Democrats are widely expected to take control of the House in the upcoming midterms, while the Senate remains a tossup. But there is a growing concern that former President Trump and his allies will attempt to subvert the popular will to keep the GOP in power. The strategy, as outlined by legal analysts and political observers, involves delegitimizing the election process and, if necessary, exploiting a constitutional loophole to deny Democrats their seats.
Trump has already set the stage by labeling Democrats as "hard core, godless Communists," echoing the rhetoric of Senator Joseph McCarthy. House Majority Leader Steve Scalise (R-La.) echoed this in a statement, claiming, "The Bolshevik takeover of the Democratic Party is in full swing, and communism is on the ballot this November." Speaker Mike Johnson (R-La.) took to social media, warning of a "ROAD TO COMMUNISM" if Democrats prevail.
The plan to delegitimize voters includes dispatching federal agents to polling places to intimidate voters, as well as disparaging mail-in ballots, a tactic Trump has used repeatedly. But the most concerning element is a legal maneuver that could allow Republicans to refuse to seat elected Democrats. The Constitution grants each chamber of Congress the authority to judge the elections, returns, and qualifications of its members, a power that is not subject to judicial review. This opens the door for Speaker Johnson, a known election denier, to challenge the credentials of Democratic members-elect in the 120th Congress.
A losing candidate can contest the election, and the House decides by a simple majority vote. While the challenge is pending, the new House can refuse to seat the winner, potentially allowing Republicans to hold a temporary majority if the race is close. This tactic has historical precedent: between 1789 and 2002, there were 601 election contests in the House, according to Professor Jeffrey Jenkins of USC Price.
The 2020 election provided a close call when Vice President Mike Pence, guided by his counsel J. Michael Luttig, chose to respect the constitutional order and certify the results. But Johnson is no Pence. He previously filed a brief in the Supreme Court alleging "unconstitutional irregularities" in the 2020 election, and he has been a vocal proponent of election fraud claims.
Challenges could be based on flimsy pretexts, such as state refusal to hand over voter rolls to the Trump administration, or the Senate's failure to pass the SAVE Act, which critics say would allow undocumented immigrants to vote. Mail-in ballots, already a target of GOP criticism, could also be used to cast doubt on election integrity.
Trump's influence looms large, but his approval ratings remain low—just 33% in a recent Reuters-Ipsos poll. He has a personal stake in the outcome, as a Democratic House would likely launch investigations and potentially pursue impeachment. The only way to thwart such maneuvers, analysts argue, is a decisive election victory. Yet the Cook Political Report lists only 18 tossup races in the House, suggesting a narrow margin is likely.
If the election is close, we could see a repeat of 2020, with accusations of fraud and a determined effort by MAGA to retain power. The hope is that leaders like Johnson will uphold democratic norms, but the risk of a constitutional crisis is real. As the saying goes, the ultimate authority in Congress rests with the members themselves, not the voters—a loophole that could be exploited.
