This is important, so we're going with just one item today.

Shut Up, Michael Luttig

Back on September 13, we had this question and answer in that weekend's Q&A:

D.P. in Oakland, CA, asks: What is the mechanism by which Speaker Mike Johnson (R-LA) could refuse to seat Democrats next January? Would it be solely his decision, or would it require a vote by the outgoing Congress?

(Z) answers: I cannot emphasize this strongly enough: This is a non-viable maneuver.

To start with, once a Congressional term ends, there are no duly serving members of the House, and the decisions of the outgoing Congress are not binding on the incoming Congress. The first thing that happens, at the start of a new term, is that the House elects a Speaker. The second thing that happens is that the Secretary of the House swears in the Speaker. And the third thing that happens is that the Speaker swears in the other 434 House members (and the three delegates) en masse. It is not likely that the Republicans will hold the majority in January, or that Johnson will be re-elected as Speaker. So, he's not likely to be in a position to try to pull this stunt. And even if he somehow is in that position, there is no way to swear in only the Republicans, since again, the ceremony is a group event.

The stunt won't work in the Senate, either. In the case of the upper chamber, if there's no swearing-in ceremony, then there would be roughly 65 duly-serving members of the Senate. But since there are 22 Republican seats up, as compared to 13 Democratic seats, that would mean a Democratic majority. And the Democrats would promptly elect a majority leader, and that leader would seat the 35 un-sworn-in senators.

On top of this, if Republicans engage in shenanigans to keep Democrats from being seated, then the Constitution would be in abeyance. Every single thing the pseudo-Congress tried to do would result in lawsuits, arguing (entirely correctly) that action [X] is not legal because the duly-elected Congress did not approve it.

It's actually the dean of the House that swears the new Speaker in, by tradition. Our error, but that's a minor issue.

That response prompted something like a hundred readers to send us this piece by (former?) conservative and former federal judge J. Michael Luttig, headlined "The Final Battle for America's Democracy." It is ostensibly a warning about a potential scam that Speaker Mike Johnson (R-LA) could allegedly pull, so as to keep the Republicans in power in the House even if the elections go against them.

The basics of the scam are as follows. First, before his term as speaker and as a duly elected member of the House expires, Mike Johnson fires the current (well-respected) Clerk of the House, Kevin F. McCumber, and replaces him with an obeisant lackey. For purposes of this piece, we will imagine that the lackey is named S. Lee Syball, or SLS for short. Then, once the members-elect show up in January, SLS refuses to enter the names of the Democrats onto the Clerk's roll of House members. And so, the only "official" members of the House are Republicans. Boom! A coup in one easy step.

Luttig, to be blunt, should be ashamed of himself for writing this crap. And The New Republic should be ashamed for platforming it. We will go into detail as to why they should be ashamed later in this item. For now, let us just say that this kind of election-process porn, which plays on the very real Trump-inspired fears that Americans have about their democracy, is nothing new. Remember all the pieces, like this one, about how a half-dozen states could conspire to steal the 2024 presidential election? Or all the pieces, like this one, about what would happen if Trump refused to leave office in 2021?

Even Luttig's specific contribution to the election-process porn genre isn't new. Not remotely. There have been at least a dozen other think pieces talking about the exact same scam over the last year or so, most of them published by fairly big outlets. Here are a few examples:

• Truthout: Trump's Final Battle to Sabotage the Midterms
  
  
• The Cap Times: Dems may win in November, but will the GOP let them serve?
  
  
• The UnPopulist: The VRA Ruling Might Have Handed Republicans a Weapon to Attempt a Jan. 6-style Midterm Coup
  
  
• The New York Times: This Is What's Keeping Me Up at Night
  
  
• The New York Times: What's the Worst Thing Trump Can Do in the Midterms?
  
