A Threat to the Midterm Elections

There are a few words in Article I of the Constitution that you probably never paid attention to but could be tremendously important in the midterm elections. I became aware of them last year while writing Stealing Elections, American Style. One of the chapters in that book tells the story of the two stolen Senate elections Lyndon Johnson was involved in (won one, lost one) and how Johnson’s lawyer, Abe Fortas, got U.S. Supreme Court Justice Hugo Black to stay a district court order that would have stripped Johnson of the 1948 Democratic nomination for Senate.

Johnson’s lawyers pointed to the words in Article I that state: “Each House shall be the Judge of the Elections [and] Returns … of its own Members.”  From that they argued that the district court had exceeded its authority in striking Johnson from the ballot because the House and Senate are the ultimate judges of the elections of their members—no matter what state election authorities or a court might say.

Hundreds of election contests have been filed with Congress since the Constitution was ratified in 1789. Most were dismissed before they went anywhere, and most of the others were inconsequential. But as I wrote about the 2020 presidential election for Stealing Elections, it became obvious how some of the worst of what happened then might be tried again to pervert the upcoming congressional elections.

In 2020, Trump falsely claimed the election was stolen from him, claims that failed in more than 60 lawsuits. As a last-ditch effort, Trump tried to get Republicans in Congress to override state election returns and reallocate the electoral votes of Georgia and other swing states to himself. That his claims of vote fraud were known to be false was irrelevant. As Trump told Acting Attorney General Jeffrey Rosen when he tried to enlist Rosen in the conspiracy, “Just say the election is corrupt and leave the rest to me and the Republican Congressmen.”

We’ll never know how many Republicans in Congress would have voted to switch those states’ electoral votes to Trump were it not for the January 6th assault on Congress. That attack alienated some in Congress, albeit only temporarily, but 127 Republicans still voted that same day to “reexamine” Arizona’s election (Arizona was the first of the targeted states that came up for a vote).

If Republicans are about to lose their congressional majorities in November, would a desperate Donald Trump take a page from his 2020 playbook, claim election fraud, and try to have the Republican Congress decide key elections under the authority of Article I?  He has made it clear that he will do everything possible to win the midterms, the campaign to force already-gerrymandered states to adopt even more extreme maps being just one example.

The danger this year is actually worse than in 2020.  In 2020, Trump tried to get the Department of Justice to file baseless lawsuits and seize election machinery to give Republicans in Congress an excuse to change the electoral vote count. That didn’t happen because Rosen and others refused to go along, but those men have all been replaced by people who are loyal to Trump, not the law.

Election deniers stock the DOJ, and it is easy to see them claiming fraud to justify saying an election is uncertain and should be decided by Congress. Trump is already setting the stage for a replay of 2020 by falsely claiming fraud well in advance of election day in the hope of giving Republicans in Congress cover for disputing key elections where Republican candidates lost.

In the case of Fulton County, the FBI under Kash Patel will likely use old, bogus allegations—all debunked by the GBI, the U.S. Attorney’s Office, the Secretary of State, and the FBI itself—to say that a “new” review of Fulton County’s records reveals “fraud” that makes Georgia’s current vote count unreliable. Those false claims would then be used to initiate an election contest in the House or Senate where the decision could turn on political power, not the truth.

Even worse, if election results are going badly for Republicans on election day, Trump could order the FBI to seize election equipment from some Democratic precincts where there are close elections before the state has finished counting ballots or certified returns. That could prevent states from even declaring a winner, giving the House and Senate an excuse to act. Is that a real risk? Just a few months ago Trump repeated his regret over not ordering the National Guard to seize voting machines in 2020.

As lawyers, we have a special responsibility to ensure that these scenarios do not come to pass. The most important thing we can do is to raise people’s awareness of this danger now.  Before the 2020 election, no one could have imagined that the president would try to get Congress to change electoral votes from Biden’s column to his own under the guise of election fraud. But old limits on election scams have been wiped away by Trump and his confederates who have shown they are willing to cheat every way possible to win.

Lawyers need to be ready for the worst-case scenario and be prepared to bring emergency cases to enable states to have an orderly count of all the ballots, if we get to that point.  But hopefully, by speaking out now, there will be enough public awareness and opposition to prevent these worst-case scenarios from being attempted.