Election Night could be a long week. Virginia may decide control of the Senate, but first, we have to decide who won in Virginia. It's been a confusing mess tonight, as media and official vote totals have differed. On the other hand, everyone except George Allen agrees that Webb is now leading the vote count. And the votes that still need to be counted should favor Webb. In Maryland, the Republican candidates for Governor and Senate refuse to concede, but it looks like two lackluster Democratic campaigns will still finish on top. This could turn out to a great night for Democrats, and a great night for the country.
I'm going to leave the politics to others, at least for now -- because there's a legal question being raised that I can speak to with some authority. I wrote last week about a potential constitutional and electoral crisis in Maryland over the qualifications of Doug Gansler to be the Attorney-General. I believe that Gov. Ehrlich could decide Gansler is not qualified. This would create a crisis as to whether Ehrlich or O'Malley has the right to appoint a replacement. To hear some tell it, a somewhat analogous situation may be afoot in Virginia, in light of the scandal surrounding George Allen's dirty campaign tactics.
I keep reading suggestions, on blog sites, that the Senate might refuse to seat George Allen, even if he ends up with more votes. I've even heard it suggested on local media, here in D.C., that the Senate could decide who to seat, based on the controversy over Allen's tactics. These are not accurate statements of the law, so I thought I should clear up the misunderstandings here.
The Constitution says that "Each House shall be the Judge of the Elections, Returns, and Qualification of its own Members." But, that does not mean that each House has unlimited discretion to decide whether to seat elected would-be Members, or whether to invalidate an election result. The guiding precedent here is the case of Powell v. McCormack, in the Supreme Court, in 1969. Two years earlier, the House had voted by more than the constitutionally required two-thirds vote to exclude Adam Clayton Powell, the elected representative for Harlem, for fairly blatant corruption. Powell won a special election to fill his own vacancy, but still could not take his seat. He sued the leader of the Senate, and won in the Supreme Court -- finally taking his seat in June '69.
The Supreme Court studied the Constitution -- this was back in the day when the Court took its job of judging seriously, instead of casting purely political votes -- and concluded that the Constitution gave the House the power to judge election and the qualifications of its members, but that the standards were also supplied by the Constitution. If someone met the age requirement (25 years), the citizenship requirement (7 years) and the residence (state of election) requirement, the House could not refuse to seat the elected person.
In the current situation, based on the Powell precedent, if Allen were deemed the winner -- thankfully, he trails in the current vote count -- the Senate could not refuse to seat him. Comments on this site, and in the media that suggest otherwise are simply wrong. They Senate cannot vote to exclude an elected person, unless that person does not meet the minimum qualifications. Even a person under indictment would be entitled to take his or her seat in the chamber. The Senate would be required to respect the will of the electorate, even if it were assumed that the election was won through dirty tricks.
On the other hand, the Supreme Court, in Powell, made it clear it was not deciding on the House's power to expel a member. The Court refused to recharacterize the House vote as an expulsion. The Constitution does give, to each house of Congress, the power to "punish its Members for disorderly behavior, and, with the Concurrence of two-thirds, expel a Member."
If Allen's role in the voter suppression shenanigans were proved, it seems that the Senate could consider expelling him from the Senate. That could happen before the end of his term, this year. Or, if he does somehow win this night's election, he could be expelled after taking his seat in the new Congress, in January. It would, however, take a two-thirds vote to do that. To get enough Republicans to support that, the evidence against Allen would have to be compelling.