  
• The Los Angeles Times: The congressional landmine stirring fears about the midterm election--and a Trump power grab
  
  
• The San Francisco Chronicle: How Trump can keep the House without winning the midterms
  
  
• The New Republic: The Simple, Legal Way Trump Could Steal the Midterms

The New York Times is a particularly enthusiastic purveyor of election-process porn, so it's no shock they've run this same basic piece twice (or arguably three times, since David French, author of the first of the two NYT pieces listed above, doubled down in a follow-up). Meanwhile, note the last entry on the list. Not only is Luttig's "warning" not new, this isn't even the first time The New Republic has flogged this particular theory. And the damn thing is that the last time they indulged, they actually had to add a correction to the piece that reads thusly:

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.

Since they ran that piece in December of last year, the editors of the publication seem to have forgotten that this is nonsense.

The most famous "stealing Congress" piece, at least before Luttig's came along, was also in December of last year. It was written by David A. Graham for The Atlantic, and was headlined "Donald Trump's Plan to Subvert the Midterms Is Already Under Way." It makes a number of very basic errors about U.S. civics, including two real whoppers.

The first really big whopper of an error (and Luttig also makes this error) is failing to understand that, as we write in the answer above, the House (unlike the Senate) is not a continuing body. From the moment that one session expires, to the moment that the next group of members-elect are sworn in, there is no House of Representatives. There are no members. There are no rules. Technically, there is no Clerk, or Secretary or any other functionary. The current House cannot make decisions for future Houses. As a practical matter, so that the new House can get sworn in, they all tacitly agree to honor the customs about who gets sworn in first, and how, etc. And they all tacitly agree that there's no need to fire and re-hire all of the people who perform magisterial tasks (like the Clerk). But these are all just "understandings that everyone agrees to abide by" and not "the law."

The second big whopper of an error that Graham makes (though Luttig does not) is that he suggests that questions of who can be seated in the House or not are non-justiciable. In other words, if Democrats are not seated, they cannot go to the courts, because the courts have no power to tell Congress how to conduct its business. He, and other election-porn writers, base this conclusion primarily on the famous 1969 case Powell v. McCormack, in which the Supreme Court told Congress they cannot refuse to seat a member for reasons other than failure to meet the minimal constitutional requirements (in other words, Adam Clayton Powell lived in New York, had been a U.S. citizen for 7 or more years, and was above the age of 25, so he had to be seated, and the fact that he was a crook was irrelevant).

The remarkable thing about using Powell v. McCormack as evidence that the courts cannot tell Congress how to conduct its business is... that case is an example of the courts telling Congress how to conduct its business. Of course questions of who can and cannot be seated are justiciable. (And don't forget that in this "steal the House" scenario, the House would not be duly seated, so the courts wouldn't even be telling the House how to conduct its business, the courts would be telling a bunch of people who will presumably be part of a future session of the House how to conduct their business.)

Luttig, who is a lawyer while we are not, agrees entirely with us that such questions are justiciable. However, he adds a "twist" that French did not. Luttig supposes that, if the courts are asked to intervene, the courts could take months to come up with an answer, during which time Congress twists in the wind. He also adds this: What if the courts eventually weigh in, and say the Democrats have to be added to the roll of members, and "the clerk refuses to obey the court's order to list the Democratic representatives-elect." Then what?

Thus far, we have provided an overview of this sub-genre of election-process porn, the details of Luttig's take on the "potential" scheme, and an overview of some of the barriers that exist. With that intro out of the way, let's do ten reasons this is utter nonsense. We could easily go much more than ten, but we'll keep the list somewhat lean so we don't overtax readers:

1. Why Now?: Luttig has the advantage that he is a lawyer and former judge and (Z) is not. But (Z) has the advantage that he is a Civil War historian and Luttig is not. And what (Z) knows, as a Civil War historian, is that no matter how desperate Republicans are to hang on to power, and no matter how dirty they are willing to play, they are amateurs as compared to antebellum Southerners. If there was some nifty little parliamentary trick that allowed the minority to seize control of the House, John C. Calhoun would have discovered it, and the Southern members of the House would have tried it. And, for that matter, why wouldn't Newt Gingrich and his crew have figured it out and tried it in 1998? Or Paul Ryan and his crew in 2018?
   
