New Jersey election law?
tushnet at LAW.GEORGETOWN.EDU
Thu Oct 3 13:52:32 PDT 2002
Re: political questions and Powell v. McCormack -- The predicate of
Powell v. McCormack was that the Constitution itself (in Art. I, sec. 2,
cl. 2 and the parallel provision regarding the Senate) defined a limited
set of qualifications of which each house was to be the judge. (Powell
reserved the question of whether a house's decision that a person did
not satisfy one of the listed qualifications was a political question).
So, to say that Powell applies in the present circumstances, you'd have
to identify some provision elsewhere in the Constitution specifying what
a (proper) "Election [or] return" was, and -- pending further
instruction -- I don't know where you'd find that specification. At
most, Powell stands in this context for the proposition that it is up to
the Supreme Court to determine whether there is such a specification,
and I suppose you can develop the (already strained, in my view)
argument about "legislature" not including "courts in their ordinary
capacity" in a way that does the job. But, I think, it would take a
fair amount of work.
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