Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control for the judge would then be the legislator.
The Federalist No. 47, at 376 (J. Madison) (J. Hamilton ed. 1869) (quoting Montesquieu).
No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.
Kentucky Constitution § 28.
Each House of the General Assembly shall judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law.
Kentucky Constitution § 38.
This case does not concern whether Dana Seum Stephenson is a resident of Kentucky or who should serve as the Senator from the 37th District. Instead, it presents only the issue of whether the courts may interfere with the General Assembly’s power to decide the elections, returns, and qualifications of its members under Section 38 of the Kentucky Constitution. The plain words and historical meaning of Section 38 are clear: The courts of this Commonwealth have no right to interfere with a decision of a house of the General Assembly concerning the qualifications, elections, and returns of its members. Since the majority opinion ignores this precept, thereby violating the Kentucky Constitution and years of this Court’s precedent, I respectfully dissent.
Our predecessor court was faced with a similar question in Taylor v. Beckham, 108 Ky. 278, 56 S.W. 177 (1900), over the seating of the governor and the lieutenant governor following the election of 1899. *179The Court courageously refused to override the constitutionally mandated requirement of separation of powers, Ky. Const. §§ 27, 28, and thereby allowed the General Assembly to exercise the powers expressly delegated to it. What is particularly noteworthy is that the Court chose to defer to the General Assembly’s decision even though the underlying facts giving rise to the controversy were simply outrageous. A brief understanding of those facts is important to truly understand the significance of Taylor v. Beckham.
The 1899 election for governor pitted the Republican Attorney General, William S. Taylor, against Democrat State Senator, William Goebel. Dr. Clark described the ferment that began as the Election Day ended:
When the ballots were cast, the people waited calmly for the announcement of the results. First unofficial returns indicated that Goebel and Taylor were in a neck-and-neck race for the election. The final official count gave Taylor a majority, and this was the signal for the Democrats to start challenging votes. It was claimed that Governor Bradley’s troops had prevented an honest election in Louisville. Most outrageous of all, however, was the fact that by political chicanery or “oversight,” votes of many eastern Republican counties were registered upon “tissue paper” ballots, which, it was claimed, were not printed on legal weight paper. This charge, a fine piece of Kentucky political chicanery, was trumped up to throw out the election.
Thomas D. Clark, A History of Kentucky 489 (1988).
At that point the matter was turned over to the state election board, over which Goebel was supposed to have absolute control. Id. at 440.* One week before inauguration day, the board declared by a 2-1 vote that Taylor had defeated Goebel by over 2,000 votes. Id. The election of 1899 seemed to be over, and Taylor was inaugurated. However, a Goebel Democrat filed a protest with the General Assembly, alleging that Taylor had benefited from the “corrupt use of funds.” Id. The General Assembly selected a joint committee, dominated by Democrats, to address the claims. On January 30, 1900, while the committee was still deliberating, Goebel was shot as he was approaching the Capitol building.
Governor Taylor declared the Commonwealth in a state of insurrection and ordered the General Assembly to meet in London. The state militia refused to allow the General Assembly members into the Capitol building. Id. at 441. The “Democratic legislators refused to recognize the legality of [Taylor’s] actions .... ” Lowell H. Harrison and James C. Klotter, A Neio History of Kentucky 272 (1997) [hereinafter Harrison and Klotter, A New History ]. They subsequently met in secret at a hotel in Frankfort, where, without a Republican legislator present, “they accepted the contest committee’s report regarding the disputed election, threw out enough votes to reverse the results, and on January 31, 1900, declared Goebel governor.” Id. Historian James Klotter has described the meeting in even more sinister language:
Determined Democrats denied that any state of insurrection existed. The only danger came from Republicans, they insisted. To adopt the committee *180report required a joint session, yet no public building large enough could be obtained because of the soldiers. But Goebel must be declared governor and Taylor must be ousted.
Later in the afternoon word came privately to each Democratic member to meet in the Capitol Hotel that evening. The instructions asked them to assemble separately, not in groups, and then to come one by one to a second floor room. A legislator present at the time recalled how “the lights at the meeting were dimmed and the proceedings carried in a low tone of voice.” A quorum of nineteen senate Democrats and fifty-three from the house was announced as present, though those attending were not certain of the numbers. The group then heard the joint committee report, adopted it unanimously, and declared William Goebel the rightful governor. It had been less than thirty-six hours since he was shot.
James C. Klotter, William Goebel: The Politics of Wrath 104 (1977).
Goebel was sworn in as governor and died a few days later. His lieutenant governor, J.C.W. Beckham, then took the reins. Harrison and Klotter, A New History 273. Kentucky then appeared to have two competing governments, and the matter went to the courts. Though the resulting case, Taylor v. Beckham, 108 Ky. 278, 56 S.W. 177 (1900), will be discussed at length below, I note that our predecessor court faithfully followed the Constitution of Kentucky and allowed the General Assembly’s decision to stand, even though it had been made in secret and without the benefit of the attendance of any member from the minority party, and was, by all accounts, in complete defiance of the facts. Ultimately, the Court’s refusal to intervene allowed the candidate who lost the election by over 2,000 votes to be seated as the governor. In allowing this seemingly perverse result, the Court explained:
We have no more right to supervise the decision of the General Assembly in determining the result of this election than we have to supervise the action of the Governor in calling a special session of the legislature, or in pardoning a criminal, or the action of the legislature in contracting debts, or determining upon the election of its members, or doing any other act authorized by the Constitution.
Id. at 297, 56 S.W. at 181 (emphasis added).
The decision in Taylor v. Beckham has stood for over 100 years. Yet, today, without citation or discussion, it has been buried along with Sections 28, 38, and 43 of the Constitution of Kentucky. Because I believe that Taylor v. Beckham and our Constitution deserve a decent funeral, I offer this eulogy.
I. Jurisdiction — First Principles
To begin with, I do not believe this case should even be before the Court. In January 2005, the Franklin Circuit Court issued a temporary injunction against Stephenson. A motion for interlocutory relief was promptly filed with the Court of Appeals, and we transferred the motion to our own docket. In March 2005, rather than reaching the merits of the controversy, the Court issued a short Opinion and Order, upholding the temporary injunction on grounds that the trial court had not abused its discretion. Justice Keller, joined by Justice Scott, filed a vigorous dissent in which he argued that the majority failed to answer the more fundamental question of whether the circuit court, indeed any Kentucky court, had jurisdiction to pass on the issues raised by the litigants. Justice Keller reasoned, I think persuasively so, that because Section 38 of the Kentucky Constitution grants to the Senate the exclusive power to judge the elections, returns, and qualifications of its *181own members, the courts have no power, and thus no jurisdiction, to decide such issues. Justice Keller also concluded that the jurisdiction to decide the bona fides of a candidate, as allowed by KRS 118.176, ceases to exist once the election begins.
Unfortunately, the Court chose not to publish its Opinion and Order, thus Justice Keller’s dissent remained unpublished. But I happen to agree with Justice Keller’s reasoning, both as to Section 38 and KRS 118.176, and think that the Court should have disposed of this case when it first had the chance in March 2005. I also agree that the question of jurisdiction is fundamental in this case. While the case’s procedural posture has shifted extensively since Justice Keller wrote his dissent, it would be an exercise in repetition for me to attempt to recreate the substance of Justice Keller’s extensive critique and in futility for me to try to surpass the quality of the opinion on those issues. I also think that Justice Keller’s dissent should have been published initially. Therefore, I have decided to adopt and incorporate it into my own opinion as a statement of the fundamental principles underlying my own dissent. The following lengthy passage, demarcated by two sets of five asterisks, is the complete text of Justice Keller’s dissent.†
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DISSENTING OPINION BY JUSTICE KELLER
I. INTRODUCTION
The majority has declined to address the merits of the case, choosing instead to limit its review to whether the Franklin Circuit Court abused its discretion in granting the temporary injunction. While I agree that it is not necessary to address the merits, I disagree with the artificial limitation on our review that the majority has chosen to impose. This is because the real issue — and one which must first be resolved before ever reaching any other issue, including the one purportedly addressed in the majority opinion — is whether the circuit courts ever had jurisdiction to consider this case. Because the Kentucky Constitution contains an express separation of powers among the three branches and provides that the Senate itself shall be the sole judge of the qualifications and elections of its members, the Court of Justice, as a whole, lacks jurisdiction in this case. But by ignoring these foundational aspects of our Constitution, indeed, by failing even to ask the question of whether the circuit court had jurisdiction, the majority opinion, in allowing the temporary injunction to stand, permits the circuit court to continue to consider a matter that is expressly reserved to another branch of our government. The question of jurisdiction, however, is paramount and must be addressed. For this reason, I respectfully dissent.
