This article from ABC News highlights an issue I noted several weeks ago when it questions whether the Senate actually has the power to refuse to seat Roland Burris as a Senator from
Conceivably, Burris could challenge the Senate’s refusal to seat him through a lawsuit against the Senate officer responsible for paying him (as was done in Powell v. McCormack). This case would be distinguishable from Powell because the latter involved the power to judge a Member’s qualifications, whereas the Burris case would involve the power to judge a Member’s “election.” But it is far from clear that the use of the election-judging power to exclude an appointee would be exempt from judicial review, particularly in circumstances where there was no prima facie evidence that the appointment was invalid.