Not a Joke: Democrats Hatch Plan to Invalidate Every Trump Electoral Vote
If justice prevails, any Democrats engaging in this scheme may share the fate of the 19th-century Federalists.
In a recent opinion piece for The Hill, Evan A. Davis and David M. Schulte—former editors-in-chief of the Columbia Law Review and the Yale Law Journal, respectively—proposed an authoritarian strategy urging Congress to invoke the 1887 Electoral Count Act to invalidate President-elect Donald Trump’s Electoral College victory.
The strategy, which has no realistic chance of success, hinges on the overused accusation of “insurrection!”
Davis and Schulte dedicated half their piece to the claim that Trump attempted to overthrow the government during the unarmed Capitol protest on January 6, 2021. They argue this alleged “insurrection” renders him ineligible for the presidency under Section 3 of the Fourteenth Amendment.
This argument isn’t new—Democrats in multiple states previously tried to remove Trump from 2024 ballots using the same rationale. Unsurprisingly, they failed.
On Nov. 5, Trump decisively defeated Vice President Kamala Harris, winning both the Electoral College and the popular vote.
Yet Davis and Schulte insist Congress should block Trump from assuming office.
According to a 2020 Congressional Research Service report, the Electoral Count Act outlines two grounds for formally objecting to electoral votes:
- The votes were not “regularly given” by the electors.
- The electors were not “lawfully certified” under state laws.
Davis and Schulte hinge their argument on the phrase “regularly given,” stating:
“A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words ‘not regularly given.’”
They then detailed how this objection would unfold: 20% of both the House and Senate must sign a petition objecting to the votes, requiring 87 House members and 20 senators. A simple majority in both chambers could then disqualify Trump’s electoral votes.
“If all votes for Trump were not counted, Kamala Harris would be elected president,” Davis and Schulte wrote, seemingly indifferent to the chaos this would ignite.
Of course, they know Republicans would never support such a move. However, they argue:
“Democrats need to take a stand against Electoral College votes for a person disqualified by the Constitution from holding office unless and until this disability is removed. No less is required by their oath to support and defend the Constitution.”
Their reasoning deserves scrutiny. They focus heavily on the phrase “regularly given” while sidestepping “lawfully certified.” A vote not “regularly given” simply implies irregularity—not groundbreaking constitutional insight. Their argument merely applies the Electoral Count Act’s language to their “insurrection” narrative.
Yet, what about votes “lawfully certified”? In 2020, states that certified votes for Joe Biden often violated “state statutory procedures.” Those who objected to such certifications under the same Electoral Count Act had equal grounds to challenge those votes—and far more substantial reasons, given actual irregularities in that election.
What happened to those challengers? Many faced severe repercussions, with their lives upended by establishment figures over the past four years.
Thus, Trump’s incoming administration has ample cause to investigate and address the real issues surrounding the 2020 election. Davis and Schulte’s arguments only add fuel to that fire.
Politically, one must question why Democrats would revive their “insurrection” narrative after a decisive electoral defeat. More than 77 million Americans rejected this claim at the ballot box.
So why continue pushing it? Are Davis and Schulte trapped in an ideological bubble? Or does this plot reflect deeper desperation?
If Democrats possess any sense of pragmatism, they will distance themselves from this proposal. Otherwise, they may face the same fate as the Federalist Party.
During the War of 1812, discontented Federalists held a secession convention in Hartford, Connecticut, earning a reputation for disloyalty. Their demands reached Congress just as news broke of peace and General Andrew Jackson’s victory at New Orleans.
While the nation celebrated, the Federalists faced widespread condemnation. The party collapsed, vanishing as a national force by 1820.
Should Democrats follow Davis and Schulte’s lead, they risk a similarly ignominious end.