Generally, no, but that clickbait title actually has a point. I was thinking about a combination of things over the last few weeks, and I think I’ve stumbled on something a little concerning: I believe there is a completely Constitutional way for the party that controls the incoming House of Representatives to steal the Presidential election, and/or cause a major Constitutional crisis. I arrived at this conclusion thinking about Kevin McCarthy’s election to the Speakership, the Jan 6 riot and machinations beforehand, and the 2022 partial reform of the Electoral Count Act.
The idea seems really complicated (how do all those bits link together?), and there are details that are admittedly still quite fuzzy, but it actually boils down to one simple principle: Congress actually has to exist to count the electoral votes (and thus, elect the President) – and I think there’s a way where they don’t. My first post since launching a substack, so of course it’s gonna be ~5500 words long, but this essay was done first so here we go.
Setting the Stage
There are several moving parts to this idea. I’m going to lay the relevant ones out here.
Firstly, the 12th Amendment requires the Senate and House both be present for the counting of electoral votes. The relevant text is: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” This text, that critical “Senate and House”, is pretty clearly requiring both Houses of the Congress be present when the electoral vote are counted – it can’t just be one or the other.
Secondly, the Electoral Count Act (specifically, 3 USC §15a), herein ECA, requires that the Houses of Congress (i.e. both House & Senate) be in session on 6 Jan at 1pm to count the electoral votes. The relevant text is: “Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day” – the key word in this text is “shall”, which does not appear to allow Congress wiggle room to meet on a different day. They shall meet on 6 Jan to count the electoral votes, with no other times [currently] allowed by statute.
Thirdly, Article 6 Clause 3 of the US Constitution requires that any Representative swear an oath to serve as a representative. The relevant text is: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution”. It’s actually an open question if this specifically requires the Representatives take an oath before entering office [we’ll get to that], but the House believes that it does (and basically always has).
Fourthly, Article 1 Section 2 of the Constitution makes clear that the House alone has the power to elect its officers (incl. the Speaker). The relevant text is: “The House of Representatives shall chuse their Speaker and other Officers”. It is, again, for the eager folks that have already figured out where I’m going with this, an open question if only the officers of the House can administer the oaths of office to members, but again, the House believes that it does.
Fifthly, the 20th Amendment (Sections 1 and 2) specifies that a Congressional term ends, and a new one begins, a 12 noon on 3 Jan. The relevant text is: “The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January … The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January …”. Additionally, when a new Congress begins, all old business expires; the “slate is wiped clean” – there are no officers, no adopted rules, etc. and critically, no sworn members. It is a wholly new thing that carries over nothing from the last iteration of the Congress.
Sixthly, the House Clerk (who, as staff, carries over between Congresses) believes that they do not have the authority to swear in members. This is a very complex issue as, when a new Congress starts, as part of all old business expiring, there are also no rules governing the meetings of the House. However, rules adopted by prior meetings of Congress, as well as the Clerk’s own view, indicate that the Clerk is directed at the start of the Congressional session just to oversee the election of the Speaker. My point being: it’s unclear if the Clerk has the authority to consider any business other than electing the Speaker and some basic order motions (adjournment, etc.), and they do not think that they have such other authorities.
Seventhly, and this may go without saying after the Jan 6 attacks, the ECA (at 3 USC §15e3) specifies that the actual counting of, and declaration of the counted votes, is what actually formally elects the President. The relevant text is: “the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States”. This is itself based in the text of the 12th Amendment’s text requiring the Congressional counting of the electoral votes, and the person with the greatest number of votes being elected as President; specifically, this is the statute text implementing that constitutional provision.
How do all those fit together?
I recognize there’s quite a lot above, so thanks for bearing with me. I’m going to lay out a scenario for you now.
It is 3 January, 2025. Joe Biden has been re-elected as President, but the Republicans control both the House and Senate. This is certainly not an implausible scenario. The Presidency and House are tossups, the Senate [map] leans R, and frankly it is too early to be making much prognostication about polling and direction anyways. Moving on, the clock strikes noon and the old Congress is dissolved by the 20th Amendment. A new Congress enters the House of Representatives chamber. Here is where things start to go differently from how they have in the past.
