Former Columbia Law Review and Yale Law Journal editors propose a bold strategy to invalidate President-elect Donald Trump's electoral victory using a constitutional technicality.

According to The Western Journal, two prominent legal scholars published an opinion piece in The Hill suggesting Congress could invoke the 1887 Electoral Count Act to disqualify all of Trump's electoral votes based on claims of his involvement in the January 6 Capitol incursion.

The proposal, authored by Evan A. Davis and David M. Schulte, hinges on Section 3 of the 14th Amendment, which they argue disqualifies Trump from holding office due to alleged participation in insurrection. Their strategy emerges after similar unsuccessful attempts by Democrats in multiple states to remove Trump from 2024 ballots using the same constitutional argument.

Electoral Count Act Becomes New Focus of Democratic Strategy

The authors' argument centers on specific language within the Electoral Count Act regarding votes "regularly given" by electors. They contend that electoral votes cast for a constitutionally disqualified candidate would not meet this criterion.

According to the Congressional Research Service report from December 8, 2020, formal objections to electoral votes can be made on two grounds: if votes were not "regularly given" or if electors were not "lawfully certified" following state procedures. Davis and Schulte's interpretation focuses primarily on the "regularly given" clause.

The proposed process would require signatures from 20 percent of both congressional chambers - 87 House members and 20 senators - to initiate the objection. A simple majority vote in both houses could then theoretically disqualify Trump's electoral votes, potentially resulting in Vice President Kamala Harris becoming president.

Legal Experts Question Constitutional Interpretation Methods

Critics point out that Davis and Schulte's emphasis on "regularly given" overlooks the equally important "lawfully certified" requirement in the Electoral Count Act. This selective interpretation raises questions about the legal foundation of their argument.

The proposal's timing has sparked debate about its potential impact on democratic processes. Trump secured both the Electoral College and popular vote victory over Vice President Harris on November 5, making any attempt to overturn these results particularly contentious.

Many observers draw parallels between this situation and challenges to the 2020 election certification, noting that those who previously questioned electoral processes faced significant consequences. The apparent double standard has not gone unnoticed by political commentators.

Historical Parallels Draw Attention To Political Risks

Davis and Schulte's strategy has prompted comparisons to historical political miscalculations, particularly the fate of the Federalist Party in the early 19th century. The authors detail the Hartford Convention of 1814, where Federalists' actions during a critical national moment led to their party's eventual dissolution.

During the War of 1812's conclusion, Federalist delegates presented demands to Congress that coincided, unfortunately, with news of peace and military victory. This timing transformed their political concerns into appearances of disloyalty, marking the beginning of their party's decline.

By 1820, the Federalist Party had effectively ceased to exist as a national political force, serving as a cautionary tale about the risks of appearing to undermine democratic processes during moments of national significance.

Stakes Rise As Constitutional Debate Intensifies

The proposed plan faces significant practical obstacles, including opposition from congressional Republicans and potential political backlash. Critics argue that such measures could further erode public trust in democratic institutions.

The strategy's reliance on Section 3 of the 14th Amendment has already faced judicial scrutiny in various state-level attempts to disqualify Trump from ballots. These efforts have consistently failed to achieve their intended results.

Some political analysts suggest that pursuing this strategy could backfire severely on Democrats, potentially alienating voters who might view it as an attempt to circumvent electoral outcomes through technical legal maneuvers.

Moving Forward Amid Constitutional Uncertainty

The emergence of this proposal has reignited debates about electoral processes and constitutional interpretation in American democracy. It represents the latest chapter in ongoing discussions about eligibility requirements for the presidency and the scope of congressional authority in electoral matters.

Should Democrats proceed with this strategy, they risk significant political consequences similar to those faced by the Federalist Party two centuries ago. The proposal's reception among both lawmakers and the public will likely influence its viability as a serious political strategy.