Movant, Dana Seum Stephenson, seeks relief from a temporary injunction granted by the Franklin Circuit Court. The substantial probability of success at trial by the moving party, which was Respondent, Virginia L. Woodward, in the circuit court, is a controlling issue in determining *182whether to issue a temporary injunction.a If the circuit court lacks jurisdiction, then, obviously, there is no possibility of success at trial and a temporary injunction may not issue. But more importantly, consideration of that question would require submitting to the trap that the majority has fallen into because if jurisdiction does not exist, the question of the appropriateness of a temporary injunction is entirely premature. Thus, I focus my analysis on the preliminary question of jurisdiction, i.e., the fundamental condition precedent for the exercise of power by a court.
II. THE GENERAL ASSEMBLY HAS EXCLUSIVE JURISDICTION TO DETERMINE THE ELECTIONS AND QUALIFICATION OF ITS MEMBERS
In granting the temporary injunction in this case, the Franklin Circuit Court, relying in part on Rose v. Council for Better Education,b stated that “[t]he Judicial Branch clearly has jurisdiction to consider and review whether actions of the Legislative Branch violate the Kentucky Constitution.” While this is generally correct, if the Constitution expressly removes a given question from the purview of the Court of Justice, then none of the Commonwealth’s courts may address the question. Section 38 of the Kentucky Constitution appears to have done exactly that: “Each house of the General Assembly shall judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law.”c
The question of whether the Kentucky Constitution grants the courts jurisdiction to decide election matters after an election has been held is well-settled law. As Judge McCrary noted more than one hundred years ago: “The courts will not undertake to decide upon the right of a party to hold a seat in the Legislature, where by the constitution each house is made the judge of the election and qualifications of its own members .... ” d More importantly, our own precedent firmly holds that jurisdiction to decide such election questions lies exclusively in the hands of the General Assembly.
In Taylor v. Beckham,e our predecessor court was faced with the interpretation of Section 90 of the Kentucky Constitution, which provides, in language strikingly similar to that contained in Section 38, that “[cjontested elections for Governor and Lieutenant Governor shall be determined by both Houses of the General Assembly, according to such regulations as may be established by law.” W.S. Taylor and William Goebel were candidates for Governor in the 1899 election. John Marshall and J.C.W. Beckham were candidates for Lieutenant Governor. Taylor and Marshall received the majority of votes in their respective races. After the election, their opponents initiated an election contest by giving notice to the General Assembly. When the General Assembly convened in January 1900, it initiated an election contest inquiry as prescribed in the statutes *183passed pursuant to Section 90. On February 2, 1900, the General Assembly declared Goebel and Beckham to have been elected governor and lieutenant governor in the November 1899 election. Taylor and Marshall sought remedy from the courts.
The Court of Appeals ultimately declined to decide the case, holding that the Constitution gave the Legislature exclusive jurisdiction over the matter and that “the courts are without jurisdiction to go behind the record made by the legislature under the constitution.”f In reaching this decision, the Court noted that Section 27 of the Constitution provides strict separation of the legislative, executive, and judicial powers, and that “the state constitution was intended to maintain the absolute independence of the legislative branch of the government .g The Court also noted:
[T]he judiciary have no power to sit in judgment upon the motives of an independent branch of government, or to deny legal effect to the record of its actions solemnly made by it pursuant to the constitution. If this were allowed, it would soon follow that the independence of the legislature would be destroyed altogether ....
The constitution of this state creates the offices of governor and lieutenant governor. It provides how they shall be filled by election. It also provides how the result of that election shall be determined. In each of the four constitutions of this state the general assembly has been made the exclusive tribunal for determining this matter. This shows a clear and settled purpose to keep this political question out of the courts. We have no more right to supervise the decision of the general assembly in determining the result of this election than we have to supervise the action of the governor in calling a special session of the legislature, or in pardoning a criminal, or the action of the legislature in contracting debts, or determining upon the election of its members, or doing any other act authorized by the constitution.h
Siding with Taylor and Marshall would have required that the Court “usurp[ ] the power vested in the general assembly by the constitution, for by its express terms only the general assembly can determine a contested election for governor and lieutenant governor.”i And consequently, the Court held that “ ‘[t]he courts have no right to adjudicate upon these questions, or to decide such contests.’ ”j
Though the Beckham Court was faced with interpreting Section 90, due to the similarity between the two sections, it also *184addressed Section 38. And though the applicability of the analysis above to Section 38 is obvious, given that Section 38 grants to the General Assembly the power to determine the elections and qualifications of its own members, some of this discussion is included to show that the question of the courts’ jurisdiction, or more appropriately the lack thereof, has already been considered and addressed by our courts. First of all, the Court noted: “It will be observed that the phraseology [of section 38] is substantially the same as section 90 .... ” k The Court then posed the following hypothetical situation:
Suppose these suits had been brought by two members of the general assembly, alleging, in effect, the same facts as are alleged in this case, would anybody suppose that the judiciary of the state would have the power to go behind the legislative journals, or to supervise the propriety of the legislative action, in determining the election of its members? Could a member of the general assembly, who had received a certificate from the canvassing board, and been after-wards ousted from the house to which he belonged on a contest, allege and show that the house had acted arbitrarily, depriving him of a pre-existing right, and denying to him the emoluments of the office for the term? Could it be maintained that such action by either house of the general assembly violated any protection afforded him by the constitution of the United States, or that for this cause the action of the state authorities under the state constitution, by virtue of which he claimed to have been elected, might be overruled?l
The Court’s use of the hypothetical as evidence of why Section 90 prohibited the courts from interfering with the General Assembly’s decision under that section assumed that it was inconceivable that the courts would interfere with a decision of the General Assembly made under the similar language of Section 38. The Court also stated that the United States Supreme Court had answered these questions posed by its hypothetical in Wilson v. North Carolina.m In Wilson, a state officer, who had been arbitrarily removed from office, applied to the Supreme Court for redress, but his case was dismissed for want of jurisdiction. The Beckham Court then noted:
If the state may arbitrarily remove an officer once appointed, we see no reason why it may not provide such means a[s] it sees proper for the determination of its own elections. If it has not such power, then its sovereignty as a state exists only in name. The congress of the United States has, by the constitution, the power to judge of the qualifications, elections, and returns of its members. In not a few cases it has been supposed to have acted arbitrarily in such matters, but it was never maintained that one who was ousted of his seat in congress on a contest could take the matter into the courts to supervise the action of congress on such grounds as are alleged in this case. Yet the power of congress, under the constitution, in determining which of two claimants was in fact elected to a seat in that body, both being admittedly qualified, is, under the constitution, just the same as the power of our general assembly in determining a contested election for governor and lieutenant governor.n
*185Our predecessor court addressed Section 38 specifically, and more recently, in Raney v. Stovall,o where Raney, a state senator, was appointed as a deputy sheriff halfway through his term as senator. The Senate passed a resolution stating that Raney was “a duly qualified senator”p even though, as the Court noted, it was quite possible that “the office of senator and deputy sheriff are incompatible and the acceptance of the second office vacates the first.”q Rather than declaring Raney unqualified and removing him from office, the Court stated that “authoritative adjudications are to the effect that the right of a legislative body to judge the qualifications of its members includes the right to decide finally whether or not one of them has become disqualified during his term of office, and this decision is not subject to court review.”r This is because “the vesting of certain powers in a legislative body may constitute exclusive power to pass upon the qualifications of its members, thereby depriving the court of authority to adjudicate on that subject.”s
Section 38 is just such a vesting of power in the legislature. Thus, as in Raney,
Appellant] suggests the action of the Senate with respect to [Stephenson] constituted such a clear violation of the Constitution that the courts should rectify the error. However, the fact that the legislature may make a wrong decision is no reason why the judiciary should invade what has been designated as the exclusive domain of another department of government. See Taylor v. Beckham, 108 Ky. 278, 56 S.W. 177, 49 L.R.A. 258. We must assume the Senate in good faith will not knowingly permit violations of other constitutional provisions. With respect to this subject matter, the people have reposed that responsibility in the legislature. The courts are without jurisdiction to review its solemn deter-mination.t
Though the facts in this case differ from Beckham, insofar as the issue involved an election contest over executive offices, and from Raney, insofar as the senator in question had already been deemed qualified, the principles involved are identical. The Kentucky Constitution says what it means and means what it says: The houses of the General Assembly shall judge of the qualifications, elections, and returns of their members. “The doctrine of separation of governmental powers runs like a golden thread throughout the fabric of our government.” u Kentucky is one of the few states to incorporate the notion of separation of powers so explicitly in our Constitution. As such, “ ‘[e]ach to it own’ is the law of the Constitution which ... the Judiciary ... must obey.” v That the power to determine the elections and qualifications of its own members is granted exclusively to the General Assembly, not to the Courts, is beyond question.
