Could House Republicans refuse to seat Democrats? Trump might try

For most politicians, the campaign comes to an end a few hours after the polls close on Election Day.

Not for President Donald Trump. After his 2020 loss, he filed dozens of unsuccessful lawsuits attempting to prevent the certification of the vote count in nine states and asked Georgia’s secretary of state to “find” enough votes to change the outcome there.

Now, with Election Day fast approaching and polling predicting a shellacking for the GOP, some legal and political analysts worry that Trump may attempt to enlist Republicans in Congress to launch what would amount to a bloodless coup: refusing to seat victorious Democrats in order to maintain the GOP’s House majority.

Such an attempt would be disastrous for American democracy. But there’s little reason to believe Trump has been chastened by his failure last time around.

“You know Trump will do anything,” said David Walbert, a constitutional lawyer and author of “Stealing Elections, American Style.” “The law is irrelevant. Anything he thinks he can get away with, he’ll do it and see if somebody stops him.”

The scheme would be complicated and far-fetched. But that hasn’t stopped some sober-minded officials from taking it seriously. Reps. Don Bacon (R-Neb.) and Josh Gottheimer (D-N.J.), for instance, recently asked their colleagues to sign a letter swearing to accept the midterm results. 

After Trump fomented a mob to storm the U.S. Capitol on Jan. 6, 2021, ignoring even implausible hypotheticals would be naive, said Brian Kalt, an election law professor at Michigan State University. 

“Don’t be paranoid, but be prepared,” Kalt said. “And don’t rule anything out when the stakes are this high.”  

Trump’s history isn’t the only reason for concern. 

Earlier this month, a right-wing think tank founded by Russell Vought, Trump’s Office of Management and Budget director and the primary architect of Project 2025, published a “primer” arguing that Congress can — and should — refuse to seat newly elected members who, in the eyes of the majority, cannot legitimately swear the oath to “support and defend the Constitution.”

The Center for Renewing America memo specifically focused on members of the Democratic Socialists of America (DSA) and “other Communist, Marxist, Muslim or other anticonstitutionalist movements” that supposedly “seek to use the United States’ own institutions as a Trojan horse to undermine the republic.”

Those arguments are bunk and unconvincingly wave away the grave First Amendment and voting rights concerns such a proposal raises. 

But such a paper isn’t trying to convince a judge or the public at large — it aims to create a permission structure for a few Republicans who are just MAGA-crazy enough to try holding onto the House by refusing to seat a handful of Democrats. 

In that regard, it’s more like the fake elector plot Trump hoped to deploy on Jan. 6, Kalt noted: legally specious, but plausible enough for some to try it.  

On Jan. 3, can Trump still win if Mike Johnson has the courage?

The scheme would rely on an ostensible loophole in our constitutional system. 

While the Senate retains two-thirds of its members after each election, the House reconstitutes itself every two years. When every representative’s term ends at noon on Jan. 3, there are no official members until after the representatives-elect are all sworn in.

That duty falls upon the clerk of the House, who is tasked with collecting the certified election results sent in from the states and forming a roll of representatives-elect. Those not-yet-members then vote to pick a House speaker, who the clerk swears into office. The House speaker thereafter swears in the rest of the chamber as formal members of Congress. 

However, one of the representatives-elect could object to letting another representative-elect — or a group of them — participate in the speakership vote. 

These pre-oath objections are rare but not uncommon: Rep. Chip Roy (R-Texas) challenged seating the delegations of six states in 2021 to highlight the hypocrisy of his fellow Republicans who planned to challenge the Electoral College count. In that case, no one was asked to step aside and Speaker Nancy Pelosi swore in the chamber a few minutes later.

But here’s the nightmare scenario that Kalt laid out in a 2021 law review article urging reforms. 

In theory, after a close election where Democrats seem set to take control of the House by just a few seats, a rogue clerk could hear a pre-oath objection from a Republican challenging the seating of a handful of would-be members. This objection would target enough members-elect to maintain a GOP majority, perhaps going after DSA-affiliated Democrats or the entire delegation from a state repeatedly targeted by the Trump administration with specious litigation and spurious allegations, like California. 

The Golden State’s delegation of 52 representatives currently includes 43 Democrats, and an even more will probably be elected this year.

