Fearmongering about stealing Congress on January 3, 2027

Fellow blogger Justin Levitt wrote an excellent piece in 2024 about the scourge of “electoral-process porn.” Variations of these stories crop up with varying degrees of interest, then dissipate when the next shiny object appears. I’ve written about obsessive “third term” talk, which seems to have died down in recent months.

So let’s run through a few of the hits about the next craze–stealing Congress on January 3, 2027. A brief, and likely incomplete, chronicle:

David Graham, The Atlantic, October 28, 2025: “Donald Trump’s Plan to Subvert the Midterms Is Already Under Way” (Ned Foley’s response here.)

Steve Israel, The New Republic, December 8, 2025: “The Simple, Legal Way Trump Could Steal the Midterms” (Israel’s piece was so bad it later came with an editor’s note: “Editor’s note: After this piece was published, several readers noted that congressional Republicans would not be able to use Article 1, Section 5 of the Constitution to subvert the midterm election results in a scenario where Democrats win the majority in the House.) (Ned Foley’s response here.)

Steve Posner, San Francisco Chronicle, January 7, 2026: “How Trump can keep the House without winning the midterms“

Mark Z. Barabak, Los Angeles Times, April 26, 2026: “The congressional landmine stirring fears about the midterm election — and a Trump power grab“

Steve Posner, San Francisco Chronicle, May 18, 2026: “Here’s another way Trump and his GOP allies could keep Democrats from retaking the House“

Andy Craig, The UnPopulist, May 11, 2026: “The VRA Ruling Might Have Handed Republicans a Weapon to Attempt a Jan. 6-style Midterm Coup“

David French, New York Times, July 23, 2026: “This Is What’s Keeping Me Up at Night” (Ned Foley’s response here. French doubled down, largely missing Foley’s point.)

Jeffrey Toobin, New York Times, July 27, 2026: “What’s the Worst Thing Trump Can Do in the Midterms?” (Ned Foley’s response here.)

J. Michael Luttig, Substack, Aug. 16, 2026, “The Final Battle for America’s Democracy” (Luttig’s piece makes the same basic mistake of many of these pieces that Foley’s responses address: the House is not a continuing body.)

These are all on the fearmongering side.

Where are the public proponents of this theory on the Republican side?

The closest, and only, one I’ve seen supporting Republicans exercising this move, in a vague and hand-waving way, has been Scott Yenor, American Greatness, April 14, 2026, “No SAVE Act? Congress Still Holds the Trump Card,” with nothing more than the glib,

“Congress could deny representation to states without voter identification laws or those that wink at foreign nationals voting in their elections. Or Congress could require new elections when voting rolls are not properly purged.”

This proposal would be the flip side of the one floated by Marc Elias, Democracy Docket, May 25, 2021:

As Republican legislatures enact new voter suppression laws, Congress should reaffirm the House’s promise in 1965 to refuse to seat, or to unseat, members who benefit from discriminatory voting laws.

It is beyond question that the House has the absolute right to adopt such a rule — since it alone is the “Judge of the Elections, Returns and Qualifications of its own Members.”

So, the only barrier to this approach is the House itself and its reticence to invoke its constitutional power.

If ever there was a need for it to do so, it is now.

Republicans in Arkansas, Florida, Georgia, Iowa and Montana should be on notice now that members’ elections are subject to House contest if either a court or the House determines that the member benefitted from discriminatory voting laws.

And before they pass their own discriminatory laws, states like Texas, Ohio and New Hampshire should consider that the result could be the unseating of their Republican congressional delegations.

Even these calls, however, assume that the majority party is exerting control over minority delegations.

That is, if a delegation currently controls a chamber, it can refuse to seat a member or a number of members in a kind of “hardball” move (with varying degrees of likelihood of success, left for another day).

That, however, is very different in kind from concern that the minority party could become the majority through some kind of “one weird trick” approach.

It is that concern that is the angst of the fearmongering chronicled seriatim above.

Now, there are a range of nuanced views on how, precisely, a minority in Congress would go about doing this across these pieces.

I’ll operate from the assumption that it would be Republicans denying Democrats in the House a majority, although occasional reporters I’ve spoken with worry about Democrats refusing to seat Missouri’s delegation over unlawful maps, or some Senate scenarios, which are less complicated because the Senate is a continuing body.