In this case, the Senate exercised that power by finding that Stephenson was qualified to serve as a senator. And though the General Assembly might, by some objective measure, have been wrong, “[w]hether the assembly was right or not in its decision, it is not our province to determine.” w
*186But a much more important question is involved in the case, which is the integrity of our form of government as founded by our forefathers. If the action of the legislature may be disregarded by the courts, then it is no longer an equal and independent branch of the government within its constitutional jurisdiction, but the courts become the final depository of the supreme power of the state. Judicial tyranny is no less tyranny because couched in the forms of law. There was great wisdom in dividing the powers of a republic betiveen three equal and independent sets of officers. One operates as a check upon the other, and no greater blow to the perpetuity of our institutions could be given than to destroy this check.x
As such, the only reasonable conclusion is that the power to decide elections of members of the General Assembly is vested solely in the General Assembly itself, and that the courts lack any power even to entertain the questions presented.
III. KRS 120.195 AND KRS 118.176
The Franklin Circuit Court held that the General Assembly conferred jurisdiction on the courts by promulgating a statutory scheme for the settling of election contests pursuant to the mandate of the last half of Section 38. This holding is clearly in error. KRS 120.195 provides the statutory framework for contesting an election for a position in the General Assembly. The statute prescribes when and how an election contest is to be initiated and how proof is to be taken. Nowhere does the statute declare that the courts may participate in this decision-making process. In fact, the statute does not even say that the General Assembly is to decide the question. This is because Section 38, which takes precedence over any statute, already declares that “[e]ach house of the General Assembly shall judge of the... elections and returns of its members.... ” Section 38’s final independent clause only requires that this determination proceed according to law. And as such, the statutory mechanism that has been enacted to carry out the command of this final independent clause sets out the procedure to be followed by a house of the General Assembly, not a court, in making the ultimate decision. This is likely why the circuit courts did not rely on this statute in claiming jurisdiction.
Instead, the Franklin Circuit Court relied heavily on KRS 118.176, which provides the means for challenging the “good faith” or “bona fides of [a] candidate,”y and on the fact that the Jefferson Circuit Court had, ostensibly, issued a ruling pursuant to this statute. The Franklin Circuit Court maintained that an action under KRS 118.176 was an election contest as contemplated by Section 38 of the Constitution, and that, as such, it had jurisdiction to hear the case. But “[i]t is important to distinguish between an election contest and a pre-election lawsuit.”z “An election contest obviously is a post-election procedure, involving an election that has been held, as distinguished from a pre-election suit to determine whether a person may be voted on as a candidate.”aa As we have noted before, the pre-election challenge as to the “qualifications” of a candidate allowed in KRS 118.176 “is technically not an election contest.” bb Thus, it is clear that this statute does not provide the means for pursuing an election contest, and that it is *187not a means of maintaining the courts’ jurisdiction after the election.
This makes sense because the statute, by its own terms, allows only a means to challenge the “bona fides” of a candidate:
The bona fides of any candidate seeking nomination or election in a primary or general election may be questioned by any qualified voter entitled to vote for such candidate or by an opposing candidate by summary proceedings consisting of a motion before the Circuit Court of the judicial circuit in which the candidate whose bona fides is questioned reside.cc
A “bona fide” candidate, however, is merely “one who is seeking nomination in a primary or election in a general election according to law.”dd Once the election is held, the person is no longer seeking nomination or election — that question has been decided by the voters. Indeed, once the election is held, the persons are no longer even “candidates.” Rather, their race has been run and the winner has been decided by the voters. All that remains is to review the returns to ascertain the identity of the winner. The process of voting has transformed the candidates so that, in the case of a senate race, all that remains is a senator elect, who has a prima facie claim to the office, and the loser(s), who has no claim to the office.
Some might argue that this is a matter of mere semantic quibbling, but such a reading is supported by the distinction in Noble and Fletcher between pre-election challenges to who may be voted on as a candidate and a post-election “contest” to determine who is the lawful winner of the election. This reading is also necessary for the statute to pass constitutional muster, at least as applied to elections to the General Assembly. The circuit courts in this case have assumed that the portion of the statute that allows an action under KRS 118.176 to “be commenced at any time prior to the general election ”ee means that as long as an action challenging the bona fides of a candidate is filed before the election begins, the bona fides, and thus the qualifications, of a candidate can then be determined, even if the determination does not occur until after the election. This reading is simply incorrect. For the courts to retain jurisdiction over such a case involving an election to the General Assembly after the election simply because the action was begun before the election would allow the courts to unconstitutionally invade that which is the exclusive province of the General Assembly. As discussed above, Section 38 vests in the General Assembly sole jurisdiction to determine the elections and qualifications of its own members. This couldn’t be any clearer, especially when viewed in light of the pre- versus post-election division contemplated by Noble and Fletcher.
This also makes sense from a policy perspective. The voters need to know for whom they will have the opportunity to vote when they go to the polls; thus the ballot needs to be finalized before the election. This is why the statute allows the use of oral proof, requires that the action “be tried summarily and without delay,”ff and provides for an accelerated review by the Court of Appeals.gg A speedy determination of the slate of candidates is all the more important in light of the dual function of voting: “[I]t must be remembered that those constituting the majority or plurality not only vote for the candidate or measure of their choice, but they also vote *188against the other candidate or candidates, and against the opposing side of the submitted measure.”hh Allowing the circuit court to decide after the election that a candidate is not bona fide does a disservice to the candidates and to the voters, who are, in effect, disenfranchised because their votes, which they had thought were validly cast, are directed not to be counted. Nowhere is this more true than in those races where there are more than two candidates; those voters whose candidate of choice is later disqualified are deprived not only of voting for their first choice, but also their second choice. Thus, it is clear that the Legislature intended the statute to provide a fast and efficient means of challenging the “bona fides” of a candidate before the election.ii
Obviously, the action allowed in KRS 118.176 is, at most, complementary to the process envisioned by Section 38 of the Kentucky Constitution. In elections to the General Assembly, KRS 118.176 is applicable before the election takes place. After the election, any pending KRS 118.176 action is moot and the question of the bona fides of a “candidate” is irrelevant because Section 38 of the Constitution comes into play. In fact, the court’s jurisdiction after the election is limited only to ordering the election officers to execute their duties, i.e., to certify the results shown on the returns.jj KRS 118.176 and Section 38 (and KRS 120.195) govern two distinct spheres — the pre-election period and the post-election period. The distinction between the two is more than just good policy or compliance with arbitrary rules; rather, the distinction is constitutionally mandated and is an integral part of Kentucky’s separation of powers doctrine. Thus, it is clear that KRS 118.176 is not the means for pursuing an election contest; it does not provide a means of challenging anything after the election is over.
