Democrats have spent much of the 2024 campaign reminding Americans of what happened on January 6, 2021. But on Capitol Hill, some are already worried about what will happen on January 6, 2025.
They expect Kamala Harris to win in November and also flip the House, meaning it will likely be Hakeem Jeffries holding the president’s gavel as the process of certifying a Harris victory begins.
But it’s another scenario that worries top House Democrats: that Speaker Mike Johnson could hold on to his majority while Harris wins and find himself in a position to obstruct the counting of electoral votes and possibly have the election turned over to the House under the constitutional provisions of the 12th Amendment.
After all, Johnson led House Republicans in filing an amicus brief after the 2020 election asking the Supreme Court to essentially overturn the results of key states, an initiative that received personal support from Donald Trump. Now, he is leading a charge suggesting that undocumented immigrants are voting en masse in what Democrats view as a coordinated effort to sow doubt in the election and lay the groundwork for chaos.
“It would be foolish to ignore history here,” said Rep. Joe Morelle (D-N.Y.), the top Democrat on the House Administration Committee who has led his party’s reaction to the GOP voting claims.
Adding to the anxiety is the fact that Johnson, in the post-election period, could also find himself in a leadership fight where he might be forced to prove himself to MAGA-supporting members (not to mention Trump himself) by vowing to challenge the election results.
A Johnson aide dismissed the Democratic concerns as an attempt to raise money to flip the House and said they were part of an alarmist narrative that helped lead to the two assassination attempts on Trump.
Other Republicans close to Johnson told us they doubted the House speaker would succumb to Trump’s wishes so easily. They noted that he resisted MAGA pressure over Ukraine funding and drew a distinction between writing a legal brief as a rank-and-file congressman and trying to overturn the will of voters as a constitutional official.
There are other hurdles, too: For one, it will be Harris, as vice president, who will actually preside over the certification of the electoral votes, as Mike Pence did in 2021. And under a Rewriting the 2022 Electoral Recount ActThe law governing the process now makes it much more difficult to object to the vote count. Instead of a single member, 20 percent of each chamber is now required to proceed with an objection.
But Democrats are still wary, worried about unresolved ambiguities in the Constitution and law surrounding the certification process, as well as the fact that Johnson could be in charge for Republicans on Jan. 6.
They fear that his constitutional law background, credibility in the conservative movement and devil-may-care attitude could make him uniquely formidable in a contested election scenario: sharp enough to devise novel legal arguments that could swing the election to the House and canny enough to rally support among its members.
Rep. Jamie Raskin, the Democratic constitutional law expert who feuded with Johnson over his 2020 brief, paraphrased the ancient Greek poet Hesiod: “It makes the muses say something like, ‘We know how to tell the truth when we want to tell the truth. And when we want to tell lies, we know how to tell lies that sound like truth. ’ And that’s how I see Johnson’s jurisprudence.”
“He can state what the Constitution actually says, and he knows how to craft polished pro-Trump arguments that are completely false and would destroy our constitutional system,” Raskin (D-Md.) said.
While Raskin and other Democrats were reluctant to speculate on how exactly Johnson and other Republicans might wreak electoral havoc after the vote, the following concerns have circulated on Capitol Hill:
— Johnson could try to rewrite the rules governing the vote-counting session on January 6. Over the past century, both chambers have unanimously adopted bipartisan, standardized procedures for recounts. Johnson could decide to try to draft his own, inserting provisions that open up new avenues for challenging the results, or simply refuse to adopt a process, which would create ambiguity and uncertainty.
—That Johnson could rally enough Republicans to oppose certain disputed slates of electors — and, if the GOP also controls the Senate, it could potentially muster the votes needed to throw out those slates. If none of the candidates receives 270 electoral votes, the House of Representatives could have authority under the 12th Amendment to choose the winner.
—That Johnson could delay the vote counting session. While the law states that January 6 is the scheduled date for the session, it is the House speaker who must first call the session back to normal. Democrats worry that Johnson could, in essence, pause the session, much as Trump allies feared after the 2020 election that then-House Speaker Nancy Pelosi might do the same and turn to the courts. (A related fear: What if there was no House speaker on January 6, as happened two years ago, when Kevin McCarthy was struggling to win the vote?)
—That Johnson could challenge the entire Electoral Count Act. Under a novel legal theory, he could ask a court to rule that existing law cannot compel Congress to exercise its power under the Constitution, again resorting to the process laid out in the 12th Amendment.
Democrats’ suspicions about Johnson are nothing new. When Rep. Marjorie Taylor Greene (R-Ga.) tried earlier this year to oust Johnson as House speaker, Democrats faced the dilemma of whether to protect him in a key procedural vote. Rep. Zoe Lofgren (D-Calif.), a member of the Jan. 6 House select panel, He warned his colleagues think carefully before helping a man who has been derided as an “election denier.”
Most Democrats, including Lofgren, swallowed their concerns and voted to keep Johnson. Now some fear that warning will ring in their ears. Just hours after the vote, Johnson told POLITICO He has no regrets about his 2020 amicus brief: “I would do exactly the same thing today if the circumstances presented themselves, because I feel I have a duty.”
“The Supreme Court skirted the question; perhaps they calculated that the answer was so profound, that it would be so disturbing, that it wasn’t worth addressing,” he said. “But … I thought it was an important question to put to the court.”
Jeffries blessed the decision to protect Johnson, and some Democrats hope he will intervene with him and avoid any post-election drama. The two leaders have struck up a surprisingly warm personal and professional relationship, and Johnson has previously spoken about their shared faith and relationship.
A Johnson ally also noted that Johnson is also close to Pence, another conservative Christian who fell out of favor with Trump when he refused to do Trump’s bidding on Jan. 6, 2021. This person predicted that while Johnson would try to stay in MAGA’s good graces after the election, he would not go rogue as Democrats fear.
Again, these unfavorable scenarios are fairly unlikely, starting with the unlikelihood of a situation in which Harris wins and Republicans have majorities in both chambers. But the chances of havoc occurring during the counting of electoral votes four years ago also seemed unthinkable.
So Democrats are leaving nothing to chance. Senior lawmakers are already meeting privately to plan for the various ways the post-election period could go awry. They are also raising their concerns with donors, urging them to give generously to ensure the party flips the House and nips any potential drama in the bud.
“I have faith in the people,” Morelle said, sharing his belief that Johnson would “do the right thing” in a controversial scenario. “But we are prepared for any eventuality and… we will be in a position to go ahead and make sure there is a peaceful transfer.”
Kyle Cheney contributed to this report.
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