Just a reminder on that MN Senate seat...

As Scout Finch pointed out in yesterday's Midday Open Thread, the ultimate arbiter of the Minnesota Senate election (and indeed every Senate election) is... the Senate itself.

So here's a little reminder of what looms in the background of the whole Minnesota Senate recount mess:

The Minnesota U.S. Senate contest between incumbent Republican Norm Coleman and Democratic challenger Al Franken is undergoing a recount, with the candidates separated by less than 300 votes out of 2.9 million cast. But a controversial decision by the state's Elections Canvassing Board could end up throwing the election into the lap of the Senate itself, a scholar told Minnesota Public Radio.

"Ultimately, the Senate has complete authority to determine who was elected," Washington University political scientist Steven Smith told the broadcaster, citing the canvassing board's decision this week to disallow disputed absentee ballots that Franken had urged be counted.

The board's move was "a cause for great concern," Reid said this week, and those comments may indicate his willingness to start a Senate investigation of the Minnesota recount, Smith said. And if so, it's possible that Franken's argument regarding rejected absentee ballots could be reconsidered by U.S. senators.

It's certainly true that the Senate can settle the issue by simply choosing to swear in one or the other, but I wouldn't necessarily agree at this point that the Senate is likely to intervene, or that Reid's comments should lead us to anticipate that. "Cause for great concern," without more, is about as boilerplate as it gets.

Whence cometh such authority? Article I, Sec. 5:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members

Ding. That's it.

That applies equally to determining who won elections and shall be seated, and to who is such a pain in the ass that they'll be expelled from the Senate once seated, though there's more about expulsions later, including the 2/3 vote requirement for kicking someone out.

So, has it ever happened? Sure. In fact, according to a 2005 paper (PDF) by Prof. Jeffrey A. Jenkins of Northwestern University now of the University of Virginia, there have been 132 contested Senate elections through the 107th Congress, i.e., from 1789 through 2002, or an average of more than one per Congress. But since the 17th Amendment, the number of cases has declined fairly dramatically, with just 35 cases, or 0.8 per Congress on average. The last such dispute -- not included, it appears, in the Jenkins paper -- was current Senator Mary Landrieu's first election to the Senate in 1996.

Will it happen here? Dunno yet. But it's not as rare or arcane a procedure as you might think.

I'll take this opportunity to mention that the new Daily Kos Congress-watching spin-off community that we're calling Congress Matters is up and running (with a few kinks left to work out before the 111th Congress convenes). It's the kind of place where we might actually spend a day or two looking at the election dispute procedure, some past cases, etc., while waiting for the action to heat up in January.