It’s Been More Than 30 Years Since The House Reversed An Election Outcome

What’s going to happen in North Carolina’s 9th Congressional District? That’s a question currently without an answer. Republican Mark Harris was initially declared the winner, but after allegations of election fraud cast doubt on the integrity of the vote, the next steps remain uncertain. With The Washington Post now reporting that Harris personally directed the hiring of the operative at the center of the potential fraud — even after being warned of his suspect methods — it’s entirely possible that the state board of elections could order a brand new election.

Or, the new Democratic-controlled House could get involved. Article I, Section 5 of the U.S. Constitution states that each chamber of Congress “shall be the Judge of the Elections, Returns and Qualifications of its own Members.” What this means in the North Carolina race is that the House has ultimate authority to decide disputed House elections. The House could play a part if the losing candidate, Democrat Dan McCready, files a contest under the Federal Contested Elections Act of 1969, or if the House refers the matter to its Administration Committee for an investigation.

They’re far less common nowadays, but the House has a long history with contested elections. In fact, the first case dates back to the 1st Congress in 1789. According to a 2018 study by Jeffery Jenkins, a professor of public policy and political science at the University of Southern California, and Charles Stewart, a professor of political science at the Massachusetts Institute of Technology, results in 594 House seats were contested from 1789 to 2012.1 Jenkins and Stewart wanted to examine the role contested elections played as the House matured. What they found was that although the number of contested elections had decreased, votes by the House to decide contested elections remained partisan over time. That is, whatever the merits of the dispute, if a contested election came to a vote, GOP-controlled Houses generally sided with GOP candidates while Democratic Houses backed Democratic candidates.

Contested elections used to be more common

Average share of U.S. House seats contested, by decade

Decade Congress contested seats Avg. number of seats for Decade AVg. share of contested seats
1789–98 1–5 18 90 4.0
1799–1808 6–10 10 128 1.6
1809–18 11–15 14 167 1.7
1819–28 16–20 9 202 0.9
1829–38 21–25 11 230 1.0
1839–48 26–30 36 233 3.1
1849–58 31–35 14 234 1.2
1859–68 36–40 50 205 4.9
1869–78 41–45 75 273 5.5
1879–88 46–50 60 312 3.8
1889–98 51–55 85 347 4.9
1899–1908 56–60 34 375 1.8
1909–18 61–65 36 418 1.7
1919–28 66–70 29 435 1.3
1929–38 71–75 30 435 1.4
1939–48 76–80 17 435 0.8
1949–58 81–85 12 435 0.6
1959–68 86–90 15 436 0.7
1969–78 91–95 15 435 0.7
1979–88 96–100 9 435 0.4
1989–98 101–105 6 435 0.3
1999–2008 106–110 8 435 0.4
2009–12 111–112* 1 435 0.1

Data after the 112th Congress was not available. A contested election indicates a result that was formally disputed in the House. Not all contested races resulted in a different winner.

The House reached its current size of 435 seats after the 1910 census, except for the 86th and 87th congresses (1959-1962), when it expanded to include at-large seats from Alaska and Hawaii. The House then returned to 435 seats after the 1960 census and the subsequent reapportionment before the 1962 election.

Source: JEFFERY JENKINS, CHARLES STEWART

The largest share of contested elections came in the late 19th century, during and after Reconstruction, when disputes often arose over election results in the South. At that time, the GOP often used contested elections to counter the disenfranchisement of black voters and fraud perpetrated by Democrats in the South. Republicans sought to overturn results in order to expand narrow governing majorities during a highly competitive political era and to better maintain a foothold in the South. But after 1896, the GOP became more electorally dominant nationwide and no longer had as much partisan incentive to vigorously contest elections in the South. An average of 4.7 seats changed hands per Congress between 1869 and 1898 thanks to contested elections. Since then, there have been relatively few contested seats, and even fewer that led to a seat actually flipping when the House took up the case. In fact, in an earlier 2004 paper, Jenkins found only five instances after the 67th Congress (1921-1922) where the person disputing the election was declared the winner.

As for why an election result has historically been disputed, Jenkins identified a number of categories, but the leading cause was allegations of criminal action, including fraud, corruption and/or bribery. The second-most common justification was charges of election irregularities that were not criminal, including the participation of ineligible voters or the mishandling of ballot boxes. If North Carolina’s 9th District were to become a contested election, it would likely fit into one of those two categories, depending on the findings of a criminal probe investigating the activities of local GOP operative Leslie McCrae Dowless.

