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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

Echoes of Bush v. Gore: Courts Are Not Always the Right Forum for Election Contests

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January 10, 2006

The judicial branch undeniably plays a crucial role in resolving election controversies and preserving our democratic processes, but courts must also know when to leave politics alone. Many observers believe that, although the outcome likely would have been the same, nonetheless it was a mistake for the U.S. Supreme Court to decide the 2000 presidential election, given that the Constitution provided a clear means for Congress to resolve any controversy that may have lasted past the counting of the electoral college votes. Last month, in another dramatic but much less reported affront to the principle of separation of powers, the Kentucky Supreme Court gravely overreached its proper role in resolving the election of a member of the Kentucky state senate. As with many separation of powers issues, the immediate injury done by the court may be largely abstract (except to those Kentucky citizens who as a result are unrepresented in their state senate), but the potential long-term harm to divided government is serious.

First, the facts. In 2004, Dana Seum Stephenson and Virginia Woodward were the two principal candidates vying for the open seat representing the 37 th district in the Kentucky Senate. On election day, 22,772 voters voted for Stephenson and 21,750 voters voted for Woodward. However, on the eve of the November 2004 election, Woodward filed a complaint in state court alleging that Stephenson did not meet the state constitution's eligibility requirements to serve in the state senate because she had not "resided in" Kentucky for the six years preceding the election, as required by Section 32 of the Kentucky Constitution. Stephenson was served with the complaint during her victory celebration the next evening, and a state trial court first conducted a hearing on the complaint the day after the election. At the hearing, Stephenson admitted that during a portion of the preceding six years she had owned a home in Indiana, had often resided there while pursuing a graduate degree at Indiana University Southeast, had registered to vote there, and had obtained an Indiana driver's license. On the basis of these facts, the trial court ruled on November 22, 2004, that Stephenson was not eligible to serve as state senator, and directed the board of elections not to count any votes cast for her.

Stephenson then commenced an election contest before the state senate, relying on the senate's authority under Section 38 of the Kentucky Constitution to "judge of the qualifications, elections and returns of its members." After conducting its own hearings, and by a closely divided vote, the Kentucky Senate concluded on January 7, 2005, that, for purposes of the constitutional requirements for eligibility to serve in the Senate, Stephenson had "resided in" Kentucky for the preceding six years. In reaching this determination the Senate relied on the additional facts that, throughout the time that Stephenson was working on her graduate degree in Indiana, she also had owned a home in Kentucky, had often resided in that home as well, had continued her full-time position teaching public school in Kentucky while pursuing her graduate degree at night, and had otherwise spent much of her time in Kentucky. The Senate then seated Stephenson as the senator from the 37 th District and administered the oath of office to her.

However, on January 14, 2005, another state trial court temporarily enjoined Stephenson from serving as state senator, and in June this court issued a final order permanently enjoining Stephenson's senate service. The court concluded that, notwithstanding the Senate's power to judge the elections of its members, the Senate had acted arbitrarily (in violation of a separate provision of the Kentucky Constitution that prohibits arbitrary exercises of government power) in concluding that Stephenson resided in Kentucky when a court had previously reached a contrary conclusion. The case then made its way to the Kentucky Supreme Court, where it was argued last November. (Full disclosure: I served as counsel to the American Legislative Exchange Council in filing an amicus brief before the Kentucky Supreme Court urging reversal of the trial court's injunction.)

It is important to note that until January 14, 2005, both the legislative branch and the judicial branch arguably had acted properly, despite their conflicting interpretations of the eligibility requirement. The trial court had considered Stephenson's qualifications under a state statute (KRS 118.176) that granted it jurisdiction to adjudicate a pre-election challenge to a candidate's bona fides, notwithstanding the constitution's commitment to the legislature of the power to judge its members' elections. Although the statute likely contemplated that such challenges ordinarily would be resolved before election day, the statute did not clearly divest courts of jurisdiction to resolve challenges after the election, as long as the underlying action had commenced before the election. Meanwhile, for its part the Senate noted that the eligibility provision further required that a senate candidate be a "citizen" of Kentucky at the time of the election, and therefore that the requirement that a candidate also "reside in" Kentucky for the six preceding years could take on a broader construction, in which a candidate might concurrently "reside in" two places.

Nor, even in our system of separated powers, is it so hard to make a place for these conflicting interpretations. Over thirty years ago, the U.S. Supreme Court had countenanced just such a scenario in a recount context. In Roudebush v. Hartke, 405 U.S. 15, 25-26 (1972), the Court made clear that the U.S. Senate's similar power (under article I section 5) to "be the Judge of the Elections, Returns and Qualifications of its own Members" allowed the Senate to make "an independent final judgment" of the ultimate victor, and in so doing to "accept or reject" the conclusions of the courts about the apparent victor. Judicial proceedings might well be informative, but could not be binding on the legislative branch.

In this light, the Kentucky trial court's order enjoining a seated Senator from performing her duties in the legislative branch was breathtaking. Both the U.S. Constitution and the constitutions of most states, including Kentucky, expressly prohibit the judicial branch from exercising control over the internal deliberations and operation of the legislative branch. In addition, almost every state constitution, like the U.S. Constitution, gives the legislature the power to judge the elections and qualifications of its members. James Madison observed that "the members of each [branch] should have as little agency as possible in the appointment of the members of the others." (Federalist No. 51). As Joseph Story argued in 1833, if the power to judge the elections of its members is "lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger." (Commentaries, ' 831).

Accordingly, one could only hope that the Kentucky Supreme Court would correct this judicial usurpation of the legislative branch's independent power. Unfortunately, the high court instead compounded the mistake. Apparently uncomfortable with the prospect of allowing a co-equal branch to employ an interpretation of constitutional text inconsistent with the judiciary's interpretation, even concerning a matter constitutionally committed to the other branch, the high court affirmed the trial court's injunction. However, it chose not to rely on the trial court's suspect reasoning that the Senate had acted arbitrarily in judging Stephenson's election and qualifications. Instead, the Kentucky Supreme Court sought to finesse its usurpation of the Senate's authority -- and to escape the clear command of the political question doctrine that it refrain from doing so -- with the curious claim that the Senate has authority to judge the elections and qualifications only of one who "was actually a member of the Senate," slip op. at 8, and that Stephenson never was an actual member, having lost all rights to that office when the judicial branch found her not qualified on November 22, 2004.

Not only is this rationale facially inconsistent with the constitutional commitment to the legislative branch of the power to judge the elections of its members, but history is replete with instances in which Congress or state legislatures have used this power to themselves make the determination of whom to afford the status of an actual member. To interpret the elections clause as giving the legislature a power to judge the elections and qualifications only of a person first judicially determined to be an actual legislator is to eviscerate this express reservation of legislative branch power. It cannot be healthy for a robust system of separate powers for the judicial branch to be the ultimate gatekeeper of legislative branch membership. Instead, a healthy system of separate powers must make room for the possibility of inter-branch conflict in certain instances. The alternative is a form of judicial supremacy at odds with tripartite government.

Indeed, the Kentucky Supreme Court's "cure" for conflicting interpretations of the constitutional requirement that state senators "reside in" Kentucky for six years preceding their election is far worse than the perceived disease: The judiciary has enjoined a legislator from legislating! Though the immediate impact on the Kentucky Senate is likely to be minimal (Stephenson has now resigned her seat, and the Senate has set a special election for February 14, 2006, to fill the resulting vacancy), nevertheless the fundamental independence of the legislative branch has been breached. We can only hope that this unfortunate decision is never replicated or extended.