Grand Theft America

How Republicans Could Steal the Midterms

There are 12 levers between Election Day and the seating of a new Congress that Republicans can pull. They’ve pulled 11 so far.

Summary

At noon on January 3, 2027, every House member's term ends and the House clerk, Kevin McCumber, reads the roll of members under 2 U.S.C. § 26. Under House Rule II, Speaker Johnson can replace the clerk, and a clerk could leave off Democrats who won close races. The essay traces six places where a winner's certificate can be stopped before it reaches the clerk and counts 12 levers between Election Day and the swearing-in. Eleven are already moving; the one that is not is the Insurrection Act.

8 min read

Engraving: Trump drops a stack of ballots into a glass ballot box while a line of voters is held back behind a barrier.

At noon on January 3, 2027, under the 20th Amendment, the terms of every sitting member of the House expire, and the only official in the chamber with any legal authority will be its clerk, Kevin McCumber. Mike Johnson’s gavel goes quiet. Hakeem Jeffries has nobody to lead. For a window that usually lasts an hour, but could last weeks, McCumber’s job is to read a list of names.

That list is governed by 2 U.S.C. § 26, which instructs him to place on the roll “the names of those persons, and of such persons only, whose credentials show that they were regularly elected in accordance with the laws” of their states. The law’s word for this kind of job is ministerial. He is not there to ask whether the elections were fair. The states asked that, and the certificate is their answer.

The people whose names he reads elect a Speaker, the Speaker swears them in, and the country has a legislature again. That is what has happened for more than two centuries.

What could happen

Under House Rule II, Speaker Johnson can remove the clerk at will and appoint a temporary one on his own. As Molly Roberts laid out in Lawfare, on January 3 that clerk reads the roll and leaves off the Democrats who won tight races, because the President has declared those elections stolen. Republicans then have the majority in the room and elect Johnson Speaker again. A new 120th Congress exists, and it is not the one voters chose.

Jeffrey Toobin sketched this scenario in the New York Times in July, and David Graham warned of it in The Atlantic before that. Michael Luttig, the retired federal appeals judge who helped talk Mike Pence through January 6, 2021, and for most of his career the conservative movement’s idea of a judge, called January 3, 2027 “the final battle for America’s democracy” on Substack in August.

The scholars who study this for a living mostly think the rogue-clerk plan will fail. Matthew Seligman at Stanford has worked it through. The clerk is an officer, not a member, so a judge can order him to read the certified names. And a clerk can skip a Democrat’s name, but he cannot read in the Republican who lost, because that Republican has no certificate, and the statute says “such persons only.”

It was tried in 1839, in a fight called the Broad Seal War, and in 1863, when a clerk named Emerson Etheridge took the law that now binds McCumber, then brand new, and struck 16 names from the roll. Both times it failed. Skipping names leaves chairs empty, and empty chairs make a majority smaller rather than handing it to the other side. But in 1839 it took weeks.

Roberts sees a version that does not fail: nobody fires the clerk, and the certificates just do not show up. A seat whose certificate is lost in a lawsuit, or waiting on a county official who will not sign, or in doubt because federal agents walked out of the building with the ballots, has no credentials. Then the clerk’s job is to leave the chair empty.

In a House with a five-seat margin, a dozen empty seats are enough to flip control, and the moment a Speaker holds the gavel, the judges are out of it. Ned Foley of Ohio State told Lawfare that the reorganization of the House is “the barrier between law and non-law.” The question is whether, by noon on January 3, enough certificates can be made not to exist.

Why Trump needs a Republican majority

If Democrats win the House, Trump and the people around him face an avalanche of subpoenas aimed at the companies, the crypto ventures, the Gulf money and the pardons. In January he told Reuters: “When you think of it, we shouldn’t even have an election” (the White House said he was joking). In February he told Dan Bongino, per Mediaite, that “the Republicans oughta nationalize the voting.”

In May he promised an “Election Integrity Army in every single State,” bigger than 2024’s. In July he gave a prime-time address accusing China of interfering in 2020 and declassifying “election vulnerability” files ahead of the midterms.

Here is how the certificates go missing

A certificate can be stopped in six places on its way to the clerk’s desk. Here is what has already been done at each, in order.

Fewer mail ballots will go out, and more voters will be challenged before they can cast one

  • Trump, March 31: an executive order told the Postal Service to write mail-ballot rules and Homeland Security to build a national citizen list.
  • Postal Service: proposed delivering ballots only to voters on a federal list; Judge Talwani blocked it and the Supreme Court agreed for 2026.
  • Homeland Security: tied $1.06 billion in grants to states screening voters through SAVE, which misflags naturalized citizens; a judge vacated the conditions September 28.
  • Supreme Court: let SAVE itself stand. The SAVE America Act, requiring a passport or birth certificate to register, failed in the Senate in June.

The maps have already been redrawn to add as many as 15 Republican-leaning seats against 6 for Democrats

  • Trump, July 2025: asked Texas to redraw its districts mid-decade; Texas drew a map to flip 5 that a federal court called a racial gerrymander.
  • Supreme Court, December 4: stayed that ruling, 6–3, letting Texas use the map.
  • Ohio, North Carolina, Florida, Tennessee, Louisiana, Alabama: added 2, 1, 4, 1, 1 and 1; Missouri’s 1-seat map was taken off the table September 25.
  • California voters and a Utah court: answered with maps worth about 5 and 1 Democratic seats. Net, roughly 9 seats tilt Republican before any vote.

