The Raskin Ultimatum

In February of 2024, Rep. Jamie Raskin (D-Md.) laid an ultimatum on the Supreme Court. The case of Trump v. Anderson was before the Supreme Court, and everyone expected the Court to rule for Trump. (On March 4, they did – unanimously.) So Rep. Raskin said, if the Court would not disqualify President Donald J. Trump from returning to office, Congress would. The Anderson decision came and went, and no one even remembered what Rep. Raskin said. Now the country is talking about it, because someone saw fit to bring it up again. So the time has come to consider how the Democrats could execute the Raskin Ultimatum – and what would happen next.

What is the Raskin Ultimatum?

Rep. Raskin, according to The Daily Presser, commented on the Anderson case while taking part in a panel discussion at the Politics and Prose Bookstore and Coffeehouse, in the Chevy Chase section of Washington, D.C. The bookstore’s calendar shows this entry for a panel discussion on February 17, 2024. Rick Hasen, author of A Real Right to Vote: How a Constitutional Amendment can Safeguard American Democracy, led the panel.Raskin, Sherrilyn Ifill (of the NAACP Legal Defense Fund), and Pam Fessler (National Public Radio), took part.

Raskin evidently offered his remarks off-the-cuff and slightly off-topic, or at least out-of-scope. Doug Goldsmith, the article’s author, couldn’t tell whether Raskin was speaking hypothetically – or after he or someone else had formed a detailed plan. Spreely.tv posted video of Raskin’s remarks on Monday (August 5).

What can be put into the Constitution, can slip away from you very quickly. And the greatest example, going on right now, before our very eyes, is Section Three of the Fourteenth Amendment, which is just disappearing with a magic wand, as if it doesn’t exist, even though it could not be clearer what it’s stating. And so they [presumably SCOTUS] are going to want to kick it to Congress. So it’s going to be up to us, on January 6, 2025, to tell the rampaging Trump mobs that he [President Trump] is disqualified. And then we need bodyguards for everybody, and civil war conditions, all because the nine Justices – not all of them, but the Justices who have … not many cases to look at every year, not that much work to do, a huge staff, great protection, simply do not want to do their job, and interpret what the great Fourteenth Amendment means. And I’m glad that Sherrilyn put it into her new Center, so that we can…

Raskin trailed off just then. Again, no one thought any more of his remarks, even when the Anderson decision came down. But on Monday, Chuck Callesto and Charlie Kirk each posted the clip on X, less than two hours apart. Former Rep. Lee Zeldin (R-N.Y.) shared his own copy from Charlie Kirk’s post.

Former Gov. Mike Huckabee (R-Ark.), Donald Trump, Jr., and Stephen Miller (America First Legal) each expressed appropriate outrage.

Yesterday M. D. Kittle at The Federalist provided more context for Raskin’s remarks. He got this comment from Rep. Anthony D’Esposito (R-N.Y.):

Congressman Raskin continues to stoke the flames of division in this country through his use of incendiary language aimed at his political opponents, and once again proves the hypocrisy of leftists like him who slander conservatives in an attempt to mask progressives’ proclivity towards violence which has been on full display in cities and college campuses across America in recent times.

Details?

Obviously the Raskin Ultimatum is short on detail. But January 6, 2025 is the most likely date to count and certify the electoral vote for 2024. So Raskin isn’t talking about new legislation. He is talking about refusing to accept electoral votes for Trump as valid. Expect, then, to see challenges from at least some State delegations in the House. For the Senate to vote on any of them, at least one Senator would have to sign off on it.

What Congress would do, if the House stayed Republican and the Senate stayed Democratic, is far from clear. But what Congress would do if the Democrats controlled both chambers, is crystal clear. The Raskin Ultimatum, in short, constitutes a pre-planned refusal to certify the vote. They would use, as their reason, an allegation that Trump “participate[d] in insurrection and rebellion.” But once again, whether any of this is even valid, is far from clear.

