Give Steny Hoyer some credit. The Democratic Whip in the House is looking past any October surprise to the post-election period when Republicans may employ a whole range of strategies to hold on to their House majority regardless of the voters' verdict on November 8.
Hoyer recently wrote a letter to Republican Vernon Ehlers, chairman of the usually obscure House Administration Committee, voicing concerns about the possiblity of contested House elections:
With many House races expected to be very close this November, there is the real possibility that recounts will occur in several congressional districts, with some outcomes being challenged under the Federal Contested Election Act (P.L. 91-138, 83 Stat. 284). I am deeply concerned that ambiguities and deficiencies in this statute may prolong rather than facilitate the resolution of contested elections by the Committee on House Administration unless the Committee acts now, in a non-partisan and collaborative manner, to develop a set of clear protocols for managing any contest or contests that the Committee faces in November.
At least one Democrat has learned the lesson of Bush v. Gore: losing an election doesn't stop this band of Republicans from trying to take the office anyway.
In this case, it's not the Oval Office but the Speaker of the House that will be the prize, and if Hoyer and the political pundits are right, whether the House is controlled by Republicans or Democrats after January 3 is likely to turn on a few House contests with close outcomes.
Here's how it works. Each state is responsible for certifying the Congressional winners to the U. S. House of Representatives. In many cases, the ultimate state authority will be a Secretary of State, the office that Katharine Harris held in Florida in 2000. Depending on a particular state's law, a Governor, state courts or a state legislature may have a role as well.
But that's where the similarity to the 2000 Presidential election nightmare ends. Article I of the U. S. Constitution provides that Congress itself--not the federal courts--will have ultimate authority to determine who is qualified to sit as a Representative. Dozens of House elections have been contested through the past two centuries, and in each case, it was the House itself that decided the outcome, sometimes reversing the decision of state authorities as happened in 1985 when Democrat Frank McCloskey was awarded the Indiana 8th Disrict seat over Republican Rick McIntyre who had been certified as the winner by Indiana.
The McCloskey/McIntyre contest prompted a dramatic Republican walkout, but that was nothing compared to the hullabaloo that will result from election contests that will actually determine the Speakership and committee chairmanships. The best precedent for such a situation arose when it came time to seat the 26th Congress in 1839. The House was closely divided between Democrats and Whigs, and the balance of power would be determined by the outcome of five contested New Jersey seats.
As is still the case, the House convened under the chairmanship of the Clerk of the previous House. Clerk Hugh Garland, a Whig, realized that if the five Democrats who had been certified as winners by one branch of the New Jersey state government were not allowed to vote, then a Whig would be elected Speaker. Claiming that he had no power to rule on the disputed seats, Garland passed over the New Jersey five during the roll call. The Democrats objected, and the House was paralyzed for two weeks until a compromise was reached that seated the New Jersey Democrats but elected a Whig as Speaker.
How will it work in November? Candidates determined to have lost according to state authorities can file a notice of contest with the current Clerk of the House. This initiates a process of response and discovery conducted under the superivison of the House Administration Committee which eventually makes a recommendation to the full House as to which candidate to seat.
Before things ever get to that point, however, the House must meet in January to elect a Speaker. Until the Speaker is chosen, it is the current Clerk of the House, Hastert protegee Karen Haas , who issues credentials (the electronic voting card), calls the roll and rules on who can vote for Speaker under 2 U. S. C. Section 26. Ms. Haas, currently being mentioned in connection with the page scandal because she is the designated supervisor of the pages, will find herself in the pivotal position of determining who can and cannot vote to elect a Speaker when a few votes either way could determine the outcome.
Such a scenario could make the 26th Congress and even the 2000 Presidential election seem orderly by comparison. Republicans can be expected to contest at least enough Democratic wins to keep the Speakership in doubt. Meanwhile, they will be pressuring, cajoling and bribing some of the thirty-plus conservative "blue dog" Democrats to switch sides.
The Republicans, like Democrat Hoyer, are anticipating that the situation will be very fluid after November 8 and are refusing to commit themselves even as to when they will hold their post-election organizational meeting in Washington.
If Democrats do manage to come out as "apparent" winners of 220 to 230 of the 218 seats needed to elect a Speaker, then the battle will have just begun.
And in the middle will be House Clerk Karen Haas, groomed by Denny Hastert for just such a moment.