Here We Go Again! The Latest Attack on Democracy and Our Right to Vote
Guest post by David Schoen
In an opinion piece published by The Hill on December 26, 2024, lawyers Evan A. Davis and David M. Schulte recommend a full assault on Democracy to block President-elect Donald J. Trump from assuming the presidency to which he was elected by a landslide in a fair election with overwhelming participation.
They argue that members of Congress, the representatives of the voters who chose President Trump by a record number of votes, now have an obligation to thwart the expressed will of the American people and that such action by Congress should be constitutionally insulated from judicial review.
They are wrong in every regard. Their thesis represents a dangerous perversion of the Constitution rather than the lawful application of the 14th Amendment. Indeed, among other fatal deficiencies in their argument and their purported support for it, they not only misread Section 3 of the 14th Amendment, they ignore Sections 1 and 5 and the 5th Amendment guarantee of due process with respect to action by the federal government.
Around 1864, President Lincoln reportedly said in substance, “Elections belong to the people….” Davis and Schulte clearly disagree.
All of the information they rely on to argue that Congress should bar President Trump from assuming the presidency was fully available and taken into account by the electorate and was soundly rejected as disqualifying.
The writers apparently believe in Democracy and the sanctity of the vote only when their side wins.
They clearly reject the fundamental principles affirmed by the Supreme Court in 1979, in the landmark case, Illinois Bd. of Elections v. Socialist Workers Party, that “it is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure.'”
Rather they appear to subscribe to the Jerry Nadler (D-NY) school of anti-Democracy, reflected in his shameful call in 2019 to find a way to remove President Trump from office, because, in his view, the American voters cannot be trusted.
They also appear to have abandoned their distinguished legal credentials and any acuity for legal reasoning in favor of partisan political nonsense. The errors in both the premise and the substance of their attempts to find supporting legal arguments could fill pages. Let me highlight just a few:
They minimize as “dicta” the majority opinion from the U.S. Supreme Court in Trump v. Anderson to the extent it reaffirms the 1869 decision from Justice Chase in Griffin’s Case which unequivocally held that the disqualifying provision in Section 3 of the 14th Amendment is not self-executing and requires enforcing legislation by Congress on such fundamental issues as identifying to whom it applies, what constitutes “insurrection,” what any disqualifying process should be, what burden of proof applies, and more.
Instead, these writers would nullify an American election for President based on events which provide absolutely no cognizable legal support for their monumentally misguided agenda.
They rely on the second impeachment trial as a purported basis for Congress to find insurrection and disqualify President Trump.
They could not be more wrong. First, the articles of impeachment did not charge insurrection.
Indeed, even the partisan Special Counsel, Jack Smith, in his efforts to attack President Trump after the impeachment trial, never alleged insurrection, notwithstanding the insistence by a shadow group of Trump-hating would-be prosecutors operating behind the scenes that he includes charges under the federal insurrection statute in his indictment.
Smith knew, as the House knew, that President Trump never engaged in insurrection or any other conduct covered by Section 3. Even more to the point, the second impeachment trial cuts against the writers entirely.
President Trump won! To say it supports disqualification because a majority of politicians voted for conviction when the Constitution requires a 2/3 vote is the equivalent of saying a criminal defendant is guilty if a jury splits 7-5 when the law requires unanimity for a conviction.
President Trump was acquitted of any charged impeachable offense as a matter of law.
The stated purpose of the House in returning the articles of impeachment through a snap impeachment devoid of due process was to bar President Trump from holding the office of the Presidency again.
That purpose was rejected through the process the Constitution actually provides for its consideration.
The writers next point to the Colorado decision to support their agenda. It too provides absolutely no such support.
The position of the Colorado Supreme Court was overturned by a 9-0 vote.
The proceedings there set no burden of proof, had no authority even to consider the issue, and suffered from multiple other due process and other constitutional infirmities.
The underlying findings were made by a single local judge on a most dubious evidentiary record and, perhaps most significantly, relying on that extraordinarily misdirected outlying proceeding would violate the overriding principle that all nine justices agreed upon, drawing on the 1983 decision in Anderson v. Celebrezze—we don’t allow one state’s actions to skew the results for an entire nation when it comes to a presidential election.
Finally, reliance on the January 6 Committee is both laughable and outrageous. One would be hard-pressed to find a greater sham dressed up as a congressional committee. There was nothing “bipartisan” about it. Its composition and actions violated long-established House protocol and rules.
Its purported agenda was to “investigate” the events of January 6; but its members made clear their “findings” before the committee began its work.
The Chair filed a lawsuit alleging that President Trump was responsible for the events and that he (the Chair) was personally injured by them, raising an irretrievable conflict of interests.
One after another committee member regularly issued press statements during the course of the “investigation,” allocating blame on political, rather than evidentiary grounds, and in Alice in Wonderland fashion, announced their conclusions before any investigation.
Under no circumstances can the January 6 committee, comprised entirely of partisan politicians who refused to consider relevant evidence and who made clear their prejudgment of the important events they were tasked with investigating, serve as authority for any proposition and certainly not one as significant as these writers would have it.
The January 6 committee did a historic disservice to the American people.
In 1964, another period of polarization in this country, our Supreme Court wrote in Westbury v. Sanders, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.”
That same year, it emphasized in Reynolds v. Sims, that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”
Messrs. Davis, Schulte, and Nadler and any who adhere to their distorted view of our American Democracy would do well to reconsider their priorities and the premium value we, as Americans in the strongest Democracy in the world, place on the right to vote and the power of the ballot in our constitutional system.
There is no lawful basis for Congress to refuse to certify the election results and President Trump’s right to the presidency.
The Electoral Count Act certainly provides none, and the writers’ assertion to the contrary finds no support in the law.
The irony of these writers asserting otherwise on the history of these past 4 years truly is striking. There seems to be no limit to the boundaries of hypocrisy when it comes to this subject.
The Hill piece disgracefully misleads the American people.
The effort it reflects – to thwart the voice of Americans expressed through their vote – undermines our Democracy and the fundamental principles on which it stands, protected by our Constitution.
THE WRITER SERVED AS LEAD COUNSEL FOR PRESIDENT TRUMP AT THE SECOND IMPEACHMENT TRIAL
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