   
2. Critical Mass: (Z) has taught classes about conspiracy theories. And one thing that you learn, if you study the subject for any amount of time, is that it's very hard to pull something like this off. Every person you have to bring into the scheme is a potential weak link, and if you accidentally spill the beans to a weak link, they could blow the lid off the whole thing.
   
   For the "steal the House" scheme to work, at least a couple hundred people (the Republicans elected in November, plus some functionaries, like fawning lackey clerk SLS) would have to be brought in on the scheme. It's not enough for just Johnson and SLS to conspire, because if the other Republicans aren't on board, and aren't willing to play along, the whole thing falls apart instantly when Operation One Party Rule is put into effect on Jan. 3, 2027. It is inconceivable that 200 Republicans would be on board with a de facto coup, and that they would also be able to keep the secret under their hats for weeks or months.
   
   
3. Risk-Averse: Politicians are famously risk-averse. Heck, they aren't even willing to mutiny against a fellow member who is clearly no longer competent, or a majority leader/speaker who clearly have lost their fastball (and their curveball, and their slider). Sen. Mitch McConnell (R-KY) should have been done as majority leader at least 2 years before he actually stepped down, and maybe more like 4 or 6 years. But the GOP didn't have half a dozen senators who were willing to challenge the throne, much less 25 or so. It's kind of crazy to think that dozens or hundreds of Republicans members would agree to a plot that would put their careers, and possibly their freedom, at risk. Drunken hooligans who wear shaman hats are willing to take those kinds of risks. Not members of Congress.
   
   
4. But What If...: The twist that Luttig adds, about "what if the clerk simply disobeys the courts?" is a nice touch, we suppose, from a dramatic perspective. But it's also a cheap narrative trick, basically a version of a deus ex machina. After all, you can toss just about any "What if?" in there to gin up the scariness. What if Trump decides to round up and execute all Democratic members-elect? What if the 1/6 rioters return, this time even more heavily armed, to "back" Johnson's play? What if the Republicans hold the Senate, decree the House in permanent abeyance, and assert that from now on the U.S. will have a unicameral legislature? Sure, any of these things could happen, but they are not very likely to happen, and they are not going to work. As to SLS, if he refused to honor a court order, he'd quickly be found in contempt and subject to fines or imprisonment or both. He'd also be committing about a dozen crimes. And note that people who count on a Trump pardon sometimes don't get one, particularly if the crime(s) did not help him personally.
   
   
5. The Constitution: Meanwhile, the Constitution is clearly on the side of the Democrats in this conspiracy-theory case. To start, Clerk of the House is a magisterial position, just like VP is while counting electoral votes. They don't get to decide who is "valid" and who isn't. They just get to compile the list. This would be a slam-dunk win in court.
   
   Further, and importantly, keep in mind the pecking order of American civil law. First up is the Constitution. Then is the U.S. Code. Then comes the rules of the House. And the Constitution only specifies that to be a duly serving member of Congress, you meet the minimum qualifications, you win election under the rules of your home state, and you take an oath. That's it. All the other stuff, whether it's being added to the roll of House members, or who conducts the swearing in, is from either the U.S. Code (notably 2 U.S. Code 26) or from the rules of the House. Both of those are subsidiary to the Constitution. So, if push came to shove, the Democrats could go to their local notary public or justice of the peace or federal judge, take the oath of office, then go to Washington and declare (correctly) that they have been duly qualified to begin their service. Then, they could elect a Speaker and announce they are happy to swear in any Republican who wants to be sworn in. But, if any Republican doesn't want to be sworn in, that is their call.
   
