Congressional Record, Volume 143 Issue 115 (Thursday, September 4, 1997)

[Congressional Record Volume 143, Number 115 (Thursday, September 4, 1997)]
[Senate]
[Pages S8765-S8772]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

CONTESTED LOUISIANA ELECTION

Mr. LOTT. Mr. President, the other issue I want to address is some of
the problems we have today. When we have something brought to the
Senate that

[[Page S8766]]

we have to look into, and, in this case, I am referring to the election
in Louisiana for the Senate last year, where allegations of fraud have
been made, it is incumbent upon us to thoroughly check those
allegations out. Unfortunately, the committee charged with jurisdiction
in this area has not been able to work together in a bipartisan way to
get it done and get the work completed. I want us to reach that point
sooner, not later, and I have worked across the aisle to try to come up
with a process to make that happen. I thought we had it worked out,
again, the last week in July, and at the last minute that fell apart.
So, we have to do our job. I am not going to come to the floor of the
Senate, look Senators in the eye, and the American people, and say,
``We checked it out thoroughly, there is nothing here,'' or, ``There is
a real problem here,'' until all the work that needs to be done has
been done. I can't do that.
Now we are being told, well, if you continue it, we are going to have
delays and obstruction by the Democrats. What are they delaying and
obstructing? The Labor, Health and Human Services appropriations bill,
the Superfund reform. Here is a program, Superfund, that is really the
laughingstock of America. You care about the environment? Who among us
would not care that the program is not working. Lawyers have a grand
time. They are making money. But we are not cleaning up hazardous
sites. We are not cleaning up hazardous waste sites.

