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Suppose that country X has law Y. A politician introduces bill Z, which is then voted on by the legislature. The legislature approves the bill by a 51 to 50 vote, and it becomes law, replacing and repealing law Y.

Some time later, it comes to light that one of the legislators who voted for bill Z was never eligible for their position in the first place - for example, because it turns out they are not actually a citizen of country X. Legally, would law Z then become void and would law Y be considered the law of the land?

I'm curious whether there is a clear legal answer to how this scenario would be handled in various jurisdictions.

  • Not an answer because I can't argue the legal basis, but in 2017-18 Australia had a very similar situation (representatives found to be ineligible for their roles due to dual citizenship) and as far as I can tell no laws were rescinded. You'd have to do a lot of digging through vote records to figure out whether it would have affected them, though en.wikipedia.org/wiki/… – llama Aug 26 at 19:25
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In the United States, the answer depends on who is unlawfully in power.

In the hypothetical you presented, the answer is probably that the law would remain valid, as Congress generally has the sole authority to pass judgment on whether to admit the elected person. A third party would not have the ability to challenge the law based on the qualifications of a lawmaker.

But if we were dealing with an administrative official promulgating regulations, those rules would generally be void if that official were unlawfully appointed. That was the case in Nat'l Labor Relations Bd. v. Canning, 573 U.S. 513 (2014), where a cola distributor challenged a labor regulation, saying that the members of the NLRB who enacted it were improperly appointed. The Court agreed that the appointments were improper, so the regulations were nullified.

A judicial decision coming out under these circumstances would also be nullified if one of the judges weren't really a judge. That happened just last year, in Yovino v. Rizo. In that case, ten judges from the Ninth Circuit heard a case, and the vote split 6-4. But the author of the majority opinion died before the decision was published, which is when it become effective. The Supreme Court held that because there were therefore only five votes for that decision, it was not a majority opinion, and therefore not binding on future Ninth Circuit panels.

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    Weird how the Supreme Court thought a 5-4 vote wasn't a majority outcome. 5 is a majority of 9 last time I checked (and is greater than 4). SCOTUS cases where 2+ Justices recuse themselves are binding, despite sometimes resulting in 4-3 rulings. – TylerH Aug 26 at 14:47
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    Sometimes majority means 50% + 1, in this case 4.5 + 1 = 5.5, so 5 is not majority. – Oylex Aug 26 at 15:23
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    @TylerH The Supreme Court thought that a 5-5 vote wasn't a majority: "Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed." – Ross Ridge Aug 26 at 17:05
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    @TylerH I meant what I said. You seem to have misread it. Part of the confusion seems to be caused by the answer stating that only 10 judges considered the case, when the implication of the Supreme Court's decision is that 11 judges considered the case, as is normal for the Ninth Circuit sitting en blanc. – Ross Ridge Aug 26 at 17:31
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    I just checked. payequityadvisor.com/2019/02/… is an article that asserts that yes, the "en banc" bit had 11 judges considering the appeal, divided 6-5 until Judge Reinhardt died. (My understanding is that in federal appellate courts, a "panel" is 3 judges and "en banc" is 11 judges, using odd numbers to avoid getting deadlocked in a perfect tie if an even number of judges were to split down the middle.) – Lorendiac Aug 26 at 17:56

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