I don’t know why this surprises me at this point but it does. The Democrats who spent four years complaining about constitutional norms and Jan. 6 now seem to by toying with the idea that if Trump wins the 2024 election, they can refuse to certify the vote. Attorney Jason Murray, who argued Colorado’s case to keep Trump off the ballot thinks there could be a constitutional crisis in our future.
Murray and other legal scholars say that, absent clear guidance from the Supreme Court, a Trump win could lead to a constitutional crisis in Congress. Democrats would have to choose between confirming a winner many of them believe is ineligible and defying the will of voters who elected him. Their choice could be decisive: As their victory in a House special election in New York last week demonstrated, Democrats have a serious chance of winning a majority in Congress in November, even if Trump recaptures the presidency on the same day. If that happens, they could have the votes to prevent him from taking office.
In interviews, senior House Democrats would not commit to certifying a Trump win, saying they would do so only if the Supreme Court affirms his eligibility. But during oral arguments, liberal and conservative justices alike seemed inclined to dodge the question of his eligibility altogether and throw the decision to Congress.
In the Colorado case, the court clearly didn’t like the idea that a state could throw a candidate off the ballot on its own initiative. Instead the Justices left this call to Congress. But that means, in theory, an incoming Democratic Congress could vote to decide Trump is ineligible under the 14th amendment. They could effectively overrule the decision of the voters which would surely create a whole new level of chaos.
In an amicus brief to the Supreme Court, a trio of legal scholars—Edward Foley, Benjamin Ginsberg, and Richard Hasen—warned the justices that if they did not rule on Trump’s eligibility, “it is a certainty” that members of Congress would seek to disqualify him on January 6, 2025. I asked Lofgren whether she would be one of those lawmakers. “I might be.”
The scholars also warned that serious political instability and violence could ensue. That possibility was on Raskin’s mind, too. He conceded that the threat of violence could influence what Democrats do if Trump wins. But, Raskin added, it wouldn’t necessarily stop them from trying to disqualify him. “We might just decide that’s something we need to prepare for.”
This is really playing with fire. Trump lost the 2020 election and efforts to interfere with the peaceful transfer of power were wrong and wrong-headed, as VP Mike Pence made clear at the time. Similarly, voting to disqualify Trump after a clear win in the electoral college (assuming for sake of argument that happens) would never be accepted by his voters or by fair-minded Americans who didn’t vote for him but nevertheless recognize the need to allow the transfer of power in accordance with the expressed wishes of the people.
Going forward with disqualification after the election would certainly result in threats of violence and likely in actual violence directed toward the elected officials involved. I’m not saying that because it’s something I want to see. On the contrary, I think it’s a real worst case scenario for this country, one from which it would be hard to come back.
And contrary to Rep. Raskin, there is no amount of preparation that is going to make it possible for Democrats to do this. Jan. 6 would look like a family picnic compared to what would happen at the Capitol if Democrats went through with this plan. It would be seen as a coup by enough Americans that everything else would grind to a halt. Unless you’re prepared to have the National Guard shoot at hundreds of thousands of angry, disenfranchised Americans don’t go down this road. And even if you are willing to contemplate that, good luck finding the Guardsmen willing to actually do it.
This is a dangerously stupid idea and the fact that Democrats are toying with it as if it were just another policy trial balloon should worry everyone.