How Senate Democrats can stop Trump from stealing the midterms | David Walbert

Having lost his mail-in ballot case, Donald Trump will likely resort to ever more extreme ways to try to hold a Republican Congress in November’s elections.

His last-ditch effort to count Joe Biden out in 2020 was for Republicans to “investigate” states Biden narrowly won; proclaim fabricated allegations of “stolen elections” to be true; and then reassign those states’ electoral votes to Trump. I have previously described how that same playbook could be used to try to steal the midterms if a Democratic margin of victory in the House is relatively narrow.

Less discussed, however, has been what Senate Democrats could do to stop the danger.

The potential threats are extensive.

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.

In my mind, the statute that directs the clerk to prepare the roll of eligible representatives-elect gives Republicans room to argue about who should be included without resorting to a crooked clerk. The law states that candidates should be listed only if their “credentials show that they were regularly elected in accordance with the laws of their states respectfully, or the laws of the United States”.

What should the clerk do with candidates who receive the largest number of votes, according to the latest returns, but who face ongoing disputes over election fraud – in other words, disputes over whether they were “regularly elected in accordance with” state and federal law? What if the election is in doubt because of a pending congressional election contest under article I? Could such a candidate’s credentials show they were elected in accordance with the law, since it’s up to Congress to make that decision where there is a contest?

The scenarios get uglier if red states are complicit.

While no secretaries of state complied with Trump’s demands to falsify the vote in 2020, there were plenty of legislators willing to do so, and some local election officials said the election should not be certified. Since then, election deniers have gained more state and county offices, in addition to the hardcore election deniers and Trump loyalists who now hold many election-related positions with federal agencies.

With the supreme court’s ruling on Friday, the Department of Homeland Security will be preparing lists of “approved” citizen voters in at least 27 states. Election officials loyal to Trump could parrot his inevitable claims of vote fraud, bolstered by disparities between the county’s lists and the notoriously inaccurate DHS lists.

Would it be illegal for them to refuse to certify a Democratic win because of those disparities? Probably, but it would add uncertainly, confusion and chaos – perennial Trump favorites – and give cover to Republicans demanding a congressional election contest to decide the winner.

Moreover, without a “credentialed” winner before 3 January, the clerk couldn’t add an apparent winner to the roll under the explicit terms of the statute.

An even uglier case would involve federal agents seizing ballots from one or two Democratic precincts. Many judges would issue injunctions to stop that, but others might not.

How the supreme court would rule on an emergency petition is unknown. The justices have ruled for Trump in dubious cases and split 5-4 and 6-3 in cases that should have been unanimous rulings against Trump.

Further confounding the problem, a complicit state or county might acquiesce in a federal seizure and even concede the presence of fraud in order to delay certification of a Democratic win. Again, some have argued that the law prohibits this possibility, but the law is not so certain with today’s supreme court.

One final example shows just how complicated and unpredictable the legal-political landscape can be.

The current Trump-controlled House could have expedited or preliminary votes on pending election contests and rule in favor of enough Republicans to keep their initial majority in the new Congress. The clerk is an officer of the House and does not have discretion to ignore a congressional directive because he disagrees with it. He would be have to prepare the roll according to the House’s direction.

While the current Congress can’t dictate to the next Congress how to rule in election contests for its members, it wouldn’t be doing that. The current Congress would “only” be dictating to its clerk how he should act now when the clerk is subject to its control.

In short, what appears to be a Democratic House majority after the election may not be when initial representatives-elect are sworn in on 3 January.

But what has not been considered by those who have addressed this conundrum is the role the Senate could play. It could be crucial in preventing Republicans from stealing the House.

Unlike the House, where all members’ terms end on 3 January, the Senate is a continuing body, and the 65 currently seated senators who are not up for election now will retain the full authority of their office on 3 January.

Because of that, the Senate will be under the control of the Democratic party when it convenes on 3 January regardless of the election. Of the 65 senators carrying over, 32 are Democrats, plus the two independents (Bernie Sanders and Angus King) who caucus with them, but only 31 Republicans will carry over.

That assures Democrats an initial 34-31 advantage in the Senate. Normally, that advantage would just be momentary if the Democrats don’t capture the Senate in November, but this will be anything but a normal year if Republicans try to take the House with bogus election challenges.

If Trump and his allies try to steal the House, Senate Democrats can retaliate in kind and guarantee their control of that chamber, regardless of the election outcome, by refusing to seat a few Republicans who had close elections. Their claims of fraud can mimic Republican claims in the House.

Democratic Senators would have to play very serious hardball to do this, but if Republicans are subverting House elections, what would they have to lose?

The battle would come to a head in the Senate when newly elected senators are called up to take the oath of office and be seated. The vice-president in his constitutional role as president of the Senate customarily handles that procedure. But Vance would be stopped cold if a seated Democrat challenged a Republican senator-elect.

Riddick’s Senate procedure is the authoritative compendium of Senate procedures and precedents, and it addresses this exact scenario:

After the name of a Senator-elect is called, while the question of swearing him in is pending the consideration of a resolution to refer his credentials to a committee and to deny him the right to take his oath of office in the meantime is privileged and takes precedence over swearing him in …

What if Vance tried to ignore Senate procedure by ruling the motion out of order and attempting to administer the oath to a challenged senator? Vance has the authority to make procedural rulings, but his authority is strictly limited by the will of the Senate. Democrats have the right to challenge his ruling immediately, and their appeal would be determined by the currently seated Democratic majority.

A filibuster by the Republican minority is a possible reaction to this process, but the Senate would remain under control of the Democratic majority.

Will the United States sink to this level, where Congress will be determined by a political standoff between the House and Senate? There have been serious credentials fights before, but nothing this extreme has happened outside of Civil War-era elections.

To be sure, all of this would have been an impossible fantasy just a few years ago, but very little is inconceivable with Trump in the White House and in control of the Republican party. Trump is willing to destroy the country’s hold on democracy and fair elections to retain power.

We can only hope the prospect of a doomsday standoff between the House and Senate over the true election winners would make enough Republicans forego trying to steal the House.

• David F Walbert has litigated dozens of election cases, including landmark cases before the supreme court, taught constitutional law, testified before Congress on voting legislation, and most recently authored Stealing Elections, American Style, published by Bloomsbury on 3 September