A Democrat Coup, Part 2: January 6 as Democrats' mechanism to disqualify Republican rivals from Federal and State office.

If January 6 truly as an insurrection, Section 3 of the 14th Amendment prohibits any and all participants from serving in Federal or State government.

Part 2 in a series of 2, “A Democrat Coup.” For part 1, click here.

Democrats appear ready to use January 6 as a mechanism to disqualify thousands of Republicans from being eligible to seek office on 2022 and beyond.  It is no longer about a rally that apparently spiraled out of control, but has morphed (or was intended as its outset) into a political strategy to eliminate political opposition and further degrade the rule of law.

In part 1, we explained the basics of how the Democrats’ scheme will work.  Essentially, Section 3 of the 14th Amendment provides that any person that “shall have engaged in insurrection or rebellion against [the United States] or has “given aid or comfort” to such person is disqualified from seeking Federal or State office.  Based on the plain language of Section 3, anyone who engaged in the “insurrection” on January 6, 2021 or “gave aid or comfort” to anyone who participated, is prohibited from running for Federal or State office in the future.  Accordingly, this ensnares not only Trump, but anyone that participated in or promoted the rally, or anyone that helped Trump or the rally participant or the rally promoter.  Thus, anyone that helped you pack your clothes, buy your ticket, or called to wake you up not to be late would be covered.  Similarly, if Trump’s challenge to the certification of the Election in the Electoral College similarly was an “insurrection,” then anyone who participated, or, helped them participate, etc., also is disqualified from Federal and State office.

This is where the Democrat party is headed—disqualifying their political opponents for Federal or State office by declaring Trump’s exercise of the Electoral Count Act of 1887 to challenge the certification of the Election was an “insurrection.”  Before we turn to how inappropriate this scheme is, let us first understand how the Electoral Act of 1887 works and why it was enacted. 

Following the Election of 1800 between Thomas Jefferson and John Adams, because the Democratic-Republicans and Federalists parties had determined to run “tickets,” with one candidate for President and one for Vice-President, instead of one candidate, Democratic-Republicans candidates Thomas Jefferson (nominee for President) and Aaron Burr (nominee for Vice-President) each received the same number of winning Electoral College votes.  When the Electoral College convened, both candidates were tied.  At that time, the Constitution provided both that a tie would result in the House determining who the President would be and the person that finished second would be the Vice President.  Unfortunately, rather than abide by the plain intentions of the voters, after all, Jefferson had been put forward as the candidate for President and Burr the candidate for Vice President, the Federalists in the House backed Burr for President.  This resulted in successive ties based on the one vote for each State system for Presidential votes in the House.  Eventually, the logjam was alleviated when Alexander Hamilton, himself a Federalist, convinced enough Federalists to switch their votes for President from Burr to Jefferson.  Shortly after this election fiasco, the Twelfth Amendment was passed, among other things, providing a mechanism to deal with potential issues with the counting of votes in the Electoral College.  To enact the Amendment into law, Congress eventually passed the Electoral Count Act of 1887.

It was this Act that Trump intended to make use of on January 6 to challenge Biden’s supposed election in November.  Among other things, the Act provides a mechanism to challenge the Electors from any given State.  Pursuant to the process, an objection to the seating of any Electoral delegation from a State must be presented in writing and be signed both by a member of the House and by a Senator.  If such an objection in writing is raised, each chamber of Congress is required to retire to their respective chambers for two hours of debate on the objection.  Thereafter, the objection is voted upon by each chamber by majority vote.  If both chambers reject the objection, then the “certified” electors are accepted.  If both Houses accept the objections, then the contested electors presumably are thrown out and the joint session proceeds with counting.  However, if the two chambers shall disagree with respect to the objections, then, potentially the “electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”  There also is precedent under the law for the presiding officer, in this case Vice President Mike Pence, to resolve objections.  In any event, as is plain, by exercising the provisions of the Act, it was possible, while not probable, potentially to cause the certification to fail and have the House conduct a presidential election where Trump likely would be elected in light of the fact that Republicans controlled a majority of the States’ congressional delegations.

While a detailed analysis of the Electoral Count Act of 1887 is beyond the scope of this article, plainly former President Trump’s plan to challenge Biden’s election’s certification pursuant to the law cannot be an “insurrection.”  Under the rule of law, the exercise of provisions of existing legislation cannot be an insurrection.  Where the rule otherwise, a criminal pleading “not guilty” to an indictment or demanding a “speedy trial” or a “trial by jury” would be engaging in an “insurrection.”

Moreover, Democrats have themselves made use of the provisions of the Act to challenge the potential elections of Republican presidents.  At that time, no one suggested that it was an insurrection, or, for that matter, anything improper at all.  In the certification on January 6, 2005, of George W. Bush’s 2004 President win, Ohio Representative Stephanie Tubbs Jones and California Senator Barbara Boxer filed and objection to Ohio electors based on “numerous, serious election irregularities” that led to “a significant disenfranchisement of voters.”  Vice President Dick Cheney, who was presiding, dutifully directed the House and Senate back to their respective chambers for the two hours of required debate over the objection.  Upon returning, the objection was not sustained, and President Bush’s victory was certified.  Similarly, during the 2001 January 6 certification of Bush’s 2000 victory, Congressional Black Caucus members attempted to block Florida’s electoral votes from being counted but were unable to secure any necessary Senator to sign on.  Put simply, while challenges to electors under the Electoral Count Act of 1887 have been rare, not until now has anyone suggested that making use of provisions under the law were an “insurrection” or a “rebellion.”  No longer.

Democrats seem insistent on claiming that Trump and other Republicans that were prepared, but did not actually go through with challenging electors under the Act, engaged in an “insurrection” and, thus, are prohibited from future elected office at the State or Federal level pursuant to Section 3 of the Fourteenth Amendment.  In addition to Marc Elias’ Tweet (referenced in the first article of this series), for example, Representative Bill Parscrell (D., N.J.) has referenced Section 3 as a means to disqualify 120 House Republicans from being seated in Congress for filing a “friend of the court” brief in a case challenging the results of the 2020 election in Texas.  In recent weeks, many more commentators and lawmakers have been referencing Section 3; a provision that, until recently, had not been mentioned in nearly 100 years.  Rachel Maddow, by way of example, has had two segments in the past few weeks asking whether challenging the certification on January 6 pursuant to the provisions of the Electoral Count Act of 1887 was “illegal.”

Given the opportunity for political gains at the expense of the rule of law, this cannot be seen at this juncture as a coincidence.

We shall see where this goes. Among many other things, questions abound as to such things as whether Section 3 of the Fourteenth Amendment is self-executing or first requires a judicial finding that a person has engaged in an “insurrection” or “rebellion.” The lone case on the matter found that a judicial finding is required, but the Supreme Court has not ruled on the matter. Regardless of these and other questions, based manner in which the conversation and commentary is trending, look for a flood of allegations and, potentially, lawsuits attempting to disqualify potentially tens of thousands of Republicans from seeking Federal and State office in 2022 and beyond in the coming months.