Judging Congressional Elections

A pivotal clause of our Constitution suffers fromuncertainty and neglect. The result has scrambled the lawof contested congressional elections. These high-stakesdisputes turn on questions of procedure, and in particularon questions of forum. Yet across the country, anunpredictable and ad hoc set of regimes governs thesefundamental questions.

The culprit behind the confusionis Article I, Section 5 of the United States Constitution,which states that "Each House shall be the Judge of theElections ... of its own Members." This command mayseem straightforward, if a bit unsettling-it allowsCongress to decide who has won its own elections. Despiteits effect on the outcome of congressional elections, andnotwithstanding its potential to influence the partisanmakeup of each House, the provision is beset by dangerousand unrecognized ambiguity. It provides no guidance asto whether, or how, courts should assist each House ofCongress in adjudicating these congressional electioncontests. No federal authority has fully entered the debate,much less ended it, and states have taken diametricallyopposing views.

The result is cacophony. Some statesadjudicate electoral disputes, while others refuse. Stillothers warp their courts' procedures in response. The onlyconsistent element of congressional election procedure isinconsistency.This Article exposes the interpretive vacuum, the currentstate of the law, and the harm it all inflicts.

It recognizesthat precisely because there is no centralized body of lawon which scholars and political actors can focus, this areahas been plagued by an absence of scholarship, as well asan absence of doctrine-and this Article responds to both.It reveals the patchwork procedural landscape as itcurrently exists, arguing that the ad hoc system posesserious threats to democratic governance and legitimacy It then offers a novel theory of Article I, Section 5-atheory that could help to mitigate some of the harmfulpractical effects that plague the current regime. Itconcludes by calling on Congress to enact the proceduralreforms this Article proposes. Such reforms are necessaryto promote and safeguard democratic ideals in contestedcongressional elections.