ANALYSIS — Democrats’ plans to sweep away new restrictions on voting that some Republican-run states are imposing took a blow when one of their own, West Virginia Sen. Joe Manchin III, declared on June 6 that he would oppose the House-passed For the People Act.
So what do Democrats do if Congress takes no action and court challenges to the new state laws fail?
Marc Elias, the Democratic lawyer with Perkins Coie who fought former President Donald Trump’s baseless election challenges and is now suing several states over their new laws, has an idea.
In a blog post last month, Elias proposes that the House Democratic majority refuse to seat newly elected Republicans from states that imposed the restrictions.
Elias recounts the story of Mississippi civil rights leader Fannie Lou Hamer’s challenge to a segregationist incumbent in the 1964 Democratic primary and in the general election, when she ran on the Mississippi Freedom Democratic Party line. Hamer and other losing candidates petitioned the House not to seat the Mississippi delegation and presented extensive evidence of disenfranchisement and voter intimidation.
Congress passed the Voting Rights Act of 1965 before House members could vote on the Mississippi challenge, Elias writes. Once they did, members who rejected the challenges said future violations of the scale seen in Mississippi would be sufficient grounds to refuse to seat the certified winner of an election.
“As Republican legislatures enact new voter suppression laws, Congress should reaffirm the House’s promise in 1965 to refuse to seat, or to unseat, members who benefit from discriminatory voting laws,” Elias wrote. “If there ever was a need for it to do so, it is now.”
It’s clear Democrats are angry. Trump’s false claim that Democrats stole his reelection has resonated with the GOP base, and state legislators are using that to justify enacting laws to supposedly fix things that no one could prove were broken. The result makes it harder to vote in ways that could disproportionately affect people who tend to vote Democratic.
But are Democrats so angry they will refuse to seat winners of elections governed by those laws? Democrats were outraged that 147 House and Senate Republicans refused to certify the electoral votes of Arizona, Pennsylvania or both. Some objectors believed fantasies of machines changing votes or midnight ballot dumps, but others just objected to the ways states changed the rules for voting during the pandemic.
Refusing to seat the winner of a House race a Democrat believed was run under a new generation of Jim Crow laws would be different from the kinds of challenges that have come before Congress in recent decades. Those usually involved very close races or recounts in which one party may have leaned on the scales to affect which votes were counted and which weren’t.
One of Elias’ clients was Rita Hart, a Democrat from Iowa who lost her bid for an open House seat by six votes to Republican Mariannette Miller-Meeks last year. Hart found a couple of dozen voters who said their votes were not counted and should have been. She dropped her challenge, though, after several Democrats in competitive districts said they would not vote to unseat Miller-Meeks.
The Constitution does make the House the sole arbiter of the qualifications of its members. While the Supreme Court did overturn the refusal to seat Rep. Adam Clayton Powell Jr., D-N.Y., that case did not involve a question of whether he was duly elected.
So far, there’s not much evidence that Elias’ proposal is catching on with Democrats, and it’s unclear how this would even work. If Republicans gain the majority in 2022, it’s not as though Democrats can keep the 117th Congress working overtime. The 20th Amendment holds that the term of every member of the House, from Speaker Nancy Pelosi on down, ends at the same time on Jan. 3, 2023.
“The Elias theory is a wrinkle that’s never been litigated,” said Stanley Brand, who was general counsel to the House when Democrat Thomas P. “Tip” O’Neill Jr. was speaker.
“Traditionally, somebody shows up in a close race and files a contest and the House decides whether to seat a candidate conditionally or hold the seat open until it investigates. In some instances, it seated both candidates. But if a certificate of election arrives at the clerk’s office, and it’s valid on its face, the normal process is to seat them unless someone files a contest and the House votes not to do that,” Brand said.
But the certification of Electoral College results was also once routine, with any challenges quickly swatted away and losing candidates conceding to the winners, at least before Jan. 6 of this year. Suddenly everyone had to study up on the Electoral Count Act and the succession of power.
In two years, will the Federal Contested Elections Act be getting the same amount of attention as the 118th Congress begins on Jan. 3? Depends on how far Democrats are willing to go.
Herb Jackson is CQ Roll Call’s politics editor.