Continuing in the spirit of my recent blog post, I want to visit this Politico piece Rick H. posted earlier this week. It offers four specific disaster scenarios surrounding the counting of electoral votes, with no better sourcing than that rumors have been “circulating” about them along with some speculation. But rather than scrutinize the claims by speaking to, say, lawyers or academics who have studied the issue, Politico simply uncritically regurgitated them (with later caveats that they are “all quite unlikely,” but printing it anyway). With each scenario, a useful exercise is to ask, “And then what?”

— That Johnson could try to rewrite the rules that govern the Jan. 6 vote-counting session. For the past century or so, the two chambers have unanimously adopted boilerplate, bipartisan procedures for the count. Johnson could decide to try to write his own, inserting provisions that would open up new avenues to challenge the results, or simply refuse to adopt a process at all, creating ambiguity and doubt.

And then what? Would the Senate join in? (Assuredly not.) So he couldn’t unilaterally “insert[] provisions.” And what if he refused to adopt the boilerplate? What rules would Congress use in the joint session? The parliamentarians and the President of the Senate would default to… the Electoral Count Act, as the precedent of the joint session and the backdrop in the absence of other guidance. Could it create “ambiguity and doubt”? Of course. Would it thwart the certification? Hardly.

— That Johnson could muster enough Republicans to object to certain contested slates of electors — and, if the GOP also holds the Senate, possibly gather the votes to throw those slates out. If neither candidate receives 270 electoral votes, the House could have authority under the 12th Amendment to choose the winner.

Object–and then what? As I indicated, this scenario fundamentally misunderstands what the 270 threshold means. But beyond that, the notion that 51 Senators would join Republicans in the House in agreeing to throw out slates of electors is laughable. A string of Republicans who helped secure passage of the Electoral Count Reform Act or who voted to convict Donald Trump in an impeachment are hardly on the short list of those inclined to join. And it was difficult to find even one senator willing to sign an objection in 2021 (a small group of Senators signed one, and one Senator signed another, when dozens of House Republicans tried to object; the Senate in 2001, 2005, and 2017 likewise was largely unsympathetic to the House’s antics). The GOP could control 60 seats, and the likelihood of majority vote in the Senate to throw out the results of an ordinary presidential election are effectively zero.

— That Johnson could delay the vote-counting session. While the Jan. 6 date is written in law, it’s the speaker who has to call the House to order first. Democrats worry that Johnson could essentially push pause — much as Trump allies worried after the 2020 election that then-Speaker Nancy Pelosi might do the same and go to the courts.

And then what? The House would refuse to convene and exercise its power–and refuse to pay its members and staff–for an indefinite period of time? (Counting doesn’t even always happen on January 6, as sometimes it’s fallen on a Sunday and the date has bounced around from January 4 to January 9.) If members of the House don’t show (as many already don’t), might not the Senate simply proceed and count as if the House members simply failed to attend? On January 20, the office of the president is vacant. It could have a Senator resign to become the acting President. Or, Acting President Anthony Blinken takes over. Is Mike Johnson eager for the House to exercise zero power and to install Acting President Blinken? And then ask the courts for… the kind of relief roundly rejected in 2020?

— That Johnson could challenge the Electoral Count Act entirely. Under a novel legal theory, he could ask a court to rule that the law on the books cannot bind Congress from exercising its power under the Constitution — again defaulting to the process laid out in the 12th Amendment.

And then what? Find a court that would let a member of Congress sue Congress over a congressional rule? (We see how that path went nowhere in Gohmert v. Pence.) And not just allow him to sue, but then win? And like the first hypothetical, “default” to… the background rules and precedents already developed by Congress, subject to being overturned only by a majority of both houses of Congress?

In short, there’s no question that there are ways of gumming up the works, of sowing doubt in the results of the elections, of stirring up public controversy. It could be “havoc,” just as, frankly, lots of other things can bring “havoc,” regardless of whether they arise in Congress in January 2025. But it won’t affect who takes office at the end of the day–and these four “unlikely” scenarios won’t change that.

Of course, Politico makes clear that it’s also being used as a fundraising device: “They’re also raising their worries with donors, urging them to give generously to make sure the party flips the House and nips any potential drama in the bud.” So perhaps the fears are being aired out for a more obvious reason.