WASHINGTON — President Donald Trump tried to maintain power following his loss in the 2020 election by exerting pressure on state election officials to, in some cases, “find” the votes .
Loyalist Republicans in Congress then attempted to deny Joe Biden the Oval Office when lawmakers gathered to certify the Electoral College vote, bringing to light loopholes and deficiencies in the law that could have denied voters their choice.
Similar flaws exist for U.S. House elections.
With concern mounting among GOP lawmakers they may lose control of that chamber following November’s midterm elections, it is not a stretch to imagine that state officials could once again receive calls from the White House or powerful Republicans in Congress.
“The House and the Senate, they are the final judge of their own elections.”
What’s less understood is that the House itself has the ability to investigate and potentially overturn the results of any of its 435 races. In a House narrowly controlled by one party or the other, disputes over a handful of seats could become significant.
“The House and the Senate, they are the final judge of their own elections,” explained John C. Fortier, senior fellow at the American Enterprise Institute, a conservative think tank.
“So, in theory, if a state went through a process and counted all the votes and certified the votes and sent in the results, it still could be questioned by Congress,” he added. “The House has done this in the past. It is much less common today. There was a time in the 19th century where it became extremely common.”
Experts and officials interviewed by States Newsroom pointed to several scenarios that could occur.
State officials could hold back an election certificate, a member-elect could seek to block another member-elect from taking the oath, or legitimate challenges could occur under a federal law dealing with contested elections.
States act first
The first step after votes are counted, or in some cases recounted, is for a state’s top election official, typically a secretary of state, to certify the results and send the certificates of election to the U.S. House clerk.
But that doesn’t always happen.
New York state election officials held back Republican Rep. Claudia Tenney’s certification to join the House following the 2020 elections amid a legal battle in an extremely close race.
It wasn’t until a state Supreme Court justice ruled in Tenney’s favor that she took her oath of office in February 2021, more than three months after the election.
Fortier detailed another particularly messy example of a disputed House race in North Carolina’s 9th Congressional District following the 2018 election.
The state board of elections opted not to quickly certify either Democrat Dan McCready or Republican Mark Harris as the winner, given concerns about mail-in ballots.
“They essentially deferred and kind of waited it out.”
It took until late February, nearly four months after Election Day, for the board to call for a new election after Harris testified during a hearing that “his political operative orchestrated a fraudulent absentee ballot scheme,” according to NC Newsline.
That September, Republican Rep. Dan Bishop won a special election over McCready.
And while the House didn’t step in at the time, it could have. “They essentially deferred and kind of waited it out,” Fortier said.
Neither of those holdups determined control of the House, but a few state officials deciding not to send certificates to the clerk later this year could have an impact come January.
State officials are not exempt from political influence from Washington, something that was on full display beginning in 2025 when Trump and Republicans in Congress called on state legislatures to redraw their House district maps to give the GOP an advantage in this fall’s elections. The results have rolled out even into September .
House members can try blocking members-elect
Another potential roadblock emerges on the first day of a new Congress, when any member-elect can try to block another member-elect from being sworn in.
That happened in 2021, when Texas Republican Rep. Chip Roy objected to lawmakers from Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin taking their oaths. The Democratic-controlled House voted 371-2 to approve a resolution directing the speaker to swear in everyone.
The House has two additional options should a member-elect challenge another member-elect taking the oath.
The first is to “provisionally or conditionally” seat that person and refer the case to the House Administration Committee for investigation. The second is to vote to not seat the person and refer the dispute to the same committee to determine who is entitled to it, according to a report from the nonpartisan Congressional Research Service.
The report notes that “it would be under only the most exceptional circumstances for the House to refuse to seat, even provisionally, a Member holding valid election credentials from the state, and it appears that this third option has happened since 1933 only two times on the first day of the new Congress, and once during the Congress concerning a special election.”
The House voting not to seat a challenged member-elect “would effectively nullify a certificate of election that was previously issued by the executive authority of the state,” according to the CRS.
How the House can probe election results
The Federal Contested Elections Act of 1969 provides another avenue for lawmakers on the House Administration Committee to investigate any election once a complaint is filed, typically by the losing party.
This has happened dozens of times throughout the decades, including in December 2020, when Iowa Democratic candidate Rita Hart asked the House to decide whether Republican Rep. Mariannette Miller-Meeks actually won their race, triggering a months-long investigation.
The contested election law allows the committee to “impound records, ballots, tally sheets, ballot stubs, poll books, ballot boxes, voting machines or other electronic voting systems, and irregular or defective paper and absentee ballots,” according to CRS.
