A prominent conservative former federal judge is warning that House Republicans may attempt to block Democrats from being seated in the next Congress even if voters hand Democrats a decisive midterm victory, calling the coming months a potential "Final Battle for America's Democracy."
J. Michael Luttig, appointed to the Fourth Circuit Court of Appeals by President George H.W. Bush, laid out the scenario in a scathing New Republic op-ed, arguing today's House Republicans have become so loyal to President Trump that they'd refuse to accept an election outcome that removes them from power.
"Today's congressional Republicans took a blood oath six years ago not just to put their party before their country, but to put Donald Trump before their country," Luttig wrote. "And so it is that only weeks before the midterm elections, House Republicans have already sworn their allegiance to Donald Trump and doomed the U.S. to another Jan. 6 next Jan. 3."
Luttig predicted the flashpoint would come January 3, 2027, when the new Congress convenes. He speculated that Speaker Mike Johnson, before his term technically expires at noon that day, could swap out House Clerk Kevin McCumber for someone more personally loyal to him and House Republicans, who would then simply decline to list Democratic representatives-elect on the official roll needed to organize the new Congress.
That move, Luttig argued, would spark a constitutional crisis potentially requiring weeks or months of litigation, all the way up to the Supreme Court, echoing the same vulnerability the country faced in January 2021 before then-Vice President Mike Pence refused to help overturn the 2020 election.
"So unalterably subjugated to Trump is today's Republican House that even a decisive victory for Democrats and a resounding repudiation of Trump and the MAGA Republicans at the polls in November will not guarantee that a Democratic majority-elect will be seated in the 120th Congress on Jan. 3," Luttig wrote.
Not everyone shares his alarm. Election law scholar Derek Muller pushed back on what he called unnecessary "fearmongering," pointing out that the House isn't a continuing body, meaning nothing Johnson's outgoing House does or decides can bind the incoming one.
"Whatever the House has done or decided before that cannot bind the incoming House, including any purported findings regarding the validity of elections. It is a brand new House that will adjudicate all matters afresh," Muller wrote on Election Law Blog.