The Judge of Elections Clause

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members. . . .

—Derek T. Muller

Introduction

For centuries before America gained its independence, legislative bodies had judged their members’ elections and qualifications. The Judge of Elections Clause in the Constitution reflects this long-standing tradition. Since ratification, the House and Senate have exercised this power on numerous occasions, but they have done so much less frequently in recent years. Precedent indicates that the judgments of the House and Senate in these matters are not subject to review in the courts. However, both houses lack the power to add to the qualifications for serving in Congress that are enumerated in Article I, Sections 2 and 3. (See Essay Nos. 8 and 17.)

Justice Joseph Story observed that the power to judge elections was a necessary attribute of the separation of powers. If that power, he wrote, were “lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger.”¹ Further, Story declared, the power allowed each house to “sustain the free choice of its constituents.”²

History Before 1787

By the fifteenth century, the Crown had long informally exercised power over parliamentary elections. Starting in 1405, the Court of Chancery, which was beholden to the Crown, formerly exercised power over those elections.³ Yet, by the mid-sixteenth century, Parliament began to assert control over the elections of its own members.⁴ And, by the early seventeenth century, Parliament’s privilege of examining the election returns was undisputed.⁵

Before the American Revolution, to prevent encroachment by royal governors, the colonies insisted on the right of legislatures to judge the qualifications of their own members.⁶ Under the Articles of Confederation, the state legislatures retained the power to judge their own elections.⁷ By 1789, nearly all states had ratified their own constitutions spelling out this authority of their legislatures,⁸ and several others soon followed suit.⁹

The Constitutional Convention

The Constitutional Convention approved the Judge of Elections Clause with minimal debate. The clause was presented by the Committee of Detail on August 6 and adopted without controversy on August 10.¹⁰ The clause anticipated that each house of Congress would act as “judge,” which suggests a kind of judicial power in this context. “Elections” related to the mode of choosing candidates; “returns,” to the results of elections; and “qualifications,” to the age, inhabitance, and citizenship requirements for members.

The Elections Clause gave Congress the power to make or alter the times, places, and manner of holding elections. (See Essay No. 22.) The Judge of Elections Clause was invoked to explain why the Elections Clause was necessary. Rufus King of Massachusetts explained that without the Elections Clause, “their right of judging of the returns of their members may be frustrated.”¹¹ Gouverneur Morris of Pennsylvania likewise worried that “States might make false returns and then make no provisions for new elections.”¹² The Judge of Elections Clause recognized the importance of the legislature’s power to judge elections and returns. Members of the Convention thought a predicate power, to make or alter the rules for those elections, should also reside in the legislature.

The Ratification Debates

During the ratification debates, Anti-Federalists expressed concerns that placing the authority to judge member qualifications with each house would threaten the right of citizens’ chosen candidates to be seated in the national legislature. “By this Federal Constitution,” worried Cornelius, “each House is to be the judge, not only of the elections, and returns, but also of the qualifications of its members; and that, without any other rule than such as they themselves may prescribe.” Cornelius wrote that “[t]his power in Congress, I take to be equal to that of a negative on elections in general.”¹³ The clause attracted little attention in the Federalist Papers. Federalist No. 53 observed that “[e]ach house is, as it necessarily must be, the judge of the elections, qualifications and returns of its members. . . .”

Early Practice

In the decades after the Founding, both houses of Congress routinely judged the elections, returns, and qualifications of their members. One early and contested instance arose in 1793. The Pennsylvania legislature elected Albert Gallatin to the Senate. Gallatin, a member of the Democratic-Republican party, was a rival of Alexander Hamilton, a prominent Federalist.¹⁴ Doubts arose about Gallatin’s eligibility for the Senate. He was born in Switzerland¹⁵ and had resided in the United States for thirteen years. But it was unclear whether Gallatin had been a U.S. citizen for the requisite nine years.¹⁶ Two Senate committees dominated by Federalists found against Gallatin, and he was barred from the seat.¹⁷

A different controversy arose during the Civil War. The Senate judged whether James H. Lane of Kansas was entitled to be a Senator even though President Lincoln had appointed him a Brigadier General in the Union Army.¹⁸ Lane’s election apparently violated of the Incompatibility Clause.¹⁹ (See Essay No. 34.) Although the Judiciary Committee found against Lane, the Senate decided to uphold his election, perhaps out of a sense of patriotism in the midst of the war.²⁰

Another notorious contest during Reconstruction came from the election of Hiram Revels, the first black Senator. Opponents first charged that his election was improper because the governor of Mississippi who signed his certificate of election was only the provisional governor and therefore not authorized to certify the legislature’s selection of Revels. Challengers also claimed that Revels was not “nine years a citizen” because he was not a citizen under the Supreme Court’s decision in Dred Scott until the ratification of the Fourteenth Amendment in 1868. Defenders noted that Revels had previously resided in Ohio, where he had voted in that state and must have been a citizen. In the end, the Senate seated him over the objection of a few Democrats.²¹