The committee has the option to use the vote count sent by the state or “conduct its own recount and make its own determinations and findings,” the CRS report states.
House members conducting a probe can even instruct states how to handle ballots.
“Where state law requires destruction of ballots after an election, the committee may notify the state election officials to preserve the ballots despite the state law,” the report says.
House members conducting a probe can even instruct states how to handle ballots.
The panel would eventually make a recommendation and the House would decide by a simple majority vote which candidate to seat or whether to declare the seat vacant.
That vote is the final decision “regardless of whether or not the Member-elect had been sworn in on the first day of the new Congress,” says the report.
Decisions about how to decide any contested elections would be made by the new House that will convene in early January, not the one that will return to Capitol Hill during the lame-duck session that’s set to last several weeks in November and December.
“It’s not as if the outgoing Congress could just make a decision as to who’s contested and who won the election,” Fortier said. “It’s the new Congress that would do that.”
But not just anyone can file a challenge with the House.
The person who contests the results “must show that but for the voting irregularities or acts of fraud, the results of the election would have been different and the contestant would have prevailed,” according to CRS.
Those investigations typically take months. The Iowa case of Hart v. Miller-Meeks began in December 2020 when Hart, the Democrat, filed her contest.
The House Administration Committee held a hearing in March 2021, after Miller-Meeks had tried to have the case dismissed. Then-Chairwoman Zoe Lofgren, D-Calif., arguing for the hearing, said, “The American people deserve to know who actually won this election. And the people of Iowa’s 2nd Congressional District deserve to be represented by that person.”
The case ended several weeks later after Hart withdrew her challenge.
‘As far as someone’s willing to burn it’
Casey Burgat, legislative affairs program director and associate professor at George Washington University, said that while any member-elect can challenge another member-elect’s right to take the oath on the first day of the new Congress, it is somewhat unlikely a genuine attempt will be made to do that next year.
But that comes with a caveat.
“I think the prospect for the tit-for-tat or the brinkmanship goes up exponentially if it is a close majority,” he said. “That just creates an opportunity for parties to see majority status and find reasons to not seat the other side.”
“The prospect for the tit-for-tat or the brinkmanship goes up exponentially if it is a close majority.”
Whether any potential challenge is taken seriously would likely be determined by who makes it.
“If it’s just a flamethrower, a Chip Roy-type person, I think that’ll be discounted more than if it’s led by someone like a Mike Johnson or someone in leadership or [Rep.] Steve Scalise,” Burgat said. “I’ve had conversations with a lot of these members and staff of like, how far can this go. And my response to them is often, as far as someone’s willing to burn it.”
Sarah A. Binder, senior fellow in governance studies at Brookings, said it’s unlikely that any Republican could successfully challenge a Democratic member-elect taking the oath if Democrats have a true majority and have elected their speaker.
“There have been some years where the member-elect whose seat is being challenged is prior to that told to sit down, not to stand when the rest are to be sworn in,” she said. “But other times they actually swear in everybody because your winning seat could still be contested after the swearing in.”
Then there’s the rogue clerk theory
In addition to the possibilities that a state official holds back an election certificate, a member-elect seeks to block another member-elect from taking the oath, or legitimate challenges occur under the Federal Contested Elections Act, some Democrats have raised concerns about the clerk of the House.
The nonpartisan official’s office assembles the list of members-elect from the certificates of election received from state officials. That list determines who votes for speaker, which takes place on the first day of the new Congress before any of the 435 members are actually sworn in.
The House cannot move on to any other business until a speaker is elected.
The clerk going rogue during the vote for speaker also is highly improbable.
AEI’s Fortier said the clerk’s authority is ministerial and that whoever holds that office doesn’t really have discretion over who is added to the member-elect list once a state sends in its certificate of election.
The clerk going rogue during the vote for speaker also is highly improbable, he said.
“I think it is not a very likely scenario, even though I think people are thinking about it. I am not even sure it’s realistic,” Fortier said. “I think this is very difficult to imagine.”
Burgat from GWU had a similar assessment that the House clerk doesn’t hold the authority to disregard election certificates once they arrive or to try to meddle in who can vote for speaker.
“The minute that the [state’s] secretary of state or its equivalent certifies the election and transmits to the clerk, a nonpartisan position, it goes on the roll,” he said. “The politics comes in after that fact.”
The House clerk’s office wrote in a statement that it “receives and verifies Certificates of Election from every state, placing on the Roll of Representatives‑elect only those individuals whose credentials show they were regularly elected.”
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How the US House Could Overturn the Midterm Results
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