One More Thought on Moore

While the constitutional discussion is focusing on whether the Senate could expel a Senator Moore given its past practice, another take that is getting less attention goes something like the following:

Suppose the election is very close. The Senate is the ultimate judge of who won a Senate election. In recent decades, the Senate has deferred to the conclusion of state authorities when an election result is contested. They do not, though, have to defer. It is possible that the Senate could refuse to accept the state’s conclusion that Moore won a very close election, and either seat Jones or order a new election. Granted, if this is just a pretext to exclude Moore, then a suit challenging that exclusion would succeed under the Court’s decision in Powell. You can imagine, though, a scenario in which there could be a mix of motives, which would require a court to uphold the Senate’s decision as a lawful exercise of its Article I, Section 5 powers.

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1 Response

  1. Mike Stern says:

    I dont think Powell allows a court to question the Senate’s resolution of an election contest based upon its assessment of the Senate’s actual motives. I suppose if the Senate announced that it was refusing declare Moore the winner based on his misconduct the result might be different.