The Representatives-elect are unable, or refuse, to elect a Speaker after the new Congressional term begins on 3 Jan. They do not elect one for at least 3 days. This is certainly not unprecedented; in the current Congress, Kevin McCarthy was not elected as Speaker of the House until early on 7 Jan. As the House holds that only the House’s officers may administer the Oath to be a Representative, and that an Oath is required to take the office of Representative, the House holds that the Members actually remain Members-elect during this time; you’ll note that McCarthy addresses the chamber as “Members-elect” when he swears them in en masse after getting sworn in himself as Speaker.
It is now 6 Jan, 2025 at 1pm. Congress is supposed to meet to count the electoral votes. The House has been unable, or unwilling, to elect a Speaker; there is thus no sworn member of the House of Representatives. However, the 12th Amendment quite plainly requires that the House be present for the counting of the electoral votes. The question thus is quite simple: what happens if the House of Representatives doesn’t have any sworn members to actually show up to the count? For constitutional purposes, it’s not clear A. if the House of Representatives even currently exists and B. what happens to the electoral count if it doesn’t. Can they, constitutionally, count the votes?
The ECA further complicates this scenario. It specifies that the House & Senate shall meet on 6 Jan at 1pm – as we’ve laid out, there’s no Members of the House at that time (only Members-elect), and so it’s unclear if the House exists. Let us say that it’s now 7 Jan (as it was this year), and the House has finally agreed to elect a Speaker and get sworn in – now the House definitely exists and is full of sworn members. Can the House and Senate still meet and count the electoral votes? The ECA says the counting shall happen on 6 Jan, but it is past then – can they still meet? Can Members-elect show up to the count on 6 Jan and say they are the House of Representatives – and if so, how many are needed?
What I think I’m illustrating here with these examples is this idea pretty quickly moves into Serious Constitutional Crisis territory. This is what I meant by my opening question, “Can Congress Count?” – it is genuinely unclear if, under the terms of the 12th Amendment and the oath requirement, if they can do so if nobody has been sworn into the House yet. It’s a problem fundamental to the continued operation of the executive branch (i.e. actually electing the Chief Executive), but I’ve outlined a way where the normal process of doing so is completely broken, thru means that have literally already occurred (this year!), without a clear way out of such a situation laid out in the Constitution. Nobody, myself included, knows what happens if the House actually does not have a Speaker [or sworn members] on 6 Jan 2025 at 1pm.
Could this be done deliberately?
This idea has been on my mind for a while. I first tweeted about it after McCarthy lost his first Speakership vote. I initially came to the idea while Kevin was trying to wrangle his caucus as sort of a funny “oh this could screw up the election of the President”, only to realize shortly after “oh, they could deliberately screw up the election of the President”, which I’ll admit was a moment of abject horror. What if ~10 Republicans just refuse to vote for a Speaker, not out of particular animus for [the current Speaker], but to fuck up Joe Biden’s, or anyone else’s for that matter, [re-]election? A few GOP extremists could engineer a constitutional crisis just because they don’t like who won the election. Not like they’ve ever tried that before, or anything.
This is all, in my view, even more likely to be tried if the GOP has a contested primary between Nikki Haley and Trump, Haley wins the GOP nod, and Trump goes 3rd party (a very low, but still nonzero, possibility). If the GOP/MAGAparty have a combined popular vote majority (MAGA types vote for Trump, suburbanites revert to the mean and vote for Haley, etc.), but they lose the electoral vote to Biden because they split the vote, the right just might try something extra-Constitutional since “we got more votes”.
The entirety of the 12th Amendment and ECA presupposes that the House of Representatives actually is constituted & does exist, but there’s a pretty clear mechanism, that has literally occurred this year, where that might not actually be so. Furthermore, once this happens, it becomes really murky, really fast, just what set of rules apply. It’s unclear if the ECA would govern in a situation where the House’s existence is an open question. The Act specifies special rules for the session counting the electoral votes, but would those rules actually apply? Since the House has no rules, would the normal Senate rules apply?
