once in office.

The wording of the Arizona state constitution is luminously clear on this point (Part 2.2):

“The party, whether convicted or acquitted, shall be liable to trial and punishment according to law.”

UPDATE 12/22/23. Add the Michigan state constitution to the list of documents upholding the governor’s power to deal with “insurrection.” The Detroit News today reported that Donald Trump was caught on tape pressuring state election officials in Michigan to avoid certifying the 2020 presidential vote in that state. Also on the call was Ronna McDaniel, Chair of the Republication National Committee. The telephone conversation as reported would induce them to violate their oath of faithfully performing the duties of their office, but Trump backed up McDaniel in assuring them that they would have legal protection. McDaniel is recorded saying, “We will get you attorneys,” and Trump, “We’ll take care of that.”

Recount may add Trump votes

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Update December 6: Clinton supporters in Florida are petitioning for a recount there. Let’s take another look at the numbers in Florida, from the New York Times and that spreadsheet by Cook Political Report. As with Michigan, Pennsylvania and Wisconsin (the piece below), there are no anomalies that suggest hidden votes for Clinton lurking uncounted in Florida.

Trump leads Clinton in Florida by 112,911 votes, as of now–a narrow win, in a big state. But the vote for “Others” is 297,178–more than twice Trump’s margin, for a total of more than 409,000 people who didn’t vote for Clinton, well outside a margin where a recount might reasonably be called for.

More importantly, those “others’ broke heavily for right-leaning candidates rather than for Jill Stein. As of now, the numbers in the NYTimes page are 207,043 for Gary Johnson; 16,475 for the Constitution candidate; 9,108 for Rocky de la Fuente; and 74,684 for Independent–a total of 307,310. Stein got 64,399.

In other words, any hope for a changed outcome for Hillary Clinton in Florida has to upset or reverse not only the margin between the major party candidates, but also a roughly five-to-one margin in favor of conservative-leaning ‘third party’ candidates. The hope is a null set. It is preposterous, and our news media who ignore the third-party tallies are failing in their duty to the public which has to determine when, and whether, a recount is called for.

[previous post below]

For the record, I support recounts. The right to vote is paramount, it should be an equal right, and tabulating votes accurately is more important than tabulating them fast. The public should be able to observe. Vote in private, count in public.

However, a recount will not only not change the 2016 outcome in Michigan, Pennsylvania, or Wisconsin, as the Jill Stein and Hillary Clinton campaigns themselves acknowledge. It is unlikely even that Clinton will net additional votes.

Take a quick look at the numbers for candidates other than Trump or Clinton. Reality check for commentators eager to blame ‘third parties’ for Clinton’s losses: in Michigan, Stein pulled 51,463 votes. But Libertarian Gary Johnson pulled 172,136. That’s a margin of more than three to one for the right-leaning ‘third party’ candidate over the left-leaning ‘third party’ candidate. Yes, the number of votes going to Stein in Michigan is more than the number by which Trump beat Clinton (10,704)–almost five times more. But the number going to Johnson is more than sixteen times greater than the winning margin.

Dr. Jill Stein

Dr. Jill Stein

In Pennsylvania, Stein pulled 49,278 votes. But Johnson pulled 144,536–almost three times as many, and more than twice the margin by which Trump beat Clinton in Pennsylvania (70,779). Trump’s margin as seen exceeded Stein’s votes. Conservative Party candidate Darrell Castle pulled another 21,242.

Gary Johnson, Libertarian candidate

Gary Johnson, Libertarian candidate

In Wisconsin, Stein got 30,980 votes–greater than Trump’s net over Clinton of 27,257. But Johnson got 106,422 votes, and the conservative Constitution Party candidate got 12,179. Adding these votes to those for the major party candidates yields a left-ish total of 1,413,190 and a right-ish total of 1,528,068. That’s a margin of more than 100,000 votes (114,868 to be precise, using the unofficial results given so far)–not the eyelash-thin margin screamed by the headlines.

Quick points: First, nothing in this picture suggests that hidden hordes wanted to vote for Clinton and were thwarted. Second, it’s funny how the name ‘third party’ applies no matter how many parties are listed. This dismissing everyone not locked into a major party should be rethought–especially in Wisconsin with its proud populist tradition. Third, even if the Democrats had won by a razor-thin margin in Michigan or the other two states, the thin margin would be shameful. From a small-d perspective, the Clinton candidacy was an embarrassment.

