Congress's Forgotten Electoral Power

[Nevilledog]

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Nicholas Stephanopoulos
@ProfNickStephan
I wrote this short piece on each congressional chamber's power to judge its members' elections. This power lies dormant today. But it has been used in the past to fight voter suppression, racial discrimination, and corruption. It could do so again!

Democracy Docket
@DemocracyDocket
🚨🆕@ProfNickStephan warns that the filibuster could shatter Congress's ability to pass meaningful voting rights reforms. He offers an alternative way for how the House and Senate could help strengthen American democracy—a power distinct from legislation.
https://democracydocket.com/2021/01/congresss-forgotten-electoral-power/…
7:48 AM · Feb 1, 2021

https://www.democracydocket.com/2021/02/congresss-forgotten-electoral-power/

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.”

*snip*

[FBaggins]

1. Entertainingly clever... but also shockingly trump-esque

This isn't entirely unlike the "strategy" that Trump wanted to use with Pence and the electoral college.

States control their own elections including where district lines are drawn. Congress could pass laws cleaning up some of how elections are run, though, even there, there would be limits. But they can't pass a chamber rule impacting how states must run their elections. They do have some power to "judge their members' elections", but that's hardly unlimited. It couldn't be self-enforcing, the chamber would have to vote to reject seating someone who had been certified as the winner.

And it wouldn't be on razor-thin tossup races. Imagine Republicans drawing a new R+9 seat in Texas that gets by state and federal courts and Democrats try to reject seating the new representative who just won her district by 15 points?

And let us not forget that majorities are not permanent. Giving the next Republican majority this tool would be suicide.

The power has not "lain dormant". It doesn't exist in the way that the author imagines.