“Congress’s Forgotten Electoral Power”

I wrote this column for Democracy Docket on each congressional chamber’s power to judge the elections of its members. This power lies dormant today. But it has been used in the past to fight voter suppression, racial discrimination, and corruption. I suggest that it might be time for this power to be revived.

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. . . .

While Article I, Section 5 is obscure today, over the years the House and Senate have resolved hundreds of electoral disputes under the provision. Many of these cases arose in the decades after the Civil War, when southern Democrats often relied on fraud, intimidation and violence to “win” congressional races. Between the late 1860s and the early 1900s, almost forty House Democrats from former slave states were unseated and replaced by Republicans. In the words of political scientist Jeffery Jenkins, “The contested election procedure, therefore, became the chief means by which the Republicans would fight Democratic-sanctioned [abuses] in the South.” . . .

 Instead of deciding themselves whom to seat and unseat, the House and Senate could each delegate this authority to an expert, nonpartisan panel. Each panel would be made up of respected election specialists, including administrators, attorneys and academics. Each panel could also do much of its work before Election Day, establishing in advance which practices overly restrict voting, which maps are heavily gerrymandered and so on. Each panel could then make seating recommendations as soon as possible after the election, certainly before the next Congress is sworn in. Lastly, the House and Senate could each rubber stamp these recommendations and rely on them to welcome—or exclude—members-elect looking to take their seats.

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