Two former Ivy League law journal editors suggest a controversial strategy to prevent President-elect Donald Trump from taking office.
According to The Western Journal, Evan A. Davis and David M. Schulte, former editors-in-chief of the Columbia Law Review and the Yale Law Journal, respectively, published an opinion piece in The Hill advocating for Congress to invoke the 1887 Electoral Count Act to invalidate Trump's electoral votes.
The proposed plan centers on the argument that Trump's involvement in the January 6 Capitol incursion constitutes an "insurrection," which they claim disqualifies him from the presidency under Section 3 of the 14th Amendment. This strategy mirrors previous unsuccessful attempts by Democrats to remove Trump from 2024 state ballots using similar reasoning.
The Electoral Count Act establishes two main grounds for objecting to electoral votes, according to a Congressional Research Service report from December 8, 2020. These grounds include votes not being "regularly given" by an elector or the elector not being "lawfully certified" according to state procedures.
Davis and Schulte focus their argument on the "regularly given" clause, contending that votes for a constitutionally disqualified candidate cannot be considered regular. Their plan requires 20 percent of both congressional houses to sign a petition objecting to Trump's votes, followed by a majority vote in both chambers to disqualify them.
The authors acknowledge that if successful, their strategy would result in Vice President Kamala Harris becoming president, though they recognize that congressional Republicans would likely oppose such action.
Critics of the proposed plan draw parallels to the decline of the Federalist Party in the early 19th century. The comparison stems from the Hartford Convention of 1814, where Federalists presented demands to Congress during the War of 1812.
The timing of these demands coincided with news of the war's end and General Andrew Jackson's victory at the Battle of New Orleans. This confluence of events led to the Federalists being perceived as disloyal, contributing to their party's eventual dissolution by 1820. Davis and Schulte emphasized their position, stating:
But Democrats need to take a stand against Electoral College votes for a person disqualified by the Constitution from holding office unless and until this disability is removed. No less is required by their oath to support and defend the Constitution.
The Congressional Research Service outlined the objection criteria:
The general grounds for an objection to the counting of an electoral vote or votes would appear from the federal statute and from historical sources to be that such vote was not 'regularly given' by an elector, and/or that the elector was not 'lawfully certified' according to state statutory procedures.
Donald Trump secured the Electoral College and popular vote victory over Vice President Kamala Harris on November 5. The proposed plan to invalidate these results has drawn criticism as a potential form of election denial or attempted insurrection itself.
Legal experts point out that while Davis and Schulte extensively discuss the "regularly given" clause, they largely ignore the "lawfully certified" aspect of the Electoral Count Act. This selective interpretation has led to questions about the legal merit of their argument.
The proposal comes after more than 77 million Americans rejected similar "insurrection" claims at the ballot box, raising concerns about potential political consequences for Democrats who might support such a strategy.
The Democratic strategy to invoke the Electoral Count Act represents the latest attempt to challenge Trump's 2024 electoral victory. The plan, proposed by two former prestigious law journal editors, hinges on constitutional arguments related to the January 6 events and interpretation of the Electoral Count Act's provisions. While the strategy faces significant obstacles and opposition from Republicans, its emergence highlights ongoing tensions surrounding Trump's electoral success and raises questions about potential impacts on the Democratic Party's standing among voters.
