WASHINGTON — America may not have to wait until 2024 to witness the next attempt to undo a free and fair election.
Any candidate for the 435 House seats or 34 Senate seats open in 2022 could follow Donald Trump’s playbook for challenging a lost election, which Republicans have spent the last 14 months building out. And they would have a major advantage over the former president: Overthrowing congressional election results is actually very simple. There’s no need to deal with the Electoral College or state officials across the country. You just need to convince a majority of politicians in either chamber.
The House and Senate have absolute authority over their membership. And the House speaker can simply decide not to seat a candidate whose election has been called into question, as Speaker Nancy Pelosi herself considered just last year.
All that is required to ignore or overturn a congressional election is a move away from a century of political norms at a time many politicians are actively undermining them.
Republicans in and out of Congress continue to prop up the lie that the last election was stolen from Trump and continue to make challenging certified election results routine. After 147 Republicans in Congress voted not to certify the 2020 election results, legislators in four states have launched so-called election “audits” of their own. Election deniers are running to be the top elections officials in at least 12 states in 2022. And Trump’s most vociferous supporters in the party are pushing legislation in statehouses this year to make it easier to force partisan audits in future elections up and down the ballot.
While those efforts could certainly help Republicans in the next presidential election, they could take advantage this year of the new normal they’ve created. Poll after poll shows that roughly two-thirds of Republican voters still believe that President Joe Biden’s election was illegitimate and a December Washington Post survey shows that 57% of them are not confident that the 2022 vote will be counted accurately. The question isn’t whether another Republican will cry voter fraud and try to overturn a fair congressional election, it’s when — and whether party leaders will step in to help them.
Over the past century, it has been extremely rare for Congress to overturn state-certified elections. Modern Congresses have tended to defer to the states and the courts to sort out contested elections, Princeton University professor of politics Keith Whittington said. But in the 19th century, it was much more common for the Senate and House to settle disputes themselves, with a majority vote being the ultimate arbiter.
With state election boards under siege for the past year by Trump and his supporters, the standard of Congress leaving it to the states could soon be over.
“You can imagine either chamber wanting to go back to its roots,” Whittington said.
Trump remains the X factor hanging over the midterms. He is encouraging Republicans to keep false voter fraud claims alive in 2022, and a good number of the party’s voters expect their candidates to push back on election results. In the Washington Post survey, nearly a third of Republicans said they were not confident that officials in their states would accept the results of the 2022 election — and that’s in states controlled mostly by Republicans. Asked about states controlled by mostly Democrats, that number shot up to 56%.
It’s easiest to see how this could play out in the House, where hundreds of races present more radical members with more opportunity. Say a handful of Republicans lose House races in November and claim that there was widespread voter fraud in their districts. Republicans are considered the favorites to win the majority back in 2022, meaning the next speaker — perhaps current Minority Leader Kevin McCarthy — could come under intense pressure to “stop the steal” in races across the country. He — and the rest of the Republicans in Congress — would likely be flooded with calls demanding “full forensic audits.”
For this scenario to play out, Republicans have to win back a majority in the House of Representatives. That would allow them to elect one of their own because the speaker of the House has the power to seat — or not seat — any member in a contested race. Democrats could challenge that decision, but Republicans would only need a majority vote to uphold it.
Usually there are more steps in the process. Under the Federal Contested Election Act of 1969, a losing candidate can appeal to the Committee on House Administration to start an investigation, for which there are no real ground rules, according to a report from the nonpartisan Congressional Research Service. The committee can send a delegation to the disputed district to recount the ballots themselves. They could conduct their own quasi-audit and impound voting machines and examine voter registration records. They could hold a trial, with both candidates presenting evidence for why they should be seated. And they can make up whatever rules they’d like about which ballots to count and which not to count, regardless of state law. The courts, historically, have stayed out of this; the Constitution guarantees that each chamber of Congress “shall be the judge of the elections, returns and qualifications of its own members.”
The House doesn’t even need a candidate to complain to kick off this process — any member or member-elect can object to the seating of another member. It’s even possible, though very unusual, for the House to investigate a congressional election because of a complaint by a single voter.
“The Constitution is even thinner on this than it is on what impeachment would look like,” Whittington said.
Ultimately, a majority vote on the House floor will settle who gets seated. The Senate also has total control over who gets seated and how to resolve disputes. Though contested statewide elections are less frequent, and the Senate has far fewer races to begin with, the majority would have the ultimate power to settle a disputed race.
Neither party is talking about pursuing electoral challenges right now, but both suspect the other may do so. “I don’t trust Republicans to play fair, period,” House Majority Leader Steny Hoyer said.
“This is a disturbing potential implication of the electoral paranoia and lunacy that has been unleashed on the land by Donald Trump,” said Democratic Rep. Jamie Raskin, who sits on both the House Administration Committee and the committee investigating Jan. 6. “Anyone can try to create a conspiracy and spread it like wildfire on the internet without any facts at all. And then politicians in the GOP get cornered and feel as if they have to commit to a certain conspiracy theory or they’re going to get attacked by Trump and his followers.”
McCarthy downplayed this possibility while entering the House chamber Tuesday, saying that there are often close races but his concern is Democrats trying to swing the results.
Republicans point to Pelosi as the one who is upending norms by using her majority to kick Republicans off committees. The Democrat-controlled House voted to remove Reps. Marjorie Taylor Greene and Paul Gosar from committee assignments last year for threatening or abusive comments they’d made.
McCarthy also referenced the last time the House overturned a race, in 1985, when then-speaker Tip O’Neill and House Democrats handed a contested congressional seat to one of their own. In what has become known as a fight over Indiana’s “Bloody Eighth” district, House Democrats conducted their own recount, following tabulation errors and claims of vote irregularities. Republicans claimed Democrats were stealing the election and staged a walkout. “You always want to make sure you never end up to that Bloody Eighth when the Democrats stole the race,” McCarthy said.
Pelosi openly considered using the House’s powers one year ago when a Democrat challenged her loss in an Iowa race that was decided by just six votes. Although the state certified Republican Mariannette Miller-Meeks’ win over Democrat Rita Hart, Hart appealed to the House to investigate. Pelosi mulled seating Hart, but dropped it after several Democrats raised concerns and Hart withdrew her challenge.
“If I wanted to be unfair, I wouldn’t have seated the Republican from Iowa because that was my right on the opening day. I would have just said, they’re not seated, and that would have been my right as speaker to do,” Pelosi said at the time.
Republicans say Pelosi only backed down because she already had a majority secured. But if the 2022 midterms result in a close election where the majority hinges on only a seat or two? There could be chaos. Members from one party could object to the seating of members in another to block a majority, leading to retaliatory challenges in the other direction. It could take weeks to sort out who ultimately controls the chamber. As with much of the American political system, the rules offer no clear guideline for resolution if norms are abandoned.
Republican Rep. Randy Weber said he believes state results should be upheld, but one side trying a power grab would be met with retaliation. If that happens with the majority in the balance, he said, “Get your seat early. Bring your popcorn.” ●