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The Final Battle for America’s Democracy
Donald Trump instigated a war against America’s democracy on January 6, 2021. He and his Republican allies would have crippled America’s democracy that day had his own vice president not refused to be party to the gravest constitutional offense a president can commit—the refusal to relinquish and peacefully transfer the power of the presidency to his duly elected successor.
Today, almost six years later, Donald Trump and his Republican congressional allies are even more determined to prosecute the president’s war against American democracy to its catastrophic end than they were on January 6, 2021.
That catastrophic end could well come on January 3, 2027, when Trump and his Republican congressional allies wage the final battle in Trump’s determined war to corrupt America’s democracy and deliver a lasting political victory over the Democrats for his MAGA Republican Party.
Trump and his Republican allies have been preparing for this final battle since January 6, 2021. For the past six years, they have embarrassed themselves and the U.S. with their preposterous, win-at-any-cost denial that Trump lost the 2020 presidential election and their deceitful slander of America’s democracy. Since his return to the White House, Trump’s every unconstitutional act in his effort to seize control over the midterm elections—each hailed by his prostrate Republican Congress—has been toward the end of ensuring that Republicans retain a majority in the 120th Congress.
Trump told talk show host Dan Bogino on February 2, “The Republicans should say, ‘We want to take over. We should take over the voting.’... The Republicans ought to nationalize the voting.’” The Republicans have dutifully fallen in line.
Before Donald Trump arrived, it was the Republicans who professed to stand for the Constitution, principle, truth, honesty, integrity—even honor. Republicans were the proud party of Abraham Lincoln and Ronald Reagan. It was our party that could be expected to put country before party when the time came, as when Barry Goldwater and other party elders told Richard Nixon in 1974 that it was time to resign the presidency. That was then. None of this is true of today’s Republican Party and this Republican Congress. So enthralled with the forty-seventh president are today’s House Republicans that they long ago abandoned everything the Republican Party has stood for since its founders first met in Ripon, Wisconsin, in 1854.
Today’s congressional Republicans took a blood oath six years ago not just to put their party before their country, but to put Donald Trump before their country. And so it is that only weeks before the midterm elections, House Republicans have already sworn their allegiance to Donald Trump and doomed the U.S. to another January 6 next January 3.
So unalterably subjugated to Trump is today’s Republican House that even a decisive victory for Democrats and a resounding repudiation of Trump and the MAGA Republicans at the polls in November will not guarantee that a Democratic majority-elect will be seated in the 120th Congress on January 3.
All year long, Trump has been dragooning House Speaker Mike Johnson and the congressional Republicans into prejudging as fraudulent the upcoming November elections of the presumed Democratic majority, as he himself has already prejudged those elections. His dragooning appears to have worked. House Republicans are now poised to claim that the midterm elections were stolen from them when they meet on January 3 to decide which members-elect will be seated in the 120th Congress.
Over the past year and a half since his return to the White House, Trump has exploited every conceivable unlawful means possible to rig the midterm elections in favor of the Republicans, and the federal courts have struck down as unconstitutional every one of these unlawful attempts. He will try every unlawful means over the remaining weeks to ensure that Republicans handily win the midterm elections in November. Those of us who oppose his illegality will look to the courts, but the federal courts will be institutionally incapable of checking his final unlawful rampage.
Trump punctuated his expressed intent to interfere in the midterm elections eight weeks ago in a national prime-time address on “election integrity,” accusing the Democrats and the Chinese in particular of threatening the free and fair elections in November. In that address, he claimed without evidence or support (as usual) that the 2026 midterm elections were being threatened by noncitizen voting, weaknesses in voter registration systems, foreign interference, and vulnerabilities in electronic voting systems.
The concocted address was universally panned as purely partisan, devoid of evidence and support, and anticipatory of his forthcoming claim in November that the Democrats won a majority in the House of Representatives only because of fraud in their respective elections.
Everyone knows that the greatest threat to the upcoming midterm elections is not the Democrats or the Chinese, noncitizen voting, or electronic voting machines, but the president of the United States and his servile Republican Congress.
Every member of Congress takes a solemn oath to support and defend the Constitution, an oath that obligates them to honor the will of the American electorate. It is a sacred imperative that the Congress of the United States must defend our constitutional right to choose our representatives to Congress against all enemies, domestic as well as foreign, who would deny us this fundamental right.
There was a time not long ago when virtually every member of Congress could be expected to commit to the peaceful transfer of congressional power in advance of an election, just as every president could be expected to commit to the peaceful transfer of presidential power. But those times came to an abrupt end upon Donald Trump’s arrival in January 2017. In a damning indictment of the president and today’s congressional Republicans, it would be hard to find even one congressional Republican with the integrity, sense of duty to country, honor, and courage to put America above the Republican Party, let alone above Donald Trump.
