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Notes on the State of Politics: May 7, 2024

Dear Readers: This is the latest edition of Notes on the State of Politics, which features shorter updates on campaigns and elections. Today we’re looking at the indictment of Rep. Henry Cuellar (D, TX-28) and following up our item from last week about the tricky procedural questions if no one wins a majority of electoral votes in the presidential election and the House needs to resolve it.

— The Editors

Table 1: Crystal Ball House rating change

District Old Rating New Rating
Henry Cuellar (D, TX-28) Likely Democratic Leans Democratic

TX-28 following Cuellar indictment

The House race in one of the most interesting districts in the country got a jolt Friday when long-serving Rep. Henry Cuellar (D, TX-28) and his wife were indicted by the U.S. Department of Justice on bribery and other charges. The indictment accuses Cuellar and his wife of taking roughly $600,000 in bribes in exchange for advancing the interests of an Azerbaijan-controlled energy company as well as a Mexican bank. The case is somewhat reminiscent of the indictment of Sen. Robert Menendez (D-NJ), whose career in Congress appears to be nearing an end (even if he follows through on a threat to run for reelection as an independent).

The indictment did not come completely out of left field: FBI agents raided Cuellar’s home and office in Laredo in January 2022, but there hadn’t really been any news about this potential case since then until the indictment came out on Friday. The initial raid, which was widely covered, did not prevent Cuellar from surviving a second tough primary with a left-wing challenger, Jessica Cisneros, nor did it seem to harm him much in a very expensive generally election bout with former Sen. Ted Cruz (R-TX) aide Cassy Garcia (R): Cuellar, a rare Democratic opponent of abortion rights and arguably the least liberal/progressive member of the House Democratic caucus, won by 13 points.

Prior to the indictment, Cuellar appeared set for an easy reelection bid. Cisneros declined to run again in the primary, and he does not appear to have a very credible Republican opponent. Veteran Jay Furman and businessman Lazaro Garza Jr. are competing in a May 28 runoff for the right to face Cuellar. Furman led Garza 45%-27% in the first round of voting; neither has raised much money. National Republicans are going to have to decide whether either is worth heavily backing in the midst of Cuellar’s indictment—and, if they do, what will national Democrats do to counter, given both the need to hold the district but also the optics of actively trying to defend someone running under the cloud of a serious indictment? House Majority PAC, the big Democratic outside group, did include $520,000 in the San Antonio media market as part of an initial ad buy announced a month ago, before the indictment (that market covers part of the district).

Cuellar’s district became markedly less Democratic in 2020, backing Joe Biden by just 7 points after supporting Democratic presidential candidates by roughly 20 points apiece in the previous three presidential elections (these data come from Dave’s Redistricting App, including recently-published information about the 2008 and 2012 district-level voting that formed the basis of Crystal Ball Associate Editor J. Miles Coleman’s national look at voting patterns last week). One could imagine the district becoming even more competitive in 2024, which could threaten Cuellar, especially considering the indictment. The other Democratic-held district in the region is represented by Rep. Vicente Gonzalez (D, TX-34), who faces a rematch with former Rep. Mayra Flores (R). At this point, Republicans still seem likelier to prioritize TX-34 given a more obvious challenger there and the fact that despite TX-34 being a bluer district than TX-28 (Biden +15.5 in the former compared to Biden +7 in the latter), the Republicans held Gonzalez to a high single-digit victory in 2022 while Cuellar won by double digits (we wrote about TX-34 a few months ago when we moved that race from Likely Democratic to Leans Democratic).

Cuellar has a long and successful history in the district, and it’s not obvious the indictment will end his elected career, at least not immediately. Cuellar even got support from a perhaps surprising source on Sunday night, as Donald Trump defended Cuellar, calling him a “Respected Democrat Congressman” and arguing that he was unfairly targeted by President Biden’s Justice Department because “he was for Border Control.” Support from Trump is likely helpful to Cuellar, who has vowed to seek reelection. On Monday morning, Politico’s Playbook reported that Republicans will try to tie the indictments of Cuellar and the aforementioned Menendez in New Jersey to the national Democratic brand, while also noting that roughly half the Republican House conference voted with Democrats to expel former Rep. George Santos (R, NY-3) late last year. We doubt the House could muster the required two-thirds majority to expel Cuellar at this point—remember that Santos’s fellow New York Republicans were leading the charge about expelling him, whereas there does not appear to be the same kind of intraparty movement against Cuellar. The Republicans also of course have a presidential nominee, Trump, who has been indicted himself. Cuellar did give up his role as the ranking member on the Department of Homeland Security appropriations subcommittee following the indictment.

One important factor in this race is that it does not appear that Texas law would allow Democrats to replace Cuellar on the ballot even if he decided to withdraw from the race. So they seem to be stuck with him unless they want to effectively forfeit the seat, which they surely do not want to do given the closeness of the House, despite the potential PR headache of defending a member facing a serious indictment.

One difference between Santos and Cuellar is that Santos had become such a huge national figure in the aftermath of the discovery of his phony background that one could’ve imagined him becoming an electoral headache for other Republicans, maybe in New York and maybe elsewhere too (although ultimately it probably wouldn’t have mattered outside of his district anyway). Still, Cuellar is not a nationally-known figure and won’t be even after these charges, in all likelihood.

