Plasma Pool

Illinois Senator-designate Roland Burris

Some elections are legally valid; others are not. One standard for validity is that the election be conducted by the proper authorities. If I were to independently conduct an election for president, the winner would not be entitled to become president, even if the election conformed to all the standards by which elections are judged. A second standard is that the winner has not engaged in egregious misconduct. If the winner bribed or threatened voters, for example, it might invalidate the election. A third standard is that the winner is eligible to serve. An election that elevated a five-year-old to Congress, or a puppy, would not be valid. A fourth standard is that the election as a whole is conducted legally. For example, if a third party illegally prevented half the electorate from voting or excluded all of the candidates but one from the ballot, it might invalidate the election.

The U.S. House and Senate are charged with judging the “elections, returns, and qualifications” of their members—with determining who has been validly elected to Congress. They are not permitted to invent new criteria for validity; they may find only according to the law. In the case of an election, they nonetheless have wide latitude in coming to their conclusions. In 1984, the House conducted its own recount of an Indiana congressional race, and in 1974 the Senate refused to seat either candidate in a New Hampshire race. (Ultimately, everyone agreed to a re-vote.)

One can imagine this sort of independent congressional inquiry taking place even if the relative number of votes were not the question at hand; that is, if the question were a matter of law independent of the election as such. For example, suppose the former Mayor Daley had declared that his brother was the only valid candidate for a congressional seat in Chicago, and anyone else who ran for the seat would be shot. Suppose two candidates were shot and taken off the ballot and one, the Mayor’s brother, survived the election and won. Or suppose the mayor bribed a judge, who ordered ballots to be printed with only his brother’s name on them. Even if the brother engaged in no misconduct, and every vote cast for him was legal, is the House required to accept his election? Or can they call a do-over?

In the case of Roland Burris’s appointment to the U.S. Senate by Illinois Governor Rod Blagojevich, commenters have covered the first three criteria—Blagojevich is the sitting governor, with legal appointment power; there is no suggestion that Burris bribed Blagojevich for the seat; and Burris is qualified to serve—but have not focused on the fourth: that the process under scrutiny must be a legal process. While there are many legal requirements for an election—and thus many grounds on which elections can be challenged—there are few for an appointment. Among other things, one can make an appointment for no reason at all. But not for any reason at all: making an appointment in the process of illegally soliciting a bribe, for example, is illegal. The question for the Senate is: was Roland Burris’s appointment legally done?

If we consider “the appointment” to be Rod Blagojevich signing an appointment declaration with Roland Burris’s name on it, then yes, the appointment was probably done legally. It meets standards one, two and three, and there is no “appointment as a whole” to evaluate. However, if we consider “the appointment” to be the process of weighing candidates and selecting one, it is likely that it was not done legally. There is a fair argument that “the appointment” is a process rather than an atomic action. For example, the governor’s staff assisted in vetting (and negotiating with) the other candidates on state time, making it clear that both believed considering multiple candidates was part of the governor’s “official duties” as governor—the execution of which is a continuous and complex process.

Suppose we knew that Blagojevich had decided to nominate either Roland Burris or Valerie Jarrett, and suppose that he told Barack Obama he would eliminate Jarrett if Obama refused him a $100,000 bribe. Is this analogous to the situation in which Mayor Daley illegally eliminates candidates from the election? Every vote the mayor’s brother got was legal, but some votes not cast were illegally eliminated. In this case, Burris’s appointment as such was legal, but the appointment not given—”the appointment” considered as a process—was illegal.

Should they wish to reject Burris, the Senate should maintain that “the appointment” is a process which includes selecting a pool of candidates, eliminating all but one, and appointing that one. In the case of this particular appointment, there is significant reason to believe that persons were eliminated because, in Blagojevich’s words, he would appoint another person “before I just give fucking [Senate Candidate 1] a fucking Senate seat and I don’t get anything.” Eliminating a person for this reason is illegal, and therefore the appointment process was invalid. The Senate, then, as “the judge of the elections, returns, and qualifications of its own members,” need not judge Burris to have been validly elected.

Importantly, the courts have the power to determine whether Congress has done something other than judge its members elections and qualifications when scrutinizing returns—for example, to determine that Congress has invented a new qualification rather than judging based upon one written into the Constitution—but historically, they have not second-guessed the content of those judgments. If the Senate makes a good-faith determination not that Burris is “tainted” or that his appointment lacks the appearance of legitimacy, but rather that according to their judgement of the return he has not been validly appointed, the courts will likely defer.