New Jersey election law?
mae.kuykendall at LAW.MSU.EDU
Thu Oct 3 13:30:45 PDT 2002
Innocent of case law on the matter as I am, I nonetheless would be inclined toward a conclusion that the words of Art. I, Section 5, cl. 1 may be seen as applying to disputes about seating following an election, or issues after a member is seated and the procedures for expulsion are raised. Prof Charlow's post demonstrates that the clause does not even preclude judicial construction where seating, or remaining seated, is at issue. It would seem easier to conclude, as a matter of plain meaning, that a dispute over the mechanics of an election, while it is under way, are not necessarily addressed by the clause. I should note that I do not conclude from this analysis that the Supreme Court should intervene, since I don't necessarily think that sound constitutional law, or a good result for the political system, would arise from the analysis.
>>> LAWRDC at MAIL1.HOFSTRA.EDU 10/03/02 11:52AM >>>
tushnet at LAW.GEORGETOWN.EDU 10/03/02 :::
And, (e) why isn't federal judicial intervention -- at any level --
foreclosed by Art. I, Section 5, cl. 1: "Each House shall be the Judge
of the Elections [and] Returns of its own Members"? Or is the political
questions doctrine so completely dead that no one even thinks that there
might be a political question here?
Even if political question doctrine generally is not completely dead, the Court's already said that invoking Art. I, Sec. , cl. 1 does not always result in nonjusticiability, to wit, Powell v. McComack. Though Powell also involved the constitutional requirements for seating in Congress--not exactly the problem here--the issue of who was to decide the standard and it's applicability was, as here, still arguably directed to another branch.
Hofstra Law School
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