The clerk could order those members to stand aside, then proceed with the speakership vote and swearing-in of the rest. And because the Constitution provides that each chamber of Congress is “the Judge of the Elections, Returns, and Qualifications of its own Members,” a majority could then ratify those actions and refuse to seat the representatives-elect in question indefinitely, or at least until a new election could be held. 

Still, it’s not something keeping Kalt — or most other election law experts — up at night. 

“I’m more concerned about an angry mob [like Jan. 6] than I am about the possibility of any sort of shenanigans where someone who definitely won the election isn’t going to get seated,” Kalt told Democracy Docket. “I don’t see that happening.”

This plot to steal the House is riddled with holes, Kalt noted. First off, the plan only makes sense if the results are close — the bigger the Democratic majority, the harder it would be for Republicans to claim they weren’t actually subverting democracy. But the closer the results, the more unified the GOP needs to be to pull off the stunt — just a few defectors could sink the scheme. 

With Republicans already starting to distance themselves from Trump on the campaign trail, they might not go along with such an outrageous plan.

That said, it’s unclear how many House Republicans are ready to defy Trump, even as his unpopularity has dragged the party’s reputation into the cellar. So far, only two other Republicans — Reps. Brian Fitzpatrick (Pa.) and Mike Lawler (N.Y.) — have signed Bacon and Gottheimer’s letter, along with independent Rep. Kevin Kiley (Calif.), who left the GOP last year but still caucuses with the party. 

Bacon is retiring and the other three face tight reelection races, meaning they might not be there on Jan. 3.  

Walbert, the lawyer and author, doubts Trump would have the same political pull he commanded earlier this term after Republicans take an Election Day drubbing. 

“If the Dems really win big, I have really basically no worries, because I just don’t think the country would sit still for what was a transparent effort to steal the election at that point.”

Beyond that, the scheme’s success would rely on the House clerk’s willingness to go along with it. While the current clerk, Kevin McCumber, was selected by a Republican, he is well respected on both sides of the aisle. And even though Johnson could unilaterally fire and replace McCumber with an acting clerk, such a move would set off alarm bells across the country. 

Moreover, even if they faced a unified and committed House GOP, Democrats could move to counter the coup, Walbert noted. 

While the House re-forms itself on Jan. 3rd, the Senate will still have all of its members who weren’t up for election this year, which would give Democrats a 34-31 advantage. So, if Republicans take any steps to steal control of the House, the Democratic Senate majority could respond by refusing to seat any Republicans there. 

Senate Democrats wouldn’t have to make any moves unless and until the House does. But should that happen, said Walbert, they should move quickly.  

“I don’t think you wait — you do not wait until January 3” to publicly promise retaliatory steps, he said.

Sometimes, democracy delayed is democracy denied

If control of either chamber comes down to just a few races, a more common scenario is much more likely: lots of lawsuits delaying the final results. But while far less egregious, lengthy litigation could still derail Democratic plans for the 120th Congress. 

Without the state’s certification, no one from those contested races would show up on Jan. 3 to be sworn in. A handful of would-be Democratic members staying home while legal processes run their course could tip control of a congressional chamber to the GOP, at least for some time. 

That would impair Democrats’ ability to pass legislation or begin time-consuming oversight investigations. And a long-enough delay could stop Democrats from finishing that work before the 2028 presidential election. 

This is no hypothetical: Minnesota Democrat Al Franken had to wait six months before he was seated in the Senate after defeating incumbent Republican Norm Coleman in 2008. 

The initial vote count had Coleman winning by 215 votes. That triggered an automatic recount, which found Franken up 225 votes. Coleman’s campaign then sued and the legal battle continued for months until the Minnesota Supreme Court ruled Franken the winner. He was finally sworn in July 7, 2009, giving Democrats a 60-vote majority, which they needed to get past a Republican filibuster of the Affordable Care Act. 

Again, given the frivolity of election lawsuits filed by the Trump administration, few doubt that the midterms will be inundated with injunction motions. But Trump’s track record actually reassures experts like David Becker, executive director of the Center for Election Innovation & Research. 

“I suspect there are very few lines that they aren’t willing to cross,” Becker said recently in a call with reporters. “But here’s the reality: they have tried everything over the course of the past 21 months…. And every single thing they’ve done has failed.”