WASHINGTON — Consider the following scenario: Following a contentious midterm election, the House gathers on the first day of the new Congress to organize itself. With an unpopular Democrat in the White House, the party appears to have lost its House majority. But something’s amiss.
In one state, it looks like the Democrats lost five tight races, but there are reports that votes from entire towns were never counted. Despite the irregularities, though, the governor certified the results, which would have tipped control of the House to his party … except the House clerk, picked by the Democrats in the lame duck, refuses to recognize the five disputed representatives-elect. And that tips the balance in the House back to the Democrats. Chaos ensues.
This might sound like the plot of a bad political thriller or the fever dream of a conspiracy theorist, but it’s no hypothetical. It actually happened in 1839, when House Democrats rejected five of six Whig representatives-elect from New Jersey who showed up with election certificates issued by the governor, who was also a Whig. As a result, they retained partisan control of the House during the months it took to resolve the debacle.
This would be nothing more than a historical footnote if it couldn’t happen again. But according to election law experts, it could.
“Theoretically, they have that power,” said Derek Muller, a professor at the University of Iowa law school. “It’s always potentially there for them to use it.”
That doesn’t mean they will, Muller added. But the majority party has used similar procedures to increase its margins more than once, most recently in 1985.
The 2022 midterms are shaping up to be the most contested in the nation’s history. An Associated Press report last month found more than 100 lawsuits had already been filed over the Nov. 8 elections. A CBS analysis found that 308 — more than half — of Republican candidates for federal or statewide office this year have questioned the validity of the 2020 elections, and many have refused to say that they will accept the results of this year’s ballots should they lose. Observers predict losing candidates from both parties will challenge results in many races, potentially leaving control of the House or Senate undecided.
Normally these disputes play out in the states, where state officials handle the counts and potential recounts, while state courts adjudicate allegations of fraud and foul play. In the House, would-be representatives can follow the procedures laid out by the Federal Contested Elections Act to challenge results.
But those apparent losers can also opt for a third option, relying on their co-partisans to object to seating the winner before the members-elect are sworn in. And with control of the House potentially hanging in the balance, this becomes a constitutionally-fraught question: Who gets to vote — everyone or just the uncontested electees?
In the past, the House has done both, said Michigan State University law professor Brian Kalt. But when they preclude contested members-elect from taking their seats provisionally, Kalt warned, it creates the potential in a closely divided House for the minority to attempt to wrest control from the majority, like in 1839. And even if such an endeavor failed, it “could worsen the national partisan divide, weaken the House’s legitimacy, and threaten the House’s already dangerously low levels of comity.”
Theoretical ‘nightmare’
To understand how this crisis might unfold, you need to start with the Constitution, which gives ultimate authority for who sits in Congress to Congress itself — each chamber is “the Judge of Elections, Returns, and Qualifications of its own members.”
The problem is that the House reestablishes itself from nothing every two years. After each election, the Senate still has two-thirds of its members in the middle of their six-year terms and chamber rules in place to help adjudicate any election disputes.
But the House has nothing when every representative’s term ends at noon on Jan. 3. Formally, there are no members until the representatives-elect are officially sworn in. The House relies on the clerk — whose authorities don’t automatically expire due to constitutional dictate like a representative’s — to form a roll of representatives-elect from the certified election results they gather from the states.
With the clerk presiding (with nothing but precedent and general parliamentary principles to guide them), those representatives-elect then select the speaker of the House, who is sworn in by the clerk before then administering the oath of office to everyone else, which officially makes them seated members. It is only after this that the House can conduct its business, which includes adopting rules for itself.
In most years, this goes off without a hitch. But the same could have been said about counting the Electoral College vote until Jan. 6, 2021.
Pre-oath objections are rare, but the last one was quite recent: In 2021, Republican Chip Roy challenged seating the delegations of Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin in an effort to highlight the hypocrisy of his colleagues who were planning to challenge the presidential election results three days later. Notably, none of the members were asked to step aside, and the House voted 371-2 to direct Speaker Nancy Pelosi to swear in everyone.
Kalt described the “nightmare” scenario in a recent Marquette Law Review article: After a tight midterm election, Party A controls the House by just one seat, 218-217. The House convenes on Jan. 3 and elects a Party A speaker of the House.
But before the speaker can swear all the representatives-elect in, one from Party B challenges the right of two from Party A to take the oath of office and asks them to stand aside until the House can adjudicate the objection, even though they were certified the winners by their states.
Under existing House precedent, Kalt warns, those two would-be Party A members wouldn’t be sworn in, meaning control of the House would switch to Party B, 217-216, allowing them to take over the House and replace the speaker.
Now, the speaker could ignore the House’s parliamentary precedent — it isn’t binding like judicial precedent is (at least in theory). That has happened plenty of times in the past. But it would still be “pretty messy,” Kalt said, and require the presumptive speaker and majority to “roll over people making these objections.”
