J6 Was an Insurrection

 The Colorado Supreme Court ruled that, under section 3 of the 14th Amendment, Trump is ineligible to be on the Colorado presidential primary ballot.  

Although we acknowledge that these definitions vary and some are arguably broader than others, for purposes of deciding this case, we need not adopt a single, all-encompassing definition of the word “insurrection.” Rather, it suffices for us to conclude that any definition of “insurrection” for purposes ofSection Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country. 100 The required force or threat of force need not involve bloodshed, nor must the dimensions of the effort be so substantial as to ensure probable success. In re Charge to Grand Jury, 62 F. 828, 830 (N.D. Ill. 1894). Moreover, although those involved must act in a concerted way, they need not be highly organized at the insurrection’s inception. See Home Ins. Co. of N.Y. v. Davila, 212 F.2d 731, 736 (1st Cir. 1954) (“[A]t its inception an insurrection may be a pretty loosely organized affair. . . . It may start as a sudden surprise attack upon the civil authorities of a community with incidental destruction of property by fire or pillage, even before the military forces of the constituted government have been alerted and mobilized into action to suppress the insurrection.”). 

¶185 The question thus becomes whether the evidence before the district court sufficiently established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. We have little difficulty concluding that substantial evidence in the record supported each of these elements and that, as the district court found, the events of January 6 constituted an insurrection. 

¶186 It is undisputed that a large group of people forcibly entered the Capitol and that this action was so formidable that the law enforcement officers onsite could not control it. Moreover, contrary to President Trump’s assertion that no evidence 101 in the record showed that the mob was armed with deadly weapons or that it attacked law enforcement officers in a manner consistent with a violent insurrection, the district court found—and millions of people saw on live television, recordings of which were introduced into evidence in this case—thatthe mob was armed with a wide array of weapons. See Anderson, ¶ 155. The court also found that many in the mob stole objects from the Capitol’s premises or from law enforcement officers to use as weapons, including metal bars from the police barricades and officers’ batons and riot shields and that throughout the day, the mob repeatedly and violently assaulted police officers who were trying to defend the Capitol. Id. at ¶¶ 156–57. The fact that actual and threatened force was usedthat day cannot reasonably be denied. 

¶187 Substantial evidence in the record further established that this use of force was concerted and public. As the district court found, with ample record support, “The mob was coordinated and demonstrated a unity of purpose . . . . They marched through the [Capitol] building chanting in a manner that made clear they were seeking to inflict violence against members of Congress and Vice President Pence.” Id. at ¶ 243. And upon breaching the Capitol, the mob immediately pursued its intended target—the certification of the presidential election—and reached the House and Senate chambers within minutes of entering the building. Id. at ¶ 153. 102 

¶188 Finally, substantial evidence in the record showed that the mob’s unified purpose was to hinder or prevent Congress from counting the electoral votes as required by the Twelfth Amendment and from certifying the 2020 presidential election; that is, to preclude Congress from taking the actions necessary to accomplish a peaceful transfer of power. As noted above, soon after breaching the Capitol, the mob reached the House and Senate chambers, where the certification process was ongoing. Id. This breach caused both the House and the Senate to adjourn, halting the electoral certification process. In addition, much of the mob’s ire—which included threats of physical violence—was directed at Vice President Pence, who, in his role as President of the Senate, was constitutionally tasked with carrying out the electoral count. Id. at ¶¶ 163, 179–80; see U.S. Const. art. I, § 3, cl. 4; id. at art. II, § 1, cl. 3. As discussed more fully below, these actions were the product of President Trump’s conduct in singling out Vice President Pence for refusing President Trump’s demand that the Vice President decline to carry out his constitutional duties. Anderson, ¶¶ 148, 170, 172–73. ¶189 In short, the record amply established that the events of January 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country. Under any viable 103 definition, this constituted an insurrection, and thus we will proceed to consider whether President Trump “engaged in” this insurrection. 

Memorial Day 2018

Harry Stevens and Mike Allen at Axios:

Today is the 17th Memorial Day since 9/11. Since then, 6,940 U.S. military service members have died for America.

Why it matters: Every part of the country has lost soldiers to the wars in Iraq and Afghanistan. All were Americans — someone's neighbor, child, parent, mentor, buddy.

Their average age was between 26 and 27 years old.

The big picture: The losses have not been distributed evenly. Several parishes in southern Louisiana, for instance, have suffered a disproportionate number of soldiers killed since 9/11. Of the five places with the most military deaths per population, three — Tangipahoa Parish, East Baton Rouge Parish, and Calcasieu Parish — are in Louisiana.