So the Committee on Environment and Public Works wants to meet today
to mark up the Superfund bill, and I am being told, ``Well, we are not
going to let you meet; we are not going to let that committee meet, in
a bipartisan way, and mark this bill up.'' And, therefore, I have no
option but to say, OK, if you are going to do that, then we will go out
this afternoon.
If objection is made to the Environment and Public Works Committee
meeting this afternoon to mark up Superfund reform, which would clean
up hazardous waste sites in my State and probably every State in
America, if that is going to be blocked, then the Senate will go out at
2 o'clock, we will be out until 4 o'clock so the committee can meet and
do its work, and we will tack that time onto tonight. We are not going
to have this arrangement where the other side tries to dictate the
schedule in committee meetings. We are not going to do that.
I have worked very hard to keep my word to the Senate and to the
Senators. When I say we are going to meet and have votes, we try to do
that. When we agree we are not going to meet and have votes, we try to
honor that. We agreed we would be out in the third week in October for
the Columbus Day period. I am going to keep my word on that. I tried to
keep in mind the personal lives, and opportunities to have dinner with
families and children. I want to do that. But if we are going to start
playing this game of threats and delays and obstruction and blocking of
committee meetings and that sort of thing, then I have no option but to
put the time on the back end.
So, I don't think that is necessary. We have had a good feeling here
in the Senate for the last 2 months. We worked together in a bipartisan
way, even when we disagreed. I think we can continue to do that, and I
certainly will try to continue to keep my word and work with the
Senators on this schedule. That is one of the reasons why we might have
to vote early in the morning, because some Senators on both sides of
the aisle want to leave. That is fine. We want to help them. But we
also have work to do.
So, I just wanted to point out what is going on. I don't have any
problem with doing it this way. I just want everybody to understand I
am not doing it to cause confusion or delay. I have no option.
The Environment and Public Works Committee will meet today. We will
continue to work on the Labor, HHS appropriations bill. I believe that
we can and should get it completed today or tomorrow. But we will have
success on this bill, and we will do it in a bipartisan way, and we
will do it, hopefully, by the end of this week or the first of next
week.
So I just wanted to advise Senators what the schedule looks like for
today and in the morning. I will talk to my counterpart on the other
side of the aisle. I will be glad to work with Senators on FDA reform
and Superfund reform and on Labor, HHS, to see if we can find
reasonable accommodation, and we will also continue to pursue an
opportunity to recommend to the Senate what action, if any, or none,
should be taken with regard to the Louisiana election.
Mr. DORGAN. Will the Senator yield for a question?
Mr. LOTT. I'd be glad to yield.
Mr. DORGAN. I listened with interest to the Senator from Mississippi,
the majority leader. I think it is important to point out that there is
no intention that I am aware of on this floor to interrupt the business
of appropriations bills. The principal business in this month of
September is to finish, and work hard on, the appropriations bills; by
the end of September, have them down to the White House, so the
President can sign them and avoid a continuing resolution. So we want
to do that, and there is no objection that I am aware of, made by
anyone, which would interrupt in any way the conduct of business on
appropriations bills.
The Senator from Mississippi, the majority leader, knows there is
great concern about the issue of a contested election in Louisiana, by
which a Member of the Senate was seated without prejudice and an
investigation was begun. The conduct of that investigation causes some
significant concern here in the Senate. It is not December, it is not
January, February, March, or April; it is September, and we have a
Member of the Senate who is still seated in this Senate, seeing
activities of a committee on an investigation in which allegations of
fraud were made. And I might say that the committee hired a couple of
investigators, lawyers--a Republican and a Democrat--and the first
report they gave to the committee was to say there is nothing there.
But that was not enough.
I am not going to go into what is going on in the committee. I don't
think we need to have that discussion. But, you know, it is September.
It's September, and we have a Member of the U.S. Senate who is still
held in limbo, here, on this issue of investigation. I saw yesterday
newspaper after newspaper after newspaper in Louisiana, the editorials
and stories say, ``There is nothing here. Let this go. Stop this
investigation.''
So, you know, the concern that some exhibit on the floor of the
Senate about this issue is not without foundation. The Senator from
Mississippi points out that he is concerned about delay. I don't think
any of us want a delay.
Mr. LOTT. Mr. President, if I could reclaim my time to respond on
that, I think everybody has indicated we want to continue to move the
appropriations bills.
Mr. DORGAN. That's correct.
Mr. LOTT. But if an objection is heard today for the Environment and
Public Works Committee to meet in session this afternoon and work on
marking up a very important environmental bill to clean up hazardous
waste sites, that interrupts the process of the appropriations bill.
That committee should meet. In my opinion, it should have already met
on this issue, and had votes and brought it to a conclusion. So, if an
objection is heard to committees meeting, I have no option but to go
out for a period of time to allow the committees to do their work.
That's a very important part of our process here.
So the effect is that you are delaying the appropriations bill. But
perhaps objection would not be heard, we wouldn't have to stop for 2
hours this afternoon so that a very important committee could meet. I
have indicated to the Senator and to Senator Daschle that we hope that
would not be necessary. But, you know, the effect is to delay the
Labor, Health and Human Services appropriations bill.
With regard to the Louisiana election, yes, it is September. It need
not be. This matter could have been concluded, completed, weeks or
months ago, but from the beginning, the Democrats on the committee
would not cooperate, would not work with us. They didn't actually----
Mr. DORGAN. Well----
Mr. LOTT. Wait, I have the floor and I will yield when you ask me to.
I am on that committee, and all I ever said was find out what happened,
was there

[[Page S8767]]