Cuellar’s situation reminds us somewhat of the saga of former Rep. Michael Grimm (R, NY-11). First elected to represent Staten Island in the 2010 GOP wave, Grimm was indicted in April 2014 on fraud charges. Republicans effectively left him for dead—their House majority was not in any kind of serious jeopardy that year—but he ended up winning by an impressive double-digit margin. Soon after winning, Grimm took a plea deal and resigned before being sworn in for his third term. Republicans held the district in a subsequent special election. Though they are vastly different locales, both Staten Island and South Texas strike us as somewhat parochial kinds of places, which might help an embattled incumbent.

Ultimately, we decided to move this district from Likely Democratic to Leans Democratic, a move we first announced on Friday—Cuellar is now running under indictment, after all, and the political trends in the district generally favor Republicans. We’ll have to see if it evolves into a true Toss-up.

Contingent contingencies

Last week, we wrote about the possibility of a 269-269 tie in the Electoral College, or some other situation where neither major-party candidates gets to a majority, 270 electoral votes. The House, voting as 50 state-level delegations, would be tasked with breaking such a deadlock, and Republicans remain very likely to hold a majority of delegations come January 2025 even if Democrats end up winning the overall House majority.

The actual process of a House vote, though, merits a bit more of a discussion than we gave it last week. Particularly if Democrats won the House majority, the majority party might have the ability to bog down the process in such a way that the House is unable to actually select a president.

Here’s one possibility, described by Beau Tremitiere and Aisha Woodward of the nonpartisan group Protect Democracy in a piece they wrote for Lawfare last year (Protect Democracy also published a report about contingent elections). They described how the House majority “could manipulate voting rules or ensure a stalemate” in a contingent election. What follows is a long quote from their Lawfare article:

“Although the 12th Amendment requires the House to vote by state delegation, it does not establish the quorum required within each delegation, nor does it establish whether a plurality, majority, or supermajority of members in a state are required to reach a decision. The text is likewise silent about what happens when a state delegation fails to meet the prescribed vote threshold.

“To address these and other questions, the House would need to adopt a special rule to govern the contingent election process. The party controlling a majority of House seats would face strong incentives to adopt a rule that favors their desired outcome, or at least ensures that the opposing candidate cannot secure a majority of state delegation votes. If this party also controls a delegation majority in at least 26 states, the House likely would adopt the delegation majority threshold used in 1825. However, if Democrats retake the House majority in 2024, Republicans likely will continue to hold a delegation majority in at least 26 states, which could prompt Democrats to adopt some other rule. This tension could leave the House deadlocked on Jan. 20, triggering the presidential line of succession.”

Whatever one would think of this possibility—Republicans would be furious—it’s just one of the many variables with a process that has not been used in two centuries.

This leads us to the second follow-up from last week’s piece that we wanted to mention. In the event of a contingent election, the Senate would choose the vice president while the House decides the president. If the House failed to produce a president, the vice president selected by the Senate—if the Senate could actually select someone—would serve as president until the House acted.

The Senate having to select a vice president has actually happened more recently than the House selecting the president, although this still hasn’t happened within anyone’s lifetime: The Senate picked Richard Mentor Johnson (D) to be the vice president in 1837, following the 1836 election won by Martin Van Buren (D). Johnson was Van Buren’s running mate, but the Democratic electors in Virginia withheld their votes from Johnson, leaving him shy of an electoral vote majority and forcing the Democratic Senate to select him as vice president.

The Senate process is simpler on paper than the House tiebreaker: Each senator gets a vote, and it takes a majority of votes to win. One question is whether the vice president—in this case, Kamala Harris, as she will still be vice president for a couple of weeks after the new Congress has been sworn in—could cast a tiebreaking vote in this process, the way vice presidents can break ties in some other Senate votes. The 12th Amendment notes that, for this vote, “a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.” We suspect different people might read that different ways—which is often the case in constitutional law—but Brian Kalt, a constitutional law expert at Michigan State University, said he thought Harris could not act as a tiebreaker in this instance, because “a majority of the whole number” means 51 senators. The authors of the Lawfare article cited above treat the VP tiebreaker in this scenario as an open question. It is possible that the new Senate would be 50-50, so this is a germane and hard-to-answer question if this situation ever came to pass.

Another question is whether the filibuster would apply to the vice presidential selection, although if either side could command a bare majority, they could invoke the so-called “nuclear option” to eliminate the use of the filibuster in this instance, much like a Democratic Senate majority did in 2013 to eliminate the filibuster for lower-level federal judicial and other federal nominations and a Republican Senate majority did in 2017 to eliminate the filibuster for Supreme Court nominations.

It is possible that, in the time between the convening of the new Congress (a couple of days after the new year) and the end of the incumbent president and vice president’s term (noon on Jan. 20, 2025), either the House or the Senate could fail to produce a president and/or vice president. If there’s no president but there is a vice president, that person would serve as president until the House produced a president. If there was neither a president nor a vice president, the line of succession goes Speaker of the House, Senate President Pro Tempore, and then to members of the Cabinet (which would be the Biden administration Cabinet, because in this instance there would be no new president to force out the old Cabinet and/or appoint new Cabinet members). There are, predictably, nagging questions about the line of succession, too, as the Protect Democracy authors also note.

This whole situation would be, to use a fancy constitutional law phrase, bonkers (OK that’s not actually a constitutional law phrase, but you get our point). Beyond the politics of the individual state delegations, we wanted to note these additional procedural uncertainties and complications of this process, if it came to pass.