Self-judging Elections, Constitution Article 1 §5.1

On Wednesdays we study the Constitution. It’s not exactly great literature, but like a lot of literature, it’s a simple text that people are arguing about centuries after publication. Unlike most literature, the outcomes from those arguments affect our lives every day, even if we aren’t aware of them. I like to know about the things that affect my life, when I can.  

Not counting the Preamble, there are 7 articles in the Constitution. There are 27 amendments. I’m still working my way through Article 1, which deals with the legislative branch of government. Today I am beginning Section 5.

Article 1 §5.1

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Hmm. Perhaps some definitions are in order.

Judge of Elections: aka, presiding judge, in charge of and responsible for the management and conduct of the election at the polling place of the election precinct that the judge serves (in this case, the House of Congress)

Returns: Unofficial vote totals reported by local election officials to the Secretary of State on election night. On completion of the vote count, the presiding judge shall prepare the returns of the election for the precinct, which must state: (1) the total number of voters who voted at the polling place as indicated by the poll list; and (2) the total number of votes counted for each candidate and for and against each measure

Qualifications: The minimum educational, experience, and personal requirements which must be fulfilled by a person preliminary to appointment or promotion.

If you will indulge me, a bit more grammar. Earlier clauses have already determined the required qualifications for the House and Senate, so I think the term “Judge” applies to all three of these things: elections, returns, and qualifications. In this case,

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

Simply means that each house of Congress should run its own elections. It’s a bit of a step back from the framers’ usual obsession with checks and balances, but “do your own work” is an understandable concession to practicality.

a Majority of each shall constitute a Quorum to do Business

Even I don’t need to belabor that one. Oh, who am I kidding? Yes I do.

Quorum: the minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid.

a smaller Number may adjourn from day to day

Adjourn: to postpone, suspend, or transfer proceedings

Wait, what? If you don’t have a quorum, you can adjourn the meeting? If you don’t have a quorum, there is no meeting to adjourn. Are they belaboring a point like I do? Or is this an archaic use of the word:

Origin

Middle English (in the sense ‘summon someone to appear on a particular day’): from Old French ajorner, from the phrase a jorn (nome ) ‘to an (appointed) day.’

a smaller Number … may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Taking the two parts together, I think we can safely say that when a quorum fails to show up, those who did arrive can take action to haul the absentees in to a rescheduled meeting using whatever means necessary.

But it turns out that truth is, if not stranger than fiction, at least as interesting. Forgive me for dodging the deep dive on research into this clause, but Wikipedia has a few morsels on the topic to whet your appetite:

Both houses of the United States Congress have refused to seat new members based on Article I, Section 5. This had been interpreted that Congress could refuse to recognize the election or appointment of a new representative or senator for any reason, often political heterodoxy or criminal record. Powell v. McCormack (1969) limited the powers of the Congress to refuse to seat an elected member to when the individual does not meet the specific constitutional requirements of age, citizenship or residency.

The Federal Contested Elections Act of 1969 currently lays out the procedures by which each House determines contested elections.

The Wiki article continues with a bullet list of examples, almost any one of which would provide adequate basis for a juicy historical novel. But I will only share two. The first one relates to my thematic focus on the struggle for truly democratic representation in the U.S.

• From 1869 to 1900, the House of Representatives refused to seat over 30 Southern Democratic candidates declared the winner by their states because the House Elections Committee concluded that fraud, violence, or intimidation had been used against black voters, or, in some cases, that the election statutes of the states themselves were unconstitutional. (Giles v. Harris(1903) ended the latter practice.) In some cases a new election was ordered, while in others the defeated Republican or Populist candidate was seated instead.^[1][2]

The second example dates from within the last decade, and is included her to emphasize my oft-repeated point that the Constitution is as relevant today as it was in the 1700s.

• Roland Burris (D–Illinois), due to the Rod Blagojevich corruption charges, was initially refused a seat in the Senate in 2009. On December 30, 2008, Governor Blagojevich announced that he was naming Burris to the seat, and Illinois Secretary of State Jesse White registered the appointment in the official records of Illinois on December 31, 2008. However, Secretary of State White declined to sign the Senate’s certification form.^[3] Because of this, on January 5, 2009, Secretary of the United States Senate Nancy Erickson rejected Burris’s certificate of appointment to the Senate as invalid, citing Senate Rule 2 as the reason for the rejection.^[4]Burris appeared in Washington at the January Congressional swearing-in ceremony on January 6 to claim his seat, but was denied entry into the Senate chambers.^[5] Following an Illinois Supreme Court ruling on January 9, 2009, White provided Burris with a certified copy of the appointment’s registration, and Burris delivered that copy, bearing the State Seal, to the Secretary of the Senate.^[6] On January 12, 2009, after the Secretary of the Senate announced that she and Senate Parliamentarian Alan Frumin deemed Burris’s new credentials valid, Senate leaders decided to seat Burris.^[7] Burris was sworn in by President of the Senate Dick Cheney on January 15, 2009.