apparent fraud or not. As a matter of fact, investigators never went
into Louisiana until July. Shortly thereafter, in something I have not
seen in 25 years in Congress, the Democrats walked out of the
committee's proceedings and said, ``We won't participate.''
In investigation after investigation over the years in the House and
the Senate, I never saw the Republicans or Democrats, in any other
instance, say, ``We're not going to participate.''
What happened after the investigators' being down there for like 2
weeks, the Justice Department withdrew the FBI agents. It couldn't come
to a conclusion. The week before we went out, I talked with Senators on
the Democratic side of the aisle, and we worked out an arrangement that
I thought everybody was satisfied with for a special allocation of
money to complete that work and in time to complete that work. At the
last minute, it was jerked away.
What has happened is, I think Senator Warner is going to make an
announcement today, I believe, about a schedule he has in mind. There
are several boxes of documents that have been turned over now to the
committee as a result of the subpoena duces tecum to get evidence with
regard to gaming interests and involvement in the election. By the way,
I think they have every right to support a referendum. The only
question is was it in any way used improperly or illegally. I don't
know the answer to that.
Once those documents are reviewed, I understand the committee is
going to meet, hear from the investigators, hear what the evidence is,
if any, that they find in these documents and, at some point, the
committee will proceed to action. I don't know exactly what date that
would be.
It is not my intention to drag this out indefinitely. But I have to
be able to come here and say to Members on both sides of the aisle,
``We've done our work. Even though we haven't had cooperation, we have
reached a conclusion as best we can, and here it is.'' I have told the
Senators on both sides of the aisle over the past year and 3 months how
we deal with you. I am not interested in causing undue delay or
difficulty for any Senator here with or without prejudice. But I must
be able, along with other Senators, to say that we did our work, we
fulfilled our constitutional responsibility, and then make a
recommendation. I will be glad to yield further if you like.
Mr. DORGAN. If the Senator will yield, he clearly should and will not
be surprised at concern expressed now in September about this issue.
Those concerns were registered in July and early August, and the
Senator understands that we have a Senator from Louisiana whose
election is still being contested, and it is now September. I just want
to, if I might, just show you some of what is happening in Louisiana in
the press:
``When will investigation end? Voters might not be happy with
prolonged debate.''
``Poll: State's voters believe Landrieu probe unnecessary.''
``Enough's enough,'' an editorial in the Times-Picayune.
``Senate investigation will hurt Louisiana.''
``No evidence of widespread fraud.''
It is September, and there is no demonstration of any kind that I am
aware of that any irregularities existed in that election that would in
any way overturn the results of the election, and yet we still have
what I think is a concerted effort by some to drag this out and drag it
out and drag it out.
Mr. LOTT. Yes.
Mr. DORGAN. Frankly, a lot are not happy about that.
Mr. LOTT. Yes, there has been an effort that has caused it to be
delayed and dragged out.
Mr. DORGAN. I understand who the Senator from Mississippi says is at
fault. I only know it is September. The first two lawyers who were
hired, a Democrat and Republican, testified in front of the committee
that hired them and said there is nothing here. The majority leader
said that is not satisfactory.
Mr. LOTT. In the areas they had looked into. There had been nothing
done with regard to the gaming activities and the so-called life
organization in New Orleans.
Mr. DORGAN. My point is, if he will allow me one more minute, my
point is that I think it is unfair to the Senator from Louisiana. I
think it is unfair to the people of Louisiana. This ought to get
wrapped up.
Our point is this: There is no intention to interrupt the business of
the Senate, which is now to pass these appropriations bills in the
month of September. We have to do that. There is no one out here
objecting to the work on those appropriations bill.
Mr. LOTT. But you are going to object to a committee meeting, which
makes it necessary for the work of the Appropriations Committee to be
interrupted.
Mr. DORGAN. As the Senator knows, the regular order of the Senate is
to have no committee meetings when the Senate is in session.
Mr. LOTT. But it has been the common practice for committees to be
able to meet. All I am saying to you is, work with us and we can bring
this to conclusion. But I am also saying that if you start interrupting
the business of the Senate or committees, it will not be without action
in return. We need to work together. We need to do these things
privately and communication in the type of way we have done over the
last 2 months. But if you start playing games with committees meeting
on important issues like Superfund and, let me tell you, fast track, it
will have an effect. Every action produces a reaction.
So let's not start down that trail. Let's continue to work together
as we have, and we can complete our work on appropriations and on
Superfund and on fast track and on ISTEA, and then return to our
constituency.
Mr. DORGAN. If the Senator will yield for one more comment, the issue
of delay applies especially and indelibly to the issue of the
investigation in Louisiana, and delay, it seems to me, continued delay
is unfair to Senator Landrieu and unfair to the people of Louisiana. It
is not our intent to cause problems for the Senator from Mississippi in
the scheduling of the Senate. I understand it is not easy to be
involved in running this place. So it is not our intention to cause
those kinds of problems. That is especially why----
Mr. LOTT. Let me just say, it is not easy, but it is a great
pleasure. I'm enjoying it a lot.
Mr. DORGAN. You actually act like you are enjoying it. We have done a
lot. This has been a pretty productive year, but at least a good number
on our side say with respect to delay, one of the delays that occurs
now in the Senate is the delay on this investigation and the end of the
investigation, and the investigation has found nothing on the issue of
this contested Senate election. We hope that we will get beyond that
and get on with the business and not have that hanging over the head of
Senator Landrieu or the people of Louisiana.
So our point is this: Let's continue with the Senate business. Let's
pass these appropriations bills, get them to the President, get them
signed. That is the regular order. Let's also resolve this issue with
the Louisiana election. It is now September. It is not March or April
or July. It is September, and it is long past the time when that should
have been resolved.
Mr. LOTT. Mr. President, I ask unanimous consent, at the end of my
remarks, to have printed in the Record the history of this type of
investigation, these type of allegations and the length of time they
have gone on.
The PRESIDING OFFICER (Mr. Brownback). Without objection, it is so
ordered.
(See exhibit 1.)
Mr. LOTT. Mr. President, as a matter of fact, most of them, many of
them, have gone on for weeks and months, including some Senators who
serve here in the Senate right now, and they proceeded in the normal
way. It is not my intention to delay this investigation and this
conclusion. It is my intention to make sure that we have investigated
all of the alleged fraud and abuses of election laws and illegal acts.
When we have done that, I will press aggressively for a conclusion. But
until that is done, with the cooperation of the Democrats, it will not
end.
I yield the floor, Mr. President.

