Is Mark Foley Still Running for Congress?

Amid the excitement over next week's congressional elections, a potential post-November blowout has gone largely unnoticed by the press. It's possible -- and even likely -- that the House of Representatives will face a bruising debate in January 2007 over whether to seat one of its new members.

In Florida's sixteenth congressional district, which was recently vacated by former Rep. Mark Foley, Republican Joe Negron is locked in a tight race with Democrat Tim Mahoney. A poll released on October 15 showed Mahoney with an seven-point lead, but as the shock over Foley's misdeeds has subsided, many voters in this staunchly Republican district may be giving Negron a second look.

The catch is, Negron's name does not appear on the ballot. Mark Foley's name does.

Florida election law held that it was too late for the GOP to replace Foley on the ballot and further stipulated that all votes cast for Foley be credited to Negron, who has been officially designated the GOP nominee by party leaders.

Here's the problem: Article I, Section 5, Clause 1 of the United States Constitution clearly states that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members," which is to say, the House of Representatives is the only body empowered to approve or reject the credentials of its elected members. If Florida's Secretary of State certifies Joe Negron the winner of the sixteenth district election, the House can still refuse to seat him.

There would be good cause to deny Negron his seat. That Florida election law allows for a transfer of votes between Foley and Negron does not make the law constitutional. There's a strong argument to be made that when voters tick off a name on a ballot, they mean to vote for that candidate, and only that candidate. If Floridians wish to send Joe Negron to Congress, they can vote for him as a write-in candidate. This is precisely the case in District 22 in Texas, where Tom Delay's name remains on the ballot, and where supporters of the new Republican nominee, Shelley Sekula-Gibbs, must exercise the write-in option to vote for their candidate.

If Mark Foley wins a majority of votes cast, and Florida's Secretary of State certifies Joe Negron a congressman-elect, two things are likely to happen:

First, Democrats will challenge the certification in court and argue -- with good cause -- that Mark Foley, not Joe Negron, is the duly elected congressman from the sixteenth district. If the state or federal judiciary subsequently ordered Florida's Secretary of State to certify Foley, the House would have to decide whether to seat and then expel him for his actions in the prior Congress. Alternatively, Foley could refuse to take his seat, and a special election could be called to fill the vacancy.

Second, while the case wound its way through the courts, the House would be faced with the decision of whether to seat Joe Negron. If anyone doubts the legal authority of the House to ignore a member-elect's certification, she or he might look back to December 1865, when the Republican-controlled Congress refused to seat members-elect from the former Confederate states, despite President Andrew Johnson's summary re-admission of several of those states to the Union. While the Southerners stood waiting in vain, House Clerk Edward McPherson followed the strict instructions of Rep. Thaddeus Stevens (R-PA), the de facto majority leader (there was no such post in those days) and refused to read their names on the first roll call.

It's also worth emphasizing that Mark Foley's resignation from Congress should have no bearing on the 2006 elections. Each Congress is constituted from scratch. A member's resignation from the 109th Congress is wholly irrelevant to his ability to serve in the 110th. It's not even relevant to his ability to run in a special election to fill his own vacancy.

In fact, back in the day, it was standard practice for congressmen who did something incredibly bold or incredibly stupid to resign their seats and then run in special elections to fill their vacancies. When the House of Representatives censured Rep. Joshua Giddings in 1842 for his defiance of the congressional "gag rule" prohibiting members from advocating the abolition of slavery on the House floor, Giddings resigned his seat, went home to Ohio, and won election to succeed himself. Preston Brooks, a congressman from South Carolina, went the same route in 1856 when a majority of the House voted to expel him for caning antislavery Senator Charles Sumner of Massachusetts nearly to death. Expulsion requires a two-thirds vote, but Brooks felt sufficiently aggrieved to seek vindication from his constituents. Which was forthcoming.

The same thing happened as recently as 1983, when Texas Rep. Phil Gramm switched allegiances from the Democratic party to the Republican party. Gramm resigned his seat, ran as a Republican in the special election, and filled the vacancy that he had created.

All of this goes to show that Foley's resignation should have no bearing on his ability to stand as a candidate in next Tuesday's election. If his name is on the ballot, he's running for Congress. Or so the Democrats will have cause to argue.

It's possible that Democrats will win a resounding victory next week and may opt not to make an issue of the sixteenth district seat. It's also quite possible that Mahoney will win the election outright. But in the event that more voters cast ballots for Mark Foley than for Tim Mahoney, in a closely divided House of Representatives, every seat will count. In which case, the nastiest battle of this election season remains to be fought.

*** Thanks to Ballot Access News for alerting me to an error in my post. Several days ago, the New York Times inaccurately reported that Tom Delay's name remains on the Texas ballot. I repeated this information in the above post. In fact, Delay's name was struck from the ballot, and no Republican appears in the congressional column for District 22. This information does not fundamentally undermine my argument, but I am pleased to have the correction pointed out.