Democrats have spent much of the 2024 campaign reminding Americans what happened on Jan. 6, 2021. But some in Congress are already growing increasingly concerned about Jan. 6, 2025.
They are hoping that Kamala Harris will win in November and flip the House of Representatives, meaning that Hakeem Jeffries will likely be the one to take the speaker’s gavel once the process of certifying Harris’ victory begins.
But another scenario is troubling House Democratic leaders: If Harris wins, House Speaker Mike Johnson could retain his majority and block the counting of the electoral votes, handing the election over to the House of Representatives under the 12th Amendment to the Constitution.
After all, Johnson led a group of House Republicans in filing an amicus brief after the 2020 election asking the Supreme Court to effectively overturn the results of battleground states, an effort personally backed by Donald Trump. Now, he’s leading the charge that illegal immigrants are voting in large numbers, which Democrats see as a coordinated effort to sow doubt about the election and set the stage for fraud.
“It would be foolish to ignore history here,” said Rep. Joe Morrell of New York, the top Democrat on the House Administration Committee, who has led his party’s push back against the Republican voting claims.
Adding to the anxiety, Johnson may find himself embroiled in a post-election leadership struggle and be forced to prove his mettle to MAGA-leaning members of his party, and of course to Trump himself, by pledging to contest the election results.
Aides to Johnson have dismissed Democrats’ concerns as a fundraising attempt to subvert the House and said they were part of an incendiary narrative linked to two assassination attempts aimed at Trump.
Other Republicans close to Johnson said they doubted he would easily bow to Trump’s will, pointing out that he withstood MAGA pressure over Ukraine funding and drawing a distinction between writing legal briefs as a congressman and acting as a constitutional officer to overturn the will of the voters.
There are other obstacles, too. First, as Vice President, Harris would actually preside over the certification of the electoral votes, just as Mike Pence did in 2021. And second, 2022 Election Counting Act AmendmentsThe law governing the vote counting process was changed to make it much more difficult to challenge the vote tally: a challenge now requires the support of 20 percent of each house, instead of just one member.
But Democrats remain nervous, concerned about unresolved constitutional and legal ambiguities surrounding the certification process and the fact that Johnson could take over from Republicans on Jan. 6.
They worry that his constitutional law background, conservative cause bona fides and down-to-earth demeanor could make him uniquely formidable if the election becomes contested — astute enough to come up with novel legal arguments that could send the election to the House of Representatives, and cunning enough to get lawmakers on his side.
Rep. Jamie Raskin, a Democratic constitutional law expert who clashed with Johnson over the 2020 report, paraphrased the ancient Greek poet Hesiod: “He gets the Muses to say, ‘When we want to tell the truth, we know how to tell the truth; and when we want to lie, we know how to lie so that it appears true.’ That’s how I see Johnson’s jurisprudence.”
“He can state what the Constitution actually says, and he knows how to develop sophisticated arguments for Mr. Trump that are completely false and eviscerate our constitutional system,” Rep. Raskin (D-Md.) said.
While Raskin and other Democrats were reluctant to speculate about what kind of election upset Johnson or other Republicans might wreak after the votes are counted, concerns are rife in Congress:
— Johnson could try to rewrite the rules governing the Jan. 6 vote-counting session. For nearly a century, both houses have unanimously adopted standard, bipartisan procedures for counting votes. Johnson could create his own procedures, insert provisions that open new avenues for challenging the results or decide not to use procedures at all, creating ambiguity and doubt.
— Johnson can rally enough Republicans to challenge the disputed electoral rolls. And if Republicans take control of the Senate, they could conceivably muster the votes to toss out the slate. If neither candidate gets 270 electoral votes, the House of Representatives would have the power to choose a winner under the 12th Amendment to the Constitution.
— Prime Minister Johnson may delay the vote count. The date of January 6th is set by law, but the speaker must first ensure the House does not disrupt order. Democrats worry that Johnson will effectively press ahead with a suspension, much like how Trump supporters worried after the 2020 election that then-House Speaker Nancy Pelosi would do the same to courts. (A related concern is what happens if there is no speaker at all on January 6th, as happened two years ago when Kevin McCarthy struggled to win the speakership.)
— Johnson could launch a full challenge to the electoral counting law. Under a new legal theory, the president could ask the courts to rule that existing laws do not constrain Congress’ exercise of its constitutional powers, again following the procedures set out in the 12th Amendment.
Democratic doubts about Johnson are not new. Earlier this year, when Rep. Marjorie Taylor Greene (R-Ga.) moved to remove Johnson from his position as speaker, Democrats faced a dilemma over whether to defend Johnson on a key procedural vote. Rep. Zoe Lofgren (D-Calif.), a member of the House Select Committee on House Affairs, said on Jan. 6: Warned my colleagues Think carefully before helping the man you have despised as an “election denier.”
Most Democrats, including Lofgren, swallowed their concerns and voted to keep Johnson in office. Now, some worry that warning will be heeded. Just hours after the vote, Johnson told Politico. He has no regrets about the 2020 amicus brief: “If presented with the situation today, I would do the exact same thing, because I feel I have an obligation.”
“The Supreme Court avoided the question, perhaps deciding that the answer would be so significant and disturbing that it wasn’t worth answering,” he said, “but … I thought it was an important question to pose to the Supreme Court.”
Jeffries congratulated Johnson on his decision to protect him, and some Democrats are hoping he will step in to head off any post-election drama. The two leaders have a surprisingly warm personal and professional relationship, and Johnson has previously spoken of the faith and trust they share.
One of Johnson’s supporters pointed out that Johnson is also close to Pence, who is also a conservative Christian but lost his support after being turned down by Trump on January 6, 2021. The person predicted that Johnson will try to stay in the good graces of MAGA after the election, but won’t go on the rampage that Democrats fear.
Again, all of these worst-case scenarios are highly unlikely — a Harris victory and Republican control of both houses of Congress is highly unlikely — but the possibility of chaos during the counting of the electoral votes four years ago also seemed inconceivable.
So Democrats are leaving nothing to chance. Senior senators are already meeting privately to strategize for all the ways things could go wrong after the election. They’re also airing their concerns to donors, urging them to give generously to help Democrats take control of the House and head off any potential drama.
“I have faith in the people,” Morrell said, sharing his belief that Johnson “will do the right thing” in a contentious situation, “but we are prepared for any eventuality and we are in a position to move forward and ensure a peaceful transfer.”
Kyle Cheney contributed to this report.
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