The people who run elections are being told they could go to prison for doing their jobs

  • Justice Department, July: wrote to election officials in all 50 states: “knowingly retaining noncitizens” on the rolls could mean prosecution for aiding and abetting.
  • Justice Department: sued 30 states for their voter files and lost 26 times; Homeland Security’s Nevada list of 16,000 ineligible voters became 185, then zero.
  • Pam Bondi, January 24: asked Minnesota for its rolls the day federal agents killed a second citizen there; Tom Homan tied any drawdown to “cooperation.”
  • Prosecutors: indicted James Comey and tried three times to indict Letitia James; neither has produced a conviction. Full list: Power Grab tracker.

Federal agents have already seized the ballots of one election. They could do it to a live count.

  • FBI, January 28: left Fulton County’s election center with every 2020 ballot, on a warrant Richard Hasen says was “filled with discredited conspiracy theories.”
  • A federal judge, May 6: let the government keep them; the county commission chair said he could no longer assure citizens the ballots were secure.
  • Tulsi Gabbard’s office, 2025: removed voting machines from Puerto Rico to chase a theory about Venezuela, Reuters reported, and found no clear evidence.
  • Trump, January: told the Times his 2020 regret was not seizing the machines. A live-count warrant, Hasen writes, needs “very few law enforcement officers.”

Armed federal agents could show up at polling places, and the administration will not rule it out

  • Federal law makes armed federal agents at a polling place a felony; the Pentagon told a senator in September it has “no plans” to.
  • Homeland Security Secretary, September: would send agents for “a threat to that polling place” or a warrant; the FBI director has not ruled it out.
  • Trump, last week: has not ruled out the Insurrection Act; a filing revealed a 12-page DHS “law enforcement voter integrity” checklist nobody outside has read.
  • Federal agents, June: walked into a Syracuse polling place to confront poll worker Paigelynne Gonyea over an Instagram post; raided an Ohio voter-registration group.

A certificate does not have to be forged. It only has to arrive late.

  • Local officials, since 2020: 35 in 8 states have refused to certify an election; every one was eventually compelled, and every refusal spent the clock.
  • Vickie Marquardt, Otero County, N.M.: refused in 2022 until the state Supreme Court ordered her to; told the Washington Post she “would do it again.”
  • Jeanne Herman, Washoe County, Nev.: has voted against certifying every election since 2020, including her own.
  • Ken Paxton, Texas: if he loses his Senate race, as polls suggest, he remains Attorney General, with election powers no other losing candidate has.

Where it stands

Eleven of the 12 levers that lead to January 3 are already moving as of this week; the one that is not yet is the Insurrection Act.

Lever Status What it looks like so far
Redraw the maps mid-decade ◉ Active Texas +5 in use after a 6–3 stay; Florida +4, Ohio +2, NC +1, TN/LA/AL +1 each; Missouri +1 blocked. Net about nine.
Restrict how and when people can vote ◑ Under way Mail-ballot rules blocked for 2026; SAVE screening allowed; grant conditions vacated; overseas-ballot form narrowed
Demand federal access to the voter rolls ◑ Under way 30 states sued, 26 losses; Minnesota’s rolls requested in Bondi’s Jan 24 letter
Prosecute election officials ◑ Under way 50-state prosecution-threat letters; 30-state “criminal sanctions” letters; Nevada’s secretary of state subpoenaed; no indictment yet
Prosecute political opponents ◉ Active Comey (twice), James (dismissed; two grand juries refused); Walz and Ellison referred
Interfere with ballots or the count ◉ Active Hundreds of boxes seized in Fulton County; Wayne County ballots demanded; Shasta primary ballots subpoenaed; Puerto Rico machines
Put armed federal personnel at the polls ◑ Under way Syracuse, Ohio raid; prosecutors as “monitors” in Arizona; Pentagon says “no plans”; DHS won’t rule it out
Invoke the Insurrection Act ☐ Not yet “Not ruled out,” per the President, last week
Delay or refuse certifications ◑ Under way 35 refusals since 2020; Herman voted no on the June primary; Otero’s Marquardt “would do it again”
Tie the result up in objections and contests ◉ Active Bost v. Illinois lets candidates sue over counting rules before the vote; RNC’s 170-plus suits; Paxton’s powers in Texas
Force a certification fight onto the Supreme Court’s emergency docket ◔ Early signs Two-paragraph orders this year; Kavanaugh: not in time for 2026
Seat a Congress the voters didn’t choose ◑ Under way Johnson kept certified winner Adelita Grijalva out for 50 days; seats with no certificate; the moment after a Speaker is elected

The courts have held better than most people expected, but they cannot restore a chain of custody, cannot un-send a letter, and cannot rule faster than the calendar. Minnesota’s Senate seat sat empty until July in 2009. North Carolina’s Ninth District went unfilled for nine months in 2019. Neither was wrongly filled. Both were empty.

Kevin McCumber will read the roll on January 3. The names will almost certainly be the right ones. The question is how many will be missing.

Sources 60 · tap to open

Primary documents

Reporting

Analysis

Lever table

Status words regenerated 2026-10-08 from overnight/final/power-boxes.json, final/power-new-final.json and final/power-prelection-final.json: done/active = Active; underway/starting = Under way; early-signs = Early signs; threatened or no record = Not yet; blocked records described in the right-hand column. Totals: 4 Active, 6 Under way, 1 Early signs, 1 Not yet.