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Judging Elections, Returns and Qualifications of a Legislator

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Judging Elections, Returns and Qualifications of a Legislator Judging Elections, Returns and Qualifications of a Legislator Peter S. Wattson Senate Counsel State of Minnesota September 23, 2008 Contents Table of Authorities ........................................................... iv Constitutions ................................................................ iv Statutes..................................................................... iv Federal Cases ................................................................ vi Other State Cases ............................................................ vii Legislative Materials .......................................................... xi Other Authorities ............................................................. xi I. Introduction ...........................................................1 II. A Legislative Body Is the Judge of the Elections, Returns, and Qualifications of its Members ..............................................................1 A. English Parliament ................................................1 B. U.S. Constitution .................................................1 C. State Constitutions ................................................2 III. Limits on Whom Voters May Elect Are Disfavored ...........................2 A. Voters Have a Right to a Candidate of Their Choosing ..................2 B. Age, Citizenship, and Residency Are Usually Sufficient .................3 IV. Qualifications for Legislators Are Set by the Constitution .....................4 V. Judging Qualifications: Residency .........................................4 A. A Candidate May Have More than One Residence .....................4 B. A Challenge to the Residence of a Candidate May Be Considered by a Court Before the Election ................................................6 C. After the General Election, a Court Has No Power to Judge That a Candidate Is Not Qualified ..................................................6 D. The Judgment of a Legislative Body May Differ from That of a Court .....7 E. A Challenge to the Residence of a Candidate May Not Be Considered by a Court after the Candidate Has Been Duly Seated by the Body, Except as Expressly Provided in the Constitution ...............................8 VI. Judging Qualifications: Holding an Incompatible Office .....................11 VII. Judging Qualifications: Conviction of an Infamous Crime ...................12 VIII. Judging Elections and Returns ...........................................12 A. Judicial Authority Over Elections and Returns is Statutory .............12 B. A Court May Compel Executive Officials to Carry out Ministerial Duties ...............................................................12 i C. A Court May Not Compel Election Officials to Change the Vote Count ..13 D. A Court May Not Fix Irregularities in an Election After a Legislative Body Has Taken Up the Matter .............................................13 E. Whether the Courts May Take Evidence in Contested Cases May, or May Not, Be for the Legislature to Decide ....................................14 1. Delegation Permitted .......................................14 2. Delegation Prohibited ......................................14 F. A Legislative Body May Initiate a Contest on its Own Motion at Any Time ...............................................................14 IX. Various Writs are Not Available for Testing the Right of a Legislator to Hold Office .....................................................................15 A. Injunction ......................................................15 B. Mandamus .....................................................15 C. Quo Warranto ..................................................15 X. A Court May Not Enjoin a Member from Performing Duties .................15 XI. Any Error by the Body Is for the People to Correct ..........................16 XII. Minnesota Election Contests .............................................16 A. Minnesota Constitution, Article IV, § 6 ..............................17 B. Minn. Stat. Ch. 209 ..............................................17 1. Grounds .................................................17 2. Who May Bring ...........................................18 3. When Commenced .........................................18 4. Notice of Contest Served and Filed ...........................18 5. Contestee’s Answer ........................................19 6. Guarding the Ballots .......................................19 7. Inspection of Ballots ........................................19 8. Selection of Judge ..........................................19 9. Trial .....................................................20 10. Results of Contest ..........................................20 11. Appeal ...................................................20 12. Legislative Procedure ......................................21 C. Legislative Precedents ............................................21 1. Certificate of Election; Swearing In ...........................21 2. Receipt of Record from the Court ............................23 3. Referral to Committee ......................................24 4. Hearing in Committee ......................................24 5. Committee Report .........................................25 a. Majority Report .....................................25 b. Minority Report .....................................25 ii c. Concurring Views ...................................25 6. Action by the Body .........................................25 7. Protest and Dissent ........................................27 XIII. Kentucky Case - Stephenson v. Woodward ..................................27 A. What Happened in Kentucky? .....................................27 1. Summary .................................................27 2. Challenge to Qualifications ..................................27 3. Election Contest ...........................................28 4. Injunction ................................................29 5. Appeal ...................................................30 6. Special Election ...........................................31 B. What Does the Kentucky Case Mean for Other States? ................31 C. Lessons from Kentucky for the Future ..............................32 1. Amend the Statute .........................................32 2. Respect the Courts .........................................32 3. Respect the Court of Public Opinion ..........................33 iii Table of Authorities Constitutions HAW. CONST. renumbered art. 2, § 10.............................................11 KY. CONST. § 30 .............................................................30 KY. CONST. § 32 ..........................................................27, 33 KY. CONST. § 38 ..........................................................28, 30 MD. CONST. art III, § 19........................................................14 MINN. CONST., art. IV, § 6 ...................................................14, 17 N.D. CONST. art. IV, § 12.......................................................10 N.Y. CONST. art. III, § 9........................................................14 PA. CONST. art. VII, § 13 (1968) .................................................14 PA. CONST. art. VIII, § 17 (1874).................................................14 U.S. CONST. art I, § 6 ..........................................................15 U.S. CONST. art. I, § 5 ..........................................................1 Statutes Haw. Rev. Stat. § 11-174.5 (2004) ...............................................11 KRS § 118.176 .........................................................27, 30, 32 KRS § 118.730 ...............................................................31 KRS § 120.195 ...............................................................28 KRS § 120.205 ............................................................24, 28 KRS §120.215 ............................................................24, 28 Minn. Laws 1945, ch. 229, § 3, coded as Minn. Stat. § 206.38 (1945) . 21 iv Minn. Laws 1971, ch. 733, § 2, coded as recodified and amended at § 204C.40, subd. 2 (2006) ............................................................................23 Minn. Stat. ch. 209 ............................................................17 Minn. Stat. § 10A.20, subd. 2 ...................................................18 Minn. Stat. § 204C.35 .........................................................21 Minn. Stat. § 204C.40 ......................................................21, 23 Minn. Stat. § 206.38 (1945).....................................................21 Minn. Stat. § 209.02, subd. 1 ....................................................18 Minn. Stat. § 209.021 ..........................................................18 Minn. Stat. § 209.021, subd. 1 ................................................18, 19 Minn. Stat. § 209.021, subd. 2 ...................................................18 Minn. Stat. § 209.03, subd. 1 ....................................................19 Minn. Stat. § 209.03, subd. 2 ....................................................19 Minn. Stat. § 209.05 ...........................................................19 Minn. Stat. § 209.06 ...........................................................19 Minn. Stat. § 209.07, subd. 1 ....................................................20 Minn. Stat. § 209.10, subd. 1 ....................................................19 Minn. Stat. § 209.10, subd. 2 ....................................................20
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