House Hardball, part 2

Nick Stephanopoulos makes some fair points in response to my post on whether, in the absence of a new Act of Congress, the House can or should refuse to seat winning candidates solely on the ground that their districts were gerrymandered by state law.  I remain extremely dubious about the idea based on rule-of-law or electoral democracy values, but I don’t want to get into an extended debate on those issues here.  Rather, I want only to follow up a bit more on whether this hardball tactic would even work according to its own objectives.  In doing this, I hope to keep an open mind on the point and be willing to consider new information and analysis.  I invite others, especially those with expertise in House procedure, to weigh in.  Meanwhile, here’s how I see this issue.

In my initial post, I observed that the history of disputed Speaker elections in the House, especially the Broad Seal War involving the election of 1838 and the Civil War midterm elections of 1862, provides a reason to think it would be a mess if the current House, by rule alone and without a new statute, attempted to control the seating of new members on January 3, 2023, by purporting to establish in advance that any candidate winning in a gerrymandered district would not be seated in the new House at the start of the 118th Congress. I wrote that I was inclined to believe that the Clerk of the House would seat at least provisionally any winning candidate presenting facially valid credentials from the relevant state government—in other words, a certificate of election—indicating that the candidate was duly elected, and this would be especially likely in the absence of any claim that the voters casting ballots in the election were ineligible or that the ballots were counted incorrectly.  In this situation, moreover, there would be no opposing candidate claiming to have won the election based on a recount of valid ballots, as is typically the case for contested elections (as with the aborted contest of the Iowa seat earlier this year). Consequently, it seemed likely to me that the Clerk would seat these duly credentialed candidates, at least provisionally, and on the assumption that there were enough of them (when added to undisputed Members-elect) to give the Republicans a majority in the House, they would then elect a GOP Speaker, presumably Kevin McCarthy, and the whole effort to prevent gerrymandering from determining which party controlled the House in the next Congress would have failed. 

On this point, Nick responds this way: “the current House would simply instruct the Clerk to seat members in the next Congress consistently with the current House’s determinations. It would be shocking if the Clerk, elected to her position by a majority of the current House, failed to follow that same majority’s instructions.” I think Nick is mistaken about this, but again I welcome experts in House procedure to provide their insights. 

Here’s my understanding: “the rules of one House do not carry over to the next House,” as a recent CRS Report put it (at page 7).  This is because the House, unlike the Senate, “is not a continuing body” (page 1) and must organize itself anew after each biennial congressional election. Thus, it matters greatly what’s done by statute versus what’s attempted to be done merely by a House rule (or some other House-alone “instruction” to its Clerk). 

Moreover, there is a relevant statute on point; 2 U.S.C. § 26 provides:

“Before the first meeting of each Congress the Clerk of the next preceding House of Representatives shall make a roll of the Representatives-elect, and place thereon the names of those persons, and of such persons only, whose credentials show that they were regularly elected in accordance with the laws of their States respectively, or the laws of the United States.”

Thus, unless this statute is amended by a new Act of Congress, it would seem that the Clerk of the House would be legally obligated to seat, at least provisionally for the purpose of the Speaker election and the initial organization of the House, “those persons” with credential showing that they had won their seats, even in gerrymandered districts, because they would have been “regularly elected” based on existing state law and, in the absence of a new Act of Congress, existing federal law. 

The House’s own House Practice: Guide to [Its] Rules, Precedents, and Procedures (at 159) accords with this view: “Where the certificate of election of a Member-elect, in due form, is on file with the Clerk, such Member-elect is entitled as of right to be included on the Clerk’s roll.” Moreover: “Those Members-elect whose names appear on the Clerk’s roll are entitled to vote for a new Speaker at the beginning of a Congress and to participate in other organizational business before the administration of the oath.” 

Based on this, I wouldn’t count on a strategy whereby the current Pelosi-led House attempts to force the Clerk to refuse to seat duly credentialed Representatives-elect solely on the ground that the state law that districted their seat was gerrymandered.  I would bet instead that these Representatives-elect get to vote for Speaker and, once the House is organized under the new Speaker’s leadership, it’s off to the races, so to speak.

If Democrats are going to be serious about protecting the House from gerrymandering, they need to do it by statute. Trying to do it solely by House rule risks not only defeat, but a serious crisis along the lines of the Broad Seal War or the 1862 midterms (the latter sometimes referred to as the “Etheridge conspiracy” after the Clerk at the time), neither of which are historical episodes worthy of emulation. 

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