The Lincoln Memorial, Washington Monument, and US Capitol at sunrise in Washington, DC, on January 16, 2022, ahead of a winter storm
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Congress is eyeing reforming how it counts Electoral College votes for 2025.
The 2022 midterms could see ugly partisan disputes over election results in Congress.
“We’re forgetting that there are plenty of other important elections you can subvert,” Rep. Colin Allred said.
More than a year after January 6 insurrection at the Capitol, members of Congress from both parties are considering changes to the Electoral Count Act, which governs how Congress will count electoral votes in 2025, as the best chance for major election reform.
But Congress itself may first become a political tinderbox over the high-stakes 2022 midterms. In the following year, a Congress that is increasingly defined by toxic partisan rancor and includes over 100 GOP members who objected to ratifying the results of the 2020 presidential election may be tasked with adjudicating a close race in 2022.
“I’m very concerned about 2022,” David Becker, executive director of the nonprofit Center for Election Innovation and Research, said on an early January call with reporters. “And I think the focus on 2024 and 2025 is a little too forward-looking. This is happening right now.”
The GOP’s efforts to subvert elections at the state level and the high stakes for control of Congress set up the perfect storm for election chaos in 2022.
“There’s been so much discussion about the 2024 election, we’re forgetting that there are plenty of other important elections you can subvert,” Democratic Rep. Colin Allred of Texas, a former voting rights lawyer, told Insider.
“And I think there’s a very real possibility that we will see in the next two elections, get some results sent to us for ratification — whether it’s presidential, congressional or Senate, that’s not consistent or that we’re gonna have to question,” he added. “I think that’s the reality of the situation, we can no longer pretend like these elections are just going to continue to proceed the way they have in the past.”
Article I, Section 5 of the US Constitution gives each chamber of Congress the ultimate authority to seat its own members. And the processes of resolving election disputes differ in each chamber and are unavoidably shaped by the powerful forces of partisanship, raising the chances of a full-blown crisis.
A supporter holds a ‘Trump Won’ sign at a rally by former President Donald Trump at the Canyon Moon Ranch festival grounds on January 15, 2022 in Florence, Arizona. The rally marks Trump’s first of the midterm election year with races for both the U.S. Senate and governor in Arizona.
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‘A genuine fight’ over a Senate or House race could erupt in 2022.
In the year since former President Donald Trump and his allies mounted their unprecedented campaign to overturn his loss, culminating in the riots at the Capitol, election professionals have continued to face harassment and threats.
Republican-controlled state legislatures in key battleground states have tightened voting rules, imposed new restrictions and penalties on election officials, and injected more partisanship into the election administration process, including with partisan ballot reviews.
Becker said he worries about all those factors feeding “efforts to inject chaos and confusion into a post-election period to deny the election of certain people who received the majority of the vote in their states or in their districts.”
He added, “Every day that goes by, I only become more concerned that we are heading towards something that our democracy has never had to deal with before.”
Post-election chaos could play out at the state and local levels before ultimately landing in Congress.
“If you think about what kind of election crisis might happen in November of 2022, in front of my mind is the possibility of a genuine fight over the outcome of one of the competitive US Senate races, Georgia, Arizona, wherever, and how might that unfold,” Professor Ned Foley of Ohio State University’s Moritz College of Law, a leading expert on contested elections, said on a January 6 call hosted by the National Task Force on Election Crises.
US Senator John Durkin, pictured here in 1975, lost a close US Senate election in 1974 and appealed to the Senate itself. The Senate then ordered a new election, which Durkin won, in September 1975
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A past ‘debacle’ over a close Senate race.
“History is not an auspicious guide in this regard if you look back to some races in the 1970s and, and earlier — and that was in a period of much lower polarization than we have now,” Foley said of the Senate’s track record of resolving election disputes.
As Foley recounts in his 2016 book “Ballot Battles,” the Senate, then controlled by Democrats, descended into a months-long partisan stalemate after the 1974 elections when the Rules Committee was charged with resolving disputes over two close Senate elections in New Hampshire and Oklahoma.
After months of deadlock between the two parties over the New Hampshire race, the full Senate eventually voted in June 1975 to order a new election in New Hampshire for September of that year, leaving the seat vacant for nearly nine months.
“This failure, caused and compounded by partisanship and pettiness on every side, has made this debacle one of the worst Senate performances in recent memory,” the Washington Post editorial board wrote in August 1975.
Meanwhile, the Senate largely neglected a challenge to the far more clear-cut election victory of GOP Sen. Henry Bellmon from Oklahoma while it dealt with the New Hampshire race. It wasn’t until March 1976, nearly a year and a half after the election, that the Committee finally dismissed the challenge.
Despite the embarrassment of the entire episode, the Senate didn’t capitalize on the momentum at the time to reform and depoliticize its procedures for handling future election contests.
