[Salon] Whether U.S. Democracy Is a House of Cards Is Up to the House

Democracy—in its broadest terms—will be on the ballot this November. The fact that the Republican nomination will almost certainly go to a candidate who continues to deny the legitimacy of the 2020 election and acted to overturn those results is, in many ways, hard to believe. Yet, that is our reality. Not only will that candidate be the Republican nominee, but he is currently the frontrunner to win the presidential race.

The fact that former President Donald Trump is in this position speaks volumes about how little regard a huge portion of the American electorate has for the future of our democracy. Moreover, his voluminous authoritarian statements and praise of authoritarian leaders seems to enhance that support, not detract from it.

President Biden has rightfully pointed to this election being about preserving our democracy and that being the issue above all others. He is absolutely correct. However, this issue goes well beyond Trump and his anti-democratic proclivities. Trump alone cannot overturn an election or subvert the will of the voters. He needs a full cast of enablers to achieve that.

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We cannot lose sight of the fact that Trump has a full cadre of election deniers who continue to expound the notion that Biden is not a legitimate president and that the 2020 election results should never have been certified.

What makes the potential overturning the upcoming 2024 election even more dangerous than 2020 is that the Republican speaker of the House, Rep. Mike Johnson (R-LA) is not only an election denier, but a ringleader of that effort. He has never renounced his claim and has the support of the majority of his caucus in claiming the last presidential election was illegitimate. In 2020, it was Nancy Pelosi and the Democrats who controlled the House. While it is unclear which party will control the House when the new Congress is sworn in on Jan. 3, 2025, it is control of the House between Election Day 2024 and that date that provides those intent on ensuring a Trump victory—regardless of the results of the vote—the opportunity to do so.

In a recently published and extraordinarily important article published in the Washington Spectator, political veterans Mark Medish and Joel McCleary have outlined the real and present danger we face from a House of Representatives intent on ignoring the integrity of the election process. Their article, "Dancing in the Dark: Steps to Avoid a Constitutional Coup in the 2024 election," Medish and McCleary demonstrate their credentials as true guardians of our democratic process by getting deep into the mechanics of how an election-denying Republican speaker could overturn a presidential election, among various other ways legitimate election results could be illegitimately overturned.

As Medish and McCleary state: "Good faith can no longer be assumed. In 2020, current Speaker Mike Johnson, in a purely partisan act, organized 138 Republican House members who were in the minority to refuse to certify the election of President Biden, despite state certifications of the outcome of the vote, and the almost universal rulings from state and federal courts that it was an honest election."

Now that Republicans are in the majority, with Johnson leading the House, the ability to manipulate an election outcome is far greater.

The current House Republican majority is very slim—down to just a few votes. Because of redistricting rulings in several states, the Democrats have a real chance of regaining the House majority in the November election. However, the current election denying Republican majority, in the days following the November elections, might decide that they are going to question the results of certain House races that Democrats have won by close margins. The current Republican majority in the 118^th Congress, in preparation for the seating of the 119^th Congress on Jan. 3, could deny certification of enough Democratic election winners to preserve the Republican majority in the new Congress. It is generally the old Congress certifies House member elections so that when the new congressional session begins, Congress can swiftly move to conduct business.

As Medish and McCleary point out, there are precedents where a House majority by brute political force has seated a member of their own party in a disputed election, despite results that point to a different winner. Essentially a rogue House could perpetuate itself.

Once the Republicans have effectively "stolen" the House majority and elected a speaker, the next step in an election denial process would be, with or without assistance of a swing-state governor, to refuse to certify the Electoral College results of certain states on Jan. 6. The recently enacted Electoral Count Reform Act (the ECRA) raised the number of objectors necessary not to certify any election, but there are enough election deniers in the House of Representatives to meet the new threshold. Even if the Senate were not going to meet that objection threshold, the House refusal to certify would be enough to assure that no candidate gets a majority in the Electoral College, thus throwing the presidential race into the House of Representatives.

According to Medish and McCleary this is a crucial point. Unlike the Senate, the entire House is elected every two years, and so it is not a continuous body, and thus its rules must be essentially re-adopted by each new Congress, according to the authors' informed House Parliamentarian sources. Thus, there is no guarantee that a House bent on overturning an election would adopt the implementing rules of the ECRA, rendering that major reform effort toothless. In sum, the House is sovereign over the rules it uses to govern itself.

Once the presidential race is thrown into the House, a president is chosen on a state-by-state delegation vote, a vote today that the Republicans would win, and there is very little likelihood that the state-by-state delegation vote would be changed by the results of the 2024 election. The long and short is that an election-denying speaker in the current Congress could manipulate the certification process of both House members and Electoral College slates so as to deliver the presidency to Donald Trump.

The key to preventing the Trumpian efforts at overturning the 2020 election were the many state and federal court rulings upholding the legitimacy of the election process. However, the threat from an election-denying House speaker-led coup is far greater because the House's internal political processes are not reviewable by the courts. As Medish and McCleary state, "the majority in the House can make up the rules as they go without fear of court oversight." What the courts deem as political issues are simply not subject to judicial review—"the sitting house majority is free to change or waive previously adopted rules."

It is naive to think that House Republicans are not focused on how to use their power to aid and abet a Trump claim that the election was stolen again. Very recently, Rep. Elise Stefanik (R-NY), the fourth-ranking Republican in the House, refused to commit to certifying the results of the November elections. In addition, Rep. Thomas Massie, a Kentucky Republican who did vote to certify the 2020 election told The Hill "... remember the U.S. House of Representatives is the ultimate arbiter of whether to certify electors." He added, "that effort {in 2021} was doomed because Democrats controlled the House and Senate at that time."

As Medish and McCleary make very clear "we can have no illusion in 2024 about the threat level...The party controlling the speakership has the potential power to reverse the results of the presidential election and deliver the White House to itself." There is plenty to worry about in terms of whether this speaker and this House of Representatives will turn this republic into a house of cards. We must be prepared to defeat this scenario—starting by expressing gratitude to Medish and McCleary for their service in pointing out how real "dancing in the dark" and the chaos that would follow could become.

Tom Rogers is executive chairman of Oorbit Gaming and Entertainment, an editor-at-large for Newsweek, the founder of CNBC and a CNBC contributor. He also established MSNBC, is the former CEO of TiVo, a member of Keep Our Republic (an organization dedicated to preserving the nation's democracy). He is also a member of the American Bar Association Task Force on Democracy.

[Salon] Whether U.S. Democracy Is a House of Cards Is Up to the House | Opinion

Whether U.S. Democracy Is a House of Cards Is Up to the House | Opinion