Fourth, blaming Clinton’s loss on a ‘third party’ is exactly what might be expected of the Clintons and their media allies (Rachel Maddow, for example)–but it is hardly progressive. Nor is it accurate. The fact remains that Jill Stein’s vote was substantially smaller in all three states than the votes for the Libertarian, Constitution, and other right-leaning candidates.

Meanwhile, this from Politico:

PROPUBLICA KNOCKS DOWN VOTER FRAUD CLAIMS — “We had 1,100 people monitoring the vote on Election Day. We saw no evidence the election was ‘rigged’ no matter what Stein or Trump say,” the investigative non-profit outlet said in a series of tweets last night. “Electionland had huge amounts of data. 600 ppl monitored social media. We had @LawyersComm call logs. We had 120,000 people texting us. We had 400 partner reporters across the country, including three of the largest news organizations in the U.S. We had voting experts in the room with us and election sources all over the country. We saw plenty of problems: Long lines, broken voting machines, incorrect poll books, confusion abt voter ID laws. But we saw no reason to doubt the results.” [Here, please imagine ‘handclap’ emojis where the ellipses are.] There … was … no … widespread … voter … fraud.” http://bit.ly/2gyBJ0K

It remains unclear why Dr. Stein is pursuing the recount. She did raise almost $7 million for the effort, which is the way to get Hillary Clinton’s attention. Ironically, Clinton has now joined the recount campaign, although Pennsylvania, Michigan, and Wisconsin did not receive much love from the Clinton campaign in the form of campaign stops or more importantly policy addresses.

Clinton’s participation seems mainly to reflect her personal problems. As long as she can fan the dying ember of a hope that she is adored, apparently, she will keep the ‘election’ going. Again, no one projects that a recount will change the outcome. However, a delay hypothetically could take two states out of Trump’s win column on December 13 or December 19, whichever is treated as the Electoral College deadline.

Abolish the Electoral College? Why?

One problem with the abolish-the-Electoral-College picture is that it is hard to envision these three ‘Rust Belt’ states getting more attention without the prize of Electoral votes than they got in 2016 with a combined 46 Electoral votes, or 17 percent of the total needed to win the White House. As we already know, these areas are not booming.

Recent U.S. population growth

Recent U.S. population growth

Add Ohio, Iowa, Indiana, Minnesota, and Illinois to Michigan, Pennsylvania, and Wisconsin, and you get 41 percent of the Electoral votes needed to win. First, nothing makes neglecting these states anything but stupid, except for whatever makes it arrogant, self-important, or self-deluded to the point of delirium. Second, to my confreres in the media–if you want to avoid being perceived as elitist, quit using the phrase ‘Rust Belt’. Try losing your job and see how you like it, or watch your entire occupation go under. Wait–that’s already happening . . .

Progressives above all should repudiate this attitude. People who have a hard time finding decent jobs in small towns, open areas, or small cities should not be ridiculed. Nor should they be dismissed from the electorate, which might be the effect of abolishing the Electoral College. Look how well it worked this time.

I despise ridicule directed against any sector of the U.S. (like David Brooks’ comment about ‘gene pools’, for example). A superficial dismissal may rest–superficially–on a careless assumption of moral superiority (racial disparities in the Southeast, Latino poverty in the Southwest, random bigotry in the ‘Rust Belt’; take your pick). So what do the election analysts say about a small city like Binghamton, New York? This was a town where, if you recall, the big employer was IBM. Then IBM left–and now one of the town’s biggest employers is SUNY Binghamton, a nice place but not exactly hiring on the scale of General Motors or U.S. Steel back when. There is much to be said for the locale, from what I hear. You can get a very nice house for $40,000. But where do you find the job to pay for it?

Positive harbingers for Obama-Biden

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Pre-election, looking warmer

2012 harbingers

Yet another positive harbinger for the election, from a Democratic and democratic perspective: Citigroup’s CEO just abruptly resigned. Wall Street this fall did a little quiet house-cleaning. Doesn’t suggest that insiders see a wildly lenient Romney-Ryan ticket winning. Rep. Paul Ryan doesn’t seem to see that in his crystal ball, either: he is still on the ballot in Wisconsin, running for reelection to Congress just in case things don’t pan out elsewhere.

 

Ryan with budget

Funny how little attention the hand-wringing liberalish cable commentators have paid to that Wisconsin race.

 

WI challenger Rob Zerban

But then a near-hysterical insistence on closeelectioncloseelectioncloseelection offers little political acumen or illumination.

