Judging Contested Elections
posted by Gerard Magliocca
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.