Exhibit 1

Contested Election Cases

(Prepared by the Office of Senate Legal Counsel, December 1996)

I. INTRODUCTION

The Constitution provides that ``Each House shall be the
Judge of the Elections,

[[Page S8768]]

Returns, and Qualifications of its own Members. . . .'' \1\
The Senate has always been ``jealous of [this] constitutional
right.'' \2\ Courts have consistently recognized that
congressional actions in this area present nonjusticiable
political questions beyond judicial review.\3\ In Reed et al.
v. The County Comm'rs of Delaware County, Penn., the Supreme
Court acknowledged that the Senate is the final judge of the
elections of its members and held: ``[The Senate] is the
judge of the elections, returns and qualifications of its
members. . . . It is fully empowered, and may determine such
matters without the aid of the House of Representatives or
the Executive or Judicial Department.'' \4\
---------------------------------------------------------------------------
* Footnotes at end of report.
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II. SENATE REFUSAL TO SEAT STATE-CERTIFIED CANDIDATES

The Senate has been called upon to judge approximately 100
contested election cases. On only nine occasions, however,
has the Senate denied a seat to the candidate whose election
had been certified by the state.\5\ Several of these cases
involve fact patterns that are unlikely to be at issue in
modern disputes. They are not examined in this memorandum.\6\
Five cases, however, involve allegations that are more likely
to be at issue in modern contested election cases: challenges
to the accuracy of the ballot count, and challenged based on
claims that the election results were tainted by fraud and
corruption.

