Lisa Marshall Manheim, Judging Congressional Elections, 51 Ga. L. Rev. 359 (2017), https://digitalcommons.law.uw.edu/faculty-articles/180
Georgia Law Review
Congressional elections, contested elections
This Article reveals what passes as federal constitutional law in this area: a chaotic set of ad hoc, state-based interpretations that vary drastically by jurisdiction. Some states, for example, have interpreted Article I, Section 5 to permit courts to adjudicate congressional election contests. Others have concluded the opposite. Through such conflicting interpretations, state courts have contributed to a deep, intractable split on the provision's meaning and reach.
State legislatures have compounded the discord by enacting statutes that codify their interpretations, a move that renders their constitutional determinations practically unreviewable. Meanwhile, both Houses of Congress continue to adjudicate these congressional election contests themselves. This has allowed each House to articulate its view of Article I, Section 5 through two means, both inadequate: conclusory resolutions that do not address the reach or effect of the constitutional command and committee reports that do not represent the views of the entire body.
This motley collection of precedents is what currently constitutes the law of Article I, Section 5. It is a regime governed by authorities that are confused, conflicting, non-authoritative, and outdated. To be clear, the inconsistencies are not due to experimentation or policy divides. The differences among states do not reflect their status as laboratories of democracy. Instead, this divide tracks fundamental disagreements over the meaning of Article I, Section 5, and it confirms that jurisdictions are struggling to reconcile the constitutional command with state control over election administration.
The harm caused by this arrangement is significant. Without clarification of basic procedural questions, election contests are governed by unpredictability and uncertainty, which in turn leads to the potential for partisan manipulation, illegitimacy, and delay. Serious concerns in any context, these problems are particularly acute in the context of disputed federal elections, where the need for legitimate, accurate, and timely resolution of disputes is at an apex. Moreover, without a sensible resolution of forum-related confusion, election contests are adjudicated in a suboptimal fashion, with some states offering no judicial forum at all. All the while, both the House and the Senate are grappling with state interference in their own adjudications.
Particularly given the skyrocketing rates of postelection disputes, there looms, in the background of every congressional election, a threat of a political crisis. Despite the depth of the confusion, a resolution is possible. This Article asserts that Article I, Section 5 itself offers previously unrecognized answers to its procedural quandaries. Namely, as the "Judge" of these elections, Congress gets to decide how they are resolved. Congress, in other words, gets to decide whether courts may participate in this process, and, if so, how.
As this Article will explain, Congress's actions thus far indicate tacit approval of state court proceedings. Yet tacit approval is no way to run an election, and Congress's indeterminate gestures have not made for good law. Nor have they made for good outcomes: flaws in the current system already may have changed the outcomes of elections and decreased the legitimacy enjoyed by those eventually seated. Congress can, and it should, act to clarify its preferences pursuant to Article I, Section 5, and it should do so in a way that advances the values that are essential to fair and accurate elections.
This Article proceeds in four parts. Part II documents the conditions that have produced the unusual interpretive vacuum. It reveals that Article I, Section 5 raises questions that demand resolution. One such question, as simple and inescapable as it is overlooked and unresolved, goes to the question of forum. Does Article I, Section 5 allow courts to adjudicate congressional election contests? Using this inquiry as an anchor, this Article exposes the failure of federal authorities to address the provision's ambiguities, much less to resolve them. The scholarly community, for its part, appears not to have recognized that these issues exist. This phenomenon can be understood as an interpretive vacuum.
This Article identifies both the legal and the practical consequences. Part III describes the dizzying legal landscape. Court-like proceedings, in both the House and Senate, operate alongside an inconsistent and capricious state-based regime for judging congressional election contests. In some jurisdictions, state legislatures have opened their courthouse doors to thwarted congressional candidates. Other jurisdictions have slammed those doors shut. Still other jurisdictions attempt to split the difference, as they permit courts to adjudicate congressional election contests but only pursuant to a sui generis set of rules. Inconsistency is the constant.
Part IV begins by proposing a novel theory of Article I, Section 5. This theory understands the constitutional mandate both to empower Congress and to accommodate court adjudication of congressional election contests. This Part then explores the practical effects of not embracing a unifying theory. The existing regime harms values fundamental to democracy in the United States, as it injects uncertainty and inappropriate procedure into the adjudication of political disputes. It does so, moreover, precisely at the moment that a stable and effective legal regime is most vital.
Part V concludes with a proposal for reform. It explores four ways that Congress could replace the confused, inconsistent regime with a set of procedures governed by a clear and sensible design. Ultimately, it advocates that Congress adopt the least drastic. Congress should, first, confirm its desire to rely on state court adjudication and, second, regulate the process. More specifically, it should impose procedures such as those relating to exhaustion, timing, and evidence preservation. This simple but powerful move would help to ensure impartial, timely, accurate, and constitutional adjudications of disputed congressional elections-adjudications that would then be subject to plenary final review by either House of Congress. The result would not only calm the procedural waters; it would help, in future elections, to prevent the disorder that this interpretive vacuum otherwise threatens to impose.