The House Clerk Could Prevent
Elected Democrats from Being Seated
Professor Steve Posner
Dornsife College of Letters, Arts and Sciences
University of Southern California
1,377 words
High gas prices, the ongoing war with Iran, and President Trump’s deteriorating poll numbers make Republican midterm losses increasingly likely. Overt attempts to interfere with the results could generate substantial public backlash. Rather than provoking Americans by seizing ballots or stationing federal checkpoints at blue district polling places, a subtler approach exploits a little-known bureaucratic mechanism to shape the outcome after the votes are counted.
When Mike Pence refused to comply with Donald Trump’s demand that he reject enough of Joe Biden’s electoral votes to reverse the outcome of the 2020 presidential election, chants of “Hang Mike Pence” arose outside the Capitol. If Democrats win the midterms, the House Clerk might confront a similar sentiment when the new Congress meets on January 3.
To prevent a recurrence of the 2020 Electoral College controversy, Congress passed the Electoral Count Reform Act, formalizing what Pence did: the Vice President “shall be limited to performing solely ministerial duties” with “no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment.” But Congress imposed no similar constraint on the House Clerk, who performs an equivalent function, collecting the state certificates of election for incoming members and placing their names on the House roll, which entitles them to vote as representatives-elect. If the midterms go badly for Trump, he could pressure the Clerk into leaving just enough Democrats off the roll to keep them in the minority.
For Trump to overturn the elections this time, the Clerk will have to be someone more compliant than Pence. The motto attributed to his mentor and infamous mafia lawyer Roy Cohn may still resonate: “Don’t tell me what the law is, tell me who the judge is.” The current Clerk, Kevin McCumber, presides until the new Congress convenes, but the Republican majority can replace him with a prominent election denier.
When Pence recorded the Electoral College vote, he announced: “After ascertainment has been had that the certificates are authentic and correct in form, the tellers will count and make a list of the votes cast by the electors of the several States.” The part about the certificates being authentic ignited the President’s ire. Trump posted: “Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify.”
When Congress meets on January 3, the House Clerk will issue a declaration similar to the one Pence made when presiding over the Electoral College count after the 2020 contest: “The names of those persons whose credentials show that they were regularly elected as Representatives in accord with the laws of their respective states or of the United States will be called.” As with Pence, this procedural language might also become the focus of political pressure. A Trump-endorsed Clerk could declare that not all members were regularly elected, refusing to place a select group of Democrats on the opening-day roll so that Republicans retain control and Mike Johnson continues as Speaker. The maneuver has historical precedent.
In 1839, Southern Democrat slaveowner Clerk Hugh Garland prevented the opposition from taking control of the House by refusing to place on the roll five members of the Whig Party, whose dominant Northern wing was growing increasingly hostile to slavery. In 1863, during the Civil War, Clerk Emerson Etheridge excluded 16 pro-Union names from the roll in an attempt to engineer an anti-Lincoln majority.
A reelected Speaker Johnson would likely use the Committee on House Administration, which traditionally handles election disputes, to legitimize the Clerk’s action through an investigation presented as an obligatory procedural review. The committee currently has a Republican majority, including members who have questioned the legitimacy of the 2020 election or expressed sympathy with those claims.
Rep. Bryan Steil chairs the committee. A few weeks after the 2020 election, Trump stated, “It’s a widely known fact that the voting rolls are packed with people who are not lawfully eligible to vote.” In July 2025, Steil concurred, opening a Hearing on Clean Rolls, Secure Elections by declaring, “Inaccurate voter rolls can open the door to election fraud and can hinder public confidence in our elections.”
Several committee members voted to reject Biden electors in 2020. Morgan Griffith issued a press release: “Since we are convinced the election laws in certain states were changed in an unconstitutional manner, the slates of electors produced under those modified laws are thus unconstitutional, not ‘regularly given’ or ‘lawfully certified’ as required by the Electoral Count Act of 1887,” concluding that “Given these inescapable facts, we believe we have no choice but to vote to sustain objections to those slates of electors.”
Mary Miller called Biden's victory “the greatest heist of the 21st century.” Stephanie Bice explained her refusal to certify Biden electors in Arizona and Pennsylvania by asserting that “some states did not follow their own state election laws.” Gregory Murphy attempted to block Pennsylvania’s Biden electors, telling a conservative radio host, “I truly believe that fraud has occurred in this election. I know it for a fact.” Biden beat Trump by 80,555 votes in Pennsylvania, and none of the post-election lawsuits succeeded in changing any result.
Mike Carey was not in Congress at the time, though last year he claimed that Democrats want to “disregard state voter identification laws, legalize ballot harvesting, and authorize billions of tax dollars to fund political campaigns” so that they can “maintain power at all costs.” Before her election to Congress, Laurel Lee’s home-state newspaper, The Tampa Bay Times, ran a banner headline: “Former Florida Elections Chief, Now Running For Congress, Won’t Say Biden Won.”
Barry Loudermilk will not be running again in the midterms. Speaker Johnson could replace him and swap out other Republican members with people who share his own belief that the 2020 election was illegitimate.
If the Committee on House Administration upholds the Clerk’s decision to keep certain Democrats off the roll, the Republican majority in the full House would then vote on whether to overrule their findings and cede control.
Republicans would assure critics that the Committee had afforded Democrats due process in accordance with proper House procedures. They held hearings, subpoenaed witnesses, heard testimony, and after deliberation issued a report concluding that the Democratic credentials resulted from fraudulent or irregular elections. The process was conducted transparently and legally. The Republican majority could simply accept their findings, voting to deny seating those whose presence would have given Democrats control of the House.
Democrats need not wait and risk being outmaneuvered. They can educate voters now, so that public opinion is already mobilized should this scenario unfold. Before the new Congress convenes, they might also be able to petition for a writ of mandamus, a court order compelling a government official to correctly perform a ministerial duty, directing the Clerk to place all certified members on the opening-day roll.
Pre-emptive action of this kind would not be without precedent. Just this past January, the Supreme Court ruled in favor of Republican Congressman Mike Bost, holding that candidates have standing to challenge vote-counting rules before an election is held. Explaining its decision to act months before the midterms, the Court emphasized that “a rule upon legality afterwards is not a recipe for producing election results that have the public acceptance democratic stability requires.”
Yet the same Court that ruled preemptively in the Bost case might refuse to do so until after the Clerk prevents Democrats from being seated, claiming it should only adjudicate concrete acts, not anticipated conduct. At that point, the House will have already organized under a Republican majority made possible by nullifying Democratic wins, and the Court could cite the House’s constitutional authority to determine its membership as grounds for standing aside. The Constitution specifies: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.”
The Court might even invoke its recent tariffs ruling, which held that President Trump cannot impose them because that authority belongs to Congress. The same Constitutional separation of powers reasoning could support the House’s right to decide who to seat. Whatever path it chooses, this Supreme Court has shown that if there’s a will, there’s a rationale.