Source: Politics<\/p>\n
Democrats have spent much of the 2024 campaign reminding Americans of what happened on Jan. 6, 2021. But on Capitol Hill, some are already getting concerned about Jan. 6, 2025.<\/p>\n
They are hoping that Kamala Harris will win in November and they\u2019ll flip the House, too \u2014 meaning it would likely be Hakeem Jeffries holding the speaker’s gavel as the process of certifying a Harris victory gets underway.<\/p>\n
But it\u2019s another scenario that is nagging top House Democrats \u2014 that Speaker Mike Johnson might keep his majority as Harris wins and find himself in a position where he could obstruct the counting of electoral votes and possibly throw the election to the House under the constitutional provisions of the 12th Amendment.<\/p>\n
Johnson, after all, led House Republicans in filing an amicus brief after the 2020 election asking the Supreme Court to essentially overturn swing-state results, an effort personally blessed by Donald Trump. Now, he\u2019s leading a charge suggesting that undocumented immigrants are voting en masse in what Democrats view as a coordinated effort to sow doubt in the election and lay the groundwork for mischief.<\/p>\n
\u201cIt would be silly to ignore the history here,\u201d said Rep. Joe Morelle (D-N.Y.), the top Democrat on the House Administration Committee who has led his party\u2019s pushback on GOP voting claims.<\/p>\n
Adding to the anxiety is that Johnson, in the post-election period, might also be in a leadership dogfight where he might be compelled to prove his mettle to MAGA-minded members \u2014 not to mention Trump himself \u2014 by pledging to challenge the election results.<\/p>\n
A Johnson aide dismissed the Democratic concerns as an attempt to raise money to flip the House and said they were part of an alarmist narrative that helped lead to the two assassination attempts targeting Trump.<\/p>\n
Other Republicans close with Johnson told us they doubted the speaker would succumb to Trump\u2019s wishes so easily. They noted he withstood MAGA pressure on Ukraine funding, and they drew a distinction between writing a legal brief as a back-bencher and moving to overturn the will of voters as a constitutional officer.<\/p>\n
Other roadblocks are in place, as well: For one, it will be Harris, as vice president, who will actually preside over the certification of electoral votes, as Mike Pence famously did in 2021. And under a 2022 rewrite of the Electoral Count Act<\/a>, the law governing the process, it\u2019s now much harder to object to the counting of votes. Rather than a single member, it now requires 20 percent of each chamber to proceed with an objection.<\/p>\n Yet Democrats are still fearful, fretting over unresolved ambiguities in the Constitution and in the law surrounding the certification process, as well as the fact that Johnson could be in charge for Republicans come Jan. 6.<\/p>\n They fear his constitutional-law background, conservative movement bona fides and aw-shucks demeanor could make him uniquely formidable in a contested-election scenario \u2014 sharp enough to come up with novel legal arguments that could throw the election to the House and savvy enough to get his members on board.<\/p>\n Rep. Jamie Raskin, the Democratic constitutional law expert who tangled with Johnson over his 2020 brief, paraphrased the ancient Greek poet Hesiod: \u201cHe has the muses say something like, \u2018We know how to tell the truth when we want to tell the truth. And when we want to tell lies, we know how to tell lies that seem like the truth.\u2019 And that’s how I view Johnson\u2019s jurisprudence.\u201d<\/p>\n \u201cHe can state what the Constitution really says \u2014 and then he knows how to make polished arguments for Trump that are utterly false and would gut our constitutional system,\u201d Raskin (D-Md.) said.<\/p>\n While Raskin and other Democrats were loath to speculate about how exactly Johnson and other Republicans could possibly wreak electoral havoc after voting is done, the following concerns have circulated on Capitol Hill: <\/p>\n \u2014 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.<\/p>\n \u2014 That Johnson could muster enough Republicans to object to certain contested slates of electors \u2014 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.<\/p>\n \u2014 That Johnson could delay the vote-counting session. While the Jan. 6 date is written in law, it\u2019s the speaker who has to call the House to order first. Democrats worry that Johnson could essentially push pause \u2014 much as Trump allies worried after the 2020 election that then-Speaker Nancy Pelosi might do the same and go to the courts. (A related fear: What if there is no speaker at all on Jan. 6 \u2014 as there was two years ago, when Kevin McCarthy was struggling to win the gavel?)<\/p>\n \u2014 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 \u2014 again defaulting to the process laid out in the 12th Amendment.<\/p>\n Democratic suspicions about Johnson are nothing new. When Rep. Marjorie Taylor Greene (R-Ga.) moved earlier this year to kick Johnson out as speaker, Democrats faced a dilemma on whether to protect him on a key procedural vote. Rep. Zoe Lofgren (D-Calif.), a member of the House select Jan. 6 panel, warned her colleagues<\/a> to think carefully before helping a man they\u2019ve derided as an \u201celection denier.\u201d<\/p>\n