A new piece published in The Atlantic this week floated the idea that there might be room for House Democrats to vote against certifying former President Trump for office if he wins re-election.
The article, written by staff writer Russell Berman, argued that if the Supreme Court declined to weigh in on whether Trump is eligible to run for office under the 14th Amendment, then House Democrats could take it upon themselves to vote against certifying him, as it’s up to them to say he’s ineligible.
Berman wrote that "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."
The theory stems from the Colorado Supreme Court case to kick Trump off the state’s primary ballot, which the U.S. Supreme Court took up and heard oral arguments for earlier this month.
As Berman's piece suggested, if the high court does not come down one way or another on whether Trump is eligible for office – as Colorado’s court argued he violated the 14th Amendment’s "Insurrection" clause – then Democrats who believe he is ineligible will have a decision to make.
Berman continued: "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."
He also noted that "Democrats have a serious chance of winning a majority in Congress in November," so they would have the power to do something.
Additionally, he reminded readers that "in early 2021, every House Democrat (along with 10 Republicans) voted to impeach Trump for ‘incitement of insurrection,’ and a significant majority of those lawmakers will still be in Congress next year."
Given those factors, Democrats who believe that Trump committed insurrection and have the majority in Congress might feel compelled to decide whether Trump enters office, if the Court declines to declare he’s eligible.
Berman asked Rep. Adam Schiff, D-Calif., currently a leading contender for the U.S. Senate in California, what would happen if the Supreme Court declined to weigh in on Trump’s eligibility. "I don’t want to get into the chaos hypothetical," Schiff replied, though he did note that if the court said Trump was eligible, he would certify him.
Rep. Jim Clyburn, D-S.C., dodged the same question, but blasted Trump, saying, "I think he’s an insurrectionist."
Berman recalled speaking to Rep. Jamie Raskin, D-Md., stating, "The choice that Democrats would face if Trump won without a definitive ruling on his eligibility was almost too fraught for Representative Jamie Raskin of Maryland to contemplate. He told me he didn’t know how he’d vote in that scenario."
Raskin then gave a cryptic response, adding, "There was blood all over the Capitol in the hypothetical you posit."
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Berman also mentioned how legal scholars filed an amicus brief to the Supreme Court, noting that if the justices don't decide on Trump's eligibility, "it is a certainty" that members of Congress would try to disqualify him on January 6, 2025.
When asked if she would be one of these members of Congress, Rep. Zoe Lofgren, D-Calif., replied, "I might be."
