In a recent post, Ned expresses skepticism about the House exercising its power to judge its members’ elections. I agree that it’s a difficult political question whether the House should invoke its Article I, Section 5 authority. But as I explore in this recent paper, historically, legally, and practically, this strategy sits on firmer ground than Ned’s post suggests.
Historically, the House used to resolve electoral disputes all the time. Over its history, it has settled more than six hundred such cases. More significantly, the House has often used its Article I, Section 5 power to reject the apparent winners of House races and to seat their opponents. Around 120 contestants have prevailed in their challenges and so taken seats initially thought to have been won by someone else. In another 70 or so cases, the House vacated the seat and called for a new election. So it wouldn’t be “norm-shattering” for the House to make use of the Judging Elections Clause; it would be a revival of a precedent that held for much of U.S. history.
Legally, Ned objects to the House refusing to seat a beneficiary of gerrymandering because that practice isn’t “unlawful or tainted by any illegality.” But even the current Supreme Court, the same Court that authored Rucho, concedes that severe gerrymandering is unconstitutional. The Court just (wrongly) thinks that the practice is nonjusticiable and so can’t be policed by the federal courts. Nothing in Rucho hints that non-judicial actors, like the House, can’t enforce the constitutional prohibition on severe gerrymandering.
Moreover, the legality of an election under state or federal law isn’t dispositive for Article I, Section 5 purposes. What is dispositive is the House’s judgment about whether the election was conducted appropriately. Consider Ned’s example of the Fifteenth Amendment, which was ratified in 1870. In the Forty-First Congress—so prior to the Fifteenth Amendment’s ratification—the House unseated five Democrats from former confederate states (and replaced them with their Republican opponents). These Democrats owed their apparent elections to discrimination, violence, and fraud against African Americans: exactly what the Fifteenth Amendment would soon (but didn’t yet) prohibit. So the House unseated the Democrats not because of any unconstitutionality but rather because of the House’s own condemnation of racial discrimination in voting.
Finally, practically, there’s a straightforward way for a current House to prevent a future House from undoing its decisions about whom to seat or oust. It’s to make these decisions before the future House is sworn in, during the period between the election and the beginning of the next Congress. Having made these decisions, the current House would simply instruct the Clerk to seat members in the next Congress consistently with the current House’s determinations. It would be shocking if the Clerk, elected to her position by a majority of the current House, failed to follow that same majority’s instructions.