Democrats May Refuse to Certify a Trump Election If He Wins. The Supreme Court Could Prevent That

If Donald Trump wins the election, Democrats in Congress won’t commit to certifying the election. That’s not just speculation from conservatives eyeing the extremely long track record of leading Democrats rejecting the legitimacy of Republican victories. It’s the theme of Russell Berman in the Atlantic, and he’s talked to enough House Democrats to paint a truly alarming picture of what might happen to prevent the winner of the 2024 presidential election from becoming president. That’s never happened in all of our history. As Berman notes:

As Republicans are fond of pointing out, Democrats have objected to the certification of each GOP presidential winner since 2000. None of those challenges went anywhere, and they were all premised on disputing the outcome or legitimacy of the election itself. Contesting a presidential election by claiming that the winner is ineligible, however, has no precedent.

This is no idle threat. Berman talks to former House majority whip and outgoing assistant Democratic leader James Clyburn, who voted against certifying George W. Bush’s victory in 2004; Senate candidate Adam Schiff, who abstained rather than vote to certify Bush that same year; Zoe Lofgren, who did the same; Jamie Raskin, who objected to certifying Trump’s victory in 2016; and Eric Swalwell. None of them would commit to certify electors for Trump, even if it was clear that Trump won. He could not get a response from House Minority Leader Hakeem Jefferies, who repeatedly claimed after 2016 that Trump was not a “legitimate president.” As Berman notes, every House Democrat voted for the 2021 articles of impeachment of Trump for “incitement of insurrection,” and many of them still contend that he is an insurrectionist ineligible for the presidency.

Democrats, if they take control of the House, could potentially have the votes to sustain an objection. Only a simple majority is required, and unlike when the House chooses a president under the Twelfth Amendment, they don’t vote by states. Unlike in 2016 or 2004, when they were in the minority, House Democrats could be playing with live ammunition.

That said, while this would plunge us further into scorched-earth politics and quite probably bloodshed, the House alone can’t sustain an objection to electors certified by a state governor. Under the terms of the Electoral Count Reform Act passed in 2022, “no objection may be sustained unless such objection is sustained by separate concurring votes of each House.” Thus, unless there is also a majority of senators prepared to take the same position, Trump would still become president. Mitt Romney, the only current Republican senator one could even imagine voting with the Democrats on this, will have retired, and the ECRA strengthens the case against the vice president casting a tie-breaking vote, so it would take 51 Democratic senators. Given the 2024 Senate map, that’s a tall order: They’d either have to hold every seat they currently occupy (good luck in West Virginia), or take a Republican-held seat (the bluest of which is either Ted Cruz’s in Texas or Rick Scott’s in Florida).

Nonetheless, this is a grim picture. It reflects why the Supreme Court should reconsider if it is tempted to dispose of the Trump v. Anderson case on one of the process grounds rather than on the basis of the coverage issues (whether Section 3 of the 14th Amendment covers the presidency and the presidential oath) or the merits issues (whether January 6 was an insurrection and whether Trump engaged in it). As I’ve argued, and so has our editorial, resolving the cases on the merits or the coverage issues would finally settle the matter — and the most legally sound argument for doing so is to conclude that Trump didn’t engage in insurrection. A ruling clarifying the meaning of that phrase would further guide courts in resolving challenges to other candidates for lesser offices over January 6. The Democrats who talked to Berman said that they’d accept the finality of the Court’s decision if it ruled on whether Trump was actually disqualified. They’d probably rage against the Court itself and brand its justices as corrupt MAGA toadies and whatnot, but they’d be glad to have the cover of somebody else deciding for them, rather than see D.C. filled once again with angry mobs on the day of the joint session.

That’s exactly what the Court should do.