Whatever the justification, contesting an election used to be far more commonplace and seen as a valuable partisan tool — a means of adding seats to bolster thin margins for the majority party in the House. This doesn’t mean that it was easy to overturn results — in most cases, the original winner has won a disputed election in the House. But when a contested election has advanced to the House floor, the resulting vote has usually been along party lines, according to Jenkins and Stewart. During the late 19th Century, this sometimes meant significant gains for the majority party. In the 41st Congress (1869-70), for example, the GOP majority increased by 10 net seats(!) through overturned results.

But it’s been more than 30 years since a contested election reversed an outcome. The last time it happened was in 1985, when the Democratic-controlled House voted to seat Democratic Rep. Frank McCloskey after an investigation and recount conducted by the House Administration Committee found him ahead by just four votes. GOP members cried foul as the Republican candidate had previously led the race and there were still a handful of uncounted absentee votes. The Republicans staged a walkout in response and the entire episode is often cited as an inflection point in creating a more partisan and rancorous atmosphere in Washington.

Jenkins told FiveThirtyEight that he’s curious to see if contested elections become a renewed flash point in the country’s hyper-partisan environment. In their 2018 article, Jenkins and Stewart wrote that contested elections could once again emerge as a way for a political party to secure stronger governing majorities in an environment where neither party is dominant. In the partisan arms race, we’ve seen ever-more furious wrangling over things like Supreme Court confirmations. So it’s not hard to imagine contested elections becoming a new battlefield in Washington if the parties decide these disputes can help them shore up their governing majorities.

Why The House And Senate Are Moving In Opposite Directions

At first, I was a little skeptical of the narrative that Justice Brett Kavanaugh’s confirmation process could send the House and Senate moving in opposite directions. Usually in politics, a rising tide lifts all boats — so whichever party benefited from the Supreme Court nominee’s confirmation would expect to see its fortunes improve in both its best states and districts and its worst ones.

But a House-Senate split is exactly what we’re seeing in the FiveThirtyEight forecast. Democratic prospects in the Senate are increasingly dire, having fallen to about 1 in 5. Indeed, it’s been hard to find any good news for Democrats in Senate polling lately. In the House, by contrast, their opportunity is holding up relatively well. In fact, Democrats’ chance of taking the House has ticked back upward to about 4 in 5, having improved slightly from around 3 in 4 immediately after Kavanaugh was confirmed. And while district-by-district House polling has been all over the place lately, Democrats’ position has improved slightly on the generic congressional ballot.

On the surface, you might reason that House and Senate battlegrounds aren’t that different from one another. Yes, the most competitive Senate races this year are in really, really red states. Specifically, the average competitive Senate race, weighted by its likelihood of being the decisive state in determining the majority according to FiveThirtyEight’s tipping-point index, is 16 percentage points more Republican than the country overall.1 But the average competitive House district is also pretty red: 8 points more Republican than the country overall, weighed by its tipping-point probability.

The more time you spend looking at the battlegrounds in each chamber, however, the more you’ll come to two important conclusions:

  1. The House and Senate battlegrounds really aren’t that much alike. In several important respects, in fact, they’re almost opposite from one another. For example, House battlegrounds are more educated than the country overall, while Senate ones are less so.
  2. The Democrats’ map in the House is fairly robust, because they aren’t overly reliant on any one type of district. (This stands in contrast to the Senate, where most of the battlegrounds fit into a certain typology: red and rural). While House battlegrounds are somewhat whiter, more suburban and more educated than the country overall, there are quite a few exceptions — enough so that Democrats could underperform in certain types of districts but still have reasonably good chances to win the House. This differs from Hillary Clinton’s position in the Electoral College in 2016, in which underperformance among just one group of voters in one region — white working-class voters in the Midwest — was enough to cost her the election.

So let’s look in more detail at the characteristics of the House and Senate battlegrounds, starting with some basics: their geographic region (as according to the U.S. Census Bureau) and whether they’re incumbent-held or open-seat races. In the series of charts that follow, I’ll show what these characteristics look like in an unweighted average of all 435 congressional districts, and compare that to what’s happening in battlegrounds. (Rather than handpick the “battleground” contests, I’m weighting all races by their tipping-point probabilities in the House and the Senate; contests more likely to prove decisive have outsized sway in the calculation.)

How House and Senate battlegrounds compare based on incumbency and geography

Chance that a race will have a certain characteristic

Characteristic All congressional districts House tipping-point districts* Senate tipping-point states*
Democratic incumbent 40% 6% 46%
Republican incumbent 46 71 29
No incumbent 14 25 25
Characteristic All congressional districts House tipping-point districts Senate tipping-point states
Northeast 18% 19% 2%
Midwest 22 27 32
South 37 27 41
West 23 27 25

*Weighted by tipping-point probability, which is the likelihood that a particular state or district is decisive in determining majority control. Tipping-point determinations are as of 12 p.m. on Oct. 13.

