Article I, section 5, clause 1, makes each House of Congress the judge of the “Elections, Returns, and Qualifications of its members.” But what does that mean? For historical and jurisdictional reasons, there is a lack of federal precedent on the scope of judicial review of constitutional qualifications of candidates for the House or Senate. However, as federal courts encounter this issue, they should not treat it as an issue of first impression. Instead, they should look to state constitutional law, which has a wealth of precedent on the interaction between the power to run elections and the power of each legislative chamber to judge the returns and qualifications of its members—as virtually all of them have an identical clause to section 5, clause 1.
Contrary to older commentaries collecting precedent, this paper establishes—for the first time, as far as I can ascertain—that a modern consensus has developed in the states over the last fifty to seventy years of “Sequential Jurisdiction”: pre-election adjudication of legislative candidates’ qualifications is allowed, but post-election disputes must be resolved by the relevant chamber. There are other options: “Judicial Supremacy,” where courts retain the power at any time to judge the qualifications of legislators, and “Legislative Supremacy,” where the appropriate chamber is the only body who can ever judge qualifications. However, they are both minorities in the American system. The consensus of the states should be persuasive for federal courts facing this issue; both the consensus itself and because the reasoning of representative cases is itself persuasive. And in general, federal courts should look to parallel state constitutional law when faced with an issue of “first impression.”
An Issue of First Impression? State Constitutional Law and Judging the Qualifications of Candidates for the House and Senate,
102 Neb. L. Rev. 93
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