“If there does get to be a genuine dispute over a US Senate race that goes all the way to the US Senate, is that gonna be decided on a purely party-line vote, is the losing party gonna accept the defeat in that context?” Foley said. “Is it gonna be perceived as a fair count? Can the Senate, in other words, count its own votes in a fair manner?”
Top Senate Republicans, for their part, don’t seem to be losing sleep over those questions.
“No, I’m not” Sen. Roy Blunt of Missouri, the ranking member of the Senate Rules Committee, told Insider when asked if he’s concerned about the panel having to resolve a disputed Senate election.
Sen. Rick Scott of Florida, who hails from a state known for close elections and faced a recount himself in 2018, told Insider he’s not worried about imminent election disputes in his home state.
Rep. Frank McCloskey of Indiana, pictured here in 1985, came out victorious in the “Bloody Eighth” battle over the 1984 election for Indiana’s 8th District.
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The Bloody Eighth battle rang in a new era of partisan bitterness.
In the House, the Federal Contested Elections Act of 1969 outlines the formal process for House candidates to contest election outcomes with the House Committee on Administration.
“It happens from time to time,” Democratic Rep. Mary Gay Scanlon of Pennsylvania, a member of the Administration Committee, told Insider. “It’s hard to speculate about what it’ll look like in the future, but that’s why we have a statute that governs how a contested election is supposed to be handled.”
The most famous dispute the House was the close 1984 election for Indiana’s 8th District between Democratic incumbent Frank McCloskey and Republican Rick McIntyre, a contest known as the Bloody Eighth.
A three-member task force of the Administration Committee was assigned to a full investigation and recount of the race, evaluating multiple complicated election law issues in a contentious months-long process clouded by partisanship at every turn. The task force eventually affirmed McCloskey’s victory by just four votes, and the House voted 236-190 to seat him in May 1985.
The outcome of the vote spurred Republicans to walk out of the chamber, and unleashed a new era of noxious partisan animosity in Congress, Foley wrote in “Battle Ballots.” The Republican on the task force, Rep. Bill Thomas, likened himself to a rape victim, and then-Rep. Dick Cheney declared “it’s time to go to war” on the House floor.
U.S. Rep. Mariannette Miller-Meeks, R-Iowa, was elected by a margin of just six votes in 2020.
AP Photo/Susan Walsh, Pool, File
The House avoided melting down over a close Iowa race.
More recently in 2021, the House Administration Committee fielded a contest from Democrat Rita Hart, who ran in an extraordinarily close 2020 election for Iowa’s 2nd District. A district-wide recount found her opponent, GOP Rep. Mariannette Miller-Meeks, had won by just six votes, a result unanimously certified by the state’s bipartisan canvassing board.
After exhausting her options in Iowa, Hart filed a contest with the House under the FCEA that, like the Bloody Eighth battle, centered around absentee ballots that were not counted because of technical defects but had the potential to change the outcome of the election.
“That Iowa race has not gotten the attention I think it deserves — understandably overshadowed by the  presidential election,” Foley said. “But it does signal that as elections move from the state level to Congress, partisanship can affect that process from either party thinking like, ‘Oh, you know, we’ve lost at the state level, but maybe we could get a win at the federal level.'”
Miller-Meeks was seated provisionally until Hart, who had faced criticism from some members of her own party over the challenge, ultimately conceded defeat and withdrew her contest with the House on March 31, 2021.
Miller-Meeks and Republicans on the Administration Committee accused Hart and the Democrats of executing a brazen power grab to try to steal a House seat, eroding election integrity, and wasting taxpayer time and resources.
“I think that contested elections will be much more frequent if the House Democrats and the Senate Democrats are successful in ending the filibuster and passing through the election law changes that they want to make,” Miller-Meeks told Insider in an interview at the Capitol.
In this Jan. 6, 2021 file photo, people attend a rally in support of President Donald Trump outside Thousand Oaks City Hall in Thousand Oaks, Calif.
AP Photo/Ashley Landis
‘Everything’s up for grabs.’
The Iowa 2nd District dispute ended without much fanfare and avoided becoming nearly as acrimonious as the Bloody Eighth for several reasons. The losing candidate did not claim widespread voter fraud. Iowa counties’ bipartisan recount process, and the unanimous vote at the state level to certify Miller-Meeks’ victory, lent credibility to the outcome. And, most important of all, Hart was willing to accept defeat.
But none of those conditions are guaranteed to hold in 2022. Election disputes are much less likely to be resolved smoothly if influential figures in the Republican Party continue to spread false claims of election fraud with the express intent of overturning election results. The threat of another Bloody Eighth-style election battle, or one more poisonous to the health of American democracy, looms ahead.
“This is the problem with people refusing to accept election outcomes, right?” Democratic Rep. Jamie Raskin of Maryland told Insider. “I hope between now and November, our GOP colleagues will recover some basic respect for electoral processes and outcomes. If not, everything’s up for grabs.”
Politics, Congress, 2022 elections, 2022 midterms, Voting Rights
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