Democrats are cautiously optimistic about retaking control of the House of Representatives in the upcoming midterm elections, but legal and procedural uncertainties surrounding the certification of results and the swearing-in of members could complicate the transition.

Federal law assigns the clerk of the House the responsibility of compiling the official roll of members elected to serve in the new Congress. As of 2023, Kevin McCumber holds this post. Appointed by then-Speaker Kevin McCarthy, McCumber previously served under former Speaker Nancy Pelosi and is regarded as largely nonpartisan. Traditionally, the clerk’s role in assembling the roll is routine and uncontroversial, simply confirming the election results provided by the states.

However, some Democrats are preparing for a potential crisis scenario in which this established process could be disrupted. In the event that Democrats secure a majority in the House but the outgoing president claims widespread voter fraud and refuses to acknowledge the certified results, pressure could mount for Republican leaders, including Speaker Mike Johnson, to remove McCumber and replace him with a figure aligned more closely with the former president’s interests.

Speaker Johnson legally holds the power to replace the clerk, but any permanent nominee must be confirmed by the House membership itself. Observers suggest that Johnson’s narrow Republican majority, which includes retiring members likely less inclined to follow party leadership on controversial measures, might resist attempts to overturn certified outcomes or disrupt the initiation of the new Congress.

Delays and disputes could pose serious challenges due to the timing of House procedures. Unlike the Senate, which is a continuing body, the House technically dissolves at noon on January 3 following the election. Until new members are sworn in, no representatives hold office, making timely certification and the clerk’s role pivotal. The clerk presents the roll of incoming members to the chamber, allowing them to elect a new speaker, who then administers the oath to the rest of the House.

If the clerk’s certification is withheld or contested, questions arise about which members are entitled to vote for speaker. Legal experts describe this as an unprecedented and potentially chaotic situation, with the possibility of internal votes on membership eligibility and numerous lawsuits. The judiciary has historically been reluctant to intervene in disputes concerning the internal functioning of Congress, often deferring to the institution itself.

Democratic officials emphasize the importance of adhering to certified election results, urging members across party lines to accept the outcomes as provided by states. They point to the resolution of the 2020 presidential election as a precedent, where electoral vote certifications were ultimately accepted despite extensive challenges.

While Democratic strategists remain wary of attempts to undermine the process, they express confidence that the American public will oppose efforts to overturn election outcomes through procedural manipulation. “The American people, I think, are not going to just sit by while an election which has given a Democratic majority of the House is taken away by some subterfuge,” one party official said, though he acknowledged continuing concerns about potential disruptions.

As the midterm elections approach, officials on both sides of the aisle are watching closely, aware that the clerk’s role and the acceptance of certified results will be key elements in the peaceful transfer of House control in early 2027.