Judging Contested Elections

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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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.