You can start to extrapolate out scenarios which cause certain specific outcomes; you can probably see where I’m going with this. Let’s say they do try and meet on 6 Jan to count the votes formalizing Biden’s re-election, but a particularly MAGA senator (eg. Tommy Tuberville) raises a point of order objection, saying the House is not here because these Members-elect aren’t sworn Representatives, therefore we can’t count the votes. He may well be right – there are indeed no sworn members of the House. The Chair (who at the time would be Kamala Harris) could rule that the meeting is in-order, but under current Senate rules, all it takes is a simple majority to overrule her – and the GOP has that simple majority.
They stay deadlocked until 20 Jan at Noon. At that point, Joe Biden & Kamala Harris’ terms as President & VP expire – those offices are now vacant, as their [re-]election to them never happened because Congress couldn’t count the votes for them. At the same time, by a Miracle, the House comes to its senses and decides they should elect a Speaker. There is, of course, no constitutional provision requiring that their Speaker be a member of the House (i.e. the Constitution allows to “chuse” anyone to be Speaker – their power to pick anyone is unlimited, they don’t even have to choose a citizen). It should be really obvious where I am going with this now.
So, at 12:01pm on 20 Jan 2025, the office of President is vacant. The House sits down, and the GOP members[-elect] unanimously select Donald J. Trump as the Speaker of the House. Under the terms of the Presidential Act of 1947, with the office of President & VP vacant, the Speaker of the House is required to immediately resign and take up the office of [*Acting, it’s complicated, see below] President of the United States. Therefore, Trump is now the new President.
And there you have it. Constitutional coup. A plausible, and on-its-face Constitutional, way to steal a Presidential election by [the GOP] deliberately refusing to make Congress capable of counting the votes for President.
Care for a bump?
This is a bit of an aside that, if I had an editor, they might delete. But I don’t, so here we are. We’re going to very briefly discuss a very stupid & complicated issue called “bumping”. Not a Mormon sex act, this is a term used to describe a loophole(?) in the Presidential Succession Act (PSA). I mentioned above that if this all actually happens, Trump would become the Acting President. I know in the movies, when everyone except the Secretary of Agriculture gets blown up by the Generic Terrorists, he’s shown being sworn in as the President – but that’s not what the law actually says. 3 USC §19a specifies that: “if … there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.” – and proceeds down a list from there.
The key word is act [as President]. The 25th Amendment is quite clear that if the office of President is vacant, the VP becomes the President. On the other hand, the PSA is quite clear that the Speaker (or anyone lower in the succession list) is only the Acting President – he doesn’t hold the office, just exercises its powers. This creates a known issue called bumping, where a new higher up-official (such as exercising the 25th Amendment’s provisions to fill the vacancy of the VP) “bumps” the Acting President out of power by virtue of being higher up the chain. Trump could theoretically bump himself by, as Acting President, nominating himself to be VP, getting confirmed by both Houses of Congress, and then as VP immediately assuming the full office of the Presidency. Bumping also makes the whole PSA questionably constitutional, but I’m not gonna get into that.
There’s one reason I wanted to bring this up: term limits. Lets say Trump is the Acting President. The 22nd Amendment specifies: “no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once”. The key word is “elected“; the Constitution does not actually prohibit Trump from being the Acting President indefinitely – it only prohibits his election to the Presidency again. Furthermore, it may not even forbid him running in 2028, since remember, in our little scenario, there was nobody actually elected to the office of President in 2024. Trump could, theoretically, keep stringing himself along as Acting President for as long as there’s no elected President/VP and the House is willing to briefly elect him Speaker. Unfortunately, “Acting President for Life” doesn’t have the same ring to it, I’m afraid.
Since none of this is likely to happen, I know I’m mostly wasting time here with interesting hypotheticals (although isn’t that the point of all this?), so let’s get back on track.
What are some possible resolutions to this?
