DEMOCRACY WATCHCan the Midterms Be 'Stolen' On Jan. 3? It's Complicated.
President Trump’s demands in 2020 that Vice President Pence do “the right thing” have prompted speculation that he or his allies will attempt a similar gambit in 2026. Jan. 3 is the day the old Congress ends and the new one begins: Only the swearing-in process still stands between the winners and their seats. This vulnerability lately has filled some commentators and activists with fear. Panic about a ‘rogue clerk’ is likely unwarranted—but it’s worth paying attention.
The date Jan. 6 has outsize significance in the United States for the worst reasons. Jan. 3, however, most Americans have never heard of. Ideally, it will stay that way.
President Trump’s demands in 2020 that Vice President Pence do “the right thing” have prompted speculation that he or his allies will attempt a similar gambit in 2026. The 2020 scheme depended on the vice president unconstitutionally rejecting votes in his ceremonial role presiding over the Electoral College count from states that favored Joe Biden.
Of course, the midterm elections do not involve an Electoral College; instead, members of the House and Senate are elected directly by the voters of their states, whose officials count, canvass, and then certify the returns. But there are still some parallels to the presidential process.
Jan. 6 was an essential moment in 2020 because, as the appointed day for the electoral count, it marked a point of no return after which the presidential election was effectively lost—by the losers, that is. Jan. 3, the day the old Congress ends and the new one begins, is the congressional equivalent: Only the swearing-in process still stands between the winners and their seats. This vulnerability lately has filled some commentators and activists with fear.
They’d probably be wrong to panic. But they’re right to pay attention.
What Happens on Jan. 3
Some of the Jan. 3 doomsday speculation hinges on the fear that Speaker of the House Mike Johnson or the current Republican House majority will “refuse to seat” incoming Democrats. Despite the prominence of these warnings in mainstream media, they are largely nonsense.
Why? The 20th Amendment provides that the terms of senators and representatives expire at noon on Jan. 3. Their successors’ terms “shall then begin.” Except it’s not that simple. The complication is that the House of Representatives is not a continuing body. This means that its entire membership turns over every two years—and the transition isn’t seamless. The old members’ terms uniformly expire at noon, but the new ones don’t uniformly begin at that same moment. Instead, the chamber enters “organization,” a reprieve between sessions during which it must constitute itself. (The Senate, only one-third of whose membership is elected at a time, is a continuing body.)
