Each House Shall Be the Judge of the Elections

November 19, 2018
 

Bob Lawless University of Illinois College of Law

University of Illinois College of Law

You want election controversy? I will give you election controversy. When Congress reconvenes on January 3, I intend to walk into the House of Representatives and present myself as the duly elected representative of Illinois’s Thirteenth Congressional District. With today’s twenty-four by seven news coverage, it is impossible that anyone will believe me, but in an earlier era, it was not far-fetched that someone might show up in the capital with a claim to be the elected representative from the hinterlands. And even today, we can have disputed elections with more than one person claiming to be the rightfully elected officeholder.

My silly example was just a way to point out an often-overlooked legal principle. When the 535 members of Congress show up in Washington, DC, there needs to be a formal mechanism to recognize that these are the persons who were actually elected to the House and Senate. In our constitutional system, we have fifty states that are co-sovereigns with the federal government. The United States Congress then is made up of the elected representatives and senators these fifty co-sovereign states have sent. The Constitution says each state can choose the “time, place, and manner” of conducting elections subject to whatever rules Congress might prescribe. Thus, in the first instance it is up to each state to set the rules by which it decides who won a congressional election.

The process by which states certify election results is known as “canvassing,” and the canvassing rules vary considerably across the states, as each election cycle reminds us. Generally speaking, the process begins at the county level where a county official such as the county clerk collects the votes from the municipalities, townships, and other local governmental units within the county. For offices at the city- or county-level, the county official certifies the results, but for offices across more than one county and for federal offices, the county official passes along the results to a state-wide election authority that declares a winner. In Illinois, that state-wide authority is the Illinois State Board of Elections.

For congressional elections, the governor and secretary of state then must sign a commission or certificate of election for the winner. Each representative or senator presents their commission in Washington, DC, and it is that piece of paper that entitles them to take their seat in Congress.Of course, a losing candidate might dispute whether the governor has issued the piece of paper to the right person. Historically, there has been an average of about one disputed election per session of the U.S. Congress. With at least one Senate seat and several House seats still too close to call several weeks after the election, we may even beat the historical average this election cycle.

Who decides these disputes? Article I of the Constitution specifies that “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Put more simply, the House and the Senate are each the ultimate arbiter about election disputes to their own chamber. The process that would occur depends on which chamber is involved. The Federal Contested Elections Act governs disputed elections to the House. This law specifies how a losing House candidate can invoke the power of the House to decide a disputed election as well as procedural rules about how to offer evidence or make legal arguments. The Senate procedures are much less defined. The Rules & Administration Committee of the Senate has jurisdiction over contested senate elections and apparently could proceed pretty much as it saw fit. In either the House or Senate, the decision would ultimately come to down to a majority and possibly partisan vote of the chamber.