This morning Rick linked to David Graham’s story for the December issue of The Atlantic, entitled Donald Trump’s Plan to Subvert the Midterms Is Already Under Way.

As someone who wrote a law review article in advance of the 2020 presidential election anticipating how Trump would endeavor to challenge the outcome if he was defeated as a result of “blue shift” ballots counted after Election Night, I’m all in favor of attempting to prognosticate what comparable efforts to undermine valid election results might occur in connection with next year’s midterms.

One detail in Graham’s story, however, is mistaken–or at least misleading. The article opens with a scenario in which “[c]ontrol” of the House of Representatives “seems like it will come down to two districts in Maricopa County, Arizona.” After contemplating what might happen in the state to prevent Democrats from winning those two districts, Graham writes: “the state names the two Democrats as winners” but “House Republicans reject Arizona’s certification and instead seat the GOP candidates.” Graham sums up this scenario by saying that “Trump’s allies keep the House” as a consequence of this “profoundly illegitimate” maneuver. (Much later in this lengthy article, Graham repeats in more general terms the same fear: “With Trump blowing wind into flimsy fraud allegations, the House GOP caucus could try to use them to preserve a narrow majority.”)

The problem with Graham’s scenario is that the House is not a continuing body. Thus, if the two Arizona districts will determine control of the House, then Republicans will not (yet) be the majority party in a position to seat Republican claimants instead of Democrats. The fact that Republicans were in the majority in the House during the previous two-year Congress is irrelevant. On January 3, 2027, the House will have to organize itself by first having the Members-elect vote in a new Speaker. If there is contestation over enough seats to determine which party has a majority of Members-elect for the purpose of holding the vote on who is the new Speaker, that contestation can stymie and delay the Speakership vote and prevent the organization of the House.

It’s a situation very much to worry about, but not in the way Graham describes. It wouldn’t be the Republicans giving themselves the majority by seating two more Republican members instead of the two Democrats who were certified by the state to have won the election. It would be much messier and more complicated than that. (As a general rule, the Clerk of the House is supposed to identify as a Member-elect a candidate who presents a prima facie valid certificate of election from the state, history shows that it is not always that simple.)

If one wants an inkling of what might happen if control of the House is at stake in the context of disputes over enough seats to make a difference in which party has a majority of votes to win the Speakership election, I encourage reading about two episodes described in Ballot Battles: The History of Disputed Elections in the United States (rev. ed. 2024). The first is the so-called “Broad Seal War” over New Jersey’s House seats in 1838, which starts on page 92. The second is the contestation over the 1862 midterms during the Civil War, starting on page 110.