Consequently, it is incumbent on the challenger who wishes to proceed under KRS 118.176 to file such an action sufficiently in advance to allow the circuit court to determine the candidate’s bona fides before the election. But Woodward did not file her challenge in time, and KRS 118.176 cannot be used now to invoke the jurisdiction of the courts. The courts’ jurisdiction under KRS 118.176 evaporated when the polls opened on November 2, 2003. The responsibility, indeed, the power, to make the decision then fell solely to the Senate under § 38 of the Constitution. Thus, because Stephenson’s bona fides were not found lacking before the election, Woodward’s claim in that regard was rendered moot once the election began, and the decision of the Jefferson Circuit Court ordering the Jefferson County Board of *189Elections not to count Stephenson’s votes is void.
IV. CONCLUSION
We should admit that this is a pure political question, and that, as such, we cannot answer it. That task is left to the Legislature itself. And if the people, from whom all the power of this Commonwealth derives,kk do not like the Legislature’s answer, they may act to correct it through the political process, for they are the ultimate check on abuse by the government. Thus, the power to resolve this wholly political issue ultimately lies in the body politic. The majority opinion, however, under the guise of maintaining the status quo, ignores these democratic principles by allowing the circuit court to continue to interfere where it is only the Legislature’s, and thus the people’s, prerogative to tread. And in doing so, the majority adds insult to injury because the concurrence of the Senate’s refusal to seat Woodward, when it has found that Stephenson was properly qualified and elected, with the circuit court’s refusal to allow Stephenson to be seated has served to deprive the 37th Senatorial District of representation in the Senate.11
Where the remedy lies exclusively in the hands of another branch of government, as is the case here, the circuit court may not even address the issue. In such a case, the Court of Justice as a whole has “no jurisdiction to act at all.”mm Thus, the circuit court lacked the power even to consider Woodward’s case, much less to grant the temporary injunction, and any order issued in the case, other than one to dismiss for lack of jurisdiction, is void. Because the majority disregards this longstanding rule by allowing the Franklin Circuit Court’s temporary injunction to remain in place, thus preserving a status quo that the circuit court had no legitimate power to bring about in the first place, I respectfully dissent.
SCOTT, J., joins this dissenting opinion.
*190⅜ ⅜ ⅜ ⅜ ⅜
II. Jurisdiction — Further Thoughts
The majority has sidestepped the jurisdictional hurdle and reached the merits of the controversy by holding that the courts in Kentucky have jurisdiction to determine the qualifications of a candidate under KRS 118.176, even if that determination occurs after an election is held, so long as the challenge to the candidate’s qualifications was filed prior to the election. In essence, the majority argues that because the statute contains only the requirement that the challenge be initiated before the election- — and does not contain any additional requirement that the challenge be decided before the election — the Jefferson Circuit Court’s jurisdiction necessarily continued after the election was held. The majority claims that this resolves the controversy because there was no appeal of the Jefferson Circuit Court’s ruling that Stephenson was not a qualified candidate and that the Jefferson County Board of Elections was enjoined from counting any votes cast for her. Thus, the order is still in effect, meaning that Stephenson cannot be seated as a Senator.
Like Justice Keller, I think that a court’s jurisdiction to decide an action brought under KRS 118.176 “evaporates” once the election begins. The clear intent of the statute is to prevent voters from casting their votes for non-bona-fide candidates, not to nullify those votes after the fact of their casting. I continue to believe that this case can and should be disposed of on the jurisdictional grounds elucidated by Justice Keller.1 While I have only a little to add to his analysis, the majority’s reliance on KRS 118.176 as the claimed source of jurisdiction over this controversy requires some additional response on my part.
The majority opinion goes on at great length, spending a full third of its text, in an attempt to refute Justice Keller’s contention that jurisdiction to decide a cause of action brought under KRS 118.176 ceases after the election begins. As Woodward’s brief notes, such an approach is not completely- unprecedented in our case law. Indeed, there are a few Kentucky opinions involving challenges under the statute, or an earlier analogous statute, where a decision as to a candidate’s bona fides was rendered after the disputed election.2 See *191Noble v. Meagher, 686 S.W.2d 458 (Ky.1985) (rendered in February 1985, following the November 1984 election); Fletcher v. Wilson, 500 S.W.2d 601 (Ky.1973) [hereinafter Fletcher II ] (rendered in October 1973, following the May 1973 primary election); Hoffman v. Waterman, 141 S.W.3d 16 (Ky.App.2004) (the circuit court did not rule until 46 days after the 2004 primary election). But Noble is inapplicable because the Court failed to reach the merits of the KRS 118.176 issue. Instead, the Court disposed of the case by vacating the order of the circuit court because the cause had been brought in the wrong court, which therefore had no jurisdiction. In Hoffman, the Court of Appeals declined to find that the candidate was unqualified. Such a result is not entirely inconsistent with declining jurisdiction, especially when one considers the court’s reasoning, based on Heleringer v. Brown, 104 S.W.3d 397 (Ky.2003), that the public policy in favor of broad voter participation supports allowing a candidacy to continue. Moreover, the mere fact that the Court of Appeals accepted jurisdiction in that case is not binding precedent on this Court.
Realistically, the only case that gives me pause in this regard is Fletcher II. In that case, our predecessor court held, after the primary election had been completed, that a candidate for the Democratic nomination for the office of local magistrate had not properly filed his candidacy papers. Therefore, he “was not entitled to have his name on the ballot, and, thus not being a qualified candidate, [could not] be awarded the nomination.” Fletcher II, 500 S.W.2d at 607. As a result, the Court declared that there had been no valid primary election, leaving the Democratic nomination vacant. At first glance, this case seems like clear precedent for the majority’s claim that jurisdiction to pass on the question of the qualifications of a candidate continues after the election is held. But when viewed in the proper context — namely, that this was the second appeal in the matter — its apparent precedential value is diminished.
The first appeal in the matter, Fletcher v. Wilson, 495 S.W.2d 787 (Ky.1973) [hereinafter Fletcher I ], was brought to determine if the voter plaintiffs had standing to challenge the qualifications of a candidate. The Court held that voters indeed had the right to bring such a challenge, and remanded the case for further proceedings. In explaining its holding, the Fletcher I Court, as noted above in Justice Keller’s dissent, explicitly distinguished between an election contest and a suit brought to decide whether a person was a legitimate candidate: “An election contest obviously is a post-election procedure, involving an election that has been held, as distinguished from a pre-election suit to determine whether a person may be voted on as a candidate.” Id. at 791. The Court then noted that “once the primary has been held it determines who will be the qualified candidate in the general election (subject only to a contest of the primary).” Id. The Court also cited voluminous case law for the proposition that “questions ... as to the right of a person to be placed on a ballot as a candidate ... should be decided before the voting takes place.” Id. at 792 (emphasis added). The Court repeated this proposition in various forms, like some talismanic mantra, no less than four more times throughout the remainder of the opinion. Id. at 792-93 (“[T]he real basis of the holding in the group of cases just above cited is that the eligibility of a candidate for nomination or elections should ... be determined before the voting takes place.” (emphasis added)); id. at 793 *192(“That holding is consistent with the holding in the cases hereinbefore discussed, that questions related to the placing of the candidate’s name on the ballot should be determined before the voting.” (emphasis added)); id. (discussing further “the policy ... that questions of the right of a candidate to be on the ballot should be decided before the voting takes place.” (emphasis added)); id. at 794 (“Thus, there are indications that the policy, that questions of the right of a candidate to be on the ballot should be decided before the voting takes place, could be extended so as to preclude postelection contests of general elections on such grounds.” (emphasis added)).
In light of the strong language used in Fletcher I, it is unclear why the Court appeared to back away from this stance in the second appeal, especially since Fletcher I and Fletcher II were authored by the same person, Commissioner Cullen. Admittedly, the Court had somewhat hedged its language in Fletcher I, noting that “questions of the kind ... must be raised before the primary.” Fletcher I, 495 S.W.2d at 792; see also id. at 794 (noting “the policy that questions of the right of a candidate to be on the ballot should be raised before the voting takes place .... ”); cf. id. at 792 (noting “the rule that qualification to go on the ballot ... cannot be raised after the election.”).3 Despite these statements, the weight of the discussion in Fletcher I appears to require that a decision must come before the election is held.