Amendment XIV, Section 3 reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

But Section 5 reads:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In Trump v. Anderson, the Supreme Court indicated that no enforcing legislation was presently in force or effect. Therefore, said the Court, Congress has the duty to write an enforcement law before the next election. To do otherwise would be equivalent to an ex post facto law, which is unconstitutional on its face.

Previous history from Raskin

Jamie Raskin has a long history of proposing laws treating Presidential succession or eligibility, that get nowhere. After Trump v. Anderson came down, Raskin announced his intention to re-introduce an “enforcement act” of some kind. Nothing came of it. Indeed on January 12, 2021, Raskin desperately called on then-Vice-President Pence to gather signatures on a Vice-Presidential Declaration of Presidential Inability – against Trump. Pence quietly declined. He and Rep. Alexandria Ocasio-Cortez (D-N.Y.), in June, introduced a bill to ban any gift valued at more than $50 to a Supreme Court Justice. That legislation hasn’t moved, either.

In October 2020, Raskin introduced a bill to create a “Commission on Presidential Capacity to Discharge the Powers and Duties of the Office.” This 17-member “Raskin Commission” would have taken the place of the Cabinet in judging Presidential ability. Thus it would become “[an]other body” that Congress would “by law provide,” within the meaning of Amendment XXV Section 4. Raskin intended this to remove Trump from office immediately. Nothing came of it. But Susan Crabtree of RealClearPolitics remembered that Raskin Commission in the context of Biden’s ability – or inability. Ironically she published her reminiscence on February 9, 2024 – eight days before Raskin delivered his Ultimatum to that coffeehouse crowd.

Where would the Raskin Ultimatum go?

Given Raskin’s history, one must assume that the Raskin Ultimatum will take the form of an objection to electoral votes. Members of Congress have objected to electoral votes four times in the past:

• 1969: a “faithless elector” cast a vote, not for Richard M. Nixon, but for George C. Wallace.
• 2001: twelve liberal black House members objected to the Florida results. But they never got a Senator to sign off on their challenges.
• 2005: several Members challenged Ohio’s results.
• 2021: five Representatives and two Senators objected to electors from swing States where fraud was suspected.

In each case, both chambers of Congress voted the challenges down. But no precedent exists for what happens if one chamber sustains a challenge and the other rejects it.

Raskin knows that his fellow Democrats hold the Senate, but Republicans hold the House. So the Raskin Ultimatum would achieve a split decision at best – if control of both chambers stayed as is. But suppose Democrats flip the House and keep the Senate? They could then disallow several State electoral votes, one by one. Even the Heritage Foundation’s Transition Integrity Project failed to account for the Raskin Ultimatum. Shame on them – because Rick Hasen’s panel was open to the public on a first-come, first-serve basis. If Chuck Callesto and Charlie Kirk could get hold of Raskin’s remarks, why couldn’t the Heritage Foundation do the same?

If you value Constitutional government, do not split your ticket!

All of which should remind everyone: no Democrat, no matter how affable, is trustworthy in the Election of 2024. Republican voters have never held themselves to the “ticket discipline” for which Democratic voters are famous. Witness the States of Kentucky and North Carolina, which have Democratic governors but Republican legislatures. Witness also States like Ohio, which have Democratic incumbent Senators (like Sherrod Brown) up for reelection this year.

Remember, Ohioans: Sherrod Brown will vote to sustain a challenge to your electoral vote if he returns to the Senate. That goes for every incumbent Democratic Senator facing reelection in a State either in play or solidly or likely Republican. (If a State merely leans toward either candidate, or has a toss-up rating, it is in play.)

Remember also: Jamie Raskin would never bother with his Ultimatum, were he confident that a Democrat could win the election. He might not even believe the Democrats could cheat their way to election this time.

The Raskin Ultimatum makes the Democratic brand a toxic brand by definition, in House and Senate races. CNAV urges all voters who value Constitutional government to vote accordingly.