One obvious but overlooked difference between the House and the Senate is that Democratic incumbents have very little exposure in the House but a ton of it in the Senate. For instance, there’s a 46 percent chance that the tipping-point race in the Senate will be one featuring a Democratic incumbent, but only a 6 percent chance for the House. Just the reverse is true for Republicans; they have tons of vulnerable incumbents in the House but few in the Senate. What this means is that, other factors held equal, things that reduce the incumbency advantage will tend to hurt Democrats in the Senate but help them in the House. If, for instance, the Kavanaugh hearings turned the public further against incumbent politicians in both parties, that could contribute to the increasing divergence we’re seeing between the House and Senate forecasts.

Geographically, the competitive House races are almost evenly divided between the four major Census Bureau regions. This is part of what makes Democrats’ map robust: Even if they completely flopped in one of these regions, they could still narrowly win the House by performing to the model’s expectations in the other three. Note, however, that relative to population, the South is slightly underrepresented among the competitive House districts — it represents 37 percent of congressional districts overall but 27 percent of the competitive ones. That’s probably a good thing for Democrats because their coalitions in the South tend to rely on racial minorities and on younger voters — groups that don’t turn out as reliably in midterms as they do in presidential elections.

By contrast, there’s a 41 percent chance that the tipping-point state in the Senate will be in the South. And whereas the Northeast is fairly important to the House map, with a number of competitive races in New York, New Jersey and Pennsylvania, there’s almost nothing interesting happening in the Northeast on the Senate side of the ledger.

Next, here are the political characteristics of competitive districts, based on FiveThirtyEight’s partisan lean index and on whom they voted for in 2012 and 2016. (To make for an apples-to-apples comparison between the House and the Senate, the statistics for Senate races in these next two charts are based on congressional districts within states with competitive Senate races rather than the states overall. For instance, if Tennessee has an 11 percent chance of being the tipping-point state in the Senate, that 11 percent chance is divided between the nine congressional districts in Tennessee to estimate how important individual congressional districts are toward determining Senate control.)

How House and Senate battlegrounds compare based on recent voting patterns

Chance that a race will have a certain characteristic

Characteristic All congressional districts House tipping-point districts* Senate tipping-point districts*
Obama-Clinton 39% 15% 27%
Obama-Trump 5 17 4
Romney-Clinton 3 17 2
Romney-Trump 52 51 67
Characteristic All congressional districts House tipping-point districts* Senate tipping-point districts*
Very Democratic† 32% <1% 16%
Competitive 29 82 21
Very Republican† 39 18 63

* Weighted by tipping-point probability, which is the likelihood that a particular state or district is decisive in determining majority control. For the Senate, statistics are compiled on a district-by-district basis but weighted based on the probability that the state will be decisive to Senate control. Tipping-point determinations are as of 12 p.m. on Oct. 13.

† At least 10 points more Democratic or Republican than the country overall.

It’s true that House battlegrounds are Republican-leaning — but for the most part, they’re Republican-leaning and not much more than that. Only 18 percent of competitive House races have a partisan lean of R+10 or better for the GOP, for instance. By contrast, weighted by their importance to determining the outcome of the Senate, 63 percent of competitive districts are at least R+10. Romney-Clinton and Obama-Trump districts — that is, districts that split their vote between the past two presidential elections — are quite important in the House but not really a factor in the Senate.

Finally, here’s what competitive districts look like based on three characteristics that are increasingly predictive of voting behavior: race, education and urbanization.

How House and Senate battlegrounds compare based on key demographics and urbanization

Chance that a race will have a certain characteristic

Characteristic All congressional districts House tipping-point districts* Senate tipping-point districts*
High education (>=35% bachelor’s degrees) 28% 37% 13%
Medium education 35 41 43
Low education (<=25% bachelor’s degrees) 37 22 45
Characteristic All congressional districts House tipping-point districts* Senate tipping-point districts*
<50% non-Hispianic white 29% 18% 24%
50-80% non-Hispanic white 48 51 38
>80% non-Hispanic white 23 30 38
Characteristic All congressional districts House tipping-point districts* Senate tipping-point districts*
Urban (>2500 people per square mile) 21% 8% 14%
Suburban (500-2500 people per square mile) 23 29 14
Exurban (100-500 people per square mile) 31 39 26
Rural (<100 people per square mile) 25 24 46

*Weighted by tipping-point probability, which is the likelihood that a particular state or district is decisive in determining majority control. For the Senate, statistics are compiled on a district-by-district basis but weighted based on the probability that the state will be decisive to Senate control. Tipping-point determinations are as of 12 p.m. on Oct. 13.

I’ve defined high-education districts as those where at least 35 percent of the adult population has a bachelor’s degree. By that measure, 28 percent of congressional districts in the country overall are highly-educated. But 37 percent of the House battleground districts are highly-educated. By contrast, only 13 percent of the districts that are most important to Senate control have high education levels.