Lets assume that what I outlined above occurs, that there is no sworn-in House on 6 Jan. To begin with, this is a giant assumption: I give this whole exercise <1% probability of actually coming to pass, but I also don’t think it can be ruled out (hence why I’m writing). Lets say it’s now, for the sake of argument, 8 Jan, and Biden has not been formally re-elected President. There are several plausible outcomes from here:
Option 1: The example scenario I outlined above. There is no “resolution”: the constitutional coup succeeds. The votes are never actually counted because the Congress never actually convened at 1pm on 6 Jan (since the House says it technically didn’t exist at the time), so the GOP senators endlessly raise Point-of-Order objections to a meeting to count the votes, and Biden is never actually formally elected as President. Come 20 Jan, his term expires, the office becomes Vacant, and the House suddenly elects Trump as Speaker, making him the Acting President. Things would probably not go positively from there.
Option 2: The GOP in Congress comes to their senses. They realize that this crisis is causing incalculable damage to the country, and that the public is absolutely ripshit about what is happening in Washington; Americans may not like Biden, but they really fucking hate their votes not mattering (e.g. Ohio’s recent experience with limiting ballot questions). The GOP may just be unable to select a Speaker due to their own factional infighting (e.g. this year’s drama with Kevin McCarthy), and so just select a placeholder once to avoid any sort of constitutional problems. This option is probably the best, and also the most likely (of both all the causes of this idea and potential solutions). It could even happen before the official count day of 6 Jan.
As to questions about the specifics of the ECA requiring the vote count to occur on 6 Jan at 1pm, the 12th Amendment may actually override this and provide the GOP an out if they do back down. Whenever the Constitution and Federal Statutes conflict, the Constitution always wins (the Supremacy Clause). The ECA specifies that Congress shall meet and count the electoral votes on 6 Jan at 1pm, but the 12th Amendment specifies that the Congress shall meet and the electoral votes shall be counted, period. The Constitutional requirement that Congress meet and the votes be counted may override any statutory requirement about the particulars of the counting (incl. time, place, etc.).
This also opens up really weird scenarios where the House delays the formal count so Trump can be Acting President (e.g for a day to pardon himself, etc.) and then actually counts so that Biden is elected, but I’m not gonna get into those now.
Option 3: Supreme Court fiat. Any constitutional crisis, particularly one of this scale, would almost certainly prompt an intervention from the Court – and I have no surefire idea what this would look like. They, generally, want to avoid messy constitutional situations, and so if they do intervene, I would expect any possible resolution to A. be drawn out of whole cloth for the sole purpose of ending this and preventing it in the future, and B. [as a direct result] to be in Biden’s favor. While they certainly could surprise me (who knows what Gorsuch is cooking), given the current problems with legitimacy that the Court has faced lately, as well as their past recalcitrance to enable Trump’s constitutional scheming, I don’t consider them likely enablers of this plan.
Option 4: Kamala Harris just goes for it (I call this the “Leeroy Jenkins” option). She decides she’s got the most expansive possible reading of her powers under the Constitution (particularly the 12th Amendment) and/or ECA, and just, holds the electoral vote count on 6 Jan while steamrolling anyone who tries to stop her. House isn’t here? Fuck you, I say they are. You wanna have a point of order saying this meeting is out of order? Fuck you, I say this is a special joint session of Congress governed by the ECA and my powers as President of the Senate, so those regular Senate rules don’t apply. Half the Senate walks out? Fuck you, I say we don’t need them (the ECA is silent on the question of a Quorum!).
The real question here is, who’s gonna stop her? We’re already in full-blown constitutional crisis territory by this point, and this is just a procedure formally electing the President that has already been selected by the public. This would be making that crisis somewhat worse, and there are of course legitimacy issues that come from railroading the process, but in a way it also puts this whole thing to bed. The count is really just a formality in the electoral process; I do not think that anyone – the Court, the Army, etc. – is going to try and intervene after the fact to try to void such a “just ram it thru” formality for what is basically an outcome which is known by mid-Nov.