I can only conclude that the inconsistency between the two cases is due to the fact that, as Chief Justice Palmore noted in his majority opinion in the third appeal, “the law on this subject partakes of a labrynthi-an morass .... ” Fletcher v. Teater, 503 S.W.2d 732, 734 (Ky.1974) [hereinafter Fletcher III ]. In that case, the Court appears to have taken the reins more tightly, given that the Chief Justice himself wrote the opinion, rather than delegating to a Commissioner as in the earlier cases. In doing so, the Court ultimately sided with Fletcher I:
It may be conceded also that what was said in the first Fletcher opinion on the subject of general elections is, technically, dictum. But opinions are written for the purpose of assisting lawyers and courts in the practice and disposition of future cases. The first Fletcher opinion clearly and unmistakably marks out the path to be followed in this one.
Id. (emphasis added). In essence, the Court revived the analysis in Fletcher I. This, in turn, leads me to conclude that Fletcher II has no precedential value.
The majority also argues the general rule that once a court acquires jurisdiction to decide a case, subsequent events cannot defeat that jurisdiction. But, as the majority itself notes, this is only the general rule. The absolute textual commitment in Section 38 of the power to judge the qualifications, elections, and returns of a legislative body’s members would seem, at the very least, to provide an exception to this general rule. But even if I were to grant that this general rule, the holding in Fletcher II, or the lack of limiting language in KRS 118.176 were enough to sustain the majority’s conclusion that jurisdiction over the limited questions that can be raised under KRS 118.176 continues after the election, I still could not join the majority for the reasons discussed below.
Finally, I must respond to the majority’s policy argument that adherence to the *193“evaporation” of jurisdiction approach would allow a “recalcitrant judge ... [to] simply refus[e] to adjudicate the KRS 118.176 motion.” Ante at 172-73. Were such an unfortunate situation to arise, the aggrieved candidate could seek to compel the judge to act by applying for one of our extraordinary writs. And though such writs are difficult to obtain, in an election situation, where time is of the essence, it is likely that the courts would be sympathetic. Our rules even allow a petitioner seeking such a writ to request emergency intermediate relief, CR 76.86(4), which, given the statute’s command that “[t]he motion shall be tried summarily and without delay,” KRS 118.176(2), would also likely be granted. Moreover, the majority’s worst-case scenario has already happened: The circuit judge in this case admitted at the post-election hearings that he intentionally waited until after the election to address Woodward’s KRS 118.176 petition because it could have been rendered moot had she won the election.
III. Mootness
Even if occurrence of the election does not give rise to a jurisdictional bar to a cause brought under KRS 118.176, it does render any claim under the statute moot. Though it was addressed in the context of his jurisdictional discussion, Justice Keller argued that once the election was over, the winning candidate for Senator becomes a Senator-elect and is no longer a “candidate” in the sense contemplated by KRS 118.176. Yet the statute only allows for a challenge to the bona fides of a “candidate.” Justice Keller’s argument is just as compelling, if not more so, when understood as a claim about mootness, rather than jurisdiction. In fact, given the majority’s explicit rebanee on the lack of language in KRS 118.176 requiring that an action brought thereunder be adjudicated prior to the election in question, this may be the sounder approach. Nonetheless, the effect is the same — the court’s power to decide the issues evaporates because the case no longer presents a live controversy.
Furthermore, even if one were to conclude that the matter presented a Kve controversy after the election, meaning that the Jefferson Circuit Court action was not immediately rendered moot, surely that controversy died once the Senate affirmatively voted to seat Stephenson as a Senator. At that time, she became a member of the Kentucky Senate,4 and that exercise of a constitutionally granted power ended the controversy and decided the rights of the parties involved. This conclusion, however, is based on what I think is yet another insurmountable obstacle — one that the majority fails to address, much less refute — namely, and as discussed below, the inability of any entity to bind the Senate in its exercise of its constitutionally conferred power under Section 38.
IV. Binding the Senate
Perhaps most importantly, the majority’s approach is built on the fundamentally mistaken bebef that any entity — including the circuit court, this Court, or the state board of elections — can bind the Senate as to questions related to the qualifications, elections, and returns of its members. Let us assume that the Jefferson Circuit Court’s order enjoining the Board of Elections from counting any votes cast for Stephenson was valid and binding. Natu*194rally, the effect of the order was that Stephenson was not certified as the winner of the election. The majority treats this order, which was not appealed, as having res judicata effect. Indeed, this is the only justification they provide for their remedy.
The problem with this approach, however, is that Section 38 of the Kentucky Constitution again comes into play, not by stripping the courts of jurisdiction to adjudicate the question of candidate qualifications, but by placing the ultimate authority to determine that question in the hands of the relevant legislative body, with the courts and other entities serving only in a complementary capacity. Though there is a dearth of case law on this particular topic in Kentucky, the language in Section 38 of the Kentucky Constitution is all but identical to that in Article I, section 5, of the United States Constitution. And there is ample federal case law interpreting the effect of that provision, all of which indicates that no entity can bind a house of the legislature in judging the elections, returns, or qualifications of its members.
Foremost among these cases is Roudebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1 (1972), which involved a challenge by R. Vance Hartke to a state-run recount of the votes east in his race for United States Senate. Hartke claimed that the explicit constitutional delegation to the Senate of the power to decide the elections and returns of its members was absolute and that any state-level recount was thereby barred as a usurpation of the Senate’s power. The Supreme Court ultimately declined to block the recount, but in doing so, it noted: “Once this case is resolved and the Senate is assured that it has received the final Indiana tally, the Senate mil be free to make an unconditional and final judgment under Art. I, § 5.” Id. at 19, 92 S.Ct. at 808 (emphasis added). The Court allowed the recount to proceed because
a recount can be said to ‘usurp’ the Senate’s function only if it frustrates the Senate’s ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.
Id. at 26, 92 S.Ct. at 811 (footnotes omitted, emphasis added). Even the dissent in Roudebush agreed on the fundamental point “that in the end the Senate will be the final judge ....” Id. at 32, 92 S.Ct. at 814 (Douglas, J., dissenting); see also id. at 33, 92 S.Ct. at 815 (Douglas, J. dissenting) (“What the Senate should do in the merits is not a justiciable controversy. The role of the courts is to protect the Senate’s exclusive jurisdiction over the subject matter _”). In essence, the Court allowed the recount to proceed while acknowledging that it was only complementary to the Senate’s plenary power to “[j]udge of the Elections, Returns and Qualifications of its own Members .... ” U.S. Const, art. I, § 5. At most, such a complementary process may “be characterized as ministerial, or perhaps administrative .... ” Roudebush, 405 U.S. at 21, 92 S.Ct. at 809.
In an earlier case, Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 49 S.Ct. 452, 455, 73 L.Ed. 867 (1929), the Court indicated that the Senate could not even be bound by the findings of an internal committee that it had itself created to aid in determining questions regarding the elections, returns, and qualifications of members. The Court noted:
Exercise of the power [under Article I, section 5,] necessarily involves the ascertainment of facts, the attendance of wit*195nesses, the examination of such witnesses, with the power to compel them to answer pertinent questions, to determine the facts and apply the appropriate rules of law, and, finally, to render a judgment which is beyond the authority of any other tribunal to review. In exercising this power, the Senate may, of course, devolve upon a committee of its members the authority to investigate and report; and this is the general, if not the uniform, practice. When evidence is taken by a committee, the perti-nency of questions propounded must be determined by reference to the scope of the authority vested in the committee by the Senate. But undoubtedly the Senate, if it so determine, may in whole or in part dispense with the services of a committee and itself take testimony, and, after conferring authority upon its committee, the Senate, for any reason satisfactory to it and at any stage of the proceeding, may resume charge of the inquiry and conduct it to a conclusion, or to such extent as it may see fit. In that event, the limitations put upon the committee obviously do not control the Senate; but that body may deal with the matter, without regard to these limitations, subject only to the restraints imposed by or found in the implications of the Constitution.