Yet America’s only hope for saving its democracy and avoiding another crippling constitutional crisis on January 3 is for the House Republicans to decide that they are not going to betray their oaths and their country one last time for Donald Trump, and telegraph to Trump and Mike Johnson that any unconstitutional plan they might be contriving to deny Democratic members-elect their rightful seats in the 120th Congress would be dead on arrival January 3.
If there are any such Republicans in the Congress today, they should announce well before November 3 that they will not be party to Trump’s and Johnson’s attempt to steal the midterm elections from the American people.
In fact, the House members of both political parties should stand united before November 3 and affirm to the American people that in the United States of America, government derives its just powers from the consent of “We the People”—the governed. They should campaign in the fall on any refusal by their political opponents to affirm the same. Their political opponents should in turn campaign on House members’ refusal to affirm that they will not be complicit in any attempt to steal the midterm elections.
Standing united before the midterm elections against any attempt by Trump and Johnson to overturn those elections would go a long way toward restoring Americans’ lost trust in their Congress and their government. It would send a powerful message to Trump and Johnson that Americans will never again be forced by their own government to endure another January 6.
While it is small solace, Americans are not entirely at the mercy of this Republican Congress to suddenly decide to honor its oath to the Constitution and the American people. It will be the Supreme Court, not Trump, Johnson, or even the House of Representatives, that will have the final word as to who will be seated in the 120th Congress of the United States.
Article I, Section 5, Clause 1 of the Constitution provides that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Under Clause 1, the House of Representatives is the “judge” of its “elections” and “returns.” But the House’s power is not plenary. The Constitution constrains how the House can exercise its power to refuse to seat members-elect. Indeed, in 1969, in _Powell v. McCormack_, the Supreme Court ensured that the House constitutionally exercised its power to “judge the qualifications” of members-elect when it ordered the seating of New York Representative Adam Clayton Powell, who had won reelection in 1966 despite a House vote to refuse to seat him. Just as the court intervened then, so also will the Supreme Court ensure that the House exercises its power to “judge” its “elections” and “returns” within the limits imposed by the Constitution. At least we _hope_ it will, but can we be sure with this court?
Whether the House constitutionally exercises its power not to seat members-elect will ultimately be determined by the federal courts and the Supreme Court—not by a majority vote of the House of Representatives.
This is how the crisis would unfold. The precursor of the crisis will come sometime before noon on January 3, when Speaker Johnson removes current House Clerk Kevin McCumber and replaces him with a person loyal to Johnson and House Republicans who they know will refuse to list on the statutory roll of representatives-elect to the 120th Congress any Democrat-elect whom Johnson and the Republicans direct him or her not to list. Under Rule II, Clause 1 of the Rules of the House, the Speaker of the House has the unilateral power to remove the incumbent clerk, and then the power under Title 2 U.S.C. § 5501(a) to replace him temporarily with whomever he wishes until the House elects a successor. McCumber is a Republican appointed by former Speaker Kevin McCarthy. He is widely respected for his integrity and faithful adherence to the Constitution and is reputed to be unwilling to carry out orders he considers to be unconstitutional.
The first moment of _constitutional_ crisis will come when, sometime before the 120th Congress has been gaveled into session, the loyal temporary clerk refuses to list Democrat representatives-elect on the clerk’s roll of representatives-elect that determines who may participate in organizing the new Congress. At that moment, interested members-elect and others will be forced to seek a writ of mandamus—a court order to a government official instructing him or her to perform a mandatory duty—from the federal court to the temporary clerk, ordering him or her to list on the clerk’s roll all members-elect who have been certified by the states as having been elected from their districts to the new Congress.
Members-elect will argue that the clerk has a ministerial duty under 2 U.S.C. § 26 to list all representatives-elect whose properly filed state certifications show that they were “regularly elected in accordance with the laws of his state or of the United States.” Because the clerk has no authority to omit any duly certified representative-elect, even if a representative-elect’s election is contested, the clerk unquestionably has a ministerial duty under law to list all duly certified representatives-elect. But this begs the question whether a court will issue the writ of mandamus to the acting clerk.
At first blush, a court will be reluctant to order the clerk to list all duly certified representatives-elect because of an instinctive belief that such an order would interfere with the constitutional process of the House to judge its own elections and returns. The wise and learned judge, however, will understand that rather than interfering with the House process, issuance of the writ will actually _enable_ the House process to proceed to completion without judicial interference. Were that wise and learned judge to issue the writ, his or her order would immediately be appealed to the Court of Appeals, and from that court to the Supreme Court, while the country and the world wait in suspense.