   
6. The Newsom-Pritzker-Shapiro Brigade: You can bet your last dollar that the blue-state governors, particularly the ones who aspire to run for president in 2028, are aware of these various schemes, and are ready to respond with something dramatic. They are probably licking their lips, truth be told, because then they could brand themselves as Crusaders for Democracy. They're not going to share their plans, or even admit they have them, until such time as it becomes necessary. But they have them. And note that because this particular conspiratorial notion involves Johnson suddenly, and without much cause, firing the Clerk of the House, then the resistance would get a very clear early warning that they need to get their ducks in a row.
   
   
7. Feet-Dragging Judges?: One of the core elements of Luttig's piece is that it would take forever for the judges to get involved and to straighten this mess out. It is remarkable that he, a former federal judge himself, could write that with a straight face. We have seen plenty of instances that demonstrate that the courts can move plenty fast when there is a pressing need. And that's often with silly stuff like "Can Trump build a place to hold his balls?" Can anyone seriously imagine that, with the U.S. in the middle of a burgeoning constitutional crisis, the courts would not fast-track whatever decisions needed to be fast-tracked? It's hard for us to imagine that the courts would let this go on for a week, much less months and months.
   
   
8. To What End?: This is another big problem with the whole conspiracy. What would be the purpose? At most, the Republicans would create chaos for some period of time—maybe months, more likely days. And then what? They would not actually hold onto power, because they would lose in court. No matter how much this Supreme Court abets the GOP, it's not going to support a coup, since then the entire Constitution (and thus the Supremes' basis of power) would be in abeyance. The Republicans would not be able to do anything with the power they had temporarily seized—no laws or budgets or other decisions would be legal, as it would not be the work of the duly-elected Congress. They wouldn't be able to temporarily frustrate a Democratic president's ambitions, because the current president is not a Democrat. The only thing they could really do is maybe delay the start date for a bunch of Democratic investigations by a week or two.
   
   
9. The Plan Backfires, Part I: Meanwhile, in exchange for virtually nothing, the Republicans who participated in the coup scheme would be giving their Democratic colleagues an engraved invitation to expel them from the House. They would run for reelection in the various special elections that would trigger, but for months the Democrats would have an even bigger majority than the one to which the elections bestow upon them.
   
   
10. The Plan Backfires, Part II: Also, this would be a huge PR nightmare for the Republican Party. The members who were expelled (if any) would run in the special elections that were held, but some of them would lose and be out of a job. Others would lose in 2028. And, in general, the Democrats would say, "The Republicans have tried to overthrow the government twice. How many more times do they have to do it before you believe them?"

These are all big problems. And even if you disagree with us about one or two of them... well, we listed ten. There are too many flaws in the plan to wave them all away.

And now, let us talk about why Luttig, The New Republic, and all the others should be ashamed of themselves. First, even if these schemes were to be real, and even if Johnson were to try it... there's nothing the average person can do to help stop it. The anxiety that such pieces generate serves no useful purpose. It just makes people anxious. It's like that old "Duck and Cover" film they showed to students in the 1950s and 1960s. If a nuke hits your town, your a** is grass, and climbing under your desk or covering yourself with a newspaper isn't going to do a damn thing. All the film did was make kids anxious.

Second, when you talk about grand, really evil conspiracies, you serve to desensitize people to things that are less bad, but far more realistic. Sticking with the nukes for a moment, if the U.S.S.R. were to drop a conventional bomb on, say, Seattle, that would be bad. But in comparison to a nuke, it might seem "restrained." So it might not generate the response it really should. Similarly, next to "the Republicans steal the House from the Democrats," "Republicans shut down a bunch of polling places in Texas" maybe doesn't seem as worthy of getting upset about. But shutting down the polling places IS bad, and it's actually happening, whereas the ridiculous "steal the House" scheme is not.

Third, pieces like this cause people to give up hope. If there really are such machinations going on, what can the average person do? Not much, as we just wrote. So maybe it's not worth it to do anything at all.