Many of the dead came from big cities — 167 hailed from Los Angeles County, the most of any county. Others came from more remote places, like Mineral County, Colo., population 732, home to Sgt. Clinton Wayne Ahlquist, who was killed in Ar Ramadi, Iraq, on Feb. 20, 2007, at the age of 23. Of all U.S. counties, Mineral County has the highest rate of servicemembers killed in proportion to population.

Today is the 17th Memorial Day since 9/11. In the intervening years, every part of the country has lost young men and women in the wars in Iraq and Afghanistan. This map shows where they came from. https://t.co/ejWjPHqQSz via @axios @AxiosVisuals pic.twitter.com/esJoZnAWqI

— Harry Stevens (@Harry_Stevens) May 28, 2018

 

Drugs, Federalism, and US Territory

A problem of federalism is that when one state's decision to allow an activity may undercut a neighboring state's efforts to prohibit it. The Los Angeles Times reports:

Law enforcement officers in the smaller, often isolated counties in states ringing Colorado say their departments shudder under the weight of Colorado pot flowing illegally across the border.

Drug arrests are rising, straining already strapped budgets in places where marijuana remains illegal.

"It has just devastated these smaller agencies," says Tom Gorman, director of the federally funded Rocky Mountain High Intensity Drug Trafficking Area program, a network of law enforcement organizations in four Western states. "The marijuana laws [in Colorado] were supposed to eliminate the black market. But in effect they have become the black market."

A study by his organization last year found that between 2005 and 2012, the amount of seized Colorado pot heading for other states increased 400%. Although it is legal for adults to possess small amounts of marijuana in Colorado, it remains against the law to take it out of the state.
But most agree it's fantasy to think that won't happen.

Puerto Rico's status as US territory is also problematic, as The New York Times reports:

Much of the cocaine being smuggled here now bypasses other surrounding islands and is taken directly from South America to Puerto Rico, a prized transshipment hub because it is on United States land. Once inside, packages that conceal drugs do not need to clear customs. The overwhelming majority of drugs that enter Puerto Rico end up in the United States mainland, passing through airports, seaports or mail parcels, said Vito S. Guarino, the United States Drug Enforcement Administration’s special agent in charge in San Juan and a veteran of the 1980 Caribbean-Miami drug wars.

More on Public Opinion, Federalism, and Marijuana

Previous posts have examined federalism issues in marijuana control. Consistent with a recent YouGov poll, Gallup finds a preference against federal action in states that have loosened restrictions:

Sixty-four percent of Americans are against the federal government's taking steps to enforce federal anti-marijuana laws in states where marijuana is legal. Americans who personally believe that marijuana should be legal overwhelmingly say the federal government should not get involved at the state level, along with four in 10 of those who are opposed to legalized marijuana. [emphasis  added]

The issue of what the federal government should do in these situations is particularly relevant, given recently passed initiatives in Washington and Colorado that legalized possession of small amounts of marijuana. These state-level laws are at odds with the federal Controlled Substances Act that makes marijuana use illegal. Although all of the precise specifications of the new law in Washington have not yet been determined, the fact that a number of pot smokers gathered near the Space Needle in Seattle last week to publicly celebrate their state's new law underscored this potential conflict between what could be legal under new state laws while remaining illegal at the federal level.

The results from the Nov. 26-29 USA Today/Gallup poll indicate that the average American sides with the states in these instances of conflict.

Voting from Overseas

Reuters reports:

With the U.S. presidential election too close to call, hundreds of thousands of Americans living in Europe have been posting their absentee ballots with a sense that they could truly make a difference on November 6.

From Berlin to Paris and London to Madrid, they have closely tracked the battle between Democrat President Barack Obama and Republican challenger Mitt Romney, though the emotional temperature is several degrees lower than four years ago, when most expats rallied behind Obama after two terms of George W. Bush, whom many thought had tarnished the U.S. image abroad.

Both the Republicans and Democrats have courted the expat vote since 1988, when absentee ballots reversed the outcome of a Senate race in Florida, allowing Republican Connie Mack to pip Democrat Buddy MacKay, who had led when polling stations closed.

Absentee ballots also made the difference in another Senate race in 2008. Democrat Al Franken came from 215 votes behind to win with the help of absentee votes.

The tightness of the presidential race, with a Reuters/Ipsos tracking poll showing a dead heat , has made the expat vote arguably more important than ever. Both Republicans Abroad and Democrats Abroad organisations have gone all out to get Americans registered and voting in their home states.

Some overseas voters are in uniform. Hope Hodge writes at Human Events:

While a number of battleground states have reported dismal numbers of military absentee ballot requests in early counts, the western swing state of Colorado announced Monday that its ballot request totals for military and overseas absentee voters have already surpassed 2008 totals, with eight days to go until the election.

