There’s a fear that President Trump and his MAGA allies, like House Speaker Mike Johnson, will manage to steal the midterm elections, so that Republicans wrongfully retain control of Congress when instead the Democrats should be the congressional majority.

We need to disentangle different elements of this fear in order to understand and assess the nature and extent of the danger.

Most of the fear, at least so far, has focused on the House. That’s understandable given Trump’s orchestrated campaign of mid-decade gerrymandering, begun last year, in order to keep the House in Republican hands. And it’s possible that this gerrymandering will be successful, meaning that Democrats would have won control of the House this November if the mid-decade redistricting hadn’t happened, but they won’t because it did. Charlie Cook, the veteran political prognosticator, recently wrote that “whatever losses the GOP incurs in November will be about ten seats fewer than would have happened had the 2024 maps remained in place.” That ten-seat difference could determine which party holds the majority in the House.

But if that’s the outcome, does it amount to Trump and Republicans stealing the election from Democrats? Let’s assume each House seat on its own is won fair and square, with all eligible voters (and only eligible voters) able to cast ballots that are counted properly and accurately. Would the manipulated results caused by the gerrymandered maps amount to a stolen election? It could be argued either way depending on how one wishes to define electoral theft, but most analysts prefer to reserve the term for wrongdoing that causes the tally of votes for a specific seat to produce a winner different from the one that would have resulted if the wrongdoing had not occurred.  After all, there’s never been a congressional election without any gerrymandering, and it’s always possible to argue that the redistricting maps aren’t fair. So, if and when claiming that an election has actually been stolen, it’s better to confine these claims to misconduct that alters the outcome of a specific seat (whatever the fairness of the redistricting map that drew the seat).

It is theoretically possible that Trump and Republicans could steal enough specific seats to keep control of the House, but it would be extremely difficult to do if Democrats are the rightful winners in as many races as currently predicted. Again, according to Charlie Cook, “the most likely scenario” is “that this is a ‘really bad’ election for Republicans, losing between 26 and 35 seats in the House.” Even if it’s “merely a ‘bad outcome’ for Republicans,” which would be “a loss of between 15 and 25 House seats,” that “would still lose them their majority in that chamber,” given that they hold only a bare majority now.

Stealing five House seats is a tall order, much less 15, 25, or perhaps even the 35 necessary to retain a majority. If the Supreme Court had let Trump get away with his efforts to disrupt vote-by-mail, the ensuing chaos might have disenfranchised more Democrats than Republicans to the point of affecting enough seats around the country to prevent a switch from red to blue in which team wins the House. But, thankfully, the Court eliminated that specific threat, and it is difficult to imagine something similar that would have as much chance of causing such widespread disenfranchisement.

Yet, even if Trump’s Postal Service conjures up some new scheme to prevent Democrats from voting by mail (an unlikely scenario), would it mean that the House ends up stolen? It’s impossible to count ballots that are never cast, and if an eligible voter doesn’t cast a ballot, can we be sure it was because of Trump’s wrongful interference with vote-by-mail? Still, if lawsuits are filed documenting the specific number of eligible voters who attempted to vote by mail but were unable to do so because of the Postal Service’s Trump-induced impropriety, would the federal judiciary really let certified election results be tainted in this way? The situation would be an unprecedented mess, but we cannot know for sure that the Members-elect showing up at the beginning of the new Congress on January 3 with their judicially approved certificates of election would amount to a GOP majority only because of Trump’s postal misconduct.

The same point applies to a wide variety of ways Trump’s power over the federal Executive Branch might endeavor to interfere with the process of casting and counting ballots: ICE intimidation of valid voters; FBI seizure of ballots before being counted; and so forth. We have to hope that the judiciary is able to block such moves, so that whatever outcome gets certified for each seat is the same outcome that would have been certified if the federal Executive hadn’t improperly tried to change the result.

That brings us to the fear, recently expressed by Jeffrey Toobin (among others), that Republicans will be able to orchestrate a kind of coup on January 3 by denying Democrats their rightful seats as evidenced by judicially approved (or judicially mandated) certificates of election that they possess pursuant to the rule of law.

To appraise this risk, I can do little better than to cite Molly Roberts’s superb analysis in Lawfare, which everyone interested in this topic should read thoroughly. To what she says, I will add some observations.

The concern is that Speaker Mike Johnson, before noon on January 3 (when his term ends as specified by the Constitution’s 20th amendment,) will replace the current Clerk of the House with an individual willing to do whatever it takes to alter the roll of Members-elect to deprive Democrats of their rightful majority. This scenario is implausible unless in November and December there have been actual disputes—and litigation—over enough seats to give an Acting Clerk a pretext for doing anything other than enrolling the Democrats as Members-elect who, according to the applicable statute (2 U.S.C. § 26), have “credentials show[ing] that they were regularly elected in accordance with the laws of their States respectively, or the laws of the United States.” By contrast, if there’s been no actual contestation over enough seats prior to January 3, it would be utterly farcical for a newly installed Acting Clerk to assert that Republicans, not Democrats, won those seats and change the roll of Members-elect in defiance of the law. Not only would the Supreme Court not tolerate such brazen lawlessness, but overwhelming political pressure would force the Acting Clerk to back down.

The situation is more complicated if there’s been actual litigation over enough seats and it remains disputed between the two parties as to who won those seats. Then, history shows, there’s potentially room for a Clerk (or Acting Clerk) to take steps that might make a difference. A governor might issue a certificate of election to one party’s candidate, only to have the courts void that certificate and require the governor to issue a new one for the opposing candidate. But an Acting Clerk might try pretextually to enroll as the Member-elect the candidate with the initial, since-voided certificate—or perhaps keep both candidates off the roll, thereby depriving the true judicially-determined winner of a seat in the House. One would like to think that the judiciary would insist that the Acting Clerk recognize the validity of the certificate, and only the certificate, that ultimately had prevailed in the earlier litigation. But there is some chance that the Supreme Court might consider the matter a “political question” to be resolved within the internal deliberations of the House, however unruly they might be, rather than by judicial decree.

It seems highly improbable, however, that there could be enough House seats the outcome of which remains disputed on January 3 that the Acting Clerk would even have a pretextual basis for manipulating the roll of the Members-elect. But if after the vote in November there is a serious concern that this could happen, the lameduck Congress could prevent it by disallowing the Speaker to appoint an Acting Clerk. That would require at least some lameduck Republicans to join with lameduck Democrats to preserve the integrity of the House, but ultimately the only solution to a Clerk’s pretextual alteration of the roll of Members-elect—if the judiciary won’t intervene—is for patriotic politicians to refuse to let the Clerk’s attempted coup prevail. This is precisely the lesson to be learned from the 1862 midterms (as detailed in chapter 4 of Ballot Battles, when Democrats hoped that they could get the Clerk to compose the roll in their favor, but not enough Democrats went along with the plan for it to succeed).

For all the focus on the House, some attention should be paid to the Senate. Given the current state of the races, it is much more likely that partisan control of that chamber will turn on a single seat. Imagine it being undisputed that Democrats have 50 seats, Republicans 49, and one is up for grabs. Suppose the Democrat ends up with the judicially recognized certificate of election for this remaining seat. Will J.D. Vance, as Senate president, accept its validity when it is sent to him (as required by 2 U.S.C. § 1a) and then fulfill his duty (expressed in 2 U.S.C. § 21) to administer the oath to this Senator-elect, who gives the Democrats their 51st vote? One hopes that January 3 does not bring a test of the possible power of the Senate president to defy the will of the voters of a particular state in choosing to elect a Senator of the opposing party. Never before has partisan control of the Senate depended on the resolution of a single seat that both parties continue to claim they have won. This year is not an auspicious one for finding out how that kind of situation gets resolved.

From the vantage point of late September, it is impossible to know for sure whether the nation will come through the midterms with its democracy intact in the specific sense that the majority party in both chambers of Congress next January is the one that should be the majority based on the will of the voters in each race on the ballot in November. It is likely that this is the case, but much depends on exactly what transpires between now and then, and how unsettled things may remain when it’s time for Congress to convene on January 3. By now, it’s become a truism that democracy depends on the willingness of the losing party to accept defeat, and that proposition has never been more relevant than now.

If American democracy does remain intact in this relevant sense, perhaps afterwards there can be an effort to undertake the changes necessary to make the nation less vulnerable to the chance that one party might seize power contrary to the will of the voters. Those changes would include eliminating maximal gerrymanders, among other measures aimed at retaining a party’s control of government regardless of what the voters want.