Racially, both House and Senate battlegrounds are whiter than the country as a whole, but the skew is worse in the Senate: 38 percent of districts most important to Senate control are at least 80 percent non-Hispanic white, compared to just 23 percent of districts in the country overall.

Lastly, competitive House districts are concentrated in the suburbs and exurbs (defined based on population density), which make up about half of congressional districts overall but closer to two-thirds of competitive ones in the House. Suburban and exurban districts are quite unimportant to the Senate, however, where the key races are disproportionately based on rural states or in states such as Nevada with a mix of urban and rural areas with little in between.

I’m not going to go on for too much longer because I hope those numbers really speak for themselves. I suppose I had some intuition about how different House and Senate battlegrounds are different from one another — but that intuition didn’t match how sharp the differences are in the data.

Six Districts The GOP Appears To Have Abandoned — And Maybe Two More It Should

Welcome to our Election Update for Wednesday, Oct. 10!

As of 9:20 a.m. Eastern time, Republicans have a 4 in 5 chance (80 percent) of holding the Senate, according to our Classic forecast. The situation is much more dire for the GOP in the House, where Democrats have a 7 in 9 chance (78 percent) of taking control. They are so dire in some GOP-held districts, in fact, that national Republicans have begun pulling their resources or never invested them in the first place — effectively ceding those seats to Democrats, presumably so that the GOP can bolster more winnable districts.

Why take such a drastic step? Usually, it’s because party elders believe the seat is already lost. But parties don’t always show the best judgment about these things, so we thought we would compare the seats that Republicans have given up on with the seats most likely to flip to Democrats in our model. And what we found was that Republicans are indeed picking their battles wisely, at least based on what we know right now.

Daily Kos Elections is tracking House districts that either party appears to have conceded. According to its data, there are six Republican-held districts that both the National Republican Congressional Committee and the Congressional Leadership Fund1 have opted out of: the California 49th, Iowa 1st, New Jersey 2nd, Pennsylvania 5th, Pennsylvania 6th and Pennsylvania 17th.2 (By contrast, national Democrats haven’t abandoned any Democratic-held districts so far, according to the Daily Kos list.) Below are the eight Republican-held districts that our model says are most likely to fall to Democrats, as of 9:20 a.m. Eastern on Wednesday.

Where the GOP pulls the plug, Democrats have better odds

Republican-held districts where Democrats have the highest chances of winning, according to the Classic model of the FiveThirtyEight 2018 House forecast, as of 9:20 a.m. Eastern time on Oct. 10

Democratic candidate Republican candidate
District Name Chance of Winning Name Chance of Winning
PA-5 Mary Gay Scanlon >99.9% Pearl Kim <0.1%
PA-6 Chrissy Houlahan 98.6 Greg McCauley 1.4
NJ-2 Jeff Van Drew 97.6 Seth Grossman 2.4
IA-1 Abby Finkenauer 97.5 Rod Blum 2.5
PA-7 Susan Wild 96.7 Marty Nothstein 3.3
AZ-2 Ann Kirkpatrick 95.3 Lea Marquez Peterson 4.7
CA-49 Mike Levin 93.7 Diane Harkey 6.4
PA-17 Conor Lamb 89.4 Keith Rothfus 10.6

Our model generally agrees with top Republicans’ assessments: All six of the districts that Daily Kos has tracked make our list as well. Republicans are almost certainly correct to give up hope about the Pennsylvania 5th, which (along with every other district in the state) was redrawn in court-ordered redistricting this year; it is now 26 percentage points more Democratic-leaning than the country as a whole.3 The Pennsylvania 6th also got bluer, but the real death knell to the GOP came when incumbent Rep. Ryan Costello backed out of his re-election campaign, leaving his long-shot primary challenger as the only Republican candidate. National Republicans abandoned the New Jersey 2nd District after their candidate linked to a white supremacist website, and in the Iowa 1st, Rep. Rod Blum trails by a wide margin in the polls amid an ethics scandal.

You may have noticed that two of the eight districts in our table aren’t on the Daily Kos list. That’s because Republicans apparently haven’t backed away from them yet — but maybe they should. The Arizona 2nd (which typically plays host to some of the closest congressional races in the country) and the Pennsylvania 7th (another redrawn seat) are strong Democratic bets by our calculations — even stronger than the California 49th and Pennsylvania 17th. But Republicans better not give up on too many seats; each one they triage lowers the number of competitive districts Democrats have to win to take back control of the House. But remember: There’s nothing stopping the GOP from jumping back into any of these races at any time between now and Nov. 6, so nothing is yet lost for good.