As Doug Jones won the Alabama Senate race yesterday, there are calls by Democrats to seat him immediately. However, Republican Senate leadership mentioned that whoever the winner, he will be seated earliest in January 2018.

A similar example would be in 2009, where the seating of Senator Al Franken was delayed for 6 months after the results of the special election was challenged. However, the results were not certified for that election.

So, is it possible for the seating of a Senator to be delayed indefinitely, after the results are certified?

2 Answers 2


In Powell v. McCormack (1969), the Supreme Court placed limitations on Article I, Section 5 of the Constitution. That article states:

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 previously been interpreted with great leeway, allowing the separate houses to refuse to seat members even for differences of political opinion. With Powell, Chief Justice Earl Warren wrote in the majority opinion that the House of Representatives was limited to only considering the enumerated qualifications of holding office as specified in Article I Section 2:

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.

Powell is about the refusal to seat an elected representative and not a Senator, but I believe most courts would extend that case's applicability to the Senate as well. This may not hold true, however. Because of this I believe the answer to your question is no, the Senate may not refuse to seat a duly elected Senator after the election results are certified. They could always try, but the Senator-elect would have redress through the courts and be able to point to a previous Supreme Court decision as precedent.

After the body has sat the Senator, they do however have much wider latitude for expelling them.


Per Alabama law, each county will have until 12/22/17 to report the results of the election (including the absentee and military ballots that have not yet made it to the count) And the state has until 1/3/18 to certify the election. The Alabama Secretary of State has said provided all 67 counties report in on time, they look to certify the election between 12/27/17 and 12/29/17. This assumes that there is not a .5% difference in the total votes, in which case, Alabama will go into instant recount.

On the Senate side, the buisness year of 2017 will likely end on 12/22/17, where a week long minibreak will occur for the Christmas/New Year holidays (both are government holidays). Given the upcoming season, non-partisan delays could result due to officials out of town or office for the holiday period. Given all this, an early January seating is not unheard of.

As the Senate is still in Quorum, the business of the Senate can go on as planned, even though one duly elected senator is not yet seated. As mentioned this is normal, and even contentious bills have been voted on while a recently elected senator was being processed into the senate (the Democrats passed the Affordable Care Act while Senator-Elect Scott Walker was unseated, despite the seat flip that had occurred.).

  • 3
    I don’t think this answers the question, which is not about the earliest or the expected time but about the latest possible, if the Senate wanted to delay.
    – chirlu
    Dec 14, 2017 at 18:09
  • 3
    The key point made here is that it is a matter for the State. It is the state's rules that determine when an actin senator is replaced by the Senator elect, not the Senate's.
    – James K
    Dec 14, 2017 at 18:43

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .