Both houses of the United States Congress have refused to seat new members based on Article I, Section 5 of the United States Constitution which states that, "Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide." This had been interpreted that members of the House of Representatives and of the Senate could refuse to recognize the election or appointment of a new representative or senator for any reason, often political heterodoxy or criminal record. Powell v. McCormack limited the powers of the Congress to refuse to seat an elected member to when the individual does not meet the specific constitutional requirements of age, citizenship or residency. From the decision by Chief Justice Earl Warren: "Therefore, we hold that, since Adam Clayton Powell, Jr., was duly elected by the voters of the 18th Congressional District of New York and was not ineligible to serve under any provision of the Constitution, the House was without power to exclude him from its membership." The Federal Contested Elections Act of 1969 currently lays out the procedures by which each House determines contested elections.
Unseated members of Congress
From 1869 to 1900, the House of Representatives refused to seat over 30 Southern Democratic candidates declared the winner by their states because the House Elections Committee concluded that fraud, violence, or intimidation had been used against black voters, or, in some cases, that the election statutes of the states themselves were unconstitutional. In some cases a new election was ordered, while in others the defeated Republican or Populist candidate was seated instead.
George Q. Cannon was elected as the non-voting delegate for Utah Territory to the House of Representatives in 1872. He remained a duly-elected congressional delegate until 1882, when his seat was declared vacant by the enactment of the anti-MormonEdmunds Act.
B.H. Roberts was not seated after being elected in 1898 to the House of Representatives for the 56th United States Congress because he was a Mormon polygamist.
William A. Clark was elected to the U.S. Senate in 1899, but promptly met with a petition opposing his election on the grounds that it was secured through bribery. Votes were bought through real estate purchases, bank financing and outright cash purchases. The Senate Committee on Privileges and Elections found unanimously that Clark was not entitled to his seat. Clark resigned in May of 1900 before the full Senate took a vote. Clark would serve a term in Congress from 1901 to 1907.
Victor L. Berger was not seated after his election to the House in 1918 because he had been convicted under the Espionage Act of 1917. After the House refused to seat him Wisconsin held a special election in December 1919, which Berger won again. The House again refused to seat him.
Adam Clayton Powell, Jr., a sitting representative, was excluded by the House of Representatives in 1967 because of allegations of corruption. He successfully sued to retain his seat in a landmark Supreme Court decision.
Louis C. Wyman was declared the victor of the US Senate contest in 1974 in New Hampshire by a narrow margin on Election Day. A first recount gave the election instead to John A. Durkin by ten votes, but a second recount swung the result back to Wyman by only two votes. The state of New Hampshire certified Wyman as the winner, but Durkin appealed to the Senate, which had a sixty vote Democratic majority. The Senate refused to seat Wyman while considering the matter. After a long and contentious debate in the Senate, with Republicans filibustering attempts by the Democratic majority to seat Durkin instead, a special election was held, with Durkin winning handily and becoming Senator.
Roland Burris, due to the Rod Blagojevich corruption charges, was initially refused a seat in the Senate in 2009. On December 30, 2008, Governor Blagojevich announced that he was naming Burris to the seat, and Illinois Secretary of StateJesse White registered the appointment in the official records of Illinois on December 31, 2008. However, Secretary of State White declined to sign the Senate's certification form. Because of this, on January 5, 2009, Secretary of the United States SenateNancy Erickson rejected Burris's certificate of appointment to the Senate as invalid, citing Senate Rule 2 as the reason for the rejection. Burris appeared in Washington at the January Congressional swearing-in ceremony on January 6 to claim his seat, but was denied entry into the Senate chambers. Following an Illinois Supreme Court ruling on January 9, 2009, White provided Burris with a certified copy of the appointment's registration, and Burris delivered that copy, bearing the State Seal, to the Secretary of the Senate. On January 12, 2009, after the Secretary of the Senate announced that she and Senate ParliamentarianAlan Frumin deemed Burris's new credentials valid, Senate leaders decided to seat Burris. Burris was sworn in by President of the SenateDick Cheney on January 15, 2009.
