Senate Democrats have a clear way to counter any Republican attempt to subvert House election results, according to a new analysis. The strategy relies on the Senate's status as a continuing body and its Democratic majority at the start of the next Congress.
Constitutional authority and election contests
Article I of the constitution makes each chamber of Congress the “Judge of the Elections [and] Returns … of its own Members”, giving Congress final say on who is seated. This opens a potential path for Republicans to challenge close elections and have the House decide contests, as happened in hundreds of cases since 1789.
Unlike the 62 election cases Trump and his allies lost in 2020, congressional contests are decided by politics, not evidence rules. The current Trump-controlled House could expedite votes on pending contests to favor Republicans, and the clerk, as an officer of the House, must follow its direction.
The Senate's advantage
On 3 January, when the new Congress convenes, all House terms end, but the Senate is a continuing body. Of the 65 senators not up for election, 32 are Democrats plus two independents who caucus with them, while only 31 are Republicans, giving Democrats an initial 34-31 advantage.
This majority can refuse to seat Republicans with close elections, mimicking Republican claims of fraud. The vice-president, in his role as president of the Senate, could be overruled if a seated Democrat challenges a senator-elect, as Senate procedure allows such a challenge to take precedence over swearing in.
Potential standoff
If Republicans try to steal the House, Senate Democrats can retaliate by challenging Republican senators-elect, leading to a political standoff. A filibuster by the Republican minority would not change the Democratic majority's control.
Such a scenario would be unprecedented outside civil war-era elections, but the analysis notes that little is inconceivable with Trump in the White House. The hope is that the prospect of a doomsday standoff would deter Republicans from attempting to steal the House.