A. Inaccurate ballot counts

1. Steck v. Brookhart (1926)

The case of Steck v. Brookhart is the only occasion on
which the Senate has overturned the result of a state-
certified election and seated the contestant. Every other
time that the Senate has overturned the results of a state-
certified election, it has simply declared the seat vacant
and left the state to decide how it should be filled.\7\ In
1926, however, the Senate voted to unseat Republican Smith
Brookhart from Iowa and replace him with his general
election opponent, Democrat Daniel Steck.
Brookhart was certified the winner of the November 1924
Iowa Senate election after a state recount showed that he had
gained a plurality of less than 800 votes out of the more
than 900,000 ballots cast in a four-way race. In January
1925, his opponent Steck filed with the Senate a challenge to
Brookhart's seating based on alleged irregularities in the
vote count. In an unusual twist, the Iowa Republican State
Central Committee, angered by Brookhart's failure to endorse
the Coolidge presidential ticket, also challenged his
election on the ground that Brookhart was not, as he had
represented himself to be, a member of the Republican Party.
The Senate allowed Brookhart to take his seat at the
beginning of the 69th Congress in March 1925 and referred the
challenges to the Committee on Privileges and Elections.
Beginning in the summer of 1925, the Committee conducted an
investigation of Brookhart's election, which included a
recount in Washington, D.C. of each of the ballots cast. In
March 1926, the Committee reported to the Senate that Steck
had received a plurality of 1,420 votes and recommended that
Brookhart be unseated and replaced by Steck. Much of the
seven-day Senate debate concerned the applicability of Iowa
election law to the vote count. The Committee majority took
the position that the Senate was not constrained by Iowa
law.\8\ On April 12, 1926, the Senate, in a vote that crossed
party lines and did not include Brookhart, voted by a margin
of 45 to 41 to unseat Brookhart and replace him with Steck.

2. Durkin v. Wyman (1974-75)

In the 1975 contested election case of Durkin v. Wyman, the
Senate, rather than declare the winner as it had done in
Steck v. Brookhart, simply found the seat vacant. The initial
count of the November 1974 New Hampshire Senate election
showed Republican Louis Wyman ahead of Democrat John Durkin
by 355 votes out of more than 200,000 cast. A subsequent
state recount determined that Durkin had won the election by
ten votes, and on November 27, 1974 the governor issued
Durkin a ``conditional'' certificate of election. Wyman
challenged the certification before the New Hampshire State
Ballot Law Commission, which ruled on December 24, 1974 that
Wyman had won the election by two votes. On December 27,
1974, the governor rescinded Durkin's ``conditional''
credentials and certified Wyman the victor. That same day,
Durkin filed a petition with the Senate contesting Wyman's
credentials. The matter was referred to the Rules Committee's
Subcommittee on Privileges and Elections. The Subcommittee
began its investigation, which included a day of hearings
during sine die adjournment, before the 94th Congress
convened. The Subcommittee refused to make a recommendation
and passed the case onto the full Committee, which divided
evenly on the matter. The full Committee then referred the
case to the full Senate without a recommendation.
When it convened in January 1975, the Senate would neither
seat Wyman nor declare the seat vacant. Instead, the Senate
referred the matter to the Rules Committee again. After much
debate, the Committee decided upon carefully crafted
procedures to recount the approximately 3,500 disputed
ballots. But despite spending more than 200 hours on the
matter, the Committee could not agree upon whom should be
seated. Eventually, the Committee reported the matter to the
Senate without a recommendation. Beginning in June 1975, the
Senate debated the case for six weeks. Six cloture votes
could not cut off the Republican-led filibuster. The Senate
was at an impasse. The case was resolved only when Durkin and
Wyman agreed in late July 1975 to support a new election. The
day after the candidates reached their compromise, the Senate
voted 71 to 21 to declare the seat vacant. That action paved
the way for a September 1995 election, which Durkin won
decisively.

