Sky York Journal
Now that some Senate Republicans say they’ll stage a floor fight to block Mary Peltola from being seated should she win on Tuesday, we are compelled to try to figure out: how would that work?
Few can predict, largely because the Senate is an institution governed more by norms than by law.
What is clear is that, in some ways, those around the president are running an inverse version of the playbook they ran in 2020. There are specious claims of voter fraud and election-theft schemes, yes, but President Trump isn’t on the ballot. And, instead of the federal government largely rejecting these claims, as it did in 2020, the DOJ is throwing its weight behind an effort to intervene in the election, and to try to convince Americans the baseless claims are true.
So far, that’s failed. But as in 2020, there is growing reason to expect that the real effort to interfere may take place after the voting is done. In the Senate, where control of the chamber could hinge on just one or two races, a fight over certification could end up presenting a significant issue.
The DOJ asked a federal judge last week to block Alaska from certifying Mary Peltola’s election should she win. After a judge rejected that effort on Sunday, the DOJ moved to appeal — that is pending. The case revolves around allegations that Peltola’s campaign staff played a role in having two Dan Sullivans as opponents: one the incumbent Republican senator, the other an apparent spoiler candidate that, per the New York Times, joined the race after Democratic operatives urged him to do it. It’s not clear what effect the two Dans will have on the outcome (Alaska has ranked choice voting), nor is it clear whether there’s a crime. No matter: the FBI is investigating; some Republican senators have already questioned whether they’ll seat Peltola should she win on Tuesday.
There is good reason to expect a real fight, procedural experts and Senate staffers tell me. Unlike the House, the Senate has no law laying out how the body selects its new class of senators. There’s one, non-elected figure empowered to collect the certificates of election from each state: the secretary of the Senate. Beyond that, there are no set procedures.
In that vague environment, Senate staffers, current and former, are racing to game out what a fight over Peltola’s seating might look like.
It’s helpful to think about the post-election certification process as taking place in two stages. The first deals with how the election itself is certified under the laws of each state. We wrote in depth about how this works in each Senate battleground state.
The second phase is how the Senate seats incoming senators, particularly in situations where the election is disputed (or, as may be the case, where one side has concocted a fake dispute and is feigning confusion at the outcome). The first can feed into the second: per The Hill, some Republican Senators question whether Peltola would be seat-able if Alaskan officials decline to sign her election certificate.
If Alaska does certify the win, we adavance to the second stage, which is where a floor fight could happen.
The Senate Rules Committee oversees contested elections, and sends its recommendations and conclusions onwards to the rest of the body. That doesn’t account for court challenges: as one current staffer reminded me, Sen. Al Franken’s (D-MN) 2008 election famously hinged on a long court battle with Sen. Norm Coleman (R-MN) that dragged on for months. That Senate seat stayed empty until July 2009. That same staffer alerted me to a 2015 CRS report on the matter, which notes that a senator under indictment can be seated, with the body having the option of disciplining them once seated.
That all elides the question of how a floor fight might unfold about which, unfortunately, little seems to be known. One former Senate staffer mused that even if the GOP delays Peltola’s seating in the event of her victory, a new Democratic majority would eventually seat her.
If you think that’s where this rabbit hole ends, you’re wrong. The real question, to some, isn’t so much the process as who does the seating: it’s either the vice president, or the Senate President pro tempore. Sen. Chuck Grassley (R-IA) currently fills that seat; Sen. Patty Murray (D-WA) would replace him in a Democratic majority. JD Vance is obviously the vice president and, like Mike Pence, his duty to issue the oath is widely understood to be purely ministerial. But what would he do in the event of a fake controversy?