After low recorded voter turnout in these demographics four years ago, Congress authorized $75 million for the Military and Overseas Voter Empowerment Act, which, among other provisions, established and staffed voting assistance offices at over 220 military bases. But early ballot request totals in a number of states showed an even more depressed military voting turnout than in 2008, and a bombshell report at the end of August from the Department of Defense Inspector General found that half of the new voting offices were unreachable by telephone or email.

Colorado is proving that low military voting does not have to be the status quo.

The office of Secretary of State Scott Gessler announced that 19,055 military and overseas ballot requests had been received, 2,804 more than in 2008. The 8,320 completed ballots the state has already received from these voters amounts to a return rate 80 percent higher than in the 2010 election.

The improvement in numbers is attributed to a statewide project launched in 2010 that allows overseas voters to receive next-day ballots via email and mail them back at their convenience. 

Some of these voters are students on study-abroad programs.  The Capital News Service reports:

In 2009, the federal government passed the Military and Overseas Voter Empowerment (MOVE) Act. The legislation led 47 states, including Virginia, to pass similar laws increasing enfranchisement of overseas voters.

Under the legislation, voters are no longer required to have absentee ballots notarized. States are required to send absentee ballots to registered overseas voters at least 45 days prior to the election. Electronic absentee ballots and registration applications must be made available online by each state in case hard copies don’t arrive, the law states.

Currently, 13 states allow online voter registration, according to a spokesperson for the Pew Center on the States; Virginia is not one of them.

Overseas Vote Foundation (OVF) spearheaded the trend toward electronic registration in 2008. Nearly 5 million people accessed the OVF webpage in 2008, including nearly 2 million in the October before the election, according to a report by the Pew Center on the States.
Overseas Vote Foundation established an offshoot, Youth Vote Overseas (YVO), to target students going abroad. The organization does outreach with more than 450 colleges across the country, including more than 10 schools in Virginia.

The goal is to encourage students to register to vote before going abroad, explained Marina Mecl, Youth Vote Overseas outreach program director. As a result, much of YVO’s web traffic comes from within the U.S.

Contact with partner universities overseas helps YVO’s cause, Mecl said, especially in traditional hubs for exchange students.

Between July and October, the organization tallied its highest number of registrations abroad from the United Kingdom, Spain, Italy and France – four of the top five study abroad destinations from 2008 to 2010. About three out of four voters registering on the site are between 18 and 24.

The Incumbency Advantage

Even in tough economic times, incumbent presidents have certain political advantages. The New York Times reports:

Every president lives at the intersection of policy and politics, never more so than during a campaign season. Locked in a tight race with Mitt Romney, Mr. Obama and his team have been pulling every lever of the federal government within reach, announcing initiatives aimed at critical constituencies, dispatching cabinet secretaries to competitive areas, coordinating campaign events to match popular government actions and forestalling or even reversing other government decisions that could hurt the president’s chances of a second term.

On Friday, Mr. Obama will designate Chimney Rock in Colorado a national monument, preserving thousands of acres and aiding tourism in another swing state, a decision shared Wednesday with a Denver newspaper. When he flew to Iowa last month, Mr. Obama arrived just as his administration announced drought relief for farmers and released a report promoting his support for wind power. After critics attacked him for inhibiting oil and gas production by considering an obscure lizard for the endangered species list, the administration decided it wasn’t so endangered after all.

The Chimney Rock move comes 16 years after President Clinton did something similar during his own reelection race.  Carl Cannon reported on September 19, 1996:

Hoping to galvanize his support among conservation-minded voters, President Clinton yesterday declared 1.7 million picturesque acres of federal land in southern Utah a national monument.

"Seventy miles north of here lies some of the most remarkable land in the world," Clinton said, bathed in sunlight and framed by the spectacular South Rim of the Grand Canyon. "Today, we are keeping faith with the future."

...
The decision was denounced by Republican leaders, especially those in Utah, as an election-season stunt. They argued that the move was intended to shore up Clinton's support among environmentalists in Western states such as California, Colorado and even usually Republican Arizona.

Clinton carried California and Arizona, and came very close in Colorado. His gambit inspired a story on The West Wing:

BARTLET [to Josh] What have you got?

JOSH The Antiquities Act. You're gonna establish Big Sky National Park. 

Bartlet laughs at the idea.

JOSH Yeah.

BARTLET I can do this?

JOSH Yeah.

BARTLET You understand it's a bunch of rocks, right?

JOSH I'm sure someone with your encyclopedic knowledge of the ridiculous and dork-like will be able to find a tree or a ferret that the public has a right to visit. 

