In determining whether to seat a member-elect, the Senate must look not only at the credentials signed by the state officials that certify the election but also at whether the individual meets the three qualifications set forth in the Constitution: to be at least thirty years old, a citizen of the United States for nine years, and an inhabitant of the state from which elected (Article I, section 3). Because these requirements are clear and straightforward, few candidates who fail to meet them have run for and won election to the Senate, but in a few instances challenges have been raised and sustained. In 1794 and again in 1849, the Senate unseated members who had not been U.S. citizens for the requisite nine years. When the first African American senator presented his credentials in 1871, his citizenship was challenged, but the Senate disagreed and seated him. A variation on the citizenship theme occurred when senators presented themselves from a state that had not yet officially been admitted to the Union, as with two senators from Tennessee in 1796 and a senator from Minnesota in 1858. A residence case arose in 1870 when opponents questioned whether the former military governor of Mississippi should in fact be considered a resident of the state.
Although in the early 19th century three senators were sworn in before the age of 30, no objections were raised. The only instance in which age became an issue occurred in 1935, when a senator elected at the age of 29 waited to be sworn in until his 30th birthday several months after Congress convened. In that case, the losing candidate unsuccessfully challenged his qualifications. Occasionally, a state claimed that a senator did not meet some further requirement added by the state to represent it in the Senate, such as a mandate that state officers wait a year after the end of their terms before accepting any other office. The Senate rejected such claims.
Conduct of Election by State Legislatures
Charges of irregularities in the conduct of elections varied widely. They included allegations that state legislators were bribed, charges that one house of legislature did not have a quorum present when the election was held, or claims that other state statutory requirements had not been met. In one challenged election, the winning candidate, while serving as a state legislator, had cast the deciding vote for himself. In another case, the speaker of the state senate, who had succeeded to the governorship on the death of the governor, still participated in the election as a legislator and cast the deciding vote. On several occasions, a later legislature would send a new senator to contest a seat already held by an incumbent, claiming that it, rather than its predecessor body, actually had the right to elect. A number of senators in the late 19th and early 20th century were charged with actual corruption and bribing state legislators in their elections. If the Senate found adequate proof, it had two options: to expel the miscreant or declare the election void.
Attempts to seat senators from the former Confederate states returning to the Union after the Civil War posed a series of particularly complex dilemmas for the Senate. The confusing period when the rebellious states scrambled for readmission saw many contradictions and inconsistencies in Senate action. Former Confederate states, once happy to renounce any association with the Union, now argued that they had never left and insisted on restoration of all their political rights and privileges within the national government. Unionists, on the other hand, who had consistently denied the validity of secession, began to demonstrate an increasing reluctance to admit representatives from these states until their loyalty could be assured. Complex constitutional issues, intensified by political partisanship and sectional enmity, led to lengthy and heated Senate debates.
In the late 1860s, the Republican Party gained power in most southern states, with strong support from the newly enfranchised African American voters. Many Republican officials were "carpetbaggers" who had emigrated from northern states before, during, or after the war. Others were southern "scalawags" who had supported the Union. The debates that raged over seating the senators from the newly restored states involved a variety of issues, including questions of the individual's loyalty and activities during the war, the procedures or makeup of the state legislature that elected the claimant, and whether the state had adequately fulfilled the prerequisites for readmission. Beneath the often heated and lengthy discussions ran an undercurrent of bitter partisan and intraparty conflict over the rights of African Americans and the form that Reconstruction should take.
As a result, beginning in 1868 and continuing through the 1870s, the number of contested election cases handled by the Senate exploded from one or two cases a year to as many as five or six contests to be considered simultaneously. Because of this heavy workload, many cases took as long as three or four years to resolve, and one multiple-claimant case from Louisiana lasted for seven years. Also, the resolution of one case was sometimes affected by a decision reached a few days earlier in another contest, with the Senate attempting to be consistent in its actions. In several instances, the Senate ruled that, when Congress passes an act readmitting a state to representation under the Reconstruction acts, it was also approving the legislature under which the state was accepted for readmission. By upholding the makeup of a given legislature, the Senate declared, it was also retroactively accepting all actions taken by that legislature, including any senatorial elections it might have conducted before the state was formally readmitted to the Union.
