By admin 
Although considerable attention has understandably been paid to President Donald Trump’s efforts to suppress the vote, there has been too little focus on the possibility that congressional Republicans might try to overturn Democratic victories after the election and thereby retain control of the House or the Senate. In this way, Jan. 6, 2021, could prove to be a dress rehearsal for a 2026 Republican coup attempt to keep congressional majorities.
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Everyone has seen footage of the violent assault on the Capitol on Jan. 6, 2021. But it is important to remember the underlying goal: getting Vice President Mike Pence to refuse to count all the certified electoral votes. According to the House select committee that investigated the attack, the assault was part of Trump’s seven-point plan to subvert the election. The aim was to keep Trump in power by preventing the joint session of Congress from counting the electoral votes that would formalize Joe Biden’s election.
As detailed in a memo prepared by Trump legal adviser John Eastman, vice president Pence, as the person legally entitled to open and count the electoral votes, would rule that the electoral votes from a number of states were disputed and refuse to count them. Under the Constitution, the decision about who would be president would then go to the full House of Representatives, where each state would have one vote. Since Republicans controlled a majority of the state delegations, they would declare Trump the winner. Fortunately, Pence refused to go along, leading the insurrectionists to erect a gallows to hang him.
If the Democrats win either or both houses of Congress, that is likely to be determined by a handful of seats in close elections. President Trump and Republicans surely would immediately begin their now-familiar refrain: “The election was stolen; millions of undocumented immigrants voted; mail-in ballots were fake; dead people voted; the election machines were rigged.”
Unlike in presidential elections, where the vice president leads the joint session of Congress and officially declares the final result, the vote-counting job in the House of Representatives goes to the clerk of the House, who was appointed by Republicans in 2023. Trump and his enablers could mount a full-court press to convince the current clerk to refuse to accept the results showing Democrats winning in disputed districts. If the current clerk refused to commit in advance to follow these orders, Republican Speaker Mike Johnson could install an acting clerk who would agree to seat the Republican challengers instead of the Democrats who had been declared by their states to be winners.
The new House Republican majority would then invoke Article I, Section 5 of the Constitution, which states that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Since Republicans would hold a majority of the newly seated House members, the new House would then vote to resolve all disputes in favor of the Republican challengers, keeping a House majority in Republican hands.
There’s a similar potential outcome in the Senate, where Republicans currently hold a majority, but the procedures are less complicated since there is no clerk in the Senate and the Senate majority just gets to decide whom to seat.
Democrats would certainly challenge these maneuvers in federal court, but there can be no confidence that the Supreme Court, with six justices appointed by Republican presidents, would overrule such Republican maneuvers. In fact, it is quite possible that the Supreme Court would dismiss the case as a “political question” that is not within the power of the federal judiciary to decide.
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This scenario would lead to political chaos, a constitutional crisis, or, even near civil war. It would be a moment unlike any other in American history.
Of course, it is possible that Republicans will win in the November election and legitimately keep control over both the House and the Senate (although that seems increasingly unlikely). Or there might be a blue wave in which Democrats win large congressional majorities by wide margins, and it would be futile for Republicans to use this ploy to keep control.
But Democrats must be prepared, in every House and Senate race that is likely to be disputed, to go to the state courts after the election and before January and seek court rulings requiring that the state certify Democratic winners. The political question doctrine which, applies in federal courts does not limit the ability of state courts, to adjudicate cases. State court determinations of the victors could make it harder for congressional Republicans to overturn such certifications.
And if the doomsday scenario happens, and Republicans in Congress refuse to seat certified Democrats who prevailed, there must be a massive political response. Pro-democracy organizations like Indivisible, the ACLU, the NAACP and The League of Women Voters must collectively start planning strategies for how to respond to an attempted post-election coup.
This could potentially be one of the biggest national crises since the Civil War. Everyone who believes in democracy must start to get ready now.
Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. Miles Mogulescu is a writer, entertainment producer and lawyer.
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