Nick Riccardi for AP:
The new leader of one of the chambers of Congress that will certify the winner of next year’s presidential election helped spearhead the attempt to overturn the last one, raising alarms that Republicans could try to subvert the will of the voters if they remain in power despite safeguards enacted after the 2021 attack on the U.S. Capitol.
Mike Johnson, the Louisiana congressman who was elected speaker of the House of Representatives on Wednesday after a three-week standoff among Republicans, took the lead in filing a brief in a lawsuit that sought to overturn Joe Biden’s 2020 presidential election win. That claim, widely panned by legal scholars of all ideologies, was quickly thrown out by the U.S. Supreme Court.
After the 2020 election, Johnson also echoed some of the wilder conspiracy theories pushed by former President Donald Trump to explain away his loss. Then Johnson voted against certifying Biden’s win even after the Jan. 6 attack on the Capitol.
Johnson’s role three years ago is relevant now not only because the speaker is second in the line of presidential succession, after the vice president. The House Johnson now leads also will have to certify the winner of the 2024 presidential election.
“You don’t want people who falsely claim the last election was stolen to be in a position of deciding who won the next one,” said Rick Hasen, a law professor at the University of California, Los Angeles. On Wednesday, he flagged another worry about Johnson, who is a constitutional lawyer.
“Johnson is more dangerous because he wrapped up his attempt to subvert the election outcomes in lawyerly and technical language,” Hasen said.
Last year, Congress revamped the procedures for how a presidential win is certified, making it far harder to object in the way that Johnson and 146 other House Republicans did on Jan. 6, 2021. But there is a conservative school of thought that no legislation can control how Congress oversees the certification of a president’s win — all that counts is the Constitution’s broad granting of power to ratify the electoral college’s votes…
Most experts say the Trump-led pressure campaign following the 2020 election aimed at Vice President Mike Pence would be much harder to execute now because of changes to the Electoral Count Act limiting the ability of Congress to object to results submitted by the states.
But there is still cause for concern, several scholars said. Richard H. Pildes, a New York University law professor, said the speaker would have significant power to shape the rules if neither candidate wins an outright majority of electoral college votes — a possibility if a third-party candidate manages to win one or more states.
In that scenario, a “contingent election” would occur in the House, where each state’s delegation is given one vote.
A more alarming concern is whether Johnson would attempt to disrupt the proceedings in a more dramatic way — for instance, by preventing the session from happening altogether. Although the vice president presides over the occasion, it occurs in the House chamber — the domain of the speaker.
“What if the House refuses to participate?” speculated Edward B. Foley, a law professor and election law expert at Ohio State University, referring to the hypothetical possibility that the House might disregard its statutory obligations under the new Electoral Count Reform Act.
And what if, Foley added, Congress failed to finalize the results by Jan. 20, Inauguration Day? Joe Biden and Kamala D. Harris would no longer be president and vice president. A constitutional crisis over their succession could ensue. Johnson, as speaker, would be next in line.
Foley quickly noted that he believes it’s a far-fetched scenario. But the events of Jan. 6, 2021, would have seemed far-fetched before they actually occurred, too, he said.