The next moment of constitutional crisis will come if and when, after appeals, the court finally issues the writ of mandamus, and the clerk refuses to obey the court’s order to list the Democratic representatives-elect. At that point, it is possible there will be no further federal court involvement until such time as the 120th Congress officially convenes and votes not to seat representatives-elect. Then, that vote by the 120th Congress will be immediately reviewable by the federal courts, up to and including the Supreme Court of the United States.
Judicial review of the House’s decision not to seat Democratic representatives-elect in the 120th Congress would take weeks, if not months, during which time the United States would be in the throes of a paralyzing constitutional crisis, helplessly vulnerable to all the world’s evil, as it would have been in January 2021 had Mike Pence not thwarted Donald Trump’s plan to overturn the 2020 presidential election.
It is not difficult to imagine the many possibilities, some of the most critical being entirely realistic. It would be the ideal moment for China to move against Taiwan, by way of military blockade, attack, or even invasion. It would be the perfect moment for Vladimir Putin to complete his conquest of Ukraine, and perhaps even to move militarily against Estonia. Every passing day could bring a deepening economic crisis, worsened by our angry allies around the world who would welcome the opportunity to requite Donald Trump for his belittling mockery of their countries and presidents. Without the Congress, the United States would be powerless to respond to any of these crises.
The House has historically claimed that its decision not to seat a member-elect because of fraud or irregularities in the elections is unreviewable by the federal courts. But its decision _is_ reviewable. The Constitution unquestionably requires the House to seat a member-elect who was validly elected in a free and fair election. The Article 1, Section 5 power of the House to be the judge of its elections and returns does not give the House the power to deny a seat in the Congress of the United States to a candidate elected by the American people in a free and fair election on the mere assertion, pretextual or otherwise, by a simple majority of the House that the candidate’s election was tainted by fraud.
Thus, on and after January 3, if congressional Republicans were to determine that a Democratic member-elect was elected because of fraudulent voting and refuse to seat him or her, that determination would be scrutinized by the federal courts, up to and including the Supreme Court.
It will never be a nonjusticiable political question whether the United States House of Representatives by simple majority vote can refuse to seat a member elected to Congress by the American people in a free and fair election on the pretextual and unsupported assertion that the member-elect’s election was tainted by fraud. Such is the very opposite of a nonjusticiable political question committed to the House of Representatives. For in the decision of this question lies the answer to perhaps the most fundamental question under the Constitution: Is the United States of America a democracy, in which “We the People” elect our representatives to the Congress and to the presidency, or is it not?
I don’t intend to be overly sanguine about this Supreme Court. This is the court that shattered the one constitutional truth in the U.S. since 1789 that “no man is above the law” and placed Donald Trump of all presidents above the law in _Trump_ _v.__United_ _States_. This is the court that betrayed the Constitution by refusing even to decide whether Trump was disqualified from the presidency under the Fourteenth Amendment because of his insurrection against the Constitution, which he clearly was. This is also the court that has cynically authorized Trump’s lawlessness for the past two years through its aptly named “shadow docket,” without so much as briefing, argument, or written opinion.
But surely by now this court must understand what it has wrought for the U.S. and the Constitution, and is aghast as we all are, even if it is not penitent. Surely, surely, it will understand the signal moment in American constitutional history that would be presented, and this time understand its supreme obligation to the nation.
Between now and November 3, congressional Republicans would do well to ponder one last time the fate of their Republican Party were the Supreme Court of the United States to reverse a fraudulent determination by the 120th Republican Congress not to seat Democratic members-elect who would give the Democrats majority control of the House.
Two hundred and fifty years into the greatest experiment in self-government in the history of the world, the Republican Party would finally meet the fate to which it has been destined since January 6, 2021, and cement its place in history as the most corrupt political party ever to emerge in the United States of America for its second attempt in six years to defy the will of the American people on Election Day.
If we Americans are to save our democracy from the forty-seventh president and his MAGA Republican Party, we must disenthrall ourselves from our political bondage to Donald Trump and MAGA, as Abraham Lincoln urged the nation in 1863 to disenthrall itself from its bondage to the ruinous political dogmas of its time. “We must disenthrall ourselves, and then we shall save our country,” the sixteenth president admonished. The Republican Party in particular must finally loose the chains of its political and moral enslavement to Donald Trump and separate itself from the MAGA political party cult.
The writing is already on the wall, Republicans.
