As you have probably read or heard in the news lately, the latest idea to defeat Donald Trump by way of keeping him off the 2024 ballot is gaining momentum. The reason is a growing number of national polls that show Trump beating Biden, particularly in several key swing states. What you have probably not read however, is the devious (but clever) method for how this plan to remove Trump could actually work.
So far, all of the stories relating to this scheme describe a way of interpreting the 14th amendment of the Constitution to disqualify Trump since he “engaged in insurrection or rebellion” against the United States on January 6th, 2021. Further, the proponents of this idea proclaim that the section of the 14th Amendment referencing this rule is “self-activating”. That means no court order or act of Congress is necessary for it to take effect. Any state election official could simply declare it “so”, and authoritatively issue ballots in their state without Trump’s name.
While lawyers on the left claim this is a valid interpretation of the Constitution, there are plenty of other lawyers and legal scholars who believe there is no basis for interpreting the Constitution this way. Their principal arguments are:
- An insurrection, in the context of the 14th Amendment, is not what occurred on January 6th, 2021.1
- Trump was acquitted of the charge of inciting an insurrection on February 13th, 2021 when the US Senate acted as an impeachment court with the Chief Justice of the Supreme Court presiding.2
So, with a near impossible legal barrier to surmount, how could this scheme be pulled off? Well, it’s first important to note that the law has never stood in the way of anything the Democrats have wanted to do recently. For example – preventing landlords from evicting non-paying tenants, mandating vaccines for private businesses, forgiving half a trillion dollars in student loans, etc. Second, Democrats and the media, as well as no small number of anti-Trump Republicans, have shown no bounds when it comes to trying to destroy Donald Trump. The Russian collusion hoax, two frivolous impeachments, 4 indictments, multiple special council investigations, a one-sided January 6th Committee, a fraudulent 2020 election – the list is nearly endless.
Trying to keep Trump off the 2024 ballot by pursuing this unwinnable legal argument won’t work. The Democrats know that. However, just the act of entering into this legal battle, even though it is a sure loser, will be enough. It all centers around the precise timing of when state election officials decide to print ballots without Trump’s name. Delays strategically inserted into any resulting legal actions will also be critical to the success of this gambit. If any state attempting to exclude Trump gets this timing right, the plan can work to guarantee a Biden victory. Here’s how:
Before ballots can be printed for the 2024 election, both the Republican and Democrat nominating conventions must be concluded. For the 2024 election, the Republican convention ends in July, but the Democrat convention doesn’t finish until August 22nd, 2024. That is only 75 days before election day on November 5th.
Early voting and the extensive use of mail-in ballots in many states requires that ballots be ordered and printed far sooner than election day. Take the example of a swing state like Minnesota. It is a state law in Minnesota that absentee voting must be open to the public 46 days before the election. Backing up from November 5th, that means Minnesotan’s can begin casting ballots on September 21st. Of course, the ballots themselves must already have been printed by then.
Let’s suppose a Minnesota election official decides that Trump will not be on the ballot due to “self-activation” of the 14th Amendment. Before that official and/or state could be sued by Trump or his supporters, an actual ballot without Trump’s name on it would have to be procured as evidence of the “injury” to the plaintiff.
The ballot printing process in Minnesota could begin anytime after the Democrat National Convention ends. That means ballot printing and distribution has a time window between August 22nd and September 20th – 29 days. The best strategy for the Dems would be to wait as long as possible before printing the first ballot without Trump’s name on it. Assume it would take about a week to design and print these ballots and distribute them to all the locations where they need to be for early, absentee, and mail-in voting. Waiting until the last possible moment to print these ballots would mean the first appearance of a ballot that could be used in a lawsuit against the state would be around September 18th. Here is where the timing of this scenario so greatly favors the Democrat side.
Seeing the urgency of the situation, a judge receiving the lawsuit might hand down a decision in as little as three days.3 That takes us to September 21st. It wouldn’t matter what decision the judge makes because the losing party in the suit would surely appeal. Let’s next assume the appellate court, again recognizing the urgency of the situation, takes only three days to render its decision. Now we are at September 24th. Whoever is on the losing side of that appellate court decision would now make a final appeal to the US Supreme Court.
The High Court must first decide whether to even hear the case. If they do, the expedited process of preparation and hearing/reading arguments from both sides commences. The best case for the entire process involving the Supreme Court, including their final decision, is probably 10 days. That brings us to October 4th in the most optimal legal timeline.
You can see the problem here. The fastest timeline for the legal proceedings outlined above to conclude would be October 4th, two full weeks after voting in Minnesota would have already begun as mandated by state law. The only ballots available two weeks earlier when voting started would have been the ones previously printed without Trump’s name on them. These are the ballots that instigated the legal action in the first place.4
Now we have a situation where some number of Trump-less ballots have already been cast before the lawsuit about their legality was resolved. Any delay at all in the fast-tracked legal timeline above would lead to even more Trump-less ballots being cast. If Minnesota were to delay the opening of voting until the court case finally finishes, they would be violating their own state law. Since that would probably invite additional lawsuits, it’s unlikely there would be any move to postpone voting.
What exactly would happen next should this scenario unfold?
If the decision ultimately handed down by SCOTUS is that Trump must be included on the ballot, any ballots previously printed without Trump’s name must now be destroyed. New ballots with Trump’s name and that of his running mate must then be designed, printed and distributed. We will optimistically give a week for this to occur. That means the first “legal” ballots to roll off the printer wouldn’t be available until sometime after October 11th. At least three weeks of voting would have already taken place by then using ballots that were just determined to be illegal.
