With less than three months until November 5, all eyes are on the swing states and on the energy unleashed by the change from Joe Biden to Kamala Harris at the top of the Democratic ticket. Harris now hopes to use that energy to widen a quite narrow path to 270 electoral votes.
But even if Harris squeaks out an Electoral College victory, Donald Trump and his MAGA movement will not give in without a fight. For months now, Trump’s reelection campaign has spun the tale that the Democrats will steal the election — potentially setting the stage for political maneuvering that could lead to an unprecedented constitutional crisis, with both major parties claiming a House majority, and the fate of the presidency turning on this dispute.
The Constitution requires the newly elected Congress to assemble at noon on January 3, and the GOP will likely still hold two important levers of power: the House of Representatives and the U.S. Supreme Court. Republicans might also control the Senate by midday on January 3.
Here is one possible scenario: The Republicans will be led by a Trump surrogate and 2020 election denier, House Speaker Mike Johnson. He could base their claim to the House majority on a few close and contested elections that rogue GOP governors or secretaries of state might decline to certify.
For example, toss-up races in Texas, where the governor certifies the election, and Ohio, where the secretary of state certifies, may have a margin of less than 1 percent, which entitles the loser to contest the election. Those Republican officials could argue that there is no clear result, and the clerk of the House of Representatives, who is elected by the majority, could declare those seats vacant. Johnson could then assert that Republicans hold the majority and that he has the votes to become speaker again.
If that happened, Democratic Leader Hakeem Jeffries would likely argue that the Texas governor and Ohio secretary of state wrongly and illegally declined to certify close House races. He might then claim that Democrats hold the majority and that the speakership is his upon election by his caucus.
Conceivably, there could even be a tie, with each party seating 217 members and one seat declared vacant by the House clerk, and no speaker candidate able to draw votes from the other party.
This would result in a chaotic few days leading up to January 6, the date set by the Constitution to count the ballots of the Electoral College — a date that became infamous in 2021 when Trump and his rioting supporters sought to stop the presidential certification.
On January 6, 2025, the Democratic members will vote to certify the presidential election, and Harris, should she prevail in the Electoral College as Biden did in 2020, will be declared the winner.
On the same day, the Republican members could vote not to certify the presidential election, as 147 of them did on January 6, 2021. They would then invoke the 12th Amendment and call a contingent election, in which each state’s congressional delegation has one vote — no matter how populous the state. With all Republican members voting in lockstep, and the GOP controlling a majority of state delegations, Trump would be selected president.
Along the way there would be stops in various courts. With the stakes so high, key rulings would probably end up before a corrupt and extremist Supreme Court.
The scenario I have outlined might seem outlandish, though not more outlandish than thousands of people, egged on by the president of the United States, breaking into the Capitol, attacking police officers and calling for the execution of the vice president unless he single-handedly overrules the voters in a national election. And it is just one possible scenario out of many.
But the conditions that make it possible, along with other schemes to delay and deny certification, are in place:
The Republican candidate is ruthless, dishonest and demands absolute loyalty.
The current speaker of the House is a self-described “constitutional nerd” and a student of parliamentary maneuvers. He already helped convince 147 members of Congress to vote against certification in the last presidential election, and his analysis of the Constitution always, miraculously, seems to fit his political preferences. As sitting speaker, Johnson would have the pole position for rule changes during any dispute over who is the new speaker.
The House of Representatives is closely divided. Even one seat could make or break the majority. It is possible that all Republican members would vote against certifying a Harris Electoral College victory. It is also possible that a few Republicans could break with their party and vote to certify, but imagine for a moment the intense pressure those members would face, from ostracization by their colleagues to death threats from violent Trump supporters.
Republican governors have noticed the political perils of defying their party’s Dear Leader. Note that these governors would not have to actively coordinate with the speaker; it would be enough for them to “independently” decline to certify a House race here and there.
And finally, we must contend with the U.S. Supreme Court, controlled by justices essentially chosen by the Federalist Society and its right-wing donors. That six-person Federalist majority includes three justices chosen by Trump, with the help of Mitch McConnell, who refused to allow a vote on Barack Obama’s nominee with a year left in his term and then rushed through a vote on Trump’s nominee Amy Coney Barrett in just 35 days. Justice Clarence Thomas pals around and receives gifts from billionaires while his wife actively supports Trump. Justice Samuel Alito, whose wife flew the U.S. flag upside down at their home, says of the political strife in the U.S.: “One side is going to win.” And with his rulings, there is no doubt as to which side he is on.
It’s not just the ideological background of the Supreme Court that screams red alert. The Supreme Court, in the Trump v. Anderson case about whether the 14th Amendment could keep the former president from running again, revealed itself to be consequentialist rather than originalist; that is, the justices acknowledged in the course of oral arguments that they look at the consequences of their rulings rather than following the actual language of the Constitution and letting the chips fall where they may. In Trump v. United States (possibly the most aptly named federal case in the history of federal cases), the Supreme Court issued perhaps its most preposterous ruling: that presidents are basically immune from prosecution — a decision that blatantly serves Trump’s interests despite the Constitution’s express command (twice) that it is the duty of the nation’s chief executive to ensure that the laws are “faithfully” executed, which is the opposite of breaking them or violating statutes that bar crimes.
Many democracy defenders have not focused on the danger of these kinds of maneuvers, and for valid reasons. One reason is the possibility that Trump wins the Electoral College legitimately. Another is the belief that the Electoral Count Reform Act of 2022 closed the loopholes that allowed the “fake elector” scheme of 2020 and would prevent other paths to gaming the Electoral College certification process. A third possible motivation for downplaying the contingent election scenario is to avoid demotivating voters.
But it seems the U.S. is in an indefinite state of very close presidential elections, once you account for mass disenfranchisement and partisan gerrymandering canceling out some of Trump’s deep unpopularity with the majority of voters. The structure of the Electoral College allows just one county in any of several swing states to determine who becomes president for four years, even if the margin of the popular vote is in the millions.
The Electoral Count Reform Act did not eliminate all procedural loopholes, as law professors Lawrence Lessig and Matthew Seligman describe in their book, How to Steal a Presidential Election. In fact, they identify several ways that a presidential election can be stolen. While every scenario requires a number of “what-ifs,” we are kidding ourselves if we think Trump and the MAGA GOP won’t try every maneuver imaginable. As the January 6 Committee documented, this cohort followed multiple potential paths toward stealing the last election with much less prep time; this time, they’ve had four years. A New York Times investigation documented that, in fact, the Republican Party has a “wide- ranging and methodical” plan to contest a Trump loss.
It’s time to admit that the system of checks and balances, a tradition of peaceful transfer of power, and respect for rule of law is, in fact, a vulnerable house of cards. We must be aware of these structural weaknesses and possible procedural machinations — after all, Trump and his acolytes are definitely thinking about them.