Austin Sarat ScheerPost
It looks like President Trump’s tirade about alleged vulnerabilities in the nation’s electoral system and the problem of non-citizen voting is a prelude to the chaos that will come in the run-up to, and after, the November elections. Among his outlandish claims was that election interference by China has done “Great damage… to our country. Our elections were left vulnerable to being rigged and stolen, and the trust of the American people was lost.”
And the president announced, “This cannot be allowed to continue.” As many commentators noted, the president’s White House address laid out the administration’s case for why results in states like California, Georgia, Michigan, and New Jersey should not be trusted.
But so far, little attention has been paid to the key role that Republican leaders in Congress, House Speaker Mike Johnson and Senate Majority Leader John Thune, and their Republican colleagues will play in determining the fate of the Republic. If the President calls into question Democratic victories in House and Senate contests, they will have to decide whether to seat the Republicans whom Trump will say actually won.
Johnson and Thune would not have the luxury of following former Vice President Mike Pence’s example, because while Pence could say that he did not have the authority to refuse to count or certify electoral college votes for president, they and their colleagues clearly have the authority to decide who can be seated in Congress.
The American people and pro-democracy groups should be focused like a laser on how they might exercise that authority. They need to lay the groundwork for a mass mobilization to try to prevent monkey business in a decision that only the houses of Congress can make about, as the Constitution says, about “the Elections, Returns and Qualifications of its own Members….”
Professor Derek Miller explains that the roots of this authority lie in the fact that “For centuries before America gained its independence, legislative bodies had judged their members’ elections and qualifications. The Judge of Elections Clause in the Constitution reflects this long-standing tradition.”
He cites Justice Joseph Story’s 1833 observation that “it is obvious, that a power must be lodged somewhere to judge of the elections, returns, and qualifications of the members of each house composing the legislature; for otherwise there could be no certainty, as to who were legitimately chosen members, and any intruder, or usurper, might claim a seat, and thus trample upon the rights, and privileges, and liberties of the people.”
Story thought that the power to judge elections was a necessary attribute of the separation of powers. If that power, he wrote, were “lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger.”
That’s why if we have a crisis about the seating of members of Congress after the midterm election, the courts will not save us.
The Supreme Court made that clear in a 1969 decision regarding the seating of Congressman-elect Adam Clayton Powell. Powell, who had served in Congress for many years was under suspicion of having engaged in “official misconduct since January 3, 1961.”
After an investigation, a House committee determined that Powell “had wrongfully diverted House funds for the use of others and himself, and that he had made false reports on expenditures of foreign currency to the Committee on House Administration.” It “recommended that Powell be sworn and seated as a member of the 90th Congress, but that he be censured by the House, fined $40,000, and be deprived of his seniority.”
The House subsequently went further and voted to exclude Powell from the House and to declare his seat vacant.
The Supreme Court recognized the Constitution’s exclusive grant of authority to Congress when it came to seating its members, but ruled that it had no “authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.”
Three years later, in Roudebush v. Hartke (1972), the Court ruled that Congress “retains the absolute final authority to judge ‘Elections’ and ‘Returns.’” In the case of a contested election and a recount for a Senate seat, neither “prevent(s) the Senate from independently evaluating the election… The Senate is free to accept or reject the apparent winner in either count and, if it chooses, to conduct its own recount.”
“Once either House of Congress reviews the election results and decides, by a majority vote, to seat someone, the courts have no authority on it.”
There you have it.
After the November election, Congress, controlled by the Republican Party, gets to decide whom it will seat. Looks like they will line up fore square behind President Trump.
For example, Speaker Johnson reacted to the president’s widely panned disclosure of previously classified documents by calling it “blockbuster information” and adding “It’s the result of an investigation that’s been ongoing for some time now about fraud and irregularity in federal elections, American elections around the country”
In addition, he again pushed hard for the passage of Trump’s Save America Act.
For his part, Thune reiterated his support for that legislation and, like the president, blamed the Democrats for standing in the way of its passage.
In another ominous sign, last fall, Speaker Johnson showed he was willing to play games about seating newly elected Democratic members of the House. He delayed, for seven weeks, the swearing-in of Representative-elect Adelita Grijalva, who had won an Arizona special election.
He did so to prevent her from adding her name to a House petition seeking the release of the Epstein files.
Recall that in the aftermath of the 2020 presidential election, as Politico reported, “Johnson helped bolster a last-ditch lawsuit filed by Texas attempting to invalidate the results in Georgia, Michigan, Pennsylvania, and Wisconsin, urging his congressional colleagues to sign onto an amicus brief in support of the suit.”
I suspect that Johnson and Thune would do everything they can to not relinquish control of their chambers to the Democrats. They would point to the fact that, as Miller notes, “Since ratification, the House and Senate have exercised this power (not to seat members) on numerous occasions…”
He discusses a decision made by the Senate in 1793 not to seat a member of the Democratic-Republican party, who was “born in Switzerland” and had not been “a U.S. citizen for the requisite nine years.” During the post-Civil War period, there were many occasions when Congress was called on to decide who to seat after contested elections.
It was not a pretty picture.
And in 1984, the Democratic majority in the House refused to seat Indiana Republican Rick McIntyre after he was certified the winner by thirty-four votes. The House kept the seat vacant so that it could conduct its own recount. “After a series of bitterly contested and hotly partisan recount rules,” Miller observes, the House declared McIntyre’s Democratic opponent “the winner by just four votes.”
You can bet that we will hear a lot about that case late in the fall.
So, fasten your seat belts and rally your friends and neighbors to demand that, later this year, Johnson, Thune, and the Republican congressional majorities don’t stick a knife in whatever remains of American democracy when and if the president asks them to do the deed.
Austin Sarat ScheerPost
Austin D. Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is an internationally renowned scholar whose interdisciplinary work examines law in relation to culture, violence, and the liberal arts. His academic foundation includes a B.A. from Providence College (1969), an M.A. (1970) and Ph.D. (1973) from the University of Wisconsin, and a J.D. from Yale Law School (1988). He has also received honorary degrees, including an LL.D. from Providence College (2008) and an A.M. from Amherst College (1984). Sarat has also been awarded the Jeffrey B. Ferguson Memorial Teaching Prize at Amherst in 2022 and the Ronald Pipkin Service Award as well as many others
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