 

Mad man

Close or not, take a look at some of the hard numbers:

  • by all accounts, the advantage in 2012 early voting is heavily Democratic
  • President Obama outraised Mitt Romney in September, $181 million to $170 million
  • retail sales are up in September, unemployment is down, consumer confidence is up, house sales up, housing permits up; etc
  • Dem Senatorial candidate Tim Kaine is outraising George Allen (R) in swing-state Virginia
  • Democratic challenger Elizabeth Warren is outraising incumbent Sen. Scott Brown (R) in Massachusetts in spite of a national lobbyist-superPAC campaign against her
  • compilations of polls and polls of polls still show Obama significantly ahead of Romney in electoral college votes
  • Nate Silver’s micro-tuned statistics continue to predict the win Obama

Even as nominally pro-Democratic commentators keep instilling fear, cherry-picking the most negative opinion polls in order to seem influential, RealClearPolitics makes the picture clear.

RCP, be it noted, accords the incumbent Obama-Biden only 201 electoral votes, and 191 to Romney-Ryan. RCP designates the other 146 electoral votes ‘toss-up’.

That toss-up category includes the following states, in alphabetical order:

What these five ‘toss-up’ states have in common is, among other things, that Obama is ahead in all or most polls in all five of them. Not much surprise there; Obama also carried all of them in 2008. All five also have a history of going Democratic in presidential elections for the past quarter-century. Iowa has voted Republican only once (2004) since 1984. Michigan has voted Dem every time since 1988. Ohio has gone Dem in three of five elections since 1988. Pennsylvania has gone Dem every time since 1988. ‘Swing state’ Wisconsin has gone Dem in every election since 1984.

Jobs minus before, jobs plus after

Meanwhile, Michigan and Ohio are also home to industries that Romney-like policies have damaged. Iowa and Ohio tend to be politically tuned in as state electorates–never a blessing to Romney-type policies. Wisconsin has a history of populism, Pennsylvania of religious freedom, all five states are heartland bastions of the large, self-confident working class called middle class in this country’s sociology.

And as mentioned, every recent opinion poll or almost every recent poll, in all five of these swingy swing toss-up states, puts Obama ahead.

I am beginning to think that the mass media effort to drive every national election to ‘closeness’ bears a strong and unsavory resemblance to price-fixing in retail.

 

Michigan and Arizona primaries 2012

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February 28, 2012, primaries in Arizona and Michigan

Santorum in Michigan

GOP primaries in Michigan and Arizona today–and it will be mildly interesting to see which candidate Republican voters will be stuck with, if either. On the one hand they have the lurid imaginings of former Pennsylvania Rep. Rick Santorum, who is more and more coming to seem like the type of religio more hell-bent on damning other human beings than on sharpening his own conscience. Deafness to the promptings of conscience might or might not be expected of someone who spent his years out of office working as a corporate lobbyist in DC, even if the lurid version of religion dominating Santorum’s idiom is not stereotypically associated with the kind of inside-the-Beltway job Santorum held, and profited from.

 

Romney

On the other hand primary voters have former Massachusetts governor Mitt Romney, who famously penned an op-ed for the New York Times Nov. 18, 2008, titled “Let Detroit Go Bankrupt.” ‘Flip-flopper’ or not, Romney has stuck by his argument on this one, following up recently in Michigan with a Feb. 14 op-ed in a Detroit paper calling the auto rescue “crony capitalism.”

 

Automobiles and candidates

Santorum has been proclaiming a “two-man race” in the Republican primaries for several weeks. It seems like years. Most of the political press is following suit for the moment–while waiting to see whether Newt Gingrich’s race-baiting resuscitates the Gingrich campaign in the South in March. It is tempting to streamline the Romney-Santorum contest as a contest between the corporate-insider and barking-dog segments of the Republican Party, dignified as ‘wings.’ This would be over-simplification.

Not that Romney isn’t giving this over-simplification all the help he can. Set aside the off-the-cuff references to the two Cadillacs (American-made cars; that’s why Romney mentioned them in Michigan) his wife drives, or to the Nascar team owners Romney knows. More importantly, Romney also advocated letting the foreclosure crisis run its course, an argument obviously not targeted for Arizona. While Arizona’s foreclosure problems do not equate to those in neighboring Nevada, in December 2011 Arizona hit the top-ten list for foreclosures by state. Spikes in oil prices that deter travel to the wide-open spaces in the Southwest will not help over coming months.

Needless to say, Rick Santorum is even farther to ‘the right’ on the auto-industry and foreclosure issues. Santorum may speak touchingly of miners related to him personally, but when it comes to holding mine owners accountable for mine safety—or any other wholesome and necessary regulation to save lives and health—he’s on the other side, if quietly.

