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Harvard Journal of Law & Public Policy: Per Curiam
MISCONSTRUING THE ELECTORAL COUNT ACT:
A RESPONSE TO EVAN A. DAVIS AND DAVID M. SCHULTE
SETH BARRETT TILLMAN*
In an article appearing on The Hill,1 Evan A. Davis and David M. Schulte put forward the
position that president-elect Trump is barred by Section 3 of the Fourteenth Amendment from
becoming President. Or, to put it more plainly, in spite of the Supreme Court's decision in
Trump v. Anderson,2 Congress is free to ignore the Court's decision and to determine that
Trump was and remains disqualified. In those circumstances, the vote of presidential electors
cast for Trump was a nullity. Given that the only remaining and otherwise lawful votes cast
by presidential electors were cast for Vice President Kamala Harris, it is Harris who prevailed
in the election, and she should be seated under the rules of the Electoral Count Act (1887) (as
amended through 2022).3
Davis and Schulte explain:
A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal
use of words not regularly given [in the Electoral Count Act]. 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.
To make an objection under the Count Act requires a petition signed by 20 percent of the
members of each House. If the objection is sustained by majority vote in each house, the vote
is not counted and the number of votes required to be elected is reduced by the number of
disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president.4
Simply put, Davis and Schulte's analysis is not correct.
Challenges under the Electoral Count Act come in two varieties: Type-I and Type-II
challenges. Generally speaking, Type-I challenges are allegations of pre-appointment illegality
involving presidential electors, 3 U.S.C. § 15(d)(2)(B)(ii)(I), and Type-II challenges are
allegations of post-appointment illegality involving presidential electors, 3 U.S.C.
§ 15(d)(2)(B)(ii)(II).5 Again, generally speaking, a Type-I challenge involves an allegation that
* Seth Barrett Tillman is an associate professor in the Maynooth University School of Law and Criminology, Ireland /
Scoil an Dli ages na Coireolaiochta Ollscoil Mhi Nuad.
1 Evan A. Davis & David M. Schulte, Congress has the power to block Trump from taking office, but lawmakers must act now,
THE HILL (Dec. 26, 2024, 8:00 AM ET), https://tinyurl.com/rfmuxry5.
2 601 U.S. 100 (2024) (per curiam).
a Electoral Count Act, 49th Cong. 2d Sess., ch. 90, 24 Stat. 373 (1887), as amended by Electoral Count Reform and
Presidential Transition Improvement Act of 2022, 136 Stat. 5233, Pub. L. 117-328.
4 Davis & Schulte, supra note 1 (emphasis added).
s See Derek T. Muller, Electoral Votes Regularly Given, 55 GA. L. REV. 1529, 1540 (2021) (This Essay has argued that
'regularly given' refers to a limited set of post-appointment controversies.); Stephen A. Siegel, The Conscientious
Congressman's Guide to the Electoral Count Act of 1887, 56 FLA. L. REV. 541, 617 n.462 (2004) (explaining that an objection
alleging that electors' votes were not regularly given is an inappropriate ground for objecting where there was no
post-appointment misbehaviour by the purported electors); Michael Stern, How to Count to 270: The Electoral Count Act
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Winter 2025
No. 01](ViewImageLocal?handle=hein.journals/hpercrm2025&div=1&collection=&method=preview&ext=.png&size=3)
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