Over the years, Congress has considered hundreds of challenges. It developed a body of precedent and procedure for adjudicating these disputes that was consistent with its role as “judge.”²²

Modern Practice

Under modern practice, the power to judge elections is broad. It extends to investigations of fraud and voter intimidation.²³ It also includes the power to issue arrest warrants for witnesses to testify without a previous subpoena. Each house can also impose punishment for perjury.²⁴

In 1935, West Virginia elected Rush D. Holt as Senator even though he would not be thirty years of age for another seven months.²⁵ Holt promised that he would not present his credential to the Senate to take the oath until his thirtieth birthday.²⁶ Holt’s defeated opponent, an incumbent Senator, filed a petition before Holt presented his credentials and argued to the Senate that Holt did not meet the minimum age requirement. The Senate engaged in a long and contested investigation. Eventually, Holt was seated on the ground that the age requirement applied when the candidate took office, not at the time of election.²⁷

By the late twentieth century, Congress had begun to disfavor exercising its independent judgment in elections. States adopted more robust election canvassing and recount procedures, which the federal courts approved and which gave Congress more confidence in election results.²⁸ The Federal Contested Elections Act of 1969 sets narrow rules to govern how contestants may challenge the outcomes of elections in the House.²⁹

The last election overturned by Congress was a contest nicknamed the “Bloody Eighth.” In 1984, Republican Rick McIntyre appeared to defeat Democrat Frank McClosky in Indiana’s Eighth Congressional District election. Indiana certified McIntyre as the winner by thirty-four votes, a margin that expanded to 418 once some counties finished their recount. However, the Democratic-controlled House kept the seat vacant on a party-line vote while the Committee on House Administration conducted its own recount. After a series of bitterly contested and hotly partisan recount rules adopted by the committee, McClosky was deemed the winner by just four votes and was seated by the House on May 1, 1985.³⁰

Judicial Precedent

The manner in which the House and Senate have decided qualification and election cases suggests that the power is unreviewable in the courts. In Morgan v. United States (1986), then-Circuit Judge Antonin Scalia declared that the House’s determination in the McClosky–McIntyre dispute was nonjusticiable under the Judge of Elections Clause.³¹ This holding found support from the fact that each house was “the judge,” a definite article that excluded all others, and in dicta from previous Supreme Court cases that each house was the “sole” judge of its members’ qualifications.³² Nevertheless, Powell v. McCormack (1969) held that a house of Congress lacks the power to judge qualifications beyond those enumerated in the Constitution and that such questions are justiciable in the federal courts.³³

The Supreme Court of the United States has emphasized that states cannot thwart Congress’s power to judge elections. In Roudebush v. Hartke (1972), Indiana conducted a recount after its Senate election, which was challenged as a violation of the Judge of Elections Clause. The Court held that a state’s law cannot “usurp” the function of Congress, which can occur if the law “frustrates” a house of Congress’s “ability to make an independent final judgment.”³⁴ Here, however, the Senate could still independently evaluate the election or conduct its own recount, and state law did not usurp Congress’s power.³⁵

Open Questions

Should a newly elected candidate whose credentials are challenged be seated in the House? The House of Representatives adjourns at the end of a session, and an entirely new House of 435 members-elect assembles to be sworn in. Historically, all members would be sworn in, but a contested member could be seated provisionally, and that candidate’s seat could become vacant or be awarded to a contestant. However, with increasing frequency in recent contests, including in Powell v. McCormack (1969) and in the “Bloody Eighth,” all of the other members take the oath of office while they ask the contested candidate to stand aside. The rest of the chamber then subsequently votes to decide whether to seat the member. Even if seated, the member may lose that seat if a later contest is successful. The decision of the House to ask members to “stand aside” in this fashion is of relatively recent vintage and merits further exploration to determine whether it is consistent with this clause.³⁶

Do states have any power to judge qualifications of candidates for federal office? On the one hand, states have the power to regulate the “manner of holding elections” for Congress under Article I, Section 4, Clause 1. That power includes ballot access rules, or determining who appears on the ballot. On the other hand, Congress is “the judge” of the qualifications of its members. That power is seemingly reserved to Congress, and the power over the “manner of holding elections” does not necessarily extend to adjudications about qualifications.

