When he was slinging french fries for a photo op at McDonald’s last weekend in Pennsylvania, Donald Trump fielded a question from a reporter who asked him if he would accept the results of the election no matter the outcome.
“Yeah, sure, if it’s a fair election. Always. I would always accept it if it’s a fair election,” Trump said.
Speaker of the House Mike Johnson also offered a conditional response when reporters asked him less than a month ago if he would commit to observing regular order in the electoral certification process in January 2025.
“Well of course, if we have a free, fair and safe election, we’re going to follow the Constitution. Absolutely, yes,” Johnson.
NBC’s Kristen Welker pressed Johnson again on “Meet the Press” in mid-October — she asked if he would certify the election “regardless of who wins.”
“Regardless? Yes, if the election is a free and fair election, and we pray and hope that it is. There’s a lot of work being done to make sure that’s true. I think this one will be so large there will be no question, and I think Donald Trump is your next president,” he said.
Johnson’s repeated insistence that he would perform his constitutional duty only if he deems the election “free and fair” has alarmed Democrats and many experts, given Johnson’s clear allegiance to the lie that the 2020 election that Donald Trump lost was neither free nor fair.
Johnson adamantly promoted Trump’s baseless voter fraud claims in 2020. He asked 105 Republicans to sign on to a letter of support to the Supreme Court for a lawsuit filed in Texas that year seeking to delay the certification of electoral results in battleground states even after it was established that Trump’s claims of fraud were bunk.
That was when Johnson was a junior Republican, unheard of to most Americans. Now he is the speaker of the House. These days, he is once again fearmongering about the fairness of presidential elections. He has suggested, contrary to any evidence, that there will be fraud in 2024 due to huge swaths of undocumented immigrants casting ballots.
And, if Republicans retain control of the lower chamber after this election and Johnson can hold onto the speakership, the Trump ally will be remarkably well-positioned to advance any agenda Trump and his allies in Congress share.
Even if Johnson does not succeed in derailing the election’s certification should Kamala Harris win, any futile efforts he might undertake could still prove dangerous.
The scars of Jan. 6, 2021, remain in 2024. A Trump-appointed judge who sentenced seditious conspirator and Proud Boys member Joseph Biggs in August 2023 put it succinctly after listening to months of evidence about a conspiracy to stop the transfer of power in January 2021.
“What happened that day… it broke our tradition of the peaceful transfer of power. Which is the most precious thing we had as Americans,” U.S. District Judge Timothy Kelly said. “Notice I say ‘had,’ we don’t have it anymore.”
The Rules Of Engagement
The new Congress will be ushered in just a few days before the certification of the election on Jan. 6, 2025. If Harris wins in November and the House of Representatives regains a Democratic majority, House Minority Leader Hakeem Jeffries (D-N.Y.) will likely preside over the election certification process in the lower chamber.
But if Harris wins the election and the House of Representatives retains its Republican majority, the path ahead is far more daunting.
Though Harris, as vice president, will preside over the count of electoral votes, with a GOP House majority and Johnson as speaker, the Republican would very likely lead the charge to upend the process. This could occur in multiple ways, even though the speaker does not have any direct role in the administration of certification proceedings.
With decades of experience as a constitutional lawyer under his belt, Johnson can use his influence and power to rally fellow Republican lawmakers to coalesce around litigation challenging anything from the results of the election to rules that govern procedures for certification.
Johnson could raise a legal challenge over the constitutionality of the newly implemented Electoral Count Reform Act, or ECRA, for example. This legislation passed along bipartisan lines in 2022 and revamped the Electoral Count Act of 1887, a law that gave the nation its framework for the casting and counting of Electoral College votes.
The original law was ambiguously written. It left questions around the role a vice president plays during the joint certification session and the process by which state officials ascertain and certify results from their state.
Before 2022, the Electoral Count Act allowed objections to a state’s electoral vote so long as the objection was submitted in writing and had the signatures of one senator and one representative from the House. Today, the ECRA demands a much higher standard for objections during the count: Now, one-fifth of the House and one-fifth of the Senate must agree to make the objection, and each chamber must still be able to sustain its objections with a majority vote.
The 1887 version of the law was what Trump ally and attorney John Eastman cited when making specious claims in 2020 and January 2021 that then-Vice President Mike Pence had unilateral authority to accept phony pro-Trump electoral slates presented to Congress.
ECRA reduced the risk of this interpretation.
While the 12th Amendment guides the vice president to open all certificates and preserve order at proceedings, ECRA clarified that this means the vice president does not have the authority to determine, accept, reject or resolve disputes over things like the validity of electors’ votes or the list of electors presented to Congress.
What constituted a “failed” election wasn’t clear under the law before ECRA, either. “Failure” could simply mean the presence of a dispute over how an election was conducted. The old version of the law wasn’t clear about whether claims of voter fraud met this exception, for example. Today’s version of ECRA states that voter fraud is not included as an exception.
