The Nullification Eagle Will Not Save Us

Donald Trump is the President of the United States.

Yeah, I know.

But no matter what you think of that fact, the fact remains that it is a fact. He was elected by a majority in the Electoral College, and his election was certified by Congress. He was sworn in, and in that moment, his arc as president fell under an umbrella of laws set down by the writers of the Constitution, and refined over the centuries.

There are five ways for a president to lose their status as president. They can:

  • be voted out of office in the ensuing election
  • resign
  • die in office
  • be impeached by the House and convicted by the Senate
  • be removed by the Vice President and a majority of the Cabinet via the 25th Amendment

Donald Trump will be in office unless one of these things happens.

Or, maybe the Supreme Court will just nullify the whole thing as Trump is buried under a blizzard of indictments and arrest warrants.

This is a strain of unbridled hope that’s based around the idea that due to a combination of covert Russian active measures and overt physical tampering with votes, the 2016 election was not valid, but an infringement of the rights of all Americans to “associate politically and to vote for candidates of their choice.”

As a petition filed with the Supreme Court put it, if the election was compromised, the American people can seek relief from the judicial branch. This relief would, ideally, take the form of a new election. The case, filed in March as Case #16-907, states that,

“If the 2016 election for President and Vice President did not meet constitutional
minimums, the position of President could be filled consistent with the official order of succession pending a “revote” for the President and Vice President in the 2018 election cycle.”

It’s an inviting concept that’s taken hold among anti-Trump resisters on social media under #Nullify2016.

It’s also complete nonsense. Obviously.

Case #16-907 was denied by the Supreme Court, just weeks after it was filed. And the Court was right to do so, as there is no mechanism in U.S. federal law to “nullify” an election through action by the judicial branch. That’s not how things work in our governing documents, and it’s by design.

The writers of the Constitution wanted it be difficult to remove a president, to forestall coup attempts and chaos. The only way to do it, at least until the 25th Amendment, was through the legislative branch’s impeachment and removal process.

There is no other way. No court case can invalidate an election, the Supreme Court can’t call for new elections, and Congress can’t execute them. There’s absolutely no legal infrastructure for it, and no case law that supports it being done. Elections are prescribed in the Constitution, nullifying them is not.

One case that’s been cited by the #Nullify2016 believers is Stinson v. Marks, a 1994 case involving a Pennsylvania state senate election. The case “revolved around allegations that Democrat William G. Stinson colluded with election officials to cast illegally obtained absentee ballots,” as Politifact put it. A judge invalidated Stinson’s win due to the elaborate and organized fraud, and seated his opponent, Republican Bruce Marks.

But that case involved a few hundred votes altered in obvious and brazen electoral fraud. The 2016 presidential election involved 130 million votes, using countless different voting systems. Even if there was concrete evidence that some of these votes were altered, there would need to be extraordinary proof that Donald Trump himself was involved in a conspiracy to alter them, and that the alterations had enough of an impact on the election to change the results in multiple states.

Such a case would be an extraordinary mountain to climb in terms of proof. It’s not going to be done with a flick of the wrist by SCOTUS.

Ironically, even the petition denied by the Supreme Court doesn’t mention Stinson v. Marks, because it’s not relevant.

These longshots are two of the many easy outs that anti-Trump forces have leaned on in the wake of the shocking results of the election.

It’s why people wanted to believe the Marshal of the Supreme Court was dispatched to take Trump into custody on the tarmac outside Air Force One. And it’s why people wanted to believe that dozens of sealed indictments were handed down against the Trump Administration a few months back.

These were clickbait fantasies designed to drive ad views and social media traffic from people desperate to get Trump out. Nullification is the exact same thing.

That’s that proper. Imagine the chaos if a court or individual petitioner didn’t like the cut of the president’s jib and had a legal way to get them removed. How could a government get anything done with such a millstone around its neck?

If President Trump is found to have known about or participated in Russian interference in the election, the remedy for his deeds is already baked into the Constitution: impeachment and removal. It’s up to Congress to do it, not some ludicrous Hail Mary or Twitter campaign.

Our energy should be directed elsewhere, not this nonsense.