As the 117th Congress begins its work after the tumultuous 2020 election, Democratic leaders in the House and Senate – working with the new Joe Biden administration – face an uncertain political landscape with very slim majorities. While much has been made of the 50-50 split in the Senate, which provides Vice President Kamala Harris with the all-important tiebreaking vote, the House offers the Democrats only a bit more breathing room. As of this writing, the Democrats control 221 seats to the Republicans 211, with three vacancies.
One of those 211 Republican seats, however, is being contested. In Iowa’s 2nd Congressional District election, Republican Mariannette Miller-Meeks (above left) was certified as the winner – by six votes – and provisionally seated in the House on January 3. But the the ostensible loser – Democrat Rita Hart (above right)– is contesting the result. Hart believes she has identified 22 ballots that were cast legally for her—but were not included in the final tally.
Importantly, Hart has taken her dispute not the courts, but to the U.S. House – in keeping with the language in Article I, Section 5, Clause 1 of the Constitution, which stipulates that “Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members.” Thus if the results of a House or Senate election are disputed, the members of the relevant chamber decide who is duly elected and has a right to the seat.
The House Administration Committee – chaired by Democrat Zoe Lofgren (Calif.) – will begin considering Miller’s petition soon. Republican Rodney Davis (Ill.), the ranking minority member on the committee, has suggested that Speaker Nancy Pelosi and the Democrats may try to override the will of the people and “steal” the seat.
Davis’s partisan rhetoric aside, the question remains: Is Hart’s dispute strategy novel? How often, in fact, has the Constitution’s Article I, Section 5, Clause 1 power been invoked?
In the case of the House of Representatives, there have been 613 disputed election cases across history, or an average of more than 5 per Congress. These numbers are based on prior research I’ve done (here and here and updated since). See the figure below.
Disputed election cases have been concentrated in particular periods. The number of cases was low during the antebellum era and most of the twentieth century (and beyond). Most disputed election cases occurred in the latter part of the nineteenth century—after the Civil War and during Reconstruction and the Gilded Age. The high of 38 cases occurred in the 54th Congress (1895–97).
As the number of House seats in a given Congress has fluctuated over time, a more meaningful way to assess the importance of the disputed election procedure is to calculate the percentage of House seats disputed in each Congress. See the figure below.
In three different Congresses, more than 10 percent of House seats were disputed, with a high of 11.5 percent in the 41st Congress (1869–71). In recent years, this percentage has dropped off considerably. In the last century, the per-Congress average has been less than 1 percent, and many Congresses have seen no disputed election cases at all.
Why were so many House seats disputed in the late nineteenth century? Many of these cases stemmed from the loser of an election accusing the winner (or their campaign) of criminal behavior—like bribery of voters or election of officials, illegal alteration and counting of ballots, and fraudulent certification of election results. Many cases also involved insufficient provision of polling places, voting by persons not properly registered, and improper treatment of ballot boxes.
In the late nineteenth century, the major parties were evenly matched at the national level, so a swing of a few seats could decide majority control of the House. Republicans brought most of the disputed election cases, stemming from elections mostly in the South. Republicans held that Democrats were using whatever means necessary to prevent African Americans—who had been granted citizenship and voting rights after the Civil War—from voting and selecting representatives who would serve their interests in Congress. With control of the House hanging in the balance, Republican leaders actively encouraged disputed election cases as a way to maintain a partisan foothold in the South and to fight back against Democrats’ electoral shenanigans.
Beginning in the 44th Congress (1875-77), with the Democrats’ resurgence, the Republicans’ share of seats dropped off substantially. It soon became clear that without the help of disputed elections, the Republicans could only count on single digits in the former Confederacy. Thus, on the next five occasions when the Republicans controlled the House, contested elections became a major tool to boost the party’s Southern seat totals. Of the 58 seats that the Republicans controlled during these five Congresses, twenty (or 34.5 percent) came directly via election disputes.
