One big threat that looms over free and fair elections for president is that a tie in the Electoral College or a disputed race gets thrown to the House. That could be a real dispute or, far more likely, a manufactured dispute as part of stealing the presidency. Critically, in this situation, the House does not vote as a majority. It votes by state delegation and the assumption is that the GOP holds the majority of state delegations because of their advantage in low-population Republican states. That’s all true and it leads to lots of bad scenarios. But it’s worth focusing on because it’s not a total done deal. This 2023 piece from the Kyle Kondik at the Center for Politics at UVA goes through the different delegations and the possibilities in each one. A bit of luck and focus could close off this path to a stolen presidency.

An email from TPM Reader PK on yesterday’s post about seating a new Congress in 2027.

Your post was dead on today. I can easily see a scenario where [T]rump GOP majorities in both houses refuse to seat enough Democrats to retain control. There’s actually some examples of this back in the 19th Century where the clerk of the House refused to acknowledge various members-elect. In any event, there could be several Ds elected in states where the GOP SecState refuses to certify the election based on bogus fraud charges—all helped along by bogus DOJ/FBI investigations. And even if the vote is certified, sore loser GOP candidates could ask the House to determine the winner in their races. Again a GOP majority could then seat the losing GOP candidates by a simple majority vote.

In any event, congressional Dems need to figure out how they will handle such a scenario.

The last point is key. This isn’t a call for dooming but rather preparation.

The whole call of “will there be free and fair elections” is simply the wrong question to the degree it is framed as a binary question or of something that Trump will “do.” Under the present circumstances you need to battle to ensure the votes are counted and the results enforced as much as you need to turn people out and get them, as best you can, to vote the right way. This part of the equation shouldn’t be a contest. But under the present circumstances it is a contest.

You have to take it as a given that Trump will exploit every power he has to corrupt the elections in his favor. In the executive branch, where the Constitution gives him a lot of power — and the corrupt Court wants to give him unlimited power — he’s taken all of it. The key with elections is that the forces of opposition actually have quite a lot of power, starting with the key fact that states run elections and the federal government has very little practical access into the process let alone legal authority over it. States have large bundles of executive sovereign authority. January 6th is a very helpful and very instructive example. You need to be red teaming every link in the chain to know what the possibilities are and be prepared for them.

The two key issues I see, from an initial review, is the certifying authorities in the various blue and purple states (usually but not always governors and secretaries of state) and the Clerk of the House. The Clerk of the House is the fulcrum of House continuity in the interregnum between the expiration of one House’s authority and the seating of the next one. That’s usually a pretty no-nonsense career person. We got some preview of this during the Speaker votes for Kevin McCarthy. If that person is a GOP toady that’s very bad. Because the Clerk is the person who — like they wanted of Pence in 2021 — could simply decide to accept some certificates of election and reject others. They have zero authority to do it. But they could.

Again, it’s a matter of thinking through all the possibilities and being prepared.