From “How Senate Democrats can stop Trump from stealing the midterms” by David Walbert, author of Stealing Elections, American Style at The Guardian:
Article I of the constitution makes each chamber of Congress the “Judge of the Elections [and] Returns … of its own Members”. No matter who state officials or courts say won, Congress has the final word on who will be seated.
That gives Trump a potential path to corrupt the congressional election – create confusion and doubt about close elections, challenge the results, and have the members of the House decide congressional election contests to determine who will be seated. His electoral vote scam was stopped in 2020 when the attorney general and other officials refused to join his effort, but they’ve been succeeded by people loyal to Trump, not the law.
There have been hundreds of congressional election contests in the country’s history, beginning with the very first Congress in 1789, and they are very different from the 62 election cases Trump and his Republican allies brought and lost in 2020. They lost those cases because they were decided by judges operating under rules of evidence that don’t allow conspiracy theories, unproven allegations and bogus “expert” opinions, but that kind of sham “evidence” could drive congressional decisions determined by politics, not facts.
For the scheme to work in the midterms, Republicans would have to have an initial majority in the House when the new Congress is seated on 3 January 2027, since that initial majority will control who else is seated.
When the current Congress ends on that date, all now-seated representatives lose their status as members of Congress. Furthermore, candidates who win election in November don’t become representatives simply because of the election returns. They become members of Congress only after they take the oath of office required by the constitution.
It’s at that juncture where the danger lies, and the problem has been discussed by lawyers, writers and pundits since it was raised in the Guardian.
Federal law requires the clerk of the current House to “make a roll of the Representatives-elect”, and persons on that roll are sworn in as the initial members of the new Congress. Jeffrey Toobin and others, such as the retired judge Michael Luttig, are concerned that Republicans could appoint a loyal clerk – a “GOP toady”, in Toobin’s words – who would prepare a fraudulent list of representatives-elect.
Some commentators dismiss that threat, believing the law is so clear the judiciary would not let the roll be subverted by politics or a corrupt clerk. Maybe I’ve tried too many cases, including at the supreme court, where what looked white and black became gray, but I’m afraid those who feel the law is so clear are overly optimistic. They also underestimate the heavy hand of politics in such litigation.
In my book Stealing Elections, American Style, I point out that for 150 years, beginning with the 1876 Tilden-Hayes presidential election, “[p]artisan affiliation has been a near-perfect predictor of Supreme Court justices’ votes in cases that involved a presidential candidate’s claim to the office”. I am quite sure that same “rule of decision” would weigh on the scales if the current supreme court were called on to decide a case that would determine which party controls the next Congress.