The table below documents seat changes resulting from disputed election cases in the House from Reconstruction through the early twentieth century. The Republicans were the majority party during most of this period, but with slim margins toward the end of the nineteenth century. The “additions” in the table represent flips in the partisan control of seats. That is, based on Article I, Section 5, Clause 1, the House decided to unseat the ostensible winner of the election (the individual with the most votes based on the count) and award the seat to the loser instead, based on evidence of fraud or other irregularities. In most of the cases, the majority party awarded seats to their members and unseated members of the other party. The Republicans were aggressive in these efforts, adding as many as 10 seats in a given Congress (the 41st). While some of these seat additions came from outside of the South, most were in ex-Confederate states or other former slave states.
By the turn of the twentieth century, Republican efforts to flip seats had largely come to an end. The 1894–96 elections had created a partisan realignment in the country, making the Republicans competitive or dominant in every region outside of the South. By 1900, with President William McKinley’s reelection, Republican Party leaders were confident in their newfound electoral success. As a result, they no longer needed representation in the South to maintain majority control of the House. Moreover, beginning in the 1890s, Democratic state governments in the South began to make legal changes to disenfranchise African Americans, which severely limited Republican representation. Thus, the partisan use of disputed elections in the South vanished, and the Southern wing of the Republican Party largely disintegrated—and it would not reemerge in a meaningful way until the 1960s.
In the twentieth century, disputed election cases largely faded away, and the last time the House flipped a seat because of a disputed election was in 1985 (99th Congress, election to the 8th Congressional District of Indiana). In that case, the seating of Frank McCloskey (the Democratic contestant) over Richard McIntyre (the state-certified Republican winner) by the Democratic majority in the House generated significant partisan rancor in the chamber and ultimately led the Republicans to walk out in protest. Moreover, Republicans were fed up with the Democrats’ corruption (as they saw it) and determined to rise up. As historian Julian Zelizer notes: “Arguably, the ‘Bloody Eighth’ is what led to the eventual GOP takeover of the House in 1994.”
Why have disputed election cases effectively disappeared? First, literacy rates increased, and media coverage (from radio and television) expanded. By the early twentieth century, the populace was better informed, which required party leaders to better justify their reasons for disputing elections and thereby attempting to overrule the voters’ will. Second, the South, where most disputed elections occurred, was no longer a partisan battleground. Once state-level disenfranchisement provisions were in place, the Democrats controlled the South—as an effective one-party region—through the late twentieth century. Third, voting became secret with the advent of the Australian ballot, and voting technology improved, making it more difficult for outright fraud to enter congressional elections.
Returning to the case at the top of this post: Will the Democrats in the House flip the seat in Iowa and replace the Republican (Miller-Meeks) with one of their own (Hart)? In a chamber with a narrow partisan majority, every additional seat helps. Yet, in a world where “partisan messaging” is king, that additional seat for the Democrats would bring with it a tidal wave of Republican claims of “corruption” and “illegitimacy.”
At the same time, this narrow case in Iowa raises a broader question: Could the majority party in a highly polarized Congress with narrow seat margins use claims of electoral fraud or irregularities to revive the use of disputed elections as a serious political strategy? We have seen repeated claims of fraud raised by President Trump (and some of his Republican allies in Congress) around the 2020 presidential election. And Democrats have also claimed the “rigging” of the electoral process, charging that a number of Republican-controlled states have pursued voter identification laws to prevent would-be Democratic voters from being able to cast ballots.
Thus, the “raw materials”—routine charges of fraud or irregularities in the electoral process, narrow partisan majorities in Congress, and a highly polarized political atmosphere—are present to revive the disputed election procedure as a serious political (and partisan) strategy. What happens in Iowa could very well be a test case going forward.
 This count assumes that Republican Claudia Tenney will be seated. Last week, after a three-month ordeal that involved significant recanvassing of several ballot categories, a federal judge ruled Tenney to be the winner of New York’s 22nd Congressional District election. The three vacancies are due to the deaths of Republicans Luke Letlow (5th Congressional District of Louisiana) and Ron Wright (6th Congressional District of Texas) and the resignation of Democrat Cedric Richmond (2nd Congressional District of Louisiana) to serve in the Biden administration.
 For similar research on disputed elections in the U.S. Senate, see here.