By Ahmed Abdelsalam
Control of the U.S. Congress may hinge on a handful of closely contested midterm races that could take weeks to resolve through recounts and court challenges, leaving the House and Senate to decide who ultimately gets seated.
Constitutional Authority
The U.S. Constitution designates each chamber as "the judge of the elections, returns and qualifications of its own members," giving lawmakers final say when a result is contested. States run federal elections and certify them, but challenges can proceed to the House Administration Committee or the Senate Rules Committee, which then recommend seating decisions to the full chamber.
Historical Precedent
Since the first Congress convened in 1789, the House has dealt with 634 contested elections, with a record 38 disputes in 1895. The Senate has recorded at least two dozen contests since direct popular election began in 1914. Election litigation has surged since the 2000 Bush v. Gore Supreme Court ruling, with UCLA law professor Rick Hasen documenting a record 756 cases in the 2023-2024 cycle.
Current Political Landscape
Republicans currently hold slim majorities in both chambers. Democrats need a net gain of four seats in each to flip control. Nonpartisan analysts rate 18 House races as toss-ups. The Trump administration has already intervened, suing to block Alaska from certifying results if Senator Dan Sullivan loses and to prevent California from counting more than 20,000 mail-in ballots.
Potential for Partisan Gridlock
Experts warn that partisan politics could dominate the resolution of disputes. If one party objects to seating an opponent's candidate, the other could respond with procedural tactics or boycott the chamber to deny a quorum. Michigan State University law professor Brian Kalt said it would be naive to dismiss the potential for shenanigans after the January 6, 2021, Capitol attack.
Provisional Seating Practice
Both chambers have established the practice of seating candidates provisionally while contests are litigated. However, unresolved races when the new Congress convenes in January would fall to the new House, complicating organization and the election of a speaker if enough seats remain unsettled.
