As it considered election cases over the years, the Senate developed a series of informal precedents to guide its actions. For example, if a senator-elect arrived with credentials that appeared valid on their face and were signed by the proper state authorities, that individual typically would be permitted to take his seat even if a challenge to the election had been filed with the Senate.
Generally, a senator with the proper credentials against whom a challenge had been filed would be seated "without prejudice." Under this arrangement, if a committee investigation later determined that for some reason the individual was not entitled to a seat, he could be "excluded" from the Senate by a simple majority vote, as opposed to having to be expelled, which required a two-thirds majority. On some occasions, the Senate excluded by majority vote a member who had originally been seated. At other times, the Senate voted to require a two-thirds vote to unseat the senator, but in those instances, not even a simple majority voted in favor of exclusion. In a few such instances, election cases hovered on the edge of becoming disciplinary cases when the body considered whether the allegations were serious enough to actually expel an individual or whether only exclusion was warranted. Examples included charges of election corruption and complaints about the actions of a member before he entered the Senate.
Opponents sometimes sought to block a senator's seating by filing allegations with the Senate that the member-elect had engaged in possible criminal or immoral behavior before being elected. Such charges often originated with political adversaries back in the state, and usually the Senate did no more than refer the matter to a committee for a cursory investigation, on the theory that members should only be required to meet the three basic constitutional qualifications of age, residency, and citizenship.
The Senate did take seriously charges of bribery and corruption in a member's election. The investigations of such allegations sought not only to determine whether the transgressions occurred but also whether the senator knew about or participated in them, and whether enough votes were affected to change the outcome. If the Senate determined that the member was unaware of the bribery or if it affected only a small number of votes, the body usually permitted the individual to keep his seat.
Challengers sometimes contended that, if the winning candidate was ineligible for some reason, the runner-up should be declared the winner. As the Privileges and Elections Committee pointed out in an 1872 case, this was apparently true under English law, where the votes for an ineligible candidate were not counted and the candidate with the next highest number of votes was declared elected. The practice in the United States, however, was to declare such an election void, rather than to grant the seat to a competitor, and the Senate held consistently to this precedent.
In the period after adoption of direct popular election, the Senate faced unfamiliar types of election challenges that required different approaches, and the body gradually developed new standards for handling such cases. For example, the Senate did not wish to step in where legal action in the federal or state courts was appropriate, and it seldom took very seriously the claims of a contestant who had failed to follow these avenues of redress. Similarly, when a losing candidate demanded a recount of ballots, the Senate preferred to become involved only if the state law made no provision for such a recount. Still, in some cases the Senate felt impelled to act, and the sealed ballot boxes were shipped to Washington where staff members, carefully observed by representatives of both candidates, scrutinized the ballots and election records for possible irregularities.
Until the mid-19th century, the Senate referred contested election cases to committees specially appointed for the purpose. Then from the 1850s to the 1870s, the Judiciary Committee reviewed such cases. Faced with the overwhelming volume of complicated election cases during Reconstruction, the Senate in March 1871 created a Committee on Privileges and Elections, apparently to relieve the burden on the Judiciary Committee. The Committee on Privileges and Elections handled most contested elections until after World War II.
Beginning in the 1920s and continuing until the 1950s, the Senate often expressed its concern about the way campaigns were financed by establishing a special committee to review campaign expenditures in a particular election year. Occasionally, these special committees supplemented the work of the Committee on Privileges and Elections by reviewing the financial aspects of disputed elections. Although the Senate usually only reviewed cases formally brought before it by the filing of an election contest or charges of campaign irregularities from the state, the special campaign expenditure committees had authority to look into matters they learned about through such informal means as newspaper articles.
In 1947, when the Legislative Reorganization Act consolidated Senate committees and jurisdictions, Privileges and Elections ceased to be a separate committee and became a subcommittee under the Committee on Rules and Administration. While the Senate abolished that subcommittee in 1977, the full Rules Committee continues to be responsible for contested election cases.
Source: Adapted from Anne M. Butler and Wendy Wolff. United States Senate Election, Expulsion, and Censure Cases, 1793-1990. S. Doc. 103-33. Washington, GPO, 1995.