Frank McCloskey and Constitutional Norms
My relative lack of blogging recently is the result of concentrated drafting on my article, but one new issue has come up that I’d like to discuss. Each House of Congress has the power under Article I to “be the Judge of the Elections, Returns, and Qualifications of its own Members.” For much of our history, Congress performed this function when there was a disputed election. (John Bingham served on the relevant Committee in the House and worked on several cases, as I discuss in my book.) Over the past thirty years, though, Congress has abandoned this power and deferred to state courts interpreting state law. I’ve talked about this in a prior post, but there remains the question of why this change occurred.
I think the answer is that an anti-precedent was set by the contentious dispute over the result in Indiana’s 8th Congressional District in 1984. Congressman Frank McCloskey, a Democrat, was declared the loser (by 37 votes) in his race by state election officials. The House of Representatives (controlled by Democrats) declared McCloskey the winner (by 7 votes) and seated him in a party-line vote. The debate was particularly nasty, and House Republicans marched out of the chamber in protest after the vote was held.
The result of this episode is that Congress’s power to judge elections was relinquished. One can understand this as a custom that supports federalism (states get to decide who won disputed elections), the rule of law (courts should decide these matters), and an anti-partisan principle (partisan majorities cannot be trusted to resolve these issues). It’s a good example of how constitutional conventions (in the British sense) develop.