Id. at 613-14, 49 S.Ct. at 455 (emphasis added). These cases expose the fallacy of the majority’s contention that KRS 118.176 functions as an irrevocable delegation by the General Assembly to the courts of the power to decide the qualifications of candidates for either house. Even if the statute operates as a delegation of power, it is, at most, a delegation of an administrative power to the courts to collect and evaluate evidence. As such, the decision or judgment of any court sitting in this capacity can be revisited and entirely supplanted by the relevant legislative body. Section 28 of our own constitution, with its express prohibition on the “exercise [by one branch of government of] any power properly belonging to either of the others,” further supports this contention. The power to determine the elections, returns, and qualifications of the members of a legislative house is expressly placed in the house itself by Section 38. It is difficult to imagine a clearer example of a textual commitment of a power to a specific branch of government. As such, that power, properly belonging only to the legislative branch, cannot be exercised by either of the other branches without breaching Section 28’s guarantee of separation of powers.
This bedrock principle has been followed consistently. As Judge Easterbrook noted in a case involving a dispute over an Indiana race for United States Representative that was ultimately decided by the slim margin of only four votes: “The House is not only the ‘Judge’ but also final arbiter. Its decisions about which ballots count, and who won, are not reviewable in any court.” McIntyre v. Fallahay, 766 F.2d 1078, 1081 (7th Cir.1985). He then went even further, noting:
Nothing we say or do, nothing the state court says or does, could affect the outcome of this election. Because the dispute is not justiciable, it is inappropriate for a federal court even to intimate how Congress ought to have decided. The doctrine of justiciability is designed to prevent meddlesome advisory opinions fully as much as it was designed to prevent unwarranted interference with decisions properly made elsewhere. When a court has no right to determine the outcome of a dispute, it also has a duty not to discuss the merits of that dispute.
Id. (footnote and citation omitted). At least in the federal courts, it is an unquestioned premise, bordering on legal fact, *196that “a ... court may not award relief [in such a case],” id., which, in turn, means that such a case “no longer presents a ‘case or controversy’ ....” Id.
These issues were raised again in Morgan v. United States, 801 F.2d 445 (D.C.Cir.1986), another case involving the same United States House of Representatives election that was disputed in McIntyre. The specific fight in Morgan concerned the substance of the procedures used by the House in deciding the election. The lower court “dismissed the suit with prejudice as the classic political question which is inappropriate for judicial review.” Id. at 446 (internal quotation marks omitted). The court of appeals, in an opinion by then Circuit Judge Scalia, noted that “[s]ummary affirmance is appropriate where the merits of an appeal ‘are so clear as to justify expedited action.’ ” Id. (quoting Walker v. Washington, 627 F.2d 541, 545 (D.C.Cir.1980)). The court then granted a summary affirmance, noting that it did so “[b]ecause the Constitution so unambiguously proscribes judicial review of the proceedings that led to the seating of McCloskey,” id., and that “further briefing and oral argument ... would be pointless.” Id.
In reaching its decision, the court reviewed the history of the constitutional provision. It noted:
The history of the Elections Clause is entirely consistent with its plain exclusion of judicial jurisdiction. In the formative years of the American republic, it was the uniform practice of England and America for legislatures to be the final judges of the elections and qualifications of their members. There was no opposition to the elections Clause in the Federal Constitutional Convention, and the minor opposition in the ratification debates focused upon the clause’s removal of final authority not from the courts, but from the state legislatures, where the Articles of Confederation had vested an analogous power. It is noteworthy that none of the responses to the opposition mentions the safeguard of judicial review. Such a safeguard was evidently unthinkable, since the determination of the legislative House was itself deemed to be a judicial one.... As far as we are aware, in none of the discussions of the clause did there appear a trace of a suggestion that it conferred was not exclusive and final. The fragments of recorded discussion imply that many took for granted the legislative right of judging of the returns of their members, and viewed it as necessarily and naturally exclusive.
In almost two centuries of numerous election contests resolved by the House and Senate, beginning in the very first Congress, no court, as far as we are aware, has ever undertaken to review the legislative judgment or (until the present litigation) ever been asked to do so.
Id. at 447-48 (citations and internal quotation marks omitted). Not only is the rule fundamental, it has been the rule since even before the United States existed.
The Kentucky Senate, like its federal counterpart, “is a legislative body, exercising in connection with the House only the power to make laws. But it has had conferred upon it by the Constitution certain powers, which are not legislative, but judicial, in character. Among these is the power to judge of the elections, returns, and qualifications of its own members.” Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 49 S.Ct. 452, 455, 73 L.Ed. 867 (1929). Section 38 of the Kentucky Constitution, like its federal counterpart — Article I, section 5, of the United States Constitution — places the sole power to make these quasi-judicial *197determinations with the relevant house. No doubt, some will object that the federal cases cited herein dealt primarily with the issue of who won the elections in question, and not whether the winner possessed the requisite constitutional qualifications to hold office. But such an objection has no merit. Just as a legislative body has the power to judge the elections and returns of its members, so too does it have the power to judge the qualifications of those members. Each of those questions, which appear in the same constitutional provision, is on equal footing, and the analysis as to each is identical.
In passing on the question of Stephenson’s qualifications by adopting the minority report finding her qualified to serve, the Kentucky Senate exercised its constitutionally granted “judicial” power and thus, like the House of Representatives in Fal-lahay, “has made its ‘unconditional and final judgment.’ ” 766 F.2d at 1081.
The rule as to the effect of the decisions of the Jefferson and Franklin Circuit Courts, and the Board of Election’s failure to count votes cast for Stephenson, then, is clear: Any other proceeding entertaining questions as to qualifications of a Senator is, at best, complementary to any parallel consideration of the same questions by the constitutionally-mandated arbiter of those questions.5 And any such complementary proceeding, whether by an election board or a court, regardless of its outcome, simply cannot bind the Senate when it chooses to engage in an independent determination of these matters. The majority claims that its decision has no binding effect on the Senate in that the injunctions work only to bind Stephenson and to prevent her from assuming the seat. But this claim is illusory, since the injunctions have the practical effect of limiting the Senate’s choice as to how it may proceed or who it may choose, all despite the fact that the Senate alone is constitutionally empowered to make that choice.
The objection will also be made that the federal cases involve after-the-fact challenges, whereas the present case involves a pre-election challenge. But if the power to judge the elections, returns, and qualifications are exclusive to the legislative body — and, to be clear, the cases admit no exception — then it stands to reason that no entity has the power to bind the legislative body before the fact. Otherwise, the power granted by Section 38 is meaningless and the provision itself nothing but a dead letter.6 Again, the necessary rule is clear: Just as a legislative body’s decisions about its membership are not reviewable after the fact, so too they cannot be bound before the fact. In short, the legislative *198body is free to reject any decision on the subject by another body, including one made by a court.
The majority opinion attempts to evade this analysis by limiting the applicability of Section 38 to disputes arising after a person becomes a member of the Senate (or, when applicable, the House), as was the case in Raney v. Stovall, 361 S.W.2d 518 (Ky.1962). But such an assertion is against the great weight of authority and reason. The Senate’s power under Section 38 is not limited to the narrow circumstances that arose in Raney. The vast majority of the cases discussed above contemplate that the power conferred by Section 38, and its federal analog, is plenary and comes into play whenever a legislator elect presents himself or herself to a legislative body for acceptance as a member. Applicability of the Section 38 power does not require that the dispute revolve around someone who is already a member. Rather, it is, at its most basic, the power to close the door and deny entry to a person claiming the right of membership in the body.7 How else could a legislative body judge the elections of its members? As Justice Story famously observed, the primary function of such a power is to allow the legislative body to determine “who were the legitimately chosen members .... ” Joseph Story, Commentaries on the Constitution § 416, at 295 (Carolina Academic Press 1987) (1833) (reprint of abridgment by the author) (emphasis added). That same power also applies to the determination of the qualifications of incoming members, and just as a legislative house has the power to determine that such an incoming member is unqualified, so too it has the power to determine that such an incoming member is qualified.
Given the clarity with which this concept has been expressed and the consistency with which it has been applied in the federal opinions, I find it mind-boggling, even outrageous, that the majority has deigned to decide these issues.8 The fun*199damental premise underlying the federal decisions — that a house of the legislature is empowered to determine independently the elections, returns, or qualifications of its members — is the exact opposite of the majority’s underlying assumption. Moreover, the federal courts, in interpreting the federal analog of Section 38, have never even considered it a reasonable possibility that a house of the legislature can be bound in its decision by the prior determination of another entity. Section 38 of the Kentucky Constitution admits no different interpretation. As such, I can only conclude that the majority’s solution is mistaken. The Senate’s power to judge the elections, returns, and qualifications of its members is plenary and without exception. As a result, the wisdom of the Senate’s finding that Stephenson was qualified and its resultant decision to seat her as a Senator are beyond our power to review.
