Regardless of how you felt about Mike Pence’s term as vice president, his refusal to throw out an election for the presidency despite having no authority to do so saved the nation from a constitutional crisis. It was an act of integrity, of bravery, in the face of a president who happily watched as insurrectionists tried to find Pence to place him on a gallows. But that was a presidential election. As David French explains, the same rules do not apply to elections for the House of Representatives.

That’s exactly why we have to be creative now, to see around the corners into the possible future abuses of the law, and I’m worried that a largely forgotten constitutional provision (combined with a relatively vague federal statute) provides House Republicans a legal loophole to abuse — with no one clearly ready (or willing) to assume Pence’s role as the guarantor of American democracy.

Article I, Section 5 of the Constitution says that “Each house shall be the judge of the elections, returns and qualifications of its own members.” In plain English this means that the House and Senate make their own decisions regarding who belongs in each chamber of Congress, and those decisions are not reviewable by any other branch of government, including the courts.

By most accounts, there will be a significant shift in House following the midterm elections, assuming they’re held, that will give the Democrats (or the Dumocrats, as Trump wittily calls them, explaining that many people don’t know that “dumb” is spelled with a “b”) the majority.  But if the elections are challenged by the losers, what then?

The actual process for contesting an election to the House is governed by the Federal Contested Elections Act of 1969, a law that revised and updated previous legal procedures governing contested House elections. The law is detailed about process but largely silent about substance. The actual grounds for overturning an election are left to the discretion of the House (the Senate is governed by different rules).

The law gives a losing candidate, which it calls the “contestant,” 30 days after the certification of the election by state election officials to file a challenge with the House. The challenge is then referred to the Committee on House Administration, which investigates the contestant’s claims.

What constitutes an investigation, and what justifies a determination, is left entirely to the House. Speaker Mike Johnson would be in control of such matters, and Johnson is nothing if not a loyal Trump whisperer. Legitimate or completely farcical, the House then does its voodoo to decide who gets a seat and who watches through the windows.

The contestant is supposed to bear the burden of proving that the election result should be reversed. But the matter is ultimately decided by a simple majority of the House, and the House can refuse to seat any member while the contestant’s challenge is pending.

Like a jury convicting on less than “beyond a reasonable doubt,” or nullifying despite overwhelming evidence of guilt, the House majority, based upon its current membership constituting a Republican majority, will decide whatever it decides, right or wrong, better or worse. But surely the courts will step in should the House just cynically refuse to seat the newly elected Democrats because reasons, right? Not quite.

Or, as the Supreme Court put it in a 1972 case called Roudebush v. Hartke, “Which candidate is entitled to be seated in the Senate is, to be sure, a nonjusticiable political question.”

The decision is left to the discretion of a majority of the House of Representatives, and only to their discretion. The courts have no role to play in determining who Mike Johnson lets through the doors, for any reason or no reason.

Is this scenario too cynical that not even Speaker Johnson and the Republican majority would try it? Is it too outrageous that not even the MAGA faithful would tolerate it?

We should be under no illusions about MAGA intentions. Already, MAGA politicians are raising the stakes of the election. On Tuesday, Steve Scalise, the Republican House majority leader, said, “The Bolshevik takeover of the Democratic Party is in full swing, and communism is on the ballot this November.”

Two days earlier, Johnson posted, “The question before Congress is whether we will preserve our constitutional republic OR chart a fundamentally different course that leads us down the ROAD TO COMMUNISM.”

Of course, it’s purely speculative at this point to note that this possible mechanism to circumvent democracy will be employed to prevent Trump from losing the House. David says he hopes he looks silly for having raised this come next January. But then, there is little to suggest that anyone will play the role of Mike Pence and honor their oath of office to support and defend the Constitution when Trump demands they do his bidding?

After all, will Kash Patel restrain the president? Will Todd Blanche? Who can play the role of Mike Pence or Bill Barr in frustrating Trump’s plans? In the absence of a landslide, we are left to hope and trust that men like Johnson can find enough dignity and integrity to keep our nation from returning to the darkest days of the Republic, when partisanship trumped democracy and elections meant nothing when power was on the line.

As Judy Tenuta was fond of saying, “it can happen.” Whether it does or not remains to be seen, but it’s worthwhile to be aware, in advance, of the weapons at Trump’s disposal.