Authority of the Senate to Exclude and Not Seat a Senator-Elect or Senator-Designate Page: 2 of 9
The following text was automatically extracted from the image on this page using optical character recognition software:
Authority of the Senate to Exclude and Not Seat a Senator-Elect or Senator-Designate
This report is intended to provide a brief legal analysis of the authority to exclude, that is, to
refuse by majority vote to seat, a Senator-elect or Senator-designate who presents credentials
from the proper officials of a state. The questions arise in the context of both a contested Senate
election, as well as an appointment by a governor to fill a Senate vacancy.
This report discusses and analyzes the constitutional and legal issues regarding Senate authority
in this area. A detailed discussion of procedural practices and options has been prepared by
Elizabeth Rybicki, Analyst on the Congress and the Legislative Process, Government and Finance
Under Article I, Section 5, clause 1 of the Constitution, each house of Congress is granted the
express authority to judge the "elections," the "returns," and the "qualifications" of its own
Members. This explicit delegation in the Constitution grants the Senate broad authority to make
the final determination concerning not only the narrow constitutional "qualifications" of a
Member-elect or Member-designate (age, citizenship, and inhabitancy in the state from which
chosen), but also the legitimacy and validity of the "election" or selection process of those
presenting "credentials" (the official "return" from the state) to the Senate.
When judging "qualifications," the Supreme Court in the 1969 decision of Powell v. McCormack,
395 U.S. 486 (1969), found that the House (and the Senate) is limited to an examination of the
three standing qualifications to office (and any potential "disqualifications," such as under the
Fourteenth Amendment). The Court there noted that anyone meeting those qualifications would
have to be seated, and not excluded, if such person were "duly" elected, selected, or chosen. 395
U.S. at 522.
Under the Powell decision and rationale, and under the express constitutional grant of authority,
the Senate (and House) may, in addition to examining "qualifications" of Members-elect,
examine the "elections" and "returns" of their own Members, that is, whether an individual
presenting valid credentials has been "duly" chosen. A few years after the Powell decision, the
Supreme Court in Roudebush v. Hartke, 405 U.S. 15 (1972), clearly affirmed the right of the
Senate to make the final and conclusive determination concerning the election process and
seating of its own Members. In the case of contests or challenges properly raised concerning the
election or selection of a Senator, the Court affirmed the constitutional authority for "an
independent evaluation by the Senate" of the selection of those presenting themselves for
membership. 405 U.S. at 25-26.
The various internal examinations and inquiries by the Senate of the selection of an individual
who has been appointed by a governor of a state have been considered and treated as elections
cases; and on numerous occasions in the past the Senate has considered the legality or validity of
a gubernatorial selection. Additionally, the Senate has from time-to-time examined the election or
selection process (prior to the adoption of the Seventeenth Amendment in 1913, Senators were
selected by state legislatures) to see if corruption or bribery has so tainted the process as to call
into question its validity.
Congressional Research Service
Here’s what’s next.
This report can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Report.
Authority of the Senate to Exclude and Not Seat a Senator-Elect or Senator-Designate, report, January 5, 2009; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc812426/m1/2/: accessed April 19, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.