During each of the phases of Reconstruction, former Confederates were required to swear a loyalty oath in order to hold office or vote. Under Presidents Lincoln and Johnson, the oath simply pledged future loyalty to the Constitution, thus permitting many former Rebels to hold public office. Radical Republicans in Congress, however, preferred use of the "ironclad test oath," first adopted in 1862, which required all federal officeholders, in addition to swearing future loyalty, to swear that they had never voluntarily borne arms against the United States, had given no aid or encouragement to those fighting against the Union, and had never accepted any office "under any authority in hostility...to the United States." In an 1866 case, the Senate insisted that a member from one of the former Confederate states must be able to swear his oath, setting the pattern for the admission of senators from the remaining southern states. As a result of this determination, the 1867 Reconstruction acts required all federal officeholders to swear the ironclad oath. In the 1871 case of a former Confederate surgeon who had been a noncombatant, the Senate made an exception to this policy and adopted a joint resolution stipulating that the member-elect could omit the part of the oath relating to past actions and simply swear future loyalty to the United States. This joint resolution, passed by the House and signed by the president, marked a unique instance in which the House played a role in the seating of a senator. When the Senate had tried a similar approach in an earlier case, the House refused to adopt the resolution, and the Senate then decided that the individual must swear the oath.
Beginning in the early 1870s a new series of contested elections arose in Alabama, Louisiana, and South Carolina in a backlash by white supremacist Democrats against often corrupt Radical Republican control. Amid violence, intimidation of African American voters, and charges of corruption, state elections produced competing legislatures, each claiming to have elected a U.S. senator. In such cases, the Senate undertook to determine which legislature was legitimate, a departure from its usual practice not to interfere in any matter that was a state prerogative. The topic, however, represented a dangerous quagmire, for often so many irregularities surrounded the formation of each of the two rival legislatures, that the Senate, in the words of one committee report, was forced "to choose between the form [the group that had the credentials] and the substance [those who had actually been elected]." Since the decisions ultimately reached were usually partisan, the nature of the outcomes varied with the gradual change in the balance of power within the Senate. In fact, the body faced a flood of these time-consuming and complex cases at a time when the Republican majority was losing its dominance. A dozen contested elections related to Reconstruction came before the body between 1869 and 1877, as the party's lead slipped from an overwhelming margin of 50 seats to only 5. Then, in 1879, the Democratic Party took control of the Senate, and allegations of voter intimidation that would have blocked a senator's seating a few years before no longer proved decisive. In the early 1880s the weary members allowed the final Reconstruction contests to drift to easy conclusions that were not necessarily consistent with the more stringent actions taken earlier.1
As Reconstruction ended in the 1880s, the Senate returned to its previous practice of seating a challenged senator-elect whose valid credentials indicated that a recognized state legislature had conducted the election according to the procedures set forth in the 1866 election act.
Contested Elections after the Seventeenth Amendment
Although direct election ended the confusing contests arising from elections by state legislatures, there was still no shortage of contested elections. Several in the early 1920s dealt with charges of excessive campaign expenditures or fraud and corruption. The earlier allegations of bribing state legislators were replaced with complaints of stuffed ballot boxes and irregular election procedures. Other common charges included registration rolls that carried names of nonresidents and deceased persons, irregular voting and ballot-counting procedures, and failure to file required financial reports. Close elections often led to calls for ballot recounts, either by the state or by the Senate.
While the Senate's review of contested elections in most cases did not change the outcome, in several notable instances the body actually overturned the results of the election. In 1926, after conducting a full recount of ballots, the Senate unseated one senator and declared that the challenger had been elected. Also in the 1920s, evidence of excessive campaign expenditures and pervasive corruption led the Senate to refuse to seat either contender in two cases. Nearly half a century later in 1975, after months of partisan bickering over the results of a close New Hampshire contest, the Senate declared the seat vacant, and the state held a new election.
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.