'Not regularly given': Former SCOTUS clerks lay out roadmap for not certifying Trump’s win

President-elect Donald Trump should be disqualified under the Fourteenth Amendment's Insurrection Clause when Congress gathers to certify the results of the 2024 election, wrote Evan Davis and David Schulte for The Hill.

The two former Ivy League law review editors, who also previously clerked for Supreme Court Justice Potter Stewart, freely acknowledge the odds of this happening are basically nil — but laid out their most compelling case that Congress does, at least, have clear power and duty to do make this decision, were it so inclined.

"Disqualification is based on insurrection against the Constitution and not the government. The evidence of Donald Trump’s engaging in such insurrection is overwhelming. The matter has been decided in three separate forums, two of which were fully contested with the active participation of Trump’s counsel," they wrote. Those three forums were Trump's second impeachment trial, a state court ruling in Colorado, and the bipartisan House January 6 Committee.

The Supreme Court shot down efforts by state election officials to disqualify Trump on the basis of insurrection earlier this year, Davis and Schulte noted — but all they ruled was that that isn't the correct venue to disqualify a presidential candidate, not that Trump did not engage in insurrection. The majority did suggest federal legislation was necessary to establish this as a basis, but only as non-binding dicta — and "this overreach is a power grab which Congress is not required to credit."

The Electoral Count Act, which was just updated in 2022, "specifies two grounds for objection to an electoral vote: if the electors from a state were not lawfully certified or if the vote of one or more electors was not 'regularly given,'" they continued. "A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words 'not regularly given.' Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age, citizenship from birth and 14 years’ residency in the United States."

Ultimately, Republicans who control Congress won't allow this to happen, they concluded. "But Democrats need to take a stand against Electoral College votes for a person disqualified by the Constitution from holding office unless and until this disability is removed. No less is required by their oath to support and defend the Constitution."