Power To Judge Elections

Each House, in judging of elections under this clause, acts as a judicial tribunal, with like power to compel attendance of witnesses. In the exercise of its discretion, it may issue a warrant for the arrest of a witness to procure his testimony, without previous subpoena, if there is good reason to believe that otherwise such witness would not be forthcoming.400 It may punish perjury committed in testifying before a notary public upon a contested election.401 The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.402 Refusal to permit a person presenting credentials in due form to take the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.403 Nor does such refusal unlawfully deprive the state that elected such person of its equal suffrage in the Senate.404

Footnotes

400
Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929). [Back to text]
401
In re Loney, 134 U.S. 372 (1890). [Back to text]
402
6 CANNONS PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 72–74, 180 (1936). Cf. Newberry v. United States, 256 U.S. 232, 258 (1921). [Back to text]
403
Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929). [Back to text]
404
279 U.S. at 615. The existence of this power in both houses of Congress does not prevent a state from conducting a recount of ballots cast in such an election any more than it prevents the initial counting by a state. Roudebush v. Hartke, 405 U.S. 15 (1972). [Back to text]