An important (and alarming) piece by former federal judge Michael Luttig (younger readers will not know how conservative Judge Luttig was as a member of the U.S. Court of Appeals for the 4th Circuit–this was befor “conservative” meant fascist or authoritarian). He writes:

Everyone knows that the greatest threat to the upcoming midterm elections is not the Democrats or the Chinese, noncitizen voting, or electronic voting machines, but the president of the United States and his servile Republican Congress….

While it is small solace, Americans are not entirely at the mercy of this Republican Congress to suddenly decide to honor its oath to the Constitution and the American people. It will be the Supreme Court, not Trump, Johnson, or even the House of Representatives, that will have the final word as to who will be seated in the 120th Congress of the United States.

Article I, Section 5, Clause 1 of the Constitution provides that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Under Clause 1, the House of Representatives is the “judge” of its “elections” and “returns.” But the House’s power is not plenary. The Constitution constrains how the House can exercise its power to refuse to seat members-elect. Indeed, in 1969, in Powell v. McCormack, the Supreme Court ensured that the House constitutionally exercised its power to “judge the qualifications” of members-elect when it ordered the seating of New York Representative Adam Clayton Powell, who had won reelection in 1966 despite a House vote to refuse to seat him. Just as the court intervened then, so also will the Supreme Court ensure that the House exercises its power to “judge” its “elections” and “returns” within the limits imposed by the Constitution. At least we hope it will, but can we be sure with this court?

Whether the House constitutionally exercises its power not to seat members-elect will ultimately be determined by the federal courts and the Supreme Court—not by a majority vote of the House of Representatives.

This is how the crisis would unfold. The precursor of the crisis will come sometime before noon on January 3, when Speaker Johnson removes current House Clerk Kevin McCumber and replaces him with a person loyal to Johnson and House Republicans who they know will refuse to list on the statutory roll of representatives-elect to the 120th Congress any Democrat-elect whom Johnson and the Republicans direct him or her not to list. Under Rule II, Clause 1 of the Rules of the House, the Speaker of the House has the unilateral power to remove the incumbent clerk, and then the power under Title 2 U.S.C. § 5501(a) to replace him temporarily with whomever he wishes until the House elects a successor. McCumber is a Republican appointed by former Speaker Kevin McCarthy. He is widely respected for his integrity and faithful adherence to the Constitution and is reputed to be unwilling to carry out orders he considers to be unconstitutional.

The first moment of constitutional crisis will come when, sometime before the 120th Congress has been gaveled into session, the loyal temporary clerk refuses to list Democrat representatives-elect on the clerk’s roll of representatives-elect that determines who may participate in organizing the new Congress. At that moment, interested members-elect and others will be forced to seek a writ of mandamus—a court order to a government official instructing him or her to perform a mandatory duty—from the federal court to the temporary clerk, ordering him or her to list on the clerk’s roll all members-elect who have been certified by the states as having been elected from their districts to the new Congress.

Members-elect will argue that the clerk has a ministerial duty under 2 U.S.C. § 26 to list all representatives-elect whose properly filed state certifications show that they were “regularly elected in accordance with the laws of his state or of the United States.” Because the clerk has no authority to omit any duly certified representative-elect, even if a representative-elect’s election is contested, the clerk unquestionably has a ministerial duty under law to list all duly certified representatives-elect. But this begs the question whether a court will issue the writ of mandamus to the acting clerk.

At first blush, a court will be reluctant to order the clerk to list all duly certified representatives-elect because of an instinctive belief that such an order would interfere with the constitutional process of the House to judge its own elections and returns. The wise and learned judge, however, will understand that rather than interfering with the House process, issuance of the writ will actually enable the House process to proceed to completion without judicial interference. Were that wise and learned judge to issue the writ, his or her order would immediately be appealed to the Court of Appeals, and from that court to the Supreme Court, while the country and the world wait in suspense.

The next moment of constitutional crisis will come if and when, after appeals, the court finally issues the writ of mandamus, and the clerk refuses to obey the court’s order to list the Democratic representatives-elect. At that point, it is possible there will be no further federal court involvement until such time as the 120th Congress officially convenes and votes not to seat representatives-elect. Then, that vote by the 120th Congress will be immediately reviewable by the federal courts, up to and including the Supreme Court of the United States.

Judicial review of the House’s decision not to seat Democratic representatives-elect in the 120th Congress would take weeks, if not months, during which time the United States would be in the throes of a paralyzing constitutional crisis, helplessly vulnerable to all the world’s evil, as it would have been in January 2021 had Mike Pence not thwarted Donald Trump’s plan to overturn the 2020 presidential election….

The House has historically claimed that its decision not to seat a member-elect because of fraud or irregularities in the elections is unreviewable by the federal courts. But its decision is reviewable. The Constitution unquestionably requires the House to seat a member-elect who was validly elected in a free and fair election. The Article 1, Section 5 power of the House to be the judge of its elections and returns does not give the House the power to deny a seat in the Congress of the United States to a candidate elected by the American people in a free and fair election on the mere assertion, pretextual or otherwise, by a simple majority of the House that the candidate’s election was tainted by fraud.

Thus, on and after January 3, if congressional Republicans were to determine that a Democratic member-elect was elected because of fraudulent voting and refuse to seat him or her, that determination would be scrutinized by the federal courts, up to and including the Supreme Court.

It will never be a nonjusticiable political question whether the United States House of Representatives by simple majority vote can refuse to seat a member elected to Congress by the American people in a free and fair election on the pretextual and unsupported assertion that the member-elect’s election was tainted by fraud. Such is the very opposite of a nonjusticiable political question committed to the House of Representatives. For in the decision of this question lies the answer to perhaps the most fundamental question under the Constitution: Is the United States of America a democracy, in which “We the People” elect our representatives to the Congress and to the presidency, or is it not?

I asked one of my constitutional law colleagues whether he thought Judge Luttig was right about the ability of the court to review a decision not to seat elected Democrats? He said:

Not clearly right, anyway. Powell v. McCormack drew a potential distinction between the House’s unreviewable judgment on a constitutionally-permissible criterion, and the decision not to even use the constitutionally-permissible criterion.  If the Republicans falsely claim to be judging the actual facts about the elections in various states where Democrats win, they’ll have a good legal argument they should be unreviewable. As to what the Court would actually do, you know as well as I that the quality of the legal argument would not be 100% controlling, though I don’t think it’s 100% irrelevant either.

It’s not irrelevant, but it will clearly underdetermine what the Supreme Court does.