As was often the case, the show took liberties with the facts.  Under the law, presidents can designate national monuments, not national parks.

Registered Independents

A new report from Third Way examines voter registration data, showing an increase in the the number of voters not formally affiliated with either party.

The number of registered Independents has increased since 2008 in many of the battleground states that will decide the 2012 election. Among 12 likely battleground states, 8 have partisan voter registration—Colorado, Florida, Iowa, Nevada, New Hampshire, New Mexico, North Carolina, and Pennsylvania. In 7 of these 8 battleground states (all but Iowa), Independent registration gained ground relative to both parties in terms of voter registration between 2008 and 2011.

In each battleground state, Democratic registration fared worse relative to both Republican and Independent registration between 2008 and 2011. In all eight states, Republican registration gained relative to Democratic registration between 2008 and 2011.

The importance of Independents has grown over time as voters are increasingly leaving the traditional two-party system. Based on the combination of this general trend and the rise in both registration and self-identification of Independents since 2008, the most likely scenario for 2012 is that Independents will make up a bigger portion of the electorate next year than in any election since 1976, based on national exit polls.

Open publication - Free publishing

Bad Journalism and the Colorado Shooting

CNN drew criticism for a hasty and inaccurate report about the Supreme Court's decision on the health care law.  ABC just made an even bigger mistake, as The Huffington Post notes:

ABC's Brian Ross got himself into trouble on Friday when he incorrectly suggested there may have been a link between the alleged shooter in the Colorado theater tragedy and the Tea Party. Both Ross and the network later apologized for making the claim.

Ross' comments came after federal officials informed news outlets that the suspect was named James Holmes. George Stephanopoulos threw to him on "Good Morning America" by saying, "You've been investigating the background of Jim Holmes here. You found something that might be significant."

"There's a Jim Holmes of Aurora, Colorado, page on the Colorado Tea party site as well, talking about him joining the Tea Party last year," Ross said. "Now, we don't know if this is the same Jim Holmes. But it's Jim Holmes of Aurora, Colorado."

The page that Ross seems to have been looking at has no identifiable information about the person on it other than his name.

Writes Eric Wemple of The Washington Post:

ABC News has posted this text on its site: 

Editor’s Note: An earlier ABC News broadcast report suggested that a Jim Holmes of a Colorado Tea Party organization might be the suspect, but that report was incorrect. ABC News and Brian Ross apologize for the mistake, and for disseminating that information before it was properly vetted.

The mistake: Unforgivable, regrettable, amateurish, miserable. “MEDIA BIAS? WHAT MEDIA BIAS?” asks an e-mail promoting a blog post on the conservative NewsBusters site about the mistake. Though ABC News won’t answer any questions at this point, it’s possible that Ross was basing his conjecture on a single Web page for the Colorado Tea Party Patriots.

What Ross failed to understand is that speculation about the Aurora shooter is a journalistic felony. You can speculate on air about Mitt Romney’s motives for not releasing his tax returns; you can speculate on air about whether the heat wave will pass; you cannot speculate on air about the identity of an alleged mass murderer. Especially when: 1) You’re rolling the suspect into a political overlay by mentioning the Tea Party movement; and 2) According to a quick online search, there are six “James Holmes” listed in Denver and 21 in the state of Colorado; error likelihood for such a common name is high.

The correction: Quick, responsible, complete and honest. Credit ABC News for cleaning up its gooey mess.

Colorado and the Electoral College

Our chapter on campaigns and elections discusses electoral college strategy. Smaller swing states can have an outsized impact on the outcome. The Colorado Independent reports:

Experts say Colorado could be the state that tips the 2012 presidential election. “It will be hard to win a close election without winning Colorado,” said Colorado College political science professor Bob Loevy.

It’s not just local political observers who think Colorado will be key. In a front page story today, The New York Times reports that Obama’s hopes for a second term may come down to Colorado and a couple of other states.

...
Loevy said he and other Colorado political scientists have been talking about Colorado’s shifting demographic for years.

“The New York Times has caught up with what we’ve been saying for some time. The political changes in Colorado have now passed into the general public currency,” Loevy said.

...

Loevy, an activist Republican himself, said he expects the Colorado Republican caucuses will probably come down to Mitt Romney and Rick Perry. Perry, he said, will appeal to the Tea Party side of the party, while Romney will appeal more to traditional Republicans. He says high turnout will favor Romney, while a lower turnout will favor Perry in Colorado.

“Romney has the best chance to lure the upscale educated Republicans back into the party. If Romney can win, it will be good for the party. Clearly, Mitt Romney would have the best chance in the general election. I expect a real fight in Colorado, though, where traditionally the conservatives will come out strong in the caucuses and the primary.”