V. The Speech and Debate Clause
Finally, I note that the majority opinion affirms an injunction against a sitting Senator. On January 7, 2005, the Senate found that Stephenson was qualified to serve, and she was seated as a member of the Kentucky Senate. The only injunction in effect at that time ordered the Jefferson Board of Elections not to count any votes for Stephenson. That order was complied with, and, as a result, no votes were reported for Stephenson, the Board of Elections’ reports stating instead that votes for her were “suppressed by Court Order.” As discussed above, however, that report was not binding on the Senate given its power under Section 38 to independently judge the elections, returns, and qualifications of its members. Therefore, I can only conclude that when the Senate seated Stephenson, she became a member of that body, with all the rights and responsibilities, and privileges and duties incumbent in that office.
Of these privileges, one of the most fundamental is legislative immunity. Section 43 of the Kentucky Constitution provides that “for any speech or debate in either House [the members of the General Assembly] shall not be questioned in any other place.” We have read this provision to provide “[a]bsolute immunity ... to legislators in the performance of their legislative functions .... ” Yanero v. Davis, 65 S.W.3d 510, 518 (Ky.2001). Surely the act of continuing to hold a legislative seat is the quintessence of legislative function. Yet, the Franklin Circuit Court’s order, since it was issued on January 14, 2005, after Stephenson was seated, had the effect of removing her from her seat in the Senate. Even in Rose v. Council for Better Education, Inc., 790 S.W.2d 186, 203-04, 215 (Ky.1989), the Court declined to allow coercive, i.e., injunctive, relief against the General Assembly. These cases make it clear that the Franklin Circuit Court had no power to prevent Stephenson from maintaining her seat as a member of the Senate or, more generally, from participating in the legislative process as a member of the Kentucky Senate.
Yet, the majority opinion has ratified the use of such coercive injunctive relief against a sitting member of the General Assembly. And with this precedent in hand, no obstacle now exists to prevent any judge in this state from enjoining a member of the General Assembly from voting on a particular act. This may seem an unduly harsh claim, but the simple fact of the matter is that the Jefferson Circuit Court’s order had its full effect, and Stephenson was subsequently seated as a member of the Senate. Only after these events did the Franklin Circuit Court enter an injunction that could be considered applicable to Stephenson, and the majority upholds that order. In doing so, they allow an injunction to lie against someone *200who had already been seated as a member of the Senate. The existence of such in-junctive relief for even a single minute is repugnant to the Constitution.
VI. Conclusion
The majority opinion blames only the Appellants for the fact that the 37th District has gone unrepresented over the last year, claiming that they should have appealed the order of the Jefferson Circuit Court. But given the nature of the governmental powers involved, once the election began, or at the very least once the Senate acted to seat Stephenson, the onus fell on the courts to decline to decide the questions presented. Unfortunately, the courts have consistently refused to do so over the last year. Moreover, the fact that it has taken over a year to resolve this case is itself ample proof why the Kentucky courts should have declined to entertain any action once the election began in November 2004. At the very least, it shows that the courts should have recognized their at most complementary role in this dispute and thus declined to grant injunctive relief against the parties. As then Judge Scalia noted:
While it is not our role to examine the wisdom of a disposition that appears so clearly in the text and history of the Constitution, we may observe that it makes eminent practical sense. The pressing legislative demands of contemporary government have if anything increased the need for quick, decisive resolution of election controversies. Adding a layer of judicial review, which would undoubtedly be resorted to on a regular basis, would frustrate this end. What is involved, it should be borne in mind, is not judicial resolution of a narrow issue of law, but review of an election recount, with all the fact-finding that that entails, If it be said that the relevant House is not the appropriate body to make the determination because of the possibility of improper political motivation, the response is that “[a]U power may be abused if placed in unworthy hands. But it would be difficult ... to point out any other hands in which this power would be more safe, and at the same time equally effectual.” Luther v. Borden, 48 U.S. (7 How.) 1, 44, 12 L.Ed. 581 (1849). As Justice Story observed:
If [the power to judge elections is] lodged in any other than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed or put into imminent danger. No other body but itself can have the same motives to preserve and perpetuate these attributes; no other body can be so perpetually watchful to guard its own rights and privileges from infringement, to purify and vindicate its own character, and to preserve the rights and sustain the free choice of its constituents.
1 J. STORY [, COMMENTARIES ON THE CONSTITUTIONS] § 833, at 604-05 [ (5th ed.1905) ]. While the party-line votes in the present case (not at all unusual in such disputes) suggest that Justice Story’s description of the purifying character of election-judging by the legislature may have been exaggerated, his basic point that institutional incentives make it safer to lodge the function there than anywhere else still stands. The major evil of interference by other branches of government is entirely avoided, while a substantial degree of responsibility is still provided by regular elections, the interim demands of public opinion, and the desire of each House to preserve its standing in relation to the other institutions of government.
*201Morgan v. United States, 801 F.2d 445, 450 (D.C.Cir.1986) (emphasis added). The policy underlying Section 38 is, no doubt, the same. The very reason that Section 38 grants the legislature the exclusive power to judge the elections, returns, and qualifications of its own members is to avoid a prolonged fight over an inherently political question. Alas, this is exactly what has happened here.
For these reasons, I respectfully dissent.
SCOTT, J., joins this dissenting opinion.
This election board had been created in 1898 as a part of the Goebel Election Law. Thomas D. Clark, A History of Kentucky 436 (1988). "Senator Goebel virtually had the Kentucky electorate in his power, since he was entrusted, as a reward for his activities, with the selection of the first state board of election.” Id. One Democratic paper denounced the legislation as a "piece of Goebel machination.” Id.
I have made a few changes to the text of Justice Keller's opinion, but these are limited to (1) converting his footnote designations from numbers to lower-case letters in order to differentiate his footnotes from my own, which are denoted by symbols before the quoted dissent and numbers afterward; (2) correcting typographical errors that slipped through what was no doubt an expedited writing and editing process in March 2005; and (3) correcting the paragraph structure of the quotation associated with footnote h, the citation in footnote o, and the omission of two words from the text of the quotation associated with footnote u.
. Maupin v. Stansbury, 575 S.W.2d 695 (Ky.App.1978); 7 KURT A. PHILIPPS, JR., KENTUCKY PRACTICE, RULES OF CIVIL PROCEDURE ANNOTATED, Rule 65.04, cmt. 2 (5th ed. West Group 1995).
. 790 S.W.2d 186 (Ky.1989).
. KY. CONST. § 38.
. GEORGE W. McCRARY, A TREATISE ON THE AMERICAN LAW OF ELECTIONS § 317, at 237 (4th ed. 1897) [hereinafter McCRARY, AMERICAN LAW OF ELECTIONS]; see also id. § 377, at 285 ("Nor will mandamus be available for one claiming a seat in a State Legislature where the Legislature is empowered to judge the election of its members.”).
. 108 Ky. 278, 56 S.W. 177 (1900).
. Id. at 182. It should also be noted that after losing their case before our predecessor court, Taylor and Marshall sought review by the United States Supreme Court on the grounds that their Fourteenth Amendment property rights and the constitutional guarantee of a republican form of government had been denied. Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187 (1900). The Supreme Court noted that "public offices are mere agencies or trusts, and not property as such,” id. at 577, 20 S.Ct. 890 (emphasis added), and that enforcement of the republican form of government "guaranty belonged to the political department.” Id. at 578, 20 S.Ct. 890. As such, the Court ruled that the case fell outside its jurisdiction and dismissed the case. Id. at 581-81, 20 S.Ct. 890.
. Beckham, 56 S.W. at 179 (emphasis added).
. Id. at 181 (emphasis added).
. Id. at 182.
. Id. at 183 (quoting Batman v. Megowan, 1 Met. 533, 58 Ky. 533 (Ky.1859)) (emphasis added); see also McCRARY, AMERICAN LAW OF ELECTIONS § 386, at 291 ("The doctrine announced is that courts of equity have no inherent power to try contested elections, and can only exercise such power where it has been conferred by express enactment, or necessary implication therefrom.”).