The new ground rules also say that states cannot appoint electors after Election Day, except if the state’s election was shuttered due to “force majeure events” or “extraordinary and catastrophic” events.
Today, state governors are also required to certify electors no less than 6 days before the meeting of the Electoral College on Dec. 17, and Congress is now obligated to treat governors’ certifications as conclusive unless a court rules that they can be changed or replaced.
Before 2022, the law was vague about the role courts could play to settle conflicts over electors. Now the law states that challenges to a state’s appointment of electors must be heard quickly by a three-judge panel composed of a district court judge and two circuit court judges. Direct appeals to the Supreme Court are also allowed. According to ECRA, if Supreme Court justices agree to consider a petition to challenge electors, they must rule “on an expedited basis” and issue an order before the electors actually meet.
Adav Noti, executive director of the Campaign Legal Center, told HuffPost in an interview this month that he believes any challenges to the count would fail because “the certification system is quite strong” and the “overall legal framework is prepared for that sort of attempted interference now.”
“Even in 2020 when it was the first time the system had really experienced this kind of attack through litigation, the courts did fine. State courts and federal courts handled everything quickly and reached the right results and didn’t let issues linger. We’ve had four years to strengthen and improve the process since then. I don’t think frivolous litigation will succeed,” Noti said.
In a recent interview, David Gans, director of the Constitutional Accountability Center’s human rights, civil rights and citizenship program, acknowledged that the potential for obstacles is great in this election, especially “hostility toward certification” at the state level.
But he remains optimistic about the precedents the courts have set. In West Virginia, he noted, Republican legislators tried to advance a resolution declaring the state would not recognize an “illegitimate presidential election,” and the resolution failed.
The federal watchdog group Citizens for Responsibility and Ethics in Washington has pointed out that since 2020, there have been over 30 rogue local officials who have refused to certify election results, but so far, all have been stopped by the courts.
“We’ve created a road map in federal law and affirmed that the selection of electors and the choice of the next president has to be based on the laws chosen before Election Day. After-the-fact machinations are out of the question,” Gans said.
An Obligation To Fulfill
A spokesperson for Johnson provided HuffPost a list of remarks the speaker gave to other media outlets in recent weeks saying that “if” the election was fair, he would uphold his oath to the Constitution. The prepared blurbs also featured Johnson lamenting the treatment Trump has received from the press or criticizing “rhetoric” from critics that Trump, specifically, is a “threat to democracy.”
Rep. Jamie Raskin, (D-Md.), is familiar with casting objections: He lodged one during the 2017 certification after claiming that electors from Florida did not follow the law because state legislators are not allowed to be electors, too.
Then-Vice President Joe Biden heard the objection, and it was ultimately gaveled down.
Raskin, a constitutional scholar and former law professor at the American University Washington College of Law, said there was a clear distinction between objections in years past and what happened in 2021.
“Sixty federal and state courts and judges, including eight nominated to the bench by Trump, rejected every claim of electoral corruption and fraud they advanced in 2020,” Raskin told HuffPost. “And yet they still tried to block the receipt of Electoral College votes from Wisconsin, Michigan, Arizona, Pennsylvania and numerous other states.”
Lodging objections are a “bipartisan tradition,” Raskin said, but no Democrat in 2017 nor any year before “engaged in fraud or violence to try and overthrow a presidential election,” he said.
“It’s just fantasy and deception to conflate the two,” Raskin remarked.
The Jan. 6, 2025, certification will be unlike any before it. For the first time in the nation’s history, the counting of the electoral votes has been designated a national security event by the U.S. Secret Service.
With that knowledge, Raskin considered what would happen if there are attempts to lawlessly obstruct the election certification in January. He was emphatic: The effort won’t be coming from Democrats. Democrats will certify the election results and follow the Constitution.
“We have always stood by the Constitution and rule of law adhering to the results of presidential elections. We have never used fraud, corruption, deceit or violence to try and overthrow a presidential election result. We will continue to stand by the Constitution,” he said.
“Political scientists tell us, it’s a hallmark characteristic of an authoritarian political party that they don’t accept the results of democratic elections that don’t go their way. And authoritarian parties embrace or refuse to disavow political violence as an instrument for obtaining political power,” he said. “There’s one party in America that has set itself against the constitutional order.”
It is “very tough” to write laws to stop political parties that refuse to accept election results, Raskin said. But he is still confident that the vast majority of the American public stands by the Constitution, the rule of law and democratic processes.
“If, God forbid, we were to face insurrectionary mob violence in 2024, we won’t have Donald Trump in the White House eating hamburgers and watching the show on TV. We’ll have President Joe Biden, who will act to defend the constitutional order,” Raskin said.