 

Speaking of oil prices–

There are a few facts that the GOP candidates—except occasionally for Ron Paul–do not mention on the campaign trail:

  • Gasoine prices spike when oil prices spike. When the price of crude jumps, the price at the pump is sure to follow. Historically, by the way, a decline in crude price is less swiftly followed, and less equivalently, by a decline in pump price.
  • Spikes in the price of crude oil come largely from rampant, unchecked speculation on oil futures; less from demand for the oil than from betting on the future price of oil
  • Speculation on oil futures in recent days—heightened buying ahead of retail, which has driven up the price of crude–has been fueled by the public discourse, if you call it that, over Iran
  • Iran, as we know, is now newly and again being touted as the favorite hot spot for right-wingers in politics and in Fox-ified media outlets, ever on the look-out for the next war to send other people to

Then these cats vilify President Obama for not doing something magical to hold down the price of oil or of gasoline. Even rightwing columnist George Will criticized that one. (It would be interesting to know why.)

Forget the sense of honor and of patriotism that used to keep even lunatic-fringers from attacking a president on foreign policy, on the campaign trail, while he was in the midst of delicate and tense negotiations. Can Romney, Gingrich and Santorum honestly be oblivious to the fact that their own super-fatted rhetoric—figuratively the equivalent of pouring grease on a kitchen fire—contributes to the tension of disagreements over Iran, and thus to spiking oil prices?

If so, they may be the only ones oblivious. Donor lookup is key. The oil and gas industry so far has contributed far less in 2012 than has the finance sector. Oil and gas are obviously holding back to see who their 2012 standard bearer will be, rather than picking one. But contributions from the energy industry are going—not surprisingly—overwhelmingly to Republican candidates (not including Ron Paul). Six to one, they’re donating to GOPers rather than to Dems. Now that Rick Perry is out of the race, they’re donating mostly to Romney. Predictions are silly, but it’s still hard to see Santorum as having a chance.

more later

[update 10:45 a.m.]

“It’s important not to be afraid to stand up for what you believe in.” –heard from a registered Democrat who voted for Santorum in the GOP primary. Also said he was not trying to make trouble; he voted for Obama in 2008 and is not sure, he said, whether he would vote for Obama again in 2012.

There is more than one quick, efficient, on-the-nose lesson here. For one, it nutshells what is  most damaging to Mitt Romney as a candidate: that he comes across as consistently afraid, depending on audience, to stand up for what he believes in. Second, that anyone with this perception would gravitate toward Rick Santorum or Newt Gingrich–as though their loathesome fulminations were courage–testifies again to the poor political analysis and weak political reporting most of the public gets.

Third, something about this reminds me of David Plouffe’s epically stupid remark when Congresswoman Gabrielle Giffords was shot in the head. Plouffe’s response? –to warn against blaming violence in any way on violent rhetoric. (In other words, propaganda doesn’t work? If it doesn’t work, why does the lobbying-candidate cabal use it?) This voter’s comment should be a reminder. The White House would be mistaken to fall into the same hole. The president cannot afford to come across as afraid to stand up for what he believes in.  To do him justice, I think Obama is in fact able to stand up for what he believes in. And he has brought about tremendous change, most of which he has not been given credit for.

But the Rahm Emanuel wing of the party–what they stand for is them, as the saying goes in Texas–has influenced too much of the discussion coming out of media outlets (especially since AOL bought the supposedly progressive Huffington Post).

For the record, I oppose voting in the other party’s primary. No one should be voting for the policies espoused by Romney or Santorum, which boil down quite simply to rich-get-richer and at the expense of the general good. That’s the message to send.

[update]

9:44 p.m. The networks/channels are still calling Michigan too close to call, even though it does not in fact look too close, let alone too close to call. Romney won Arizona, as expected, and looks set to pick up Michigan too–also as expected, though not in the most recent hours. Something like 43 percent Romney to 35+ percent Santorum, with Ron Paul and Gingrich finishing at 11 percent and single digits respectively.

Back to that note on oil prices: legal cases on oil-gas speculation are working their way through the judicial system. I wonder whether something might be accomplished by executive order of a president.

Speaking of legal cases, it is funny that Arianna Huffington and Huffington Post are still being characterized as having “credibility” after selling to AOL without repaying the millions of dollars’ worth of value contributed to HuffPost by unpaid bloggers. With whom does HuffPost still have credibility as a progressive outlet?