When the Electoral College met on Dec. 17 and confirmed Donald Trump’s victory over Kamala Harris, most commentators concluded that congressional certification of the results would be a mere formality. As Politico put it, “Trump’s victory has made Jan. 6 boring again.” It should be remembered, however, that the Democrats have tried to block certification of every Republican presidential victory this century — including the 2004 reelection of George W. Bush, who won the popular vote as well as an Electoral College majority. Consequently, it’s hardly a surprise that we are still hearing claims from some TDS victims that Trump can be barred from holding office pursuant to Section 3 of the 14th Amendment.
There are still a lot of TDS victims out there whose capacity for critical reasoning evaporates when they think about Donald Trump.
Evan Davis, a New York lawyer, and David Schulte, a Chicago investment banker, published an opinion piece in The Hill on Dec. 26 declaring Trump “an oath-breaking insurrectionist” who is ineligible to hold office. They claim the evidence supporting this charge is “overwhelming,” even as they studiously ignore the inconvenient fact that insurrection is a federal crime (18 U.S. Code § 2383) with which Trump has never even been charged. They also neglect to mention, in the 91-word paragraph they devote to Section 3, that it was included in the 14th Amendment specifically as a means of preventing former Confederate officials (who had clearly participated in an actual insurrection) from holding public office in the U.S.
So, if Trump hasn’t been charged with insurrection and isn’t a former Confederate, where’s the evidence that he’s an insurrectionist? The authors write, “The matter has been decided in three separate forums.” These forums turn out to be Trump’s second impeachment trial (which acquitted him of inciting insurrection), the ruling by Colorado’s Supreme Court that he was guilty of “engaging in insurrection” (unanimously rejected by SCOTUS), and the House Committee to Investigate the January 6th attack on the United States Capitol (an improperly constituted show trial). With such “evidence,” it would be easy to ignore Evans and Schulte but for incendiary rhetoric by Rep. Jamie Raskin (D-Md.) concerning Section 3:
The Court is not going to save us … And the greatest example going on right now before our very eyes is section 3 of the 14th Amendment, which they’re just disappearing with a magic wand as if it doesn’t exist, even though it could not be clearer what it’s stating. And so you know they want to kick it to Congress so it’s going to be up to us on January 6, 2025, to tell the rampaging Trump mobs that he’s disqualified. And then we need bodyguards for everybody in Civil War conditions.
Raskin, you will recall, was one of several Democrats who disputed the certification of Trump’s 2016 victory — and proudly posted an article about it on his congressional web site. Consequently, it is by no means unthinkable that he and other far left Democrats will attempt to disrupt congressional certification of Trump’s 2024 victory. Fortunately, the Electoral Count Reform Act of 2022 (ECRA) renders it more difficult for them to disrupt certification as they did after the 2000, 2004, and 2016 elections. Most importantly, it raised the threshold for challenging electors. Under previous law, a challenge required only one House member and one Senator. The ECRA raised this threshold to “one-fifth” of each chamber.
This would require the Democrats to find 87 members of the House and 20 members of the Senate who are willing to sign a document asserting that “the electors of the State were not lawfully certified” or that “the vote of one or more electors has not been regularly given.” This is where Evans and Schulte descend into the quicksand of circular reasoning. First, they insist that the three forums discussed above have already proven Trump guilty of insurrection when they clearly have not. Then they use that already untenable conclusion to prove that Trump’s electors cannot possibly have been “regularly given.” Finally, they put the tinfoil hat on all of this spurious nonsense by claiming that Section 3 is somehow self-executing:
The act specifies two grounds for objection to an electoral vote: If the electors from a state were not lawfully certified or if the vote of one or more electors was not “regularly given.” A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words “not regularly given.” Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age …
According to various news reports, Evans and Schulte are longtime Democrat donors who gave money to Vice President Kamala Harris. This brings us to another important feature of the ECRA. Harris will preside over the joint session of Congress during which certification takes place. ECRA explicitly states, “The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.” Under the old Electoral Count Act that was still in force on Jan. 6 2021, the Vice President’s powers pursuant to disputed electors were far more ambiguous.
What is no longer ambiguous, however, is this: There are still TDS victims out there whose capacity for critical reasoning evaporates when they think about Donald Trump. It’s obvious that Evan Davis and David Schulte are infected by this debilitating affliction. Most of their claims about certification of Trump’s decisive victory in the Electoral College are ridiculous. For the sake of the nation, let’s hope the Democrats ignore their absurd advice.
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