B. Corrupt elections

1. William Lorimer (1910-12)

On three occasions the Senate has determined that an
election was so tainted with corruption that its results were
invalid. Each time, the Senate declared the seat vacant. The
first occurred in 1912 when the Senate voted to overturn the
certified election of William Lorimer of Illinois. The
Illinois legislature elected Lorimer to the Senate, where he
took his seat in 1909. In May 1910, Lorimer asked the Senate
to investigate allegations by the press that he had gained
his seat through bribery. In December 1910, the Committee on
Privileges and Elections reported to the Senate its
determination that Lorimer's election was valid. The
Committee majority argued for the application of a standard
that had been established by precedent: the Senate would
invalidate an election on the basis of corrupt practices only
if the Senator knew of or sanctioned the corrupt activities
or if those activities had changed the outcome of the
election.\9\ In March 1911, the Senate declared the election
valid.
Repeated press reports of bribery in Lorimer's election
forced the Senate to continue to probe the allegations,
however, and in June 1911, the Senate created a special
committee to conduct a second investigation. The second
investigation took almost a year and involved the testimony
of 180 witnesses. In May 1912, the special committee finally
reported to the Senate that it could find no evidence linking
Lorimer to the alleged corruption.\10\ A minority report,
however, cited evidence that seven Illinois legislators had
been bribed to vote for Lorimer.\11\ Moreover, the minority
believed that there was significant evidence linking Lorimer
to the bribes.\12\ The minority argued that the evidence
was sufficient for the Senate to rule that the election
was invalid. In July 1912, following a public outcry and
an extensive Senate debate, the full Senate sided with the
minority and voted 55 to 28 to declare Lorimer's election
invalid and his seat vacant. In a special election
following Lorimer's ouster, Lawrence Y. Sherman was
elected to fill the seat.

2. Frank L. Smith (1926-28)

The other two instances in which the Senate declared an
election invalid because of corruption arose out of the work
of a Special Committee that was created in May 1926 to
investigate allegations of the corrupt use of campaign
expenditures in primary elections in Pennsylvania and
Illinois. Eventually, the scope of the Special Committee's
investigation expanded to include allegations of corrupt
practices in the November general election too. In both cases
the Senate departed from its normal procedure and refused to
seat the Senator-elect pending the outcome of its
investigation. This departure from practice is probably best
explained by the fact that an ongoing investigation had
already uncovered substantial evidence of fraud and
corruption by the time each of these Senators-elect presented
his credentials to the Senate.
Despite the negative publicity from the investigation of
his primary victory, Frank L. Smith won the November 1926
Illinois general election. The Special Committee continued
its investigation and on January 17, 1928 reported to the
Senate its recommendation that Smith not be seated. The
committee concluded that Smith's election was tainted with
fraud and corruption because he had received campaign
contributions from public service corporations in Illinois
while he was chairman of the state agency that regulated
them. The Senate agreed and on January 19, 1928 voted 61 to
23 to deny Smith a seat. Smith resigned from office on
February 9, 1928. Otis F. Glenn was elected to fill the
vacancy, and took his seat December 3, 1928.

3. William S. Vare (1926-29)

William S. Vare, the Republican nominee for the Senate from
Pennsylvania, also won the November 1926 general election
despite the negative publicity surrounding the Special
Committee's investigation of his primary win. His opponent in
the general election, Democrat William B. Wilson, filed a
petition challenging Vare's credentials, alleging corruption
by Vare's supporters in the general election. Wilson's
allegations included ``padded registration lists, `phantom'
voters who were actually dead or imaginary, criminal misuse
of campaign funds, and voter intimidation.''\13\ The
Committee on Privileges and Elections conducted an
investigation of Vare's general election campaign that
supplemented the Special Committee's investigation into
his primary victory. On February 22, 1929, the Special
Committee, after an almost three-year probe, reported to
the Senate its unanimous recommendation that Vare should
not be seated because of the evidence of corruption it had
uncovered, including thousands of instances of fraudulent
registration. On December 5, 1929, the Committee on
Privileges and Elections reported to the Senate its
contrary determination that Vare's election was lawful.
After a

[[Page S8769]]

day of debate, the Senate voted on December 6, 1929, by a
margin of 66 to 15, that William Wilson had not been
elected, and, by a margin of 58 to 22, that Vare should be
denied a seat. On December 12, 1929, Joseph R. Grundy took
Vare's seat by appointment.