Federal courts have been asked to address this issue but with limited analysis so far. In the 2022 election, challenges arose in states as to whether certain congressional candidates had engaged in insurrection under Section 3 of the Fourteenth Amendment and were ineligible to serve. (See Essay No. 198.) Challengers tried to keep those candidates’ names off the ballot. Among the many contested questions was whether states had the power to do so or only Congress could do so. Federal courts mostly dodged the question, but some judges separately expressed doubt that states had this power.³⁷ In Trump v. Anderson (2024), the Supreme Court held that states may not unilaterally enforce Section 3 of the Fourteenth Amendment against federal candidates, but did not address other qualifications.³⁸

1. 2 Story’s Commentaries § 831. ↩︎
2. Id. ↩︎
3. Graeme Orr & George Williams, Electoral Challenges: Judicial Review of Parliamentary Elections in Australia, 23 Sydney L. Rev. 53, 55–57 & n.10 (2001). ↩︎
4. Id. at 57. ↩︎
5. Id. at 58. ↩︎
6. Paul E. Salamanca & James E. Keller, The Legislative Privilege to Judge the Qualifications, Elections, and Returns of Members, 95 Ky. L. J. 241, 271–72 (2005). ↩︎
7. Articles of Confederation, art. II. ↩︎
8. Pa. Const. of 1776, § 9; N.C. Const. of 1776, art. X; Del. Const. of 1776, art. V; N.J. Const. of 1776, art. V; Md. Const. of 1776, art. IX; N.Y. Const. of 1777, art. IX; Vt. Const. of 1777, ch. II, § 8; Mass. Const. of 1780, pt. 2, ch. 1, § 2, art. IV. ↩︎
9. Ga. Const. of 1789, art I, § 13; S.C. Const. of 1790, art. I, § 11; N.H. Const. of 1793, art. XXII. ↩︎
10. 2 Farrand’s 155, 180, 254. ↩︎
11. Id. at 241. ↩︎
12. Id. ↩︎
13. Storing 4.10.10. ↩︎
14. Anne M. Butler & Wendy Wolff, United States Senate Election, Expulsion and Censure Cases: 1793–1990, at 3 (1995). ↩︎
15. Id. ↩︎
16. 4 Annals of Cong. 19, 47–62 (1855). ↩︎
17. Butler & Wolff, supra at 3–4. ↩︎
18. Cong. Globe, 37th Cong., 1st Sess. 82 (1861); Cong. Globe, 37th Cong., 2nd Sess. 359–64 (1862). ↩︎
19. Cong. Globe, 37th Cong., 2nd Sess. 363 (1862). ↩︎
20. Id. at 364; Salamanca & Keller, supra at 285–88. ↩︎
21. Cong. Globe, 41st Cong., 2d Sess. 1503–14, 1542–44, 1557–68 (1870). ↩︎
22. A Historical Digest of All the Contested Election Cases in the House of Representatives of the United States from the First to the Fifty-Sixth Congress. 1789–1901 (Chester H. Rowell ed., 1901); Anne M. Butler & Wendy Wolff, United States Senate Election, Expulsion, and Censure Cases, 1793–1990 (1995). ↩︎
23. 1 Hinds’ Precedents § 336 (1907). ↩︎
24. Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614–18 (1929). ↩︎
25. 79 Cong. Rec. 5916 (1935). ↩︎
26. Id. at 9651. ↩︎
27. Id. at 9840–42. ↩︎
28. Roudebush v. Hartke, 405 U.S. 15 (1972). ↩︎
29. 2 U.S.C. §§ 381 et seq. ↩︎
30. Edward B. Foley, Ballot Battles 259–267 (2016). ↩︎
31. 801 F.2d 445, 446–49 (D.C. Cir. 1986). ↩︎
32. Id. at 447; Jones v. Montague, 194 U.S. 147, 153 (1904); Burton v. United States, 202 U.S. 344, 366 (1906). ↩︎
33. Powell v. McCormack, 395 U.S. 486, 489–94, 550 (1969). ↩︎
34. 405 U.S. 15, 25 (1972). ↩︎
35. Id. at 25–26. ↩︎
36. Brian C. Kalt, Swearing in the Phoenix: Toward a More Sensible System for Seating Members of the House of Representatives at Organization, 105 Marq. L. Rev. 1 (2021). ↩︎
37. Greene v. Raffensperger, 599 F. Supp. 3d 1283 (N.D. Ga. 2022); Greene, 52 F.4th at 910–916 (Branch, J. concurring); Cawthorn v. Amalfi, 35 F.4th 245, 266–85 (4th Cir. 2022) (Richardson, J., concurring in the judgment); Derek T. Muller, Scrutinizing Federal Electoral Qualifications, 50 Ind. L.J. 559, 594–98 (2015). ↩︎
38. 601 U.S. 100 (2024) (per curiam). ↩︎