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this post was submitted on 29 Dec 2023
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There is no protection of life, liberty, or property that hinges on "conviction". The right is to "due process".
OJ was deprived of "life, liberty, or property" not through conviction in a criminal court, but by order of a civil court. He was never convicted. He was found liable.
Trump was afforded all of the rights of the accused in Colorado, which ruled against him in a civil hearing. He wasn't convicted of the criminal act of insurrection, but he was found to be liable for having committed insurrection. He was afforded due process.
This all assumes that "running for president" is a "liberty" afforded to individuals. The constitution does not declare such a right. Quite the contrary, the constitution empowers state legislatures to enact the rules for their own elections, including determining who should appear on ballots.
So taking your last paragraph at face value, you're of the opinion that states could legally (in theory) remove Biden from their ballots for pretty much any arbitrary reason, as long as that reason was enshrined in state law by the state legislature or state constitution?
Where in my arguments does the "arbitrary" criterion arise?
The "reason" for Trump's removal didn't arise from state law, state legislature, or state constitution. The "reason" arose from the 14th Amendment. State law provided the means and method, by dictating who is charged with making the executive decision and the process of judicial review of that decision.
Generally speaking, yes, the secretary of state who is charged with determining who will and will not appear on the ballot can determine that Biden does or does not qualify for ballot access. Their determination is subject to judicial review: the candidate and/or the voters and/or any other party with "standing" can sue to reverse that decision.
It came from "the constitution empowers state legislatures to enact the rules for their own elections, including determining who should appear on ballots", with the implicit assumption that the states could then determine this in undemocratic ways if they so wanted.
Your second point makes me think that you think we're arguing or something. I really don't think we are.
The third point touches on what I was asking about. When that determination is subjected to judicial review - which laws is it subject to? If Texas were to simply amend their constitution to say Democrats can't appear on presidential ballots, would there actually be a federal law that would prevent them from enforcing that?
I don't think that implicit assumption arises from my argument.
For example, I don't think it is undemocratic for the state to require candidates to circulate a petition and gather at least 5000 signatures from registered voters within the state before being allowed to appear on the ballot. The constitution doesn't provide for such a requirement, but the state is (arguably) free to enact such a requirement if they do choose. It is not unreasonable for them to limit access to candidates that people would actually vote for.
Put a different way: I can't reasonably demand ballot access solely on the basis that I am a 40-year-old person who was born in the US, has lived in the US my entire life, and has never committed insurrection. With that minimum criteria alone, millions of people could appear on a ballot. The complexity of such a ballot would violate the rights of the voters asked to cast a vote in that election.
The state is empowered to create the rules for its own elections; it is not empowered to use those rules to violate civil rights. But it is not a "right" to appear on a ballot.
I wasn't trying to say any restrictions on who can appear on the ballot are undemocratic - nor was I necessarily saying any state currently has undemocratic rules regarding ballot eligibility. It was more about hypotheticals, like what I said about Texas - in theory, does the constitution and body of federal laws allow for states to create undemocratic eligibility criteria that would withstand legal scrutiny?