It will take some complex math for McCarthy to actually be elected speaker of the House

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How to calculate the 'parliamentary algebra' that will determine the next House speaker

Fox News’ senior congressional correspondent Chad Pergram covers House Minority Leader Kevin McCarthy’s pursuit for speakership as Rep. Andy Biggs, R-Ariz., challenges his bid.

You may never have heard of Cheryl Johnson.

But you are certain to hear a lot about Johnson on January 3. 

It’s possible House Minority Leader Kevin McCarthy, R-Calif., may never clasp the gavel and become Speaker of the House on January 3.

By the same token, Cheryl Johnson may never be House Speaker. But she will certainly be the most powerful figure in the House of Representatives at least for a while on January 3 — and perhaps a little longer — if McCarthy struggles to sew up the votes. 

House Speaker Nancy Pelosi, D-Calif., tapped Johnson to become clerk of the House in late 2018. Johnson formally assumed the role in early 2019. But Republicans won control of the House last month. They’ll be in charge in January. That means Johnson — a Democratic appointee — will be out of a job soon. Republicans will select their own Clerk of the House.

House Sergeant of Arms Paul Irving and Clerk of the House of Representatives Cheryl Johnson carry articles of Impeachment against U.S. President Donald Trump (Getty Images)

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But Johnson will at least serve as House Clerk — and the officer who is in charge of the House of Representatives — until it selects a speaker.

The law requires Johnson to preside over the House at noon ET on Jan. 3, the constitutionally-mandated beginning of the new Congress. She’ll oversee the "call of the House." That’s where all of the new, but-not-yet-sworn-in-members of the 118th Congress will come to the House floor to record their attendance. That’s followed by nominations from both parties for their speaker candidates. Then, since the House still hasn’t picked a speaker, Johnson will preside from the dais over actual vote for Speaker.

House "reading clerks" alphabetically announce the names of each House member elected to the 118th Congress. Each member will rise from their seat — or perhaps holler from the back rail of the chamber — the name of their preferred speaker candidate.

Most Republicans will announce their support for McCarthy, although there could be names of other House members or even non-members. Most if not all Democrats will declare their support for incoming House Minority Leader Hakeem Jeffries, D-N.Y. 

And if there is no clear winner after one round, the House is supposed to keep voting — ad infinitum — until it elects the House speaker. In fact, the House can’t do anything else — pass bills, fund the government raise the debt ceiling, investigate Hunter Biden or even swear-in the new members — until it elects a speaker.

House Minority Leader Kevin McCarthy of California speaks at an election event, Nov. 9, 2022, in Washington. (AP Photo/Alex Brandon, File)

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The "Dean of the House" — the most senior lawmaker then swears-in the speaker. In turn, the new speaker swears-in the rest of the House, en masse.

McCarthy appears to lack the votes to become speaker right now. That circumstance could either improve or get worse for McCarthy between now and January 3. And if neither McCarthy nor anyone else secures the votes, the House will move to a second ballot for the first time since 1923.

It took nine ballots for the House to tap Speaker Frederick Gillett, R-Mass., for the job 100 years ago.

That means Johnson is the de facto person in charge of the House until lawmakers settle on a speaker.

Johnson could be on the job for a while. The House voted more than 60 times before selecting a speaker in 1849. The House simmered for two months before finally electing a speaker in 1856.

Johnson may not run the House for two months. But she may get an extension in her role as clerk of the House.

Let’s consider what it actually takes for the House to elect a speaker.

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House Minority Leader Kevin McCarthy, R-Calif. (REUTERS/Jonathan Ernst)

It is frequently written that the successful speaker candidate needs "218" votes. That’s technically right. The House is comprised of 435 members and it’s often said that the speaker needs "an outright majority" of the House to win. The candidate with the "most votes" doesn’t prevail.

But that doesn’t tell the whole story. And this is where it gets complicated.

Here’s how the House really elects its speaker:

The winning candidate is the person who secures an outright majority of members casting ballots for someone by name.

Pelosi, former Speaker John Boehner, R-Ohio and former Speaker Newt Gingrich, R-Ga., all won at least one speaker’s election with fewer than 218 votes. Six speakers have won with fewer than 218 votes since the House grew to its current size of 435 members in 1913.

At the beginning of this Congress, Pelosi prevailed 216-209. She only needed 214 votes, and three members didn’t vote. One vote went for Sen. Tammy Duckworth, D-Ill. Another ballot went to Jeffries. Reps. Elissa Slotkin, D-Mich., Mikie Sherrill, D-N.J, and Abigail Spanberger, D-Va., voted "present." Those three "present" votes are key. That trio of members didn’t cast ballots for anyone by name, reducing the actual number of votes Pelosi needed to win.

Again, the rule is the winning candidate must capture an outright majority of those members casting ballots by name.

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We often say these situations are "about the math." But in the vote for speaker, it’s about some very complex math. In fact, it’s real-time, parliamentary algebra. 

In other words, you don’t really know what the magic number is for McCarthy or anyone else to become speaker until the roll call concludes and the House tally clerks determine how many members cast ballots for someone by name, sorting out the "present" votes and those lawmakers who were absent.

This is complex stuff.

Here’s a hypothetical scenario which attests to just how dicey this could get. 

The 118th Congress begins with 434 members. There is a vacancy due to the late Rep. Donald McEachin, D-Va., who won re-election last month before his unexpected death. The breakdown next year is expected to be thus: 222 Republicans, 212 Democrats with one vacancy. So if all 434 members of the House vote, McCarthy still needs 218 votes to win.

Rep. Andy Biggs, R-Ariz., says there are 20 Republicans who won’t vote for McCarthy. Let’s presume that Biggs is correct. On the first day of the new Congress, those 20 GOPers don’t vote for another candidate by name — but vote "present." This reduces the total number of members voting for a candidate by name to 414.

Therefore, the magic number to become speaker — only determined at the end of the roll call — is 208. 

With 20 GOPers voting present in our war-game scenario, McCarthy only secures 202 votes by name. Meantime, Jeffries could score all 212 Democrats. If it takes 208 to win, then Jeffries would become speaker in that scenario because he received an outright majority of all voting for someone by name.

The impeachment articles signed by Speaker of the House Nancy Pelosi are being carried out by the House SAA Paul Irving (R) and House clerk Cheryl Johnson (L) over to Senate side followed by Impeachment Managers on Capitol Hill January 15, 2020, in Washington, DC. - The US House of Representatives voted Wednesday to transmit articles of impeachment against President Donald Trump to the Senate, opening the way for the historic trial of the 45th president for abuse of power. (Photo by OLIVIER DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images) (Getty Images)

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Such an outlandish scenario with Jeffries winning the gavel is unlikely to happen. But there are a few other weird permutations which could unfold.

At the end of the first vote for speaker, the tally clerks add up the numbers and announce the totals to the House. They’ll announce a winner if someone passes the proper threshold. If not, the order of the House is to start voting again. 

Fox is told its unclear if the House could declare a recess immediately after a failed first vote for speaker. It’s also up in the air if there might be speeches on the floor or nominations of other candidates. After all, the House has not been in this position in a century. But the House must keep voting until it selects a speaker. It can’t pass bills, it can’t launch an investigation into Hunter Biden. Nothing.

McCarthy loyalists are willing to force the House to vote again and again until the California Republican claims the gavel. Lobbyists downtown and fellow Republicans will begin to apply pressure on fellow members to vote for McCarthy. 

"Even if you don't believe in Santa Claus, there’s a naughty and nice list," said former Rep. Lynn Westmoreland, R-Ga. "’Was he a team player? Was she a team player? How did they do? They embarrassed us.’ And so those are the things that will put you on one of the lists."

That’s where fellow Republicans will have nothing but contempt for those who blocked McCarthy.

But the problem for McCarthy — as well as former House Speakers Paul Ryan, R-Wisc., and Boehner — is that some conservative Republicans aren’t interested in governing.

"They just want to blow things up," said one senior House GOPer who asked not to be identified.

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Some wonder if the GOP can afford to have a naughty and nice list when their party will hold such a narrow majority. Republicans need every member they can get.

This is also why there’s chatter about trying to get a moderate Republican to run if McCarthy gets crossways in the speaker vote. Lawmakers have floated three names to Fox: moderate Reps. John Katko, R-N.Y., Lee Zeldin, R-N.Y., and Fred Upton, R-Mich.

Biggs says he will remain in the race for speaker through Jan. 3. Biggs also said he wouldn’t permit the House to elect what he termed a "RINO" as Speaker.

But Katko, Zeldin and Upton all share something in common. At 12:00:01 p.m. ET on Jan. 3, they become former members. The trio is retiring. But nowhere is it written that the speaker of the House be a member of the body — though so far, the House has never tapped a non-member to serve as Speaker.

Zeldin brushed off questions about Republicans trying to draft him.

"I'm certainly not going to meddle with that process at all," said Zeldin on Fox.

In this April 22, 2021, file photo, House Minority Leader Kevin McCarthy of Calif., speaks during his weekly press briefing on Capitol Hill in Washington. (AP Photo/Andrew Harnik, File) (AP Photo/Andrew Harnik, File)

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It’s also important to note that sometimes lawmakers make a lot of noise about voting against their party’s preferred candidate for speaker and then back out. This is why the alphabetical roll call is crucial. 

"If your last name begins in a ‘W’, that's different than your last name begins with an ‘A’," said Westmoreland. "Those guys that are in the front of the alphabet, they're walking the plank and they don't know if ‘W’ is going to stick with them or not."

So, if Republicans reach an impasse — and if it goes on for a few days — you might not have a Speaker McCarthy or any other speaker for a while.

And if Republicans are in disarray, the person temporarily in charge of the new, GOP majority is the Democratic clerk of the House, Cheryl Johnson.