As Democrats prepare to potentially retake control of the House of Representatives following the November midterm elections, concerns have surfaced about possible Republican efforts, encouraged by former President Donald Trump, to impede Democratic members from being seated. Although seen by many experts as unlikely, this scenario echoes events from early 2021, when a majority of House Republicans challenged the certification of the 2020 presidential election results.

The U.S. Constitution grants states the authority to administer federal elections and certify winners, sending official certificates to Congress. Historically, these certifications are a routine part of the transition, but since 2020, some state officials have resisted certifying election outcomes, occasionally requiring court intervention. Election observers warn that these disruptions could be a focal point for attempts to delay or contest the midterm results, which could in turn leave seats vacant when the new Congress convenes on January 3, 2025.

At the start of each new Congress, all House members must be sworn in simultaneously as the previous Congress's term expires at noon on January 3. In the interim, the clerk of the House compiles the official list of those elected, based on certificates provided by the states. Kevin F. McCumber currently serves in this role. According to legal experts, the clerk’s responsibility is administrative—valid entries on proper certificates generally must be accepted without evaluating the legitimacy of the election itself. However, some speculate that pressure could mount on this office to reject certifications from Democratic winners, mirroring efforts by Trump to persuade Vice President Mike Pence to block certification in 2021. Such a move would likely trigger legal challenges.

The House itself holds the constitutional authority to judge the elections and qualifications of its members. Under the Federal Contested Elections Act of the 1960s, losing candidates have 30 days after a winner’s certification to file formal election contests. The House Administration Committee assesses these disputes and reports its findings to the full chamber, which decides whom to seat. Historically, members often take their seats provisionally while investigations proceed, as seen in 2021 when Representative Marianne Miller-Meeks was seated despite an ongoing contest that was later withdrawn.

In addition to formal contests, individual members-elect may object to the seating of colleagues once the House is organized. This practice is infrequent since the Federal Contested Elections Act’s enactment but was notably invoked in 2021 when Representative-elect Chip Roy challenged multiple Democratic members from battleground states. The House swiftly voted to seat the disputed members, allowing them to participate in the proceedings.

The last instance of the House refusing to seat a member with a certified victory on the opening day of a new Congress occurred in 1985, when the chamber left a contested seat vacant pending a recount that ultimately favored the challenger.

In the Senate, the process differs somewhat. States send certificates of election to the vice president, who serves as the Senate’s presiding officer, with no federal statute explicitly governing acceptance of these certificates. The Senate’s Rules Committee handles disputes, and the chamber typically seats contested senators provisionally while investigations take place. Notable examples include Senator Mary Landrieu’s 1997 case, where she was seated during review of fraud allegations and ultimately retained her seat, and the prolonged New Hampshire Senate dispute in 1974, which led to a special election after repeated recounts and deadlocks.

Both chambers have mechanisms in place to address election disputes, but the heightened political polarization and recent challenges to election legitimacy have raised questions about potential efforts to disrupt the certification and seating processes after the upcoming midterms. Lawmakers and party leaders from both sides have urged colleagues to commit to respecting certified results to avoid undermining the peaceful transfer of power. Nonetheless, the post-election period could see renewed tensions over these constitutional and procedural provisions as control of Congress solidifies.