In this scenario, any Trump-less ballots that had already been cast would need to be removed from the final vote count since they aren’t legal. However, that would very likely invite a lawsuit from the voters who cast those ballots claiming that they were disenfranchised (rightly so). Of course, Minnesota election officials could offer them the chance to vote again using a corrected ballot. But that would surely invite a lawsuit from the other side who would claim that it could not be guaranteed the originally cast ballot was properly “subtracted” from the total (rightly so). And what if the absentee voter was unable to cast a second vote at a later date for the same reason they had to vote absentee in the first place?
It’s plain to see how a series of post-election court cases like those mentioned above, all based on the consequences of removing Trump’s name, could drag on for a long time. This is precisely why this plan will work and exactly what the Democrats want. If the vote in the state was close, and any of these court cases remain unresolved by the time an official slate of electors for Minnesota must be submitted to the U.S. Senate, it is likely the losing side will insist their own slate of electors also be sent as a contingency – exactly as happened in seven states in the 2020 election.5 That will lead to the same situation in early January of 2025 that we had on January 6th of 2021.
The sitting Vice President would have to decide which slate of electors from Minnesota (or any other state that sent two slates of electors) to include in the official electoral vote count. As part of the electoral count process, the House and Senate could then raise formal objections to the chosen slate of electors and potentially disqualify them. For any objection to be sustained, there must be separate concurring votes in both the House and the Senate. Concurrence between these two bodies is unlikely however since we currently have a divided Congress (Republican controlled House and Democrat controlled Senate). In effect, the decision would rest with the Vice President.
We all know what Vice President Mike Pence did in January of 2021. He accepted only the slates of electoral votes submitted by “official” election certifiers in each state. He did not accept any “alternate” slates of electors, even though doing so could have resulted in his continuance in office as Vice President (assuming the House and Senate were unable to disqualify these alternate electors during the formal objection process). If similarly presented with alternative slates of electors, would Vice President Kamala Harris accept only the “officially” certified slates in January of 2025 if doing so would make Donald Trump President? We don’t think so.
It would be easy to say that Kamala Harris completely lacks the intellectual capacity and integrity to preside over such a weighty, complex, and historically significant decision. While that may be true, a much larger problem is her massive conflict of interest in this circumstance and her hatred for Donald Trump. Assume Vice President Harris chooses to accept just enough alternate slates of Biden electors (instead of certified Trump electors) so that the Biden-Harris ticket prevails in the 2024 election. It is a near certainty that Joe Biden will be unable to finish a 2nd four-year term because of his age and accelerating infirmity.
That would make Kamala Harris President at some point between 2025 and 2029. She could then lay claim to being the 1st female US President as well as the 1st “woman-of-color” to be President. These historic titles would become hers without her ever having won a national election on her own.
Harris is certainly aware by now she could never attain the Presidency and all the attendant historical firsts that come with it in any other way. Her poll numbers nationally have never made it out of the 30’s. When she ran to be the Democrat presidential candidate in 2020, the only national contest she was ever in, she never even made it out of the starting gate. She was embarrassingly ejected from a rather large field of candidates very early on, even before the first state primary was held. It would be a travesty for an unelectable person to become leader of the free world in this way.
So, there you have it. This would seem a slam dunk for the Democrats if they can orchestrate the timing outlined above in just the right number of swing states. Given the lengths to which they have already gone to try and remove Donald Trump from the political universe, this new course of action, as ultra-radical as it appears, would simply be their next logical step.
1 The 14th Amendment, like the 13th and the 15th, is known as a “reconstruction” amendment. The purpose of these three amendments was to change the Constitution so it would reflect the post-Civil War reality of the United States in 1865. Under the 14th Amendment, government officials who served under the banner of the Confederacy during the war were excluded from holding specific state or federal offices after the war. These “officials” had just participated in and supported an insurrection that resulted in 11 states seceding from the U.S. and 600,000 people being killed. That was the context within which the 14th Amendment was written and approved by the U.S. House and Senate in 1866. The meaning of the term “insurrection” when it was written into this Amendment in no way compares to the protest of January 6th, 2021 at the US Capitol. Pretending that it does dishonors all those who fought and died to preserve the Union.
2 On February 13, 2021, Donald Trump was acquitted of the charge of “inciting and insurrection” by the U.S. Senate. At the time, the Senate was acting in the capacity of an impeachment court with Supreme Court Chief Justice John Roberts presiding. With this legal precedent in the record, it is hard to fathom how any other court, let alone any state election official, could now claim their assessment that Trump did in fact incite an insurrection is somehow superior to the actual result of a Senate trial.
3 These legal timeframe estimates come from the numerous examples we have over the last three years of “emergency” lawsuits successfully brought against the Biden Administration. What we also know from that experience is this – if delaying/extending a legal procedure would favor Biden, and a Biden or Obama appointed judge is involved, you can count on a delay happening. As mentioned in the above scheme to keep Trump off the ballot, any delays in the legal timeline would clearly favor that effort.
4 You might think that as a contingency, any state that decides to print ballots without Trump’s name would also print a 2nd set that does have his name just in case a court rules against them. We doubt this would happen. After all, it was a bold, “all-in” move to print Trump-less ballots to begin with. Printing an alternate set with Trump’s name on them would not in any way serve the original goal and would give the appearance of a half-hearted effort. Also, printing a contingency set of ballots is an extra cost that may not be in the budget for that state’s election activities. Finally, in the example given in for Minnesota, voting will have already been opened to the public two weeks before the court case could be resolved. Which set of ballots would they use? If they were to ultimately win the case, they certainly wouldn’t want people to have used ballots with Trump’s name on them.
5 The 2020 election was not the first time alternate slates of electors were sent to the U.S. Senate for consideration. It also happened in the elections of 1876 (Rutherford B. Hayes) and 1960 (John F. Kennedy).