C. Recent challenges

Since 1992, three Senate elections have been contested, but
in none of these cases has the election result been
overturned. In 1992, two petitions were filed asking the
Senate to seat Senator-elect Coverdell conditionally pending
the resolution of legal complaints concerning his election.
One petition, filed by four Georgia citizens, asked that
Senator-elect Coverdell be seated conditionally pending the
resolution of a federal lawsuit brought by the four
petitioners and Public Citizens, Inc. challenging the
constitutionality of a Georgia law requiring a run-off
between the top two candidates where no single candidate has
won a majority in the general election. The second petition,
filed by three Georgia citizens, asked the Senate to seat
Senator-elect Coverdell conditionally until the Federal
Election Commission (``FEC'') had an opportunity to
investigate a complaint filed by the Democratic Senate
Campaign Committee (``DSCC'') charging that the National
Republican Senatorial Committee (``NRSC'') had exceeded
campaign spending limits during the Georgia run-off election.
Senator Coverdell was sworn in with accompanying language
noting that he was being seated ``without prejudice'' to the
Senate's right to consider the petitions before it.\14\
Public Citizen's lawsuit challenging the constitutionality of
the 1992 run-off election was dismissed by a federal district
court in March 1993. The district court's decision was upheld
on appeal in June 1993. In April 1995, the FEC concluded that
it could not reach a verdict with respect to the charge that
the NRSC had overspent during the run-off election.\15\ The
Rules Committee took no official action on the petitions.
Also in 1992, several petitions contesting the election of
Senator Packwood were filed by Oregon voters. These
petitions, later consolidated, argued that Senator Packwood
had lied to the voters regarding his mistreatment of women
and had thereby ``defrauded'' the electorate. The petitions
asked that the election result be set aside. Like Senator
Coverdell, Senator Packwood was seated without prejudice to
the Senate's right to review the petitions.\16\ By a vote of
16-0, the Rules Committee dismissed the petitions against
Senator Packwood in May 1993. While the Committee did not
formally report to the Senate, the Chairman advised the
Senate of the Committee's decision not to proceed further
with the inquiry and the Senate took no action.\17\
Finally, in 1994 California Senatorial candidate Michael
Huffington filed a petition contesting the election of
Senator Dianne Feinstein. In his petition, Huffington argued
that some of the votes cast for Senator Feinstein were
invalid and that he had won a majority of the valid ballots
cast. Senator Feinstein was sworn in ``without prejudice'' to
the Senate's right to consider the petitions before it.\18\
Huffington withdrew his petition before the Rules Committee
could report to the Senate.\19\

iii. senate procedures in contested election cases

Unlike the House of Representatives, whose election
contests are governed in part by codified procedures,\20\
``[t]he Senate has never perfected specific rules for
challenging the right of a claimant to serve.'' \21\ Rather,
Senate ``practice has been to consider and act upon each case
on its own merits, although some general principles have
evolved from the precedents established.'' \22\ A discussion
of those general principles is set forth below.

A. Beginning the election contest

Senate election contests are most frequently begun with the
filing of a petition by the losing candidate, addressed to
the Senate, protesting the seating of the contestee and
asserting a right to the seat in question. However, there is
no requirement that the protest be made by a losing
candidate. Petitions have also been filed by interested
voters in the state,\23\ and in Steck v. Brookhart, discussed
above in section II, a protest was filed not only by the
unsuccessful Democratic candidate, but by the state's
Republican committee as well, which maintained that the
certified winner of the election was not a proper party
member.\24\ Although no rule exists, recent practice has been
to file the petition with the President of the Senate.\25\ On
other occasions, the petition has been sent to various
members of the Senate majority and minority leadership.\26\
Petitions of contest are not the only means available for
instituting an election contest. A member may offer a
resolution calling for an investigation of an election.\27\
In addition, the Committee on Rules and Administration has
asserted its right to investigate an election contest upon
its own motion.\28\ Recent Senate practice has been to
refrain from investigating a contested election until the
state has conducted its own review or recount, where such
state remedies were available.\29\

