Congress’s Forgotten Electoral Power

Congress’s Forgotten Electoral Power
February 1, 2021
By Nicholas Stephanopoulos

With Democrats having won Georgia’s Senate runoffs, federal legislation to improve America’s elections is now on the table. An updated version of H.R. 1, the omnibus electoral reform bill, was recently introduced in the House. The same bill will be numbered S. 1 in the Senate—indicative of its high priority. Waiting in the wings is a reauthorization of the Voting Rights Act that would restore federal supervision over states with poor electoral records.

Unfortunately, these measures are just barely on the table. Under the Senate’s current rules, they could all be filibustered, and it’s almost inconceivable that ten Republican senators would vote to break a filibuster of electoral legislation despised by Mitch McConnell. So unless the filibuster is amended or eliminated, neither omnibus reform nor VRA reauthorization will become law.

But there’s another power the House and Senate could use to strengthen American democracy—a power distinct from legislation and all the hurdles that apply to it. This is the authority of each congressional chamber, under Article I, Section 5 of the Constitution, to be “the Judge of the Elections [and] Returns . . . of its own Members.” Pursuant to this provision, each chamber could establish rules for fair elections including an end to voter suppression and gerrymandering. Each chamber could then refuse to seat candidates who benefited from these practices. And any such refusal would require only a majority vote (even in the Senate), would involve no action by the other chamber (or the President), and would be judicially unreviewable.

A bit of background: Article I, Section 5 prompted little debate at the constitutional convention. It simply endowed each congressional chamber with a power—exclusive authority to say who is duly elected to the body—that the House of Commons had wrested from the King in the seventeenth century and that every American state legislature enjoyed. Under the provision, each chamber unilaterally decides when elections for that body have been properly conducted and which candidates have prevailed. As the Supreme Court explained in a 1928 case about the Senate, “It is fully empowered, and may determine such matters without the aid of the House of Representatives or the executive or judicial department.” 

Notably, the Senate has always exercised its power to judge its members’ elections on a majoritarian basis. Its practice has been to provisionally seat any member whose election is challenged, so that “if [an] investigation later determined that . . . the individual was not entitled to a seat, he could be ‘excluded’ from the Senate by a simple majority vote.” Also notably, how a congressional chamber chooses to wield its electoral authority under Article I, Section 5 is a nonjusticiable political question. The Supreme Court curtly said so in a 1972 case, and then-Judge Scalia elaborated in a 1986 opinion: “The provision states not merely that each House ‘may judge’ these matters, but that each House ‘shall be the Judge.’ The exclusion of others—and in particular of others who are judges—could not be more evident.”

While Article I, Section 5 is obscure today, over the years the House and Senate have resolved hundreds of electoral disputes under the provision. Many of these cases arose in the decades after the Civil War, when southern Democrats often relied on fraud, intimidation and violence to “win” congressional races. Between the late 1860s and the early 1900s, almost forty House Democrats from former slave states were unseated and replaced by Republicans. In the words of political scientist Jeffery Jenkins, “The contested election procedure, therefore, became the chief means by which the Republicans would fight Democratic-sanctioned [abuses] in the South.” 

Thankfully, contemporary elections are rarely marred by fraud, intimidation or violence. But Article I, Section 5 has also been used to address the problems that do persist in modern American politics. Consider voter suppression through policies that make it hard for people to register and vote. In a 1902 case, the House examined a South Carolina election in which most African Americans had been unable to vote due to a restrictive voter registration law. Under the law, each county could register voters only at a single location, and only for a single day each month. The House concluded that the law was unconstitutional and unseated the Democrat purportedly elected in the contested race.

Or take partisan gerrymandering. In a 1910 case, the House confronted a Virginia district that was redrawn for the “specific purpose” of “political advantage.” According to the committee report, the reconfigured district was “abnormally elongated,” “extending in the form of a shoestring,” so it would be “safe for the dominant political party of the State.” The committee resolved to reject the apparent winner and to award the seat to his opponent. By so doing, the committee hoped to “shut the door of the House of Representatives to one of the most insidious and dangerous political offenses that can menace democratic government.” 

Even excessive campaign spending has been the basis for unseating a member of Congress. In 1926, Philadelphia political boss William Vare spent the then-unheard-of amount of $2.5 million to win a Senate race. After a lengthy investigation, the Senate determined that “the expenditure of such large sums of money . . . taints with fraud and corruption [Vare’s] credentials.” A bipartisan majority subsequently voted to deny Vare his seat and to order a new election. 

Based on these (and many more) precedents, each congressional chamber would be well within its rights to refuse to seat candidates who owe their supposed victories to voter suppression, gerrymandering and the like. But there are downsides to this approach. If bodies under Democratic control were to exclude Republicans from membership, on party line votes, their actions might be seen as partisan—not aimed at improving American democracy. Republicans could also abuse the power to judge elections in the future. Just imagine Trumpist-dominated chambers declining to seat scores of Democrats on the spurious grounds that their wins were attributable to fraud.

Fortunately, there’s a way out of this box. Instead of deciding themselves whom to seat and unseat, the House and Senate could each delegate this authority to an expert, nonpartisan panel. Each panel would be made up of respected election specialists, including administrators, attorneys and academics. Each panel could also do much of its work before Election Day, establishing in advance which practices overly restrict voting, which maps are heavily gerrymandered and so on. Each panel could then make seating recommendations as soon as possible after the election, certainly before the next Congress is sworn in. Lastly, the House and Senate could each rubber stamp these recommendations and rely on them to welcome—or exclude—members-elect looking to take their seats.

This proposal may seem far fetched, but it resembles the processes that Britain has used for more than two centuries. Shortly before the American Revolution, the House of Commons entrusted electoral disputes to randomly chosen committees of thirteen members, whose decisions were generally affirmed by the chamber as a whole. In the nineteenth century, Parliament shifted responsibility for contested elections to the courts, whose rulings again were almost always heeded. These policies succeeded in domesticating the power to judge elections—making its use uncontroversial even when it led to members’ unseating. Designated congressional panels could be equally effective, yielding procedural legitimacy, fairer elections and a stronger democracy.