Option 5: a bunch of House members [possibly all Dems] figure out what’s happening and get someone else to swear them in. I’m actually drawing pretty heavily on this Jan 2023 article from the Cato Institute (a right-wing/libertarian think tank) here, which convincingly argues that the House’s current de facto requirement that they be sworn in by an Officer of the House (generally, the Speaker) is actually unconstitutional. There is no Constitutional provision, for any office, requiring a specific person administer the oath; even if the House is correct [which is A Big If, see below] that a Representative must have sworn an oath before serving, it cannot create additional requirements for serving beyond what is enumerated in the Constitution.
For example, the President is traditionally sworn in by the Chief Justice, but the oath can be administered by anyone as long as it follows the form laid out in the Constitution; LBJ was sworn in by a local federal judge after JFK’s assassination, and Calvin Coolidge was sworn in by his father, a justice of the peace, after word arrived at their family’s Vermont cabin of the death of President Harding. This is almost certainly deliberate engineering by the Framers; Congress could not specify that the President must be worn in by Chief Oath Giver and then never fill that position, as that would de facto create an additional requirement for serving and allow them to block anyone they didn’t like from the office.
This, of course, makes practical sense for Congress too. Lets say, hypothetically, that the Democrats win control of the House, and elect a Dem speaker. Could that Speaker then refuse to swear in the GOP members of the House (and, thus, prevent them from serving)? If the House is correct that only officers of the House can swear in members, the answer is an unequivocal yes; but this makes no sense in practical terms or historical precedent, and so it does seem that the House’s interpretation of the Constitution’s oath requirement is simply wrong.
Nevertheless, the House does still assert that it has the sole power to administer the oath to its members. The US Constitutional system generally holds that each branch is responsible for running its own internal affairs and those cannot be interfered with by the other branches, and it’s unclear how the other branches could assert that they have the power to administer a Representative’s oath if that’s a power the House says is exclusively reserved to it; it also creates validity problems where the House would say oaths administered by a non-officer are invalid. Additionally, the House asserts it can only do business once [a quorum of] its members are sworn in. Thus, we end up in this weird position where the House says it doesn’t exist until it has sworn itself in, as it alone has the power to do so, and there’s probably nothing that can be done about this [barring Supreme Court fiat].
Option 6: the unsworn members of the House just show up to the count on 6 Jan anyways. The Cato article raises another question: there is a difference between holding an office and exercising the powers of the office. They use the example of the Presidency: while the President takes office on 20 Jan at Noon every 4 years, they cannot exercise the powers of the office until they are sworn in. They’re still the President, they just can’t Do Presidential Things until they say the magic words. Let’s extend this to the House for a moment. Do House members take office when they say the oath to the Speaker, or do they take office when the Constitution specifies a new Congressional term begins at noon on 3 Jan?
Now, the 12th Amendment specifies that the count shall be “in the Presence of” the House & Senate – are elected but unsworn members capable of fulfilling this requirement? More specifically: are the members actually exercising an official power during the count? To be sure, there are powers available to the House under the ECA (e.g. to object to a state), but is “sitting there quietly and listening to the VP count votes” an exercise of any official authority? The 12th Amendment seems to just require that the office-holders simply be present there, and doesn’t give them any other authorities or requirements (unless nobody wins a majority of the electoral vote). If unsworn members actually do hold the title of Representative, they just can’t exercise any of its authority because they didn’t say the oath, and this interpretation of the 12th Amendment is correct that the office-holders just have to be there and are not exercising any official powers, there doesn’t actually seem to be any issue. Unsworn members can just show up to fulfill the constitutional requirement.
This option would be, obviously, messy. There would be significant political and legal wrangling trying to pin down whose constitutional interpretation is correct, given the House’s longstanding assertion that only it can swear in its own members. I’ll just add, the House’s de facto position seems to be that even unsworn members can conduct official business like voting under certain circumstances; remember, the unsworn members of the House elect their Speaker every 2 years, which is certainly an official act, despite not being sworn members yet. You’ve probably gathered by now that I find the House’s various positions on what its members can and cannot do before they’re sworn in to be quite bizarre.
