The Constitution provides that an oath-breaking insurrectionist is ineligible to be president. This is the plain wording of Section 3 of the 14th Amendment to the Constitution. “No person shall … hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath … 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.” This disability can be removed by a two-thirds vote in each House.
Disqualification is based on insurrection against the Constitution and not the government. The evidence of Donald Trump’s engaging in such insurrection is overwhelming. The matter has been decided in three separate forums, two of which were fully contested with the active participation of Trump’s counsel.
The first fully contested proceeding was Trump’s second impeachment trial. On Jan. 13, 2021, then-President Trump was impeached for “incitement of insurrection.” At the trial in the Senate, seven Republicans joined all Democrats to provide a majority for conviction but failed to reach the two-thirds vote required for removal from office. Inciting insurrection encompasses “engaging in insurrection” against the Constitution “or giving aid and comfort to the enemies thereof,” the grounds for disqualification specified in Section 3.
The second contested proceeding was the Colorado five-day judicial due process hearing where the court “found by clear and convincing evidence that President Trump engaged in insurrection as those terms are used in Section Three.” The Colorado Supreme Court affirmed. On further appeal to the U.S. Supreme Court, the court held that states lack power to disqualify candidates for federal office and that federal legislation was required to enforce Section 3. The court did not address the finding that Trump had engaged in insurrection.
Finally, there is the bipartisan inquiry of the House Select Committee to Investigate the January 6th attack on the United States Capitol. More than half of the witnesses whose testimony was displayed at its nine public hearings were Republicans, including members of the Trump administration. The inescapable conclusion of this evidence is that Trump engaged in insurrection against the Constitution. In particular, Trump unlawfully demanded that his vice president, Mike Pence, throw out votes in the Electoral College for political opponent Joe Biden, a power he did not have. While the riot was in progress, Trump used Pence’s rejection of his demand to further enflame the crowd and cause them to chant “Hang Mike Pence!”
Some will argue that the Supreme Court decision in the Colorado case, Trump v. Anderson, precludes Congress from rejecting electoral votes when they convene on Jan. 6, on the basis of 14th Amendment disqualification. This view lacks merit for three reasons.
First the majority’s suggestion that there must be new implementing federal legislation passed pursuant to the enforcement power specified in the 14th Amendment is what lawyers call dicta. Dicta are the musings of an opinion that are not required to decide the case. The holding that Section 3 is not self-executing may be an alternate holding, but thoughts about the kind of implementing statute required are plain dicta. Dicta are not precedential. The four dissenters strenuously objected to this part of the opinion as overreach to decide a question not presented. This overreach is a power grab which Congress is not required to credit.
Second, counting the Electoral College votes is a matter uniquely assigned to Congress by the Constitution. Under well-settled law this fact deprives the Supreme Court of a voice in the matter, because the rejection of the vote on constitutionally specified grounds is a nonreviewable political question.
Third, specific legislation designed for this situation already exists. The Electoral Count Act was first enacted in 1887 and later amended and restated in 2022. That statute provides a detailed mechanism for resolving disputes as to the validity of Electoral College votes.
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, citizenship from birth and 14 years’ residency in the United States.
To make an objection under the Count Act requires a petition signed by 20 percent of the members of each House. If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president.
The unlikelihood of congressional Republicans doing anything that might elect Harris as president is obvious. But 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.
Evan Davis was editor in chief of the Columbia Law Review and David Schulte was editor in chief of the Yale Law Journal. Both clerked for Justice Potter Stewart. Davis is a New York lawyer who served as president of the New York City Bar, and Schulte is a Chicago investment banker.
