Could Mike Johnson Foil a Democratic House Victory? Yes, But Only With Help from the Supreme Court and/or Red States
Inspired and aided by President Trump, Republicans have been pursuing multiple pathways to give themselves advantages in the upcoming midterm elections. In that endeavor, they have been assisted by their Republican-appointed allies at the Supreme Court. Yesterday the Court issued a per curiam opinion in Trump v. California allowing the administration to proceed with its plan to use the Post Office to foil mail-in voting. Although the decision purports not to be on the merits, it necessarily is--because likelihood of success on the merits and irreparable harm are, as the Court acknowledges, key to winning a stay. Yet, as Justice Jackson explains in dissent, the president has no lawful authority to regulate elections absent a delegation from Congress, which he has not received.
Trump v. California is hardly the only example of the Supreme Court's faux-naïveté in the service of Trump. The past Term's decision in Louisiana v. Callais (further) gutted the Voting Rights Act. Callais green-lit disenfranchisement of Black voters and thus made it easier for red states in the South to engage in political gerrymandering.
In Callais, the Court ignored the fact that few Black voters are Republicans or treated that fact as just some odd coincidence, while in Trump v. California it pretended that the current administration wants the Post Office to interfere with mail-in voting because of some genuine concern about enforcing laws regarding voting fraud. The tipoff comes in the per curiam's opening line: "The President recently issued an Executive Order regarding election integrity." Really? The executive order recites "integrity" in its title but that doesn't mean that it has regard for integrity--except in the sense that it aims to undermine election integrity.
What happens if, despite these and other efforts, Democrats manage to win a majority of seats in the House? We saw in 2020 that losing a presidential election did not stop 8 Senators and 139 House members, including now-Speaker Mike Johnson, from voting not to certify electors from a number of states that Joe Biden won. And that was right after Trump's mob had stormed the Capitol building. Could we see a reprise in which Speaker Johnson and other Republicans cite bogus claims of election fraud or other alleged irregularities to prevent enough Democrats from taking their seats so that Republicans maintain control of the chamber?
That scenario worries a number of commentators, as indicated in this substack post by retired federal Judge J. Michael Luttig. That post and some of the pieces Judge Luttig cited inspired a response by Robert Hubbell objecting that under the Constitution, the old House has no official role in the seating of the new House. Judge Lutting then responded that Hubbell had misunderstood him and David French about who does the counting and certifying.
For what it's worth, I think that references to "lame duck" by French and Judge Luttig's own discussion of the role of current House members indicate that Hubbell did not misread them or at least that French and Judge Luttig had been unclear initially. However, I don't want to referee this friendly disagreement among commentators who all share with each other (and with me) a concern for protecting American democracy. Instead, I'll simply pose the question directly: If Republicans wish to block Democrats from taking the House despite the latters' victory, can they do so?
The answer depends on what one means by "can"? Can they do so legally? As I'll explain, no. Can they do so illegally and get away with it? As I'll also explain, maybe.
Hubbell makes much of the fact that, unlike the Senate, the House is not a continuing body. It must be reconstituted every two years. There are four key steps: (1) States certify winners of their respective House districts in accordance with state law; (2) pursuant to 2 U.S.C. § 26, the clerk of the House of Representatives creates a roll of those persons certified by their states; (3) members of that roll elect a Speaker and otherwise organize the House; (4) the now-organized House adjudicates any contested seats.
That sequence is crucial. If Democrats are certified as winners of a majority of House seats by their respective states, then the clerk, who is a non-partisan official, has no discretion to keep them off the rolls. And if that happens, Mike Johnson won't be the Speaker, and the Republicans would not be able to determine that one or more Democrats were not properly elected at step (4) because they would be in the minority.
Ah, but what happens if the clerk, perhaps a new Republican loyalist clerk appointed in December, goes rogue? Suppose at step (1), the rogue clerk says that the certificates of some number of Democrats are defective and excludes them from the rolls? Professor Ned Foley addressed this scenario in an excellent essay late last month. I agree with Professor Foley that in such circumstances mandamus should be available for an unlawfully excluded state-certified House winner. Professor Foley worries that such a scenario could nonetheless spark a constitutional crisis and political violence reminiscent of (and perhaps even worse than) January 6, 2021. I agree with that worry as well, and I have a further one.
The further worry is that even though mandamus should be available, it might not be. There are multiple ways in which a lower court--or a lower court ordered by SCOTUS--could aid an unlawful scheme by a rogue clerk. Here are two. First, the court could say that, notwithstanding the non-discretionary duty, the case presents a nonjusticiable political question because . . . reasons. Second, the court could slow-walk the case and not issue injunctive relief (or SCOTUS could stay injunctive relief issued by a lower court) so that the bogus roll excluding some Democrats is still in effect when the Speaker is chosen and the House is organized; then, the Republican-majority House could officially exclude the Democrats. And I wouldn't underestimate the ingenuity of the Republicans' lawyers in crafting additional absurd arguments that the Supreme Court then accepts.
Thus, in addition to Professor's Foley's worries about political violence sparked by the rogue clerk scenario, I worry that the courts could turn a plainly unlawful power grab into one that isn't stopped by the courts.
Meanwhile, there is another worrying possibility. One or more red states might refuse to certify Democratic winners in their states long enough that even an honest clerk cannot include them in the roll. Even with political gerrymandering, red states usually send some Democrats to Congress. Their Republican officials responsible for certifying election results might cite bogus claims of fraud or other irregularities to delay certification or even to certify the losing Republican candidate as the winner. There too, mandamus ought to be available to address such chicanery, but as with the rogue clerk scenario, there is a worry that it might not be.
In the end, then, I'm with Judge Luttig in worrying about Democrats actually being able to take control of the House, even if I see the scenario slightly differently. Imagine that on January 6, 2021 Vice President Mike Pence had succumbed to the pressure and had discounted the certificates of enough states that had voted for Biden to throw the election to Trump. In the view of many constitutional scholars (including me), that would have been unlawful, as the VP's role under Article II and the 12th Amendment is ministerial. Thus, in principle, mandamus would then be available against Pence. But can anyone say with confidence that in such circumstances the Supreme Court would have allowed a federal district judge to order Pence to accept the unlawfully rejected certificates? If not, how can we be confident that SCOTUS would allow such an order in the 2027 House scenario?
-- Michael C. Dorf