Option 7: the Army intervenes. If we’re doing a full-blown constitutional crisis, we have to recognize that one of, if not the, most common ways such crises get resolved is The Men With Guns Show Up and force a resolution [which is, obviously, in their own interest]. If Congress is deadlocked, the Courts are dithering, partisan gangs fighting in the streets of DC, etc. – this may all lead the men with guns to just decide that “we have to put an end to this for the good of the country.” The US Army has a very long tradition of being apolitical, but this crisis could really force their hand as it raises a fundamental question for them: who is the Commander-in-Chief? Having two claimants on the office would quickly force them to pick a side.
The Army may also not per se actively have to do anything resembling tanks on the streets of DC: they could just issue a statement saying they believe Joe Biden is the duly-elected Commander-in-Chief and they’ll follow his orders; the GOP efforts may just collapse if the Army explicitly says it is not behind them. While I don’t know for sure which way they would jump, given that this requires active effort by the GOP to steal the office, and that the Army [particularly the officer corps] quickly turned against Trump on Jan 6, as well as Biden being the undisputed Commander-in-Chief thru 20 Jan, I do lean towards them siding with the Dems. I also know that the army has grown more, not less, wary of Trump & Co in the years he’s been out of office (particularly given Trump’s plans to declare martial law if re-elected, and Republican insistence the Army would just have to refuse that, a situation they don’t want to be in), and that they view themselves first-and-foremost as defenders of the Republic. I thus find the likelihood of them intervening in support of the GOP here to be very low.
Additionally, the Army getting involved fundamentally moves this away from any questions of law. “Political power grows out of the barrel of a gun” – Mao Zedong; any question of what the Constitution may actually require quickly becomes irrelevant when someone is pointing a gun at you. The answer (“answer”) is what the men with guns have decided, and frankly I’m not sure anyone will be satisfied with this outcome; it may be the death of the Republic by other means.
This all seems quite sub-optimal
Regardless, any possible resolution leaves a lot of unresolved questions. Were the votes lawfully counted? Who becomes president if they weren’t? Who is serving as acting president in the interim? What are the VP’s powers during this, and does the ECA govern? What should the Army do? Just because a constitutional crisis is resolved, satisfactorily or not (however you define that), doesn’t mean it wasn’t a constitutional crisis; sure, it may be made legal after the fact, but the legality is ultimately a veneer over a catastrophe. The whole thing would be irreparably damaging: for our politics, probably for our economy (particularly if it goes on for an extended period), civil society writ large, and [given everything happening] possibly for the whole world. Let me be perfectly clear: it would be really fucking bad if any of this came to pass.
Now, look, I’m An Moron, but I’m not that stupid. I recognize what I’ve written here is basically a how-to for the GOP to [try to] steal the Presidency; part of me didn’t even necessarily want to put words to paper (as it were, I know this is electronic). However, if I – just some nobody sitting in their basement in New Jersey – can figure this out, then far more craven folks in the GOP establishment probably already have. Their team has been playing Constitutional Hardball for years; my point being, they probably already know what I’ve laid out above. Part of why I ended up choosing to write, and at such length, is that I’m probably not telling anyone on the red team something they don’t already know; however, I don’t know how much of this is known outside (e.g.) the meetings of the Federalist Society.
It is an open question if the GOP would actually put such a plan into motion, and I do have my doubts (again, there’s a <1% chance of any of this coming to pass). However, given their current open plotting for power grabs (e.g. “Project 2025”, the official thousand-page blueprint for which is freely available on the Heritage Foundation’s website), and the fact they tried a half-assed version of this before, I certainly do not think that it is something that can be dismissed out of hand. I’ll also note that this could theoretically be used by the Democrats, given it turns pretty much only on whomever controls the incoming House of Representatives (and, to a lesser degree, the Senate), but I find that much less likely than the GOP (for the reasons I’ve outlined above)
As to what is to be done about this to prevent it: I have no idea! The only reasonable answer is an amendment to the constitution explicitly allowing Representatives to be sworn in by other officials (e.g. Senators, Judges, etc.) but this is not particularly likely. The US Constitution has many strengths, but there are some parts where its vagueness is a serious problem. This all hopefully will remain a theoretical exercise, but I’ll admit I would feel significantly more comfortable if there was some sort of fix in place.
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