We are not sure why Luttig wrote this piece. It is possible that he really and truly thinks he's doing a service by sounding the alarm. He's not—again, this same piece has already been written many times, and it's nonsensical every time—but maybe he at least thinks he is. That said, there's also a somewhat less flattering possibility. Luttig has become something of a rock star on the left, thanks to his outspoken opposition to Trump and the 1/6 coup. People who suddenly get a little fame and a little celebrity sometimes find they like it, and want to stay in the spotlight. This is what happened, at least in part, with Anthony Fauci. Good guy, but his diary makes clear that he began to really enjoy and desire the attention. Could be the same thing with Luttig.

In any event, we absolutely understand why people are anxious, and why pieces like this exist. But it remains the case—and we have written this many, many times—that it is orders of magnitude easier to steal an election before the votes are cast rather than after. This is particularly true with the parade of incompetents that is the current leadership of the GOP. So, if you are nervous about the elections, and you want to do something productive, rather than invest your psychic energy in worrying about silly hypotheticals, consider the following:

1. The bigger a blowout the election is for Democrats, and for pro-democracy Republicans (there aren't too many of those running for office these days, but there are some), the harder it is for any shenanigans to work. So, make sure to vote. Make sure to encourage your friends and family and co-workers to vote. This obviously applies, in particular, to people who live in swingy states or districts. That said, running up the score in non-swingy states or districts can't hurt.
   
   
2. It is not a secret that the Republicans are trying, in various ways, to stop certain populations (e.g., the poor) from voting. As we have written several times, this is a year that everyone who can vote in person, should vote in person (or should drop their ballots in non-USPS ballot receptacles). If you've got the time, and if you've got a vehicle, consider volunteering with RideShare2Vote, VoteRiders or some other such organization. If you are a churchgoer, maybe see if your church (or temple or mosque) has some sort of "souls to the polls" program.
   
   
3. The front line this year is going to be polling places. We don't know what the Trump administration will do, but there's at least some chance of deploying soldiers or other scary-looking people to try to intimidate voters, particularly voters of color and immigrants. Many states and communities are preparing for this, and that even includes some officials in red-leaning states and counties and cities. But the more pro-democracy poll workers there are, particularly pro-democracy poll workers who know what the rules are and who know whom to call if there are... problems, the better it is. So, consider chatting with Power the Polls or your local pollworker bureaucracy (here is the office for California, for example), and volunteering to staff a polling place.

And with that, we shall climb off our soapbox... for now. (Z)

Today's Senate Polls

If you are RNC Chair Joe Gruters or NRSC Chair Sen. Tim Scott (R-SC), you are sitting on a pile of money, but... where do you send it? New Hampshire, yes, and probably Michigan. But beyond that it's tough. You've got a lot of seats, in large and expensive states, to defend. And in most of those, it's possible, or sometimes even probable, the Democrat has a lead of high-single- or low-double-digits. Not a triage task we'd want to take on. (Z)

State	Democrat	D %	Republican	R %	Start	End	Pollster
Georgia	Jon Ossoff*	51%	Mike Collins	41%	Sep 15	Sep 18	YouGov
North Carolina	Roy Cooper	53%	Michael Whatley	41%	Sep 15	Sep 18	YouGov
Texas	James Talarico	50%	Ken Paxton	44%	Sep 17	Sep 20	Marist Coll.

* Denotes incumbent

---

Previous report         Next report

---

If you wish to contact us, please use one of these addresses. For the first two, please include your initials and city.

• questions@electoral-vote.com    For questions about politics, civics, history, etc. to be answered on a Saturday
• comments@electoral-vote.com   For "letters to the editor" for possible publication on a Sunday
• corrections@electoral-vote.com To tell us about typos or factual errors we should fix
• items@electoral-vote.com            For general suggestions, ideas, etc.
• Guidelines for questions (Saturdays) and letters (Sundays)

To download a poster about the site to hang up, please click here.

---

Email a link to a friend.

---The Votemaster and Zenger