Congressional Democrats are showing no signs of using the Electoral College certification process to enforce the 14th Amendment and deny Donald Trump a second presidential term if he wins in November.
The Supreme Court’s decision this month to keep Trump on the Colorado primary ballot left it to Congress to act before the Constitution’s so-called Insurrection Clause could be enforced to keep him from regaining the White House.
But some legal experts have pointed out that the decision never explicitly rules out a scenario where Congress uses its power under the 12th and 20th amendments to enforce presidential eligibility requirements during a joint session on Jan. 6, 2025.
In that scenario, members of Congress could refuse to certify Electoral College votes for Trump to deny him the majority needed to win — a scenario legal scholars warned could risk “serious political instability” in a presidential transition period.
But key Democrats in Congress are showing no enthusiasm for that path, instead saying that a referendum on Trump should be decided at the polls.
Sen. Gary Peters, chair of the Democratic Senatorial Campaign Committee, said Democrats will stand behind what voters decide in November.
“We’re not election deniers,” the Michigan Democrat said. “This is all about the ballot box. So this is about democracy, and the voters get to decide who they want to have as their elected officials.”
Rep. Ted Lieu, D-Calif., who served as an impeachment manager for Trump’s second impeachment trial, said any objections “would only be legitimate if there’s an actual problem with a particular vote in a particular state.”
“I don’t think people should object just because they don’t like the outcome of the election. That’s what Republicans do, and that’s just called being sore losers,” Lieu said. “So if members want to object, I think they should do it based on any evidence that actually comes out.”
Other lawmakers dismissed the scenario’s hypothetical nature. Senate Judiciary Chair Richard J. Durbin, D-Ill., said he didn’t want to get into “speculation of extraordinary use of the Electoral College.”
“I think that it’s divisive to raise it at this point,” Durbin said.
Rep. Jamie Raskin of Maryland, the top Democrat on the House Oversight and Accountability Committee, said the theory was just “dealing in a sequence of hypotheticals.”
As a practical matter, a joint session showdown would only happen if enough members of Congress might wish to block Trump as disqualified under the 14th Amendment, Edward Foley, a constitutional law professor and director of The Ohio State University’s election law program, wrote in an analysis of the court’s decision.
The Supreme Court heard about the potential for Congress to enforce Section 3 of the 14th Amendment on Jan. 6, 2025, from briefs in the Colorado case, including one filed by Foley and two other election law experts, Benjamin Ginsberg and Rick Hasen.
And another from Derek T. Muller, a law professor at the University of Notre Dame who focuses on election law, urged the court to be precise in any opinion that leaves authority to Congress in that area.
Foley wrote there are “two plausible readings” of the Supreme Court’s decision “that point in exactly opposite directions” on the possibility of Congress using the certification process to enforce the 14th Amendment, “the most important issue in the aftermath of the Court’s decision.”
Foley, speaking on “The Lawfare Podcast,” said the move would be a “terrible idea.”
“It’s so unfair to voters who would have cast their ballots in November. And I just think if you’re going to disqualify a presidential candidate, you need to do it before the votes are cast rather than afterwards,” Foley said.
Sen. Richard Blumenthal, D-Conn., was among lawmakers who said the real remedy against a second Trump term is beating through an election.
“Any creating expectations that there is an alternative to beating Trump at the ballot box, I think, is a source of false hope and potentially detracts from our very necessary efforts to beat him there,” Blumenthal said.
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