Things get messier still if you imagine a secretary of state or governor setting aside the initial election results to certify the election for someone in their own party, pointing to alleged fraud, or mass voter intimidation or some other impropriety.
“It’s easy nowadays for people to take a not-particularly-convincing position and turn it into something that half the country believes and rallies behind,” said Kalt. “So, you can imagine what happens when there is a legitimate question about who won.”
The precedent before the “Broad Seal War” in 1839 was to swear in challenged members provisionally, allowing them to vote for seating other contested representatives-elect. And that is how the House has handled contested seats in practice, both under the FCEA, and when Roy made his challenge in 2021.
That same year, two elections were contested in the House using the FCEA procedures. Republican Mariannette Miller-Meeks and Democrat Lauren Underwood were both sworn in while the House Administration Committee considered challenges filed by their opponents.
But the FCEA, enacted in 1969, doesn’t preclude pre-oath objections. Before Roy’s symbolic challenge, the last one was in 1985. The Democratic majority in the House declined to seat Richard McIntyre, a Republican who Indiana’s Republican secretary of state certified after a recount as the winner of the 8th district by 34 votes.
Instead, it referred the matter to the House Administration Committee, which found after its own recount that the Democratic candidate, Frank McCloskey, won by four votes — even though another recount by Indiana officials again found that McIntyre received more votes. The House then voted to seat McCloskey on a party line vote, leading the GOP delegation to walk out of the Capitol in protest over the alleged theft of a seat.
‘Do the right thing’
The fight over Indiana’s “Bloody Eighth,” and Rita Hart challenging Miller-Meeks in the House without making any state-level appeals, are why Muller isn’t too worried that election-skeptical Republicans will make Kalt’s nightmare come true.
“Republicans were deeply disturbed by this effort and have been very public about rejecting certified results in Congress,” he said. “They cite the Bloody Eighth in 1984 as a Democratic effort, they cite Rita Hart as a Democratic effort. So, I think there is more institutional knowledge for Republicans to favor seating everyone regardless, than you might otherwise expect given the doubts.”
The McIntyre fight in 1985 wound up in front of Antonin Scalia, who was serving as a federal appeals judge at the time. In his ruling, Scalia made it clear that the courts, in accordance with Supreme Court precedent, had no business second-guessing the House’s decisions on who to seat, no matter how outrageous it might seem.
“It is difficult to imagine a clearer case of ‘textually demonstrable constitutional commitment’ of an issue to another branch of government to the exclusion of the courts than the language of Article I, section 5, clause 1 that ‘each House shall be the Judge of Elections, Returns and Qualifications of its own Members,’” Scalia wrote.
While Kalt thinks the House can reduce the temptation to cynically object to seating members for political gain by swearing them in before challengers are considered, he thinks only a constitutional amendment would fix the problem. But that’s extremely unlikely and would presumably only address one of any number of tricks unscrupulous politicians could pull in subversion of the rule of law.
At the end of the day, Kalt said, it all comes down to having people in power who are willing to surrender that power in accordance with democratic norms.
“In a lot of those situations … all that is standing between us and chaos and anarchy is the willingness of individual members of Congress to do the right thing, to look at a situation and say, ‘Yes, the advantage to my party would be tremendous if I do X, but the long-term ability of the Republic to function is based on me doing Y in this moment,’” Kalt said. “And it’s getting increasingly harder to find people willing — on both sides — to do what is right long term, instead of what is right short term.”
Scalia made a similar point in his opinion. “If it be said that the relevant House is not the appropriate body to make the determination because of the possibility of improper political motivation, the response is that ‘all power may be abused if placed in unworthy hands. But it would be difficult … to point out any other hands in which this power would be more safe, and at the same time equally effectual,’” he wrote.
While federal courts won’t second guess the “unconditional and final judgment” of the House on a “nonjusticiable political question,” as the Supreme Court said in Roudebush v. Hartke, Muller notes there have been lots of changes at the state level since then to ensure fair and accurate vote counts.
“We have all these additional checks that we never had before,” he said. “And it puts tremendous pressure on states — in the right way — to conduct elections. And then tremendous pressure on Congress — again in the right way — to accept the legitimacy of those results and just seat people.”
“If the governor issued a wrong certificate or an erroneous certificate, there’s lawsuits. There’s litigation that takes place,” Muller added. “So, there’s robust state rules to address these questions.”
Kalt doesn’t share his colleague’s sanguine outlook.
“The only thing that makes me not worry about it is that it doesn’t look like it will be that close,” Kalt said of the midterms. “That is, I think the Republicans have a pretty good chance of winning, fair and square.”
But if the nation elects members who ultimately believe that democratic principles can — or must — be disregarded because they fear the other party’s policies could lead to the nation’s ruin, and therefore decide to take advantage of the weak points in our constitutional system of laws to ignore election results, there’s little hope for a good outcome.
“If you’re in a place where the state court says, ‘No, you’ve issued the wrong certificate,’ and the governor still refuses?” Muller said. “I mean, you’re not in a good place.”