. Beckham, 56 S.W. at 184.
. Id.
. 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865 (1898).
. Beckham, 56 S.W. at 184 (emphasis added).
. 361 S.W.2d 518 (Ky.1962).
. Id. at 519.
. Id.
. Id. at 521-22.
. Id. at 523.
. Id. at 523-24.
. In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764, 767 (Ky.1957) (citation omitted).
. Id.
. Beckham, 56 S.W. at 184.
. Id.
. KRS 118.176 (emphasis added).
. Noble v. Meagher, 686 S.W.2d 458, 460 (Ky.1985).
. Fletcher v. Wilson, 495 S.W.2d 787, 791 (Ky.1973); accord KRS Chapter 120.
.Noble, 686 S.W.2d at 461.
. KRS 118.176(2).
. KRS 118.176(1) (emphasis added).
. KRS 118.176(2).
. KRS 118.176(4).
. Id.
. McKinney v. Barker, 180 Ky. 526, 203 S.W. 303, 306 (1918).
. See also Noble v. Meagher, 686 S.W.2d 458, 461 (Ky.1985); Fletcher v. Wilson, 495 S.W.2d 787, 791 (Ky.1973).
. McCRARY, AMERICAN LAW OF ELECTIONS § 317, at 237 ("The courts will not undertake to decide upon the right of a party to hold a seat in the legislature, where by the constitution each house is made the judge of the election and qualifications of its own members; but a court may by mandamus, compel the proper certifying officers to discharge their duties and arm the parties elected with credentials necessary to enable them to assert their rights before the proper tribunal. And, inasmuch as canvassing and returning officers act ministerially and have no power to go behind the returns, or inquire into the legality of votes cast and returned, a court will by mandamus compel them to declare and certify the result as shown by the returns, because that is their plain duty; but the award of a certificate of election under such mandate, will not conclude the legislative body in determining the election." (footnotes omitted)).
. KY. CONST. § 4 ("All power is Inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety, happiness, and the protection of property. For the advancement of these ends, they have at all times an inalienable and indefeasible right to alter, reform or abolish their government in such a manner as they may deem proper.").
. See McCRARY, AMERICAN LAW OF ELECTIONS § 203, at 227-28 ("If the office were to remain vacant pending the contest it might frequently happen that the greater part of the term would expire before it could be filled; and thus the interests of the people might suffer for the want of the services of a public officer. Besides, if the mere institution of a contest was to be deemed sufficient to prevent the swearing in of the person holding the usual credentials, it is easy to see that very great and serious injustice might be done. If this were the rule, it would only be necessary for an evil disposed person, to contest the right of his successful rival, and to protract the contest as long as possible, in order to deprive the latter of his office for at least a part of the term. And this might be done, by a contest having little or no merit on his side, for it would be impossible to discover, in advance of an investigation, the absence of merit. And again, if the party holding the ordinary credentials to an office, could be kept out of the office by the mere institution of a contest, the organization of a legislative body, such for example as the House of Representatives of the United States, might be altogether prevented, by instituting contests against a majority of the members, or what is more to be apprehended, the relative strength of political parties in such a body might be changed, by instituting contests against members of one or the other of such parties. These considerations have made it necessary to adopt, and to adhere to, the rule, that the person holding the ordinary credentials shall be qualified, and allowed to act pending a contest and until a decision can be had on the merits.").
. R.H. Hobbs Co. v. Christian, 325 S.W.2d 329, 335 (Ky.1959) (emphasis added).
. In reaching this conclusion, I recognize that the federal courts, in approaching the federal constitutional analog of Section 38 — Article I, section 5, of the United States Constitution— have held that while they technically have subject-matter jurisdiction over such disputes, they present non-justiciable political questions that cannot be decided by the judiciary. See, e.g., McIntyre v. Fallahay, 766 F.2d 1078 (7th Cir.1985). This approach makes sense given that cases that are only tangentially related to Article I, section 5, but that are nonetheless decidable by the courts can arise. E.g., Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). To be fair, however, it has been noted elsewhere that the holding in Powell was basically that "Article I, section 5 had no application, since the House action in question did not consist of judging 'qualifications’ within the meaning of the provision.” Morgan v. United States, 801 F.2d 445, 448 (D.C.Cir.1986). Nevertheless, I continue to employ the lack-of-jurisdiction concept because our case law, which relies in part on our strict separation of powers provisions, has historically held that Section 38 bars jurisdiction. Even among the federal courts, such an approach is not unheard of. See id. at 447 (holding in a case involving Article I, section 5, that "without need to rely upon the amorphous and partly prudential doctrine of 'political questions,’ we simply lack jurisdiction to proceed.” (citations omitted)). Ultimately, however, it makes no difference which approach we take because both lead to the same result, since courts simply will decline to decide these cases no matter which rationale they choose.
. I note in passing, however, that the majority opinion surprisingly fails to cite these cases *191for the proposition that KRS 118.176 jurisdiction continues after the election.
. The rendition date of Fletcher I — June 1, 1973, after the primary election was held— will no doubt lead some to claim further internal inconsistency. But, as was noted in the second appeal, “the mandate of this court on [the first] appeal was issued before the primary took place .... ” Fletcher II, 500 S.W.2d at 603.
. This, of course, answers the majority's claim that I have construed the election itself as having made Stephenson a Senator. To reiterate Justice Keller's point, she was only a Senator-elect until the Senate voted to seat her as a member. But, as discussed below, that point does not end the necessary analysis.
. Even the Franklin Circuit Court refused to find that the Jefferson Circuit Court's order was binding as res judicata.
. This also serves as an answer to Justice Cooper’s claim in his separate concurring opinion, where he argues that Woodward actually became a member of the Senate when she took the oath of office as administered by Judge Ryan, thus meaning that the Senate only "purported to refuse to seat her as a member of that body.” Ante at 177 (emphasis added). If that is the case, the Senate has no opportunity to exercise its power under Section 38, so long as a candidate rushes to the nearest judge and swears the constitutional oath. Despite Justice Cooper’s implication to the contrary, Section 38 does not become inapplicable simply because a candidate "has been properly certified as duly elected ..., ... has taken the oath of office, and ... possesses the constitutional qualifications for the office.” Ante at 177. Furthermore, Justice Cooper’s opinion as to the effect of the certification of Woodward as "duly elected" is, like the majority opinion, premised on the mistaken assumption that the official count by the Board of Elections or the certification of the winner by the Secretary of State can bind the Senate if it reexamines the election returns.
. In making this argument, the majority also attempts to discount any citation to Raney and similar cases on the ground that their specific facts make them inapplicable. Though Raney addressed the applicability of Section 38 to the power of the legislature to determine the qualifications of its sitting members, prior even to addressing that question, it assumed that Section 38 granted that body the power to determine elections, qualifications, and returns of incoming members. See Raney, 361 S.W.2d at 523 ("If the power were limited to the qualifications specified in section 32 thereof, it would be exhausted as soon as the membership of each house was accepted at the beginning of each term.”). As such, Raney provides further support for the contention that Section 38 gives legislative houses the power to determine the elections, returns, and qualifications of their incoming members.
. In its conclusion, the majority opinion responds to this specific point by emphasizing this Court’s "duty to interpret the Constitution and declare the law.” Ante at 174. Quite simply, my dissent goes to the heart of deciding what the Constitution means in this case. To claim that my interpretation of Section 38 betrays the principles of judicial review as articulated in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), because I would decline to decide the merits of the underlying controversy, is disingenuous. My conclusion that the Constitution requires the Court to stay its hand does not mean that I have somehow shirked my constitutional duty. That the majority implies this while expressly declining to decide the fundamental constitutional questions raised and addressed herein belies this criticism.
It is particularly ironic that the majority has cited to Marbury in making this claim, in that case, the Supreme Court, while staking out the contours of judicial review, declined to intervene on behalf of Marbuiy and held that it lacked jurisdiction to issue the writ that he had requested because the statute granting it jurisdiction to do so was in conflict with Arti- . ele III, section 2, of the United States Constitution.