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Publication Date

2017

Abstract

A pivotal clause of our Constitution suffers from
uncertainty and neglect. The result has scrambled the law
of contested congressional elections. These high-stakes
disputes turn on questions of procedure, and in particular
on questions of forum. Yet across the country, an
unpredictable and ad hoc set of regimes governs these
fundamental questions. The culprit behind the confusion
is Article I, Section 5 of the United States Constitution,
which states that "Each House shall be the Judge of the
Elections ... of its own Members." This command may
seem straightforward, if a bit unsettling-it allows
Congress to decide who has won its own elections. Despite
its effect on the outcome of congressional elections, and
notwithstanding its potential to influence the partisan
makeup of each House, the provision is beset by dangerous
and unrecognized ambiguity. It provides no guidance as
to whether, or how, courts should assist each House of
Congress in adjudicating these congressional election
contests. No federal authority has fully entered the debate,
much less ended it, and states have taken diametrically
opposing views. The result is cacophony. Some states
adjudicate electoral disputes, while others refuse. Still
others warp their courts' procedures in response. The only
consistent element of congressional election procedure is
inconsistency.
This Article exposes the interpretive vacuum, the current
state of the law, and the harm it all inflicts. It recognizes
that precisely because there is no centralized body of law
on which scholars and political actors can focus, this area
has been plagued by an absence of scholarship, as well as
an absence of doctrine-and this Article responds to both.
It reveals the patchwork procedural landscape as it
currently exists, arguing that the ad hoc system poses
serious threats to democratic governance and legitimacy

It then offers a novel theory of Article I, Section 5-a
theory that could help to mitigate some of the harmful
practical effects that plague the current regime. It
concludes by calling on Congress to enact the procedural
reforms this Article proposes. Such reforms are necessary
to promote and safeguard democratic ideals in contested
congressional elections.

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