Congress Should Object to Trump's Electors
Why do we have a mechanism
for objecting if we're not going to use it?
Allison Gill
Dec 31,
2024
I’ve been thinking about this a lot over the past few weeks
and I’ve come to a conclusion: Congress should object to the electoral votes on
January 6th.
I know, I know. We’re all
still reeling from the improper objections made by election deniers on January
6th, 2021; and rightfully so. Those objections were part of a nefarious (and
illegal) plot to toss legitimate electors and replace them with fraudulent
ones. Had the corrupt Supreme Court not stepped in and upended our founding
principle that no man is above the law, there would have been a federal trial
for those crimes in March of 2024.
In response, Congress
passed the Electoral Count Reform Act in 2022 to clarify the process of
objecting to electors (among other things.) Previously, only one senator and
one representative were required to object to a state’s electors. That was then
followed by two hours of debate, and then a majority vote in each chamber to
uphold the objection and toss the electors.
Under the ECRA, one-fifth
of the members in each chamber is required to make the initial objection to a
state’s electors, presumably because it would be harder to find one-fifth of
members to participate in anything untoward. But the fact that the ECRA attempted
to prevent improper objections to electors implies that there are proper objections
- and those proper objections can be initiated by one-fifth of the members from
each chamber.
The ECRA also clarified
the two grounds on which proper objections can be made. The first objection the
law allows is when “the electors of the state were not lawfully certified under
a certificate of ascertainment of appointment of electors.” We don’t have that
because all the states’ electors were lawfully certified under a certificate of
ascertainment.
But the second objection
is for when “the vote of one or more electors has not been regularly given.”
“Regularly given” means a very narrow set of legal problems with an elector’s
vote, such as an elector voting on the wrong day, an elector being bribed, or
an elector voting for an ineligible candidate.
I’m not a lawyer. I’m not
a constitutional scholar. But I’m pretty sure Donald Trump is not an eligible
candidate because of 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.
But I’ve run into a
problem at this point of the thought exercise: The Supreme Court ruled earlier
this year that Section 3 of the 14th Amendment is not self-executing. They
decided that Congress would have to pass legislation declaring Trump
ineligible. But let’s say Congress did somehow get enough votes to pass
legislation declaring Trump ineligible. Would you still need to go through the
electoral objections, or would passing the legislation be enough? I tend to
think it’s the latter.
Contrariwise, would
objecting to electoral votes on the grounds that Trump is ineligible under
Section 3 of the 14th Amendment require Congress to pass legislation declaring
him ineligible? I don’t think so, but I’m not that smart, and the Supreme Court
would probably disagree.
I imagine that if enough
members of congress objected to enough states’ electors on those grounds, the
Trump campaign would sue and we’d be back at the Supreme Court - who very well
might say that legislation is required pursuant to the rule they created this
past March. But then wouldn’t that pose a separation of powers issue since
Congress is empowered to object to electors? And would the Supreme Court care?
And what would it look like if he were disqualified by legislation? It would
seem that if he were disqualified by legislation, Vance would take his spot.
But if he were unseated by congressional objections to electors in enough
states, Harris would win. So it feels like one doesn’t rely on the other.
I’m certain that there
aren’t the votes in the Senate to pass legislation declaring him ineligible.
I’m also certain the Supreme Court would rule in favor of Trump if there were a
case before them since they wrongfully declared that Section 3 of the 14th
Amendment isn’t self-executing.
But that’s not the point.
We shouldn’t refuse to fight simply because we might not win.
You may remember there was
a lot of discussion about whether democrats should bother impeaching trump
(both times) since they likely didn’t have the votes in the Senate to convict
him. Prevailing voices decided it was worth a try because we were duty bound to
impeach him regardless of what the Senate did.
In that spirit, I think
Congress is duty bound to introduce legislation disqualifying Donald Trump. And
if that fails, I think democrats are obligated to object to electoral votes
“not regularly given” because Trump is ineligible. In the end, both may be
losing battles, but they’re battles worth fighting.
If the ability to object
to electors isn’t for Donald Trump, then who is it for? Section 3 of the 14th
Amendment does not require a criminal conviction of insurrection, and the
Supreme Court never ruled on whether Trump participated in one. If you took an
oath to uphold the constitution, that has to include Section 3 of the 14th
Amendment.
Democrats seem to be
worried that if we object to electors, we’re no better than the MAGA election
deniers that ran the “Green Bay Sweep” in 2021. That misguided fear presumes
that we’d be objecting for unlawful purposes as opposed to the very legitimate
reasons that are allowed by the Electoral Count Reform Act.
Again, I am by no means a
legal scholar, so if I’m missing something, please reply below with your
thoughts on this.
~AG
