This is the second in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.
I asked whether states have the power to evaluate qualifications of candidates for federal office. Before asking whether they have that power, however, it's useful to consider how Congress evaluates candidates.
Congress has a robust power to evaluate the qualifications of its own members. Cases like Powell v. McCormack assure Congress that, as long as it is evaluating the constitutional qualifications of its members and not adding to them, it has broad--even exclusive--power to evaluate qualifications. There is a long history of Congress making judgments, such as deferring on an underage candidate until the candidate comes of age, or investigating the length of time the candidate has been a citizen.
The power of Congress to evaluate presidential and vice-presidential candidates is less clear. Congress itself has debated whether it could review the votes cast by electors. Some have argued that Congress's sole role is ministerial; it only has the power to add up the electors' votes, and the electors judge qualifications. The only time Congress has actually declined to count votes cast by electors took place in 1872, when it declined to count three votes cast for the deceased vice-presidential candidate Horace Greeley. But Congress has at other times assumed it has that power; consider the Senate's 2008 resolution reflecting the sense of the Senate that John McCain is a natural born citizen, which apparently reflected its intent to count electoral votes for Mr. McCain because he was qualified.
Scrutiny of qualifications differs because of the context. For the legislature, there was a deep concern that intermediary parties would interfere, so the power was great, and essentially exclusive. For the executive, however, the power to scrutinize qualifications is not immediately clear from the text of the Constitution. As the primary responsibility for the selection of the executive resides in several other parties--the electors themselves; the state legislatures, which are given the task of selecting the manner of appointment of electors; and the voters, given the power by the state legislature to select electors. The uncertainty over Congress's power to scrutinize qualifications reflects the possibility that such power might reside elsewhere--and perhaps in the state legislatures themselves.