Judging Contested Elections

This is tangential to my last couple of posts, but I want to make an observation about the way that congressional election disputes are resolved.  The Constitution gives each House of Congress the power to “be the judge of its elections, returns, and qualifications of its own members.”  Well into the twentieth century, disputed House or Senate elections were resolved by Congress.  That has not happened, though, in the last thirty years.  (The last case came from a House race in Indiana.)  Since then, every contested election for Congress was decided by state courts under state law.

There are two interesting facets of this.  The first is that this constitutes an extraordinary delegation of authority.  Indeed, this could be the only example of a congressional power being delegated completely (and without any guiding principle) to the states.  Second, the decision to do this may be based on the idea that Congress cannot fairly judge such issues.  Why?  Because it would just be done on a party-line vote.

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3 Responses

  1. Howard Wasserman says:

    This is implicitly the core of Judge Posner’s defense of Bush v. Gore.

  2. mls says:

    Strictly speaking, there is no delegation here- the states are exercising their authority as part of the election process. The odd part is that the states are obligated to apply their own law, but the House and Senate are not obligated to follow state law in judging the election (although they normally do).

    Its not exactly correct to say that Congress has failed to resolve any election challenges in the past 30 years. Challenges have been brought before the Committee on House Administration pursuant to the Federal Contested Elections Act- the committee has ultimately dismissed them. There was a fairly extensive investigation in the Dornan-Sanchez contest in the 1990s.

  3. Ira Matetsky says:

    In some of more recent contested-election situations, resolving bitterly disputed elections (such as McCloskey/McIntyre in the House and Durkin/Wyman in the Senate) on the floor often became an enormously time-consuming distraction that interfered with getting any other work done as long as the contest was pending. This may be another reason that Congress decided to allow other forums to address some of the issues.