We wrote a column early in 2020 describing how Donald Trump would attempt to steal the election by using Congress to overturn the legitimate Electoral College results. Unfortunately, the piece ended up being incredibly prescient over time, as we learned more details over the last several months.
A lot of media coverage in the last 18 months since the election have focused on both how former President Trump schemed to overturn the election results, and congressional efforts to create stronger federal voting protections. What the media has not yet surfaced is that because of the 12th Amendment to the Constitution and the Electoral Count Act of 1887, if a Republican controlled House of Representatives in 2024 wants to overturn a legitimate Electoral College result, there is a path to their doing so that no contemplated fix to the Electoral Count Act is likely to prevent.
To understand how this could happen one needs to appreciate how a Republican controlled House under a Speaker Kevin McCarthy (or maybe Jim Jordan) full-throated Big Lie cheerleaders, could upend a legitimate Electoral College victory by the 2024 Democratic candidate. The law provides a path for overturning a legitimate Electoral College result even though doing so would be enormously undemocratic.
Under the existing presidential selection process, if a single House member and a single senator object to the certification of a state’s Electoral College delegation, when a competing slate of electors has been transmitted to Congress in a timely manner, the House and Senate are to retreat to their respective chambers and vote on which slate of electors to certify or not. Regardless of whether the Senate is in Democratic or Republican hands, if the House and Senate disagree in their respective consideration of which slate ought to be recognized as the rightful slate of state electors, that disagreement regarding electors from a handful of swing states would likely result in no candidate being able to achieve an Electoral College vote count of at least 270 electors. Under the Constitution, the election would then fall to the House of Representatives to decide the presidency.
While one fix being discussed in amending the Electoral Count Act is to raise the number of objectors from the House and Senate to a state’s certification necessary to force further congressional deliberation, there are enough rabid Big Lie proponents in both houses that this strategy would not be thwarted by such a fix. It must also be pointed out that the Republican legislatures which dominate all key swing states will provide plenty of fodder for House member objections to the Electoral College slates from those states.
Thus, if Kevin McCarthy had been speaker and the Republicans had controlled the House on Jan. 6, 2021, when after the Capitol Hill riot the House and Senate met to certify the Electoral College vote, the House Republicans could have refused to certify the legitimate slates of the electors in the three closest states where the Big Lie efforts were most pronounced—Arizona, Georgia and Wisconsin. They instead could have voted to recognize competing slates, or simply fail to accept the elector slate legitimately put forward, forcing a disagreement with the Senate. As a result, neither Trump nor Joe Biden would have received a majority of certified electors. The presidential election would have been thrown into the House of Representatives. While under this scenario there would be a court challenge to this action on the basis the slate recognized by the House Republicans was not the one deemed legitimately ascertained by a state’s governor, that challenge under the Electoral Count Act would quite possibly fail.
Why is that in and of itself so alarming? Because once the presidential election is thrown into the House of Representatives, the Republicans control the outcome. That vote would be conducted on a state delegation by state delegation basis, and even with the House currently in Democratic hands, more state delegations are composed of a majority of Republicans, and there is nothing about any congressional elections over the next several years that is likely to change that. In fact, recent gerrymandering outcomes have strengthened the Republican House state delegation majority.
So, to throw the presidential election into the House of Representatives where the Republican candidate can be anointed as president would in all likelihood mean, as it looks now, that Donald Trump would become president again. Alternatively, if the congressional Electoral College certification process for president and vice president was deadlocked for some reason and did not get resolved before Jan. 20, Kevin McCarthy, as the person presumed to be speaker at that time, would become acting president of the United States.
On the face of it, this may sound either too simple or too farfetched as a way to overturn an election. Yet, the Republican Party has created a litmus test for all Republican candidates going forward, that they must support Donald Trump’s maniacal fantasy that he really won the election, to the point that if he were to lose again, their stand would in all likelihood compel them to claim the outcome was “fraudulent” and move to overturn it. The Republicans have a fairly easily implemented con based on existing con law, (the shorthand for how lawyers refer to constitutional law), to steal the presidency.
The latest polls indicate that the percentage of Americans that will vote for Republican candidates for the House is the highest it has been since the 2010 midterm elections, when the Republicans picked up 63 seats against the backdrop of President Barack Obama‘s low poll numbers. Off year elections often mean significant losses for the party of the incumbent president—but Biden’s ratings are now particularly low only six months from Election Day. In addition, a 30 year high of 31 House Democrats have announced their retirement.
While a lot can change between the 2022 midterms and the 2024 presidential elections, the problem is a midterm shellacking would be incredibly difficult to recover from two years later. In other words, losing the House by a very wide margin in 2022 could mean that the Democrats recapturing the House in 2024, even with Biden’s poll numbers potentially recovering, would be impossible. While Obama’s popularity recovered by 2012 and he convincingly won reelection, the Democrats only picked up eight House seats, and the Republicans still controlled the chamber by 33 votes. The Democrats only have a four seat majority in the House today.
If the House goes markedly Republican in 2022, we are setting the stage for Donald Trump to be handed the presidency in 2024, whether he wins it or not. It is really that simple—that the card the House Republicans could play would prove that American democracy is no more than a house of cards.
The Democrats certainly are underdogs in the midterms given the number of issues that voters are concerned about that likely won’t be turned around between now and Election Day, most notably inflation. However, the one issue we do know the Democrats clearly won the argument on in 2020 was whether Donald Trump should be president. Donald Trump lost the presidency by a large popular vote margin and with it lost his party both the House and the Senate. While it appears the Republican nomination in 2024 is his for the taking, it also appears even fewer Americans, including Republicans, now want him to return to the presidency than in November 2020.
Many say that Donald Trump is not on the ballot in 2022, and Democrats need to focus on other issues and not him. This view is that we will have to wait and see what the 2024 election cycle brings and whether Trump runs or not—that running against Trump is not a 2022 strategy.
The reality is a much scarier one if the American electorate, particularly independent voters, do not realize that the House going Republican in 2022 may well mean Donald Trump is being handed the 2024 election. In other words, the best issue the Democrats may have to keep the House in Democratic hands in 2022 is to explain to the public just how electing a Republican House later this year is setting the stage to bring our entire American house down in 2024. Essentially, that as we support the fight for democracy in Ukraine, in six months we need to face the issue squarely of the demise of our own.
Very few paid attention to what we laid out in early 2020—that the Trump strategy would be to try to steal the election. Hopefully, this time, in early 2022, the media, civic groups, corporate CEOs and most importantly independent voters, will recognize electing a Republican House in 2022 is doing nothing short of handing Donald Trump the 2024 presidency. The 2022 battle cry needs to be, “A vote for House Republicans, is a vote to destroy democracy.”
Timothy E. Wirth is a former U.S. senator from Colorado.
Tom Rogers is an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, currently executive chair of Engine Media and is former senior counsel to a congressional committee.