Congress Should Resolve FL-13

As the front page reminds us, voting machine problems (whether due to stupidity or malice is unclear) in the 13th Congressional District race in Florida very likely gave the Republican candidate a narrow victory by not counting votes in the race that voters tried to cast, when a majority of those who showed up at the polls and tried to vote in that race actually favored the Democrat.

Litigation might turn this into a revote or a Democratic win.  But, it might not.  Unlike the Presidential election in 2000, the Constitution provides a clear way to resolve this consistent with the voters intent.  The new Congress has the power to resolve disputed elections by majority vote.  The United States Constitution, Article I, Section 5, Clause One, states "Each house shall be the judge of the election returns, and qualifications of its own members . . ."  The Congress that makes the decision is the new one, because election returns are not received until the term of the previous Congress expires.  See Article 1 of the 20th Amendment to the United States Constitution.

This would hardly be an unprecedented move.  

Prior to the Civil War, when the Congress was less important, election procedures were shoddier, and members of Congress often voluntarily retired after a term or two in office, the House of Representatives routinely resolved election disputes and routinely did so on a partisan basis.  Congress is not required (pdf page 17) to defer to state election official determinations.

As the bureacracies that run elections grew more accurate, the judiciary secured greater respect in questions of public law (i.e. disputes involving the government), and professional politicians decided that they didn't want to be on the receiving end of a political ploy to overturn an election that the incumbent won fair and square, Congress has far less frequently resolved disputed elections.  

But, there have been a handful of disputed elections considered by Congress in recent times.  The U.S. Senate has resolved a disputed Senate election at least as recently as 1975 (the dynamics in a Senate election are somewhat different from a House election, because unlike the House, the Senate is in continuous session and does not adopt rules and swear in all of its members from scratch every two years, allowing the matter to be considered before the new Congressional session commences).  In dispute in the CA-50 race this year, a court used the availablity of this remedy to disavow jurisdiction over the case.  Colorado made a similar ruling in a 1970 case.  The U.S. House spent four months resolving a disputed Congressional election in 1985, ultimately resulting in H.R. 146 made on May 1, 1985.

No law prevents Congress from resolving the FL-13 in favor of the rightful Democratic winner.  The Constitution gives the House this power, and if the courts fail to right a clear injustice in the FL-13 case, Democrats would have the political justification they need to intervene in this isolated case.  

The bootstrap notion, implicit in the Constitution, of having a group of people whose credentials have not been certified yet determine whose credentials are valid has the potential to create a constitutional crisis in a very evenly divided House of Representatives, but when, as in the wake of the 2006 midterm election, Democrats have a clear majority in undisputed races, no one has to worry about this theoretical possibility.

A Congressional resolution would also serve as a wake up call to the President that the Democrats will not be cowed or fail to use their rights to the fullest extent consistent with the constitution.