Pejman Yousefzadeh lays out a compelling case for why Roland Burris must be seated in the United States Senate. We have already given Washington far too much power; how much more dangerous it would be for the people to cede to the incumbency veto over the ballot. That is what is at stake here. While Burris has not been elected, he is no less constitutionally and legally a United States Senator than if he were.
Yousefzadeh’s position is that the relevant Constitutional section “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members” gives the body only the power to judge members on their qualifications. That is, that the member has “attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall . . . when elected, be an Inhabitant of that State for which he shall be chosen,” are the only qualifications that the Senate is empowered to consider.
The Tennessee Constitution proscribes a similar power for its legislative body:
The senate and house of representatives, when assembled, shall . . . be judges of the qualifications and election of its members.
Three years ago the Tennessee State Senate exercised its authority when a special election to replace one of its members was decided by thirteen votes, but an investigation found well over a hundred illegally cast votes (most of which were apparently cast for the “winner”.) The election result was determined to be “incurably uncertain” and the apparent winner was unseated until a new election was held (which she later won). I happened to be among those who argued that she should not be unseated since I am loathe to ignore the actions of the electorate. However, it was never in question that the Tennessee Senate was properly exercising its constitutional authority to judge the election of one of its members when it voted to undo the election.
Roland Burris is constitutionally qualified to be a U.S. Senator, and absent evidence of a quid pro quo appointment, his appointment is lawful. Sadly, it appears that this appointment may be the only lawful thing Governor Blagojevich has done during his term of office.