Congress Should Object to Trump's Electors

Why do we have a mechanism for objecting if we're not going to use it?

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

Please forgive any typos. My eyes are crossing from reading legal briefs all day.

J. Scott Applewhite, File / AP Photo