With the Nov. 3 midterm elections now behind us, the nation faces a critical test of the integrity of its electoral system and the peaceful transfer of political power. Democrats have won control of the House of Representatives and the U.S. Senate.
But regardless of the final outcome, serious concerns remain about efforts by President Donald Trump and his Republican allies to challenge election results, undermine confidence in vote counting, and potentially obstruct certification of legitimate Democratic victories. Election law experts warn that partisan efforts to delay or refuse certification in closely contested congressional races could provoke an unprecedented constitutional crisis.
The key questions are: Could Republican leaders in Congress exploit disputes over certification to prevent duly elected Democrats from taking their seats when the new Congress convenes on Jan. 3? And if the Trump administration or its allies defy court orders, what options would remain for citizens seeking to defend democratic institutions through nonviolent resistance and mass mobilization? Between The Lines’ Scott Harris spoke with Lauren Miller-Karalunas, senior counsel with the Brennan Center for Justice Democracy Program, who examines these the vulnerabilities in America’s election system in the critical weeks ahead.
LAUREN MILLER-KARALUNAS: So what happens in the weeks after Election Day is that local election officials begin a series of checks, what’s known as the canvas, to make sure all votes are counted, to resolve any discrepancies in the vote totals and ensure the results are accurate. There are many, many detailed steps in place that happen. And then once that canvas is complete, those local election officials must formally sign off on or certify the completion of that process by a specific date set by state law. And they then deliver those results to the state election officials who do the same thing all over again. They conduct their own canvas and then they certify the results. And following that state process—after all those checks have happened—that’s when the certificates of election are sent to Congress for congressional races. And so essentially certification just confirms that all the necessary steps in the post-election process have taken place.
It could not be clear in state laws that this is something that local election officials and state election officials absolutely have to do. And it’s not the time to answer any questions about what happened in the election or any suspected fraud that might have taken place because those questions are left to specific processes designed to answer them because those local election officials and those state election officials are often not lawyers and those questions are supposed to be answered by courts and evaluated by those legal experts.
SCOTT HARRIS: There’s a speculation that if Democrats win enough House seats on Nov. 3rd to secure a majority, that Republican officials will challenge results in several close races. Could delays or refusals to certify those victories prevent duly elected Democrats from taking their seats when the new Congress convenes on Jan. 3rd? And I guess a related question here, we’ve been reading about the role of the clerk of the House in certifying winners. And there’s been some concern that House Speaker Mike Johnson could pressure the current clerk, his name is Kevin McCumber, I think, to refuse to recognize Democratic candidate winners. Or replace him, Kevin McCumber, with a MAGA loyalist who would reject enough Democratic-winning candidates to deny the party control of the House. How could such a power grab scheme be effectively stopped? Can federal courts intervene and could they act with enough speed to prevent a constitutional crisis?
And just another part of this, if such a case were to be appealed to the U.S. Supreme Court, what’s the likelihood that the right-wing majority of justices would uphold legitimate election victories by Democrats? They have a pretty dismal track record on what many believe is unconstitutional partisan interference in elections and a lot of other issues on behalf of Donald Trump and the Republican party.
LAUREN MILLER-KARALUNAS: I’m so glad you asked this question because I think this is the scenario that people read in a headline that causes them to panic. And I actually think it is not panic-inducing when you break it down. So I’m so glad that you asked it. And the first and most important thing to remember is that by the time the results reach Congress, the winner will have that certificate. That’s the result of that certification process that plays out in the state the vast majority of the time. All of the relevant disputes will have already played out. For that reason, it’s worth stressing that it’s extraordinarily rare for there to even be a dispute that Congress would need to resolve. In short, a good way to remember is if they have that certificate from their state, which we just walked through, there’s every reason to believe that they should, Congress will have no role to play.
And that’s what happens in almost every election cycle. If on the off chance there is some race that is in doubt, either in the House or the Senate, there are Republicans in both bodies who have already thrown cold water on this idea that they could somehow rid the outcome or not certify someone properly and seat them. And in fact,
Johnson just recently came out and said that he will follow the law and the Constitution and seat the rightful winner with a certificate. Now, when it comes down to the processing themselves, as you said, each body in Congress has a slightly different process. So at noon on Jan. 3rd, a new Congress begins in the House, and so Mike Johnson will no longer be Speaker of the House regardless of the election results in November. And so that’s something that’s helpful to keep in mind for folks too.
Remember too, there are tight margins in the House right now as well. And while Mike Johnson is speaker, he would need the support of his entire party, including members who might lose their elections in order to pursue any shenanigans. That’s also helpful. And if you are in a new Congress and if Democrats win the majority, of course they will have their own responses and counter moves to ensure that everyone is properly seated. And so that’s the House. If you’re in the Senate, the Senate’s rules carry over from one Congress to the next, and the Senate’s rules are extraordinarily clear that the person who is certified as the winner of the election in their state is the person who will take office. So it is difficult to see a scenario in which this would actually ever reach a court much less a Supreme Court. But if any of these disputes related to elections and their outcome reach the Supreme Court, folks are understandably fairly skeptical of the Supreme Court at this point.
But keep in mind that when it comes down to cases that hinge on the will of the voters, it is hard to see a situation in which they would so overtly overturn the will of voters.
For more information, visit the Brennan Center for Justice at brennancenter.org.
Listen to Scott Harris’ in-depth interview with Lauren-Miller-Karalunas (28:12) and see more articles and opinion pieces in the related links section of this page. To subscribe to our podcasts, email newsletters, our Between The Lines Radio Newsmagazine Substack or social media, subscribe here.