And I’ll truck through scenarios pretty quickly.

1. As Ned has pointed out repeatedly, often on deaf ears, the House is not a continuing body.

Mike Johnson ceases to be Speaker at noon on January 3.

He holds no power.

Whatever the House has done or decided before that is cannot bind the incoming House, including any purported findings regarding the validity of elections.

It is a brand new House that will adjudicate all matters afresh.

2. If a minority of Republicans object to the seating of some Democrats on January 3, it would only happen after the Speaker’s election (presumably, Hakeem Jeffries).

The more recent traditional mechanism is a “stand aside” mechanism, where members whose seats are in dispute stand aside while the remaining putative members vote on whether to seat them.

That practice does not have an ironclad precedent, and the Speaker presiding over that vote may well permit the disputed members to vote on their own seating, and a majority of the body would likewise approve of that rule change. The point being, there is a ready way for the majority to thwart an effort by the minority to become the majority.

3. The most sophisticated disaster porn asks about replacing the clerk of the House on the eve of January 3, and the new clerk refusing to recognize the credentials of incoming Democrats, so that Republicans could choose a Speaker and organize the House as if they were in the majority.

Ned shares good thoughts from Matt Seligman on this front.

It is worth emphasizing the clerk is not a member of the House, so the political question doctrine does not apply to the clerk’s actions in the event the judiciary is asked to intervene.

But more to the point, these actions have happened before, and they’ve not been successful.

(In some of Ned’s earlier posts I link to, Ned rightly points out that some history identifying some such actions as “successful” actually misread the history of disputed elections.)

Disputes about certification were more common two centuries ago than today, as much firmer and clearer deadlines exist, and ministerial obligations in states can be easily enforced in court–particularly given the clarity of federal law on the topic and readiness of states to certify elections promptly.

Beyond all that, it strikes me as quite unlikely, to me, at least, that this group of Republicans–the one that takes days to choose a speaker and that regularly cannot maintain order in its ranks–is going to have the cohesion and coordination to pull off this kind of activity, which, to emphasize, can be thwarted by other means, either politically or judicially.

(One could imagine, of course, intense external pressure on members of the House to remain cohesive, so, I admit, it is difficult to anticipate what might come.)

And to top it all off, while President Donald Trump is often cited as the reason for such subversion, his name isn’t on the ballot this year, and, given his rather single-minded focus on 2020, one wonders if comparable effort will be given to elections that don’t involve him.

(That said, I entirely understand the concerns that (a) the administration has filed some half-baked executive orders to “do something,” but, frankly, the efforts to defend those half-baked orders have been far from robust; and (b) the administration may well be concerned about investigation or impeachment from a Democratic-aligned House in the last two years of a lame duck term.)

As I’ve told many reporters over the last two years on this topic, you can throw sand in the gears, but “stealing the House” is another matter entirely.

And the wider the margins (both in terms of the number of votes separating the winner from a contestant, and the number of seats the House turns on), the less likely such scenarios are to occur.

(I have admittedly quipped that if it’s 217-217 in the House with a tight contest in the 435th race, all bets are off.)

Indeed, Congress has not refused to seat a member since 1985, which was also the last time it handed a contestant a seat over a certified winner.

Both parties recognize the fraught nature of any decision not to seat a member, and what it might mean going forward.

And perhaps the bottom line for incidents like 1985 is this: while it’s possible for a majority to subvert a minority (as Democrats did to Republicans in 1985), it is essentially impossible for the minority to subvert the majority, as the chronicle above should help demonstrate.

One could argue that this moment is different, but that’s really just the assumed premise of this kind of analysis.

In short, most scenarios get basic facts or law wrong, and the most complicated scenarios require a unique convergence of factors that have never existed, a unique level of coordination that seems very unlikely, docile political opposition, and a judiciary willing to acquiesce to all these moves–and all working simultaneously.

Even then, most of these scenarios could, at most, delay some organization of the House by a matter of hours or days.

Despite all this, I don’t expect these stories to stop in the weeks ahead–the market for election disaster porn, even in a marketplace concerned about “election misinformation,” remains robust.

Derek Muller, Election Law Blog - electionlawblog.org

https://electionlawblog.org/2026/fearmongering-about-stealing-congress-on-january-3-2027/

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