[House Document 112-44]
[From the U.S. Government Publishing Office]



112th Congress, 1st Session - - - - - - - - - - - - - House Document 112-44


 
 LETTER REGARDING CONTEST OF 36TH CONGRESSIONAL DISTRICT OF CALIFORNIA

                               __________

                             COMMUNICATION

                                  from

                            THE CLERK OF THE

                        HOUSE OF REPRESENTATIVES

                              transmitting

A LETTER REGARDING THE ELECTION FOR THE 36TH CONGRESSIONAL DISTRICT OF 
                               CALIFORNIA




 July 19, 2011.--Referred to the Committee on House Administration and 
                         ordered to be printed
                               Office of the Clerk,
                                  House of Representatives,
                                     Washington, DC, July 19, 2011.
Hon. John Boehner,
The Speaker, House of Representatives
Washington, DC.
    Dear Mr. Speaker: I have received the following 
correspondence regarding the election of Janice Hahn to fill 
the vacancy of the 36th congressional district for the state of 
California. The correspondent was not a candidate for office 
and affirms that he is not eligible to contest the election 
under the law. As such, I forward the correspondence to the 
House for its disposal.
    With best wishes, I am
            Sincerely,
                                             Karen L. Haas,
                                                             Clerk.
    Enclosure.
                                                     July 18, 2011.
Hon. Karen L. Haas,
Clerk of the U.S. House of Representatives,
Office of the Clerk, U.S. Capitol, Washington, DC.
    Dear Ms. Haas, I am protesting the election of Janice Hahn 
in the July 12, 2011 Special Election to fill the vacancy for 
the Thirty-Sixth Congressional District of California.
    As I was not a candidate for this election, I am not 
eligible to challenge the election under the preferred method 
specified by the Federal Contested Elections Act. I am, 
however, eligible to protest the election according to Chapter 
9 of Volume 2 of Deschler's Precedents of the United States 
House of Representatives which provides for a protest filed by 
``any other person'' to be referred to the Committee on House 
Administration for investigation.
    The House of Representatives has the constitutional 
authority to determine if a Member-elect is ``duly elected.'' 
See Powell v. McCormack (1969). Further, the U.S. Supreme Court 
made it clear that the House of Representatives is the final 
authority to make ``an unconditional and final judgment'' in 
determining questions regarding the elections of Members of 
that body, and that the courts have no role in reviewing any 
such determination. See Roudebush v. Hartke (1972).
    The election referenced above was not a valid election 
because it violated Article 1, Section 4, clause 1 of the 
Constitution:

          The Times, Places and Manner of holding Elections for 
        Senators and Representatives, shall be prescribed in 
        each State by the Legislature thereof; but the Congress 
        may at any time by Law make or alter such Regulations, 
        except as to the Places of chusing Senators.
    The Manner of holding this special election was not 
prescribed by the California State Legislature, but rather 
through a ballot process which amended the State Constitution. 
Senate Bill 6 approved a ballot measure to be placed for 
consideration before the people of the State of California. 
This action did not prescribe the manner of elections. The 
people of the California, and not the legislature thereof; then 
prescribed the manner of holding elections by voting in favor 
of Proposition 14, which institutes a ``top two primary 
system'' within the California State Constitution. The merits 
and shortcomings of this particular system are irrelevant to 
the constitutional question being raised. The process by which 
this system was prescribed is a direct violation of both the 
letter and the spirit of the U.S. Constitution.
    Further, since Proposition 14 instituted the election 
process within the state constitution, the state legislature is 
not able to specify a different process, should it so choose. 
This is also a direct violation of both the letter and the 
spirit of the U.S. Constitution. Finally, choosing the manner 
of holding elections is not a duty that can be delegated 
directly to the people by the state legislature. Such 
delegation would violate both the previously mentioned clause 
as well as Article 4, Section 4 of the Constitution:

          The United States shall guarantee to every State in 
        this Union a Republican Form of Government, and shall 
        protect each of them against Invasion; and on 
        Application of the Legislature, or of the Executive 
        (when the Legislature cannot be convened), against 
        domestic Violence.
    As such, any election held under this process, which was 
not prescribed by the legislature of California, is not valid 
and the office should remain unfilled until such time as a 
constitutional election can take place.
    Respectfully,
                                                       Tony DeTora.