B. Senate action upon filing of petition

1. The Decision to Seat

If a petition of contest is filed in advance of the
presentation of credentials and swearing-in of senators-elect
on the opening day of a new Congress,\30\ the Senate must
decide whether to seat the certified senator-elect pending
resolution of the election contest. The practice of the
Senate has generally been to treat a state certification that
appears proper on its face \31\ as prima facie evidence
that the member-elect is entitled to a Senate seat, and to
seat him pending determining of his right to office:
``[T]he orderly and constitutional method of procedure in
regard to administering the oath to newly elected Senators
[is] that when any gentleman brings with him or presents a
credential consisting of the certificate of his due election
from the executive of his State he is entitled to be sworn
in, and that all questions relating to his qualification
should be postponed and acted upon by the Senate
afterwards.'' \32\
Although this has been the usual Senate practice, the
Senate retains its discretion to look behind such credentials
and to refuse to seat a member-elect until it completes its
adjudication of the election contest. For example, in the
1927 contest of Wilson v. Vare for a Pennsylvania Senate
seat, discussed above in section II, the Senate asked the
certified senator-elect, William Vare, to step aside. The
Senate refused to seat Vare until a special committee,
previously formed to investigate excessive expenditures and
corrupt practices in the 1926 senatorial campaigns in
Pennsylvania and Illinois, had completed its investigation
and made its final report.\33\ This exercise of power was
upheld in a case arising out of the Vare investigation, Barry
v. U.S. ex rel. Cunningham,\34\ in which the Supreme Court
held that the Senate had the discretion to decide whether to
accept Vare's credentials and administer him the oath,
pending adjudication of the election contest.\35\
The Senate most recently refused to seat a member-elect
presenting state credentials in the 1975 election contest
between John Durkin and Louis Wyman for a New Hampshire
Senate seat, also discussed above in Section II. A
certificate of election had been issued to Durkin, but, after
a recount, the certificate was rescinded and reissued to
Wyman. At the swearing-in of new members-elect, both Wyman
and Durkin were asked to stand aside,\36\ and the
certificates were referred to the Committee on Rules and
Administration.\37\ After neither the Rules Committee nor the
full Senate was able to resolve the dispute, the seat was
ultimately declared vacant.\38\
The more common practice in recent years has been to seat
the certified member-elect against whom a petition of contest
has been filed, but to administer the oath of office to him
``without prejudice.'' \39\ The effect of administering the
oath without prejudice is, it has been said, ``a two-sided
proposition--without prejudice to the Senator and without
prejudice to the Senate in the exercise of its right.'' \40\
The ``right'' of the Senate is its right, by majority vote,
to later unseat the member or affirm his membership after the
issues respecting his right to the seat are resolved.\41\ The
most recent explanation of this practice came from then
Majority Leader Dole at the beginning of the 104th
Congress in connection with administering the oath to
Senator-elect Feinstein, whose election had been
challenged by her opponent. It was Senator Dole's view
that the phrase ``without prejudice'' had no effect upon
the rights of the Senator to act as a Senator, or the
rights of the Senate to act as the judge of the Senator's
election:
``The oath that will be administered to Senator Feinstein,
just as the oath that will be administered to all other
Senators-elect, will be without prejudice to the Senate's
constitutional power to be the judge of the election of its
members. . . . [T]he making of this statement [that the oath
is administered ``without prejudice''] prior to the swearing
in of a challenge[d] Senator-elect serves the purpose of
acknowledging formally that the Senate has received an
election petition and that it will review the petition in
accordance with its customary procedures.''--141 Cong. Rec.
S4 (daily ed. Jan. 4, 1995).\42\

2. Reference to committee

The petition of contest and other papers that have been
filed relating to an election contest are referred to the
Committee on Rules and Administration for investigation and
recommendations.\43\ The committee has jurisdiction over
``[c]redentials and qualifications of Members of the Senate
[and] contested elections'' \44\ Under the rules of the
Senate, standing committees continue in existence and
maintain their power during the recesses and adjournments of
the Senate.\45\ The committee, on the basis of this rule and
the Senate precedents that underlie it, has asserted its
power to continue investigations without interruption during
periods of adjournment.\46\ The committee has also began
investigations of election contests in advance of the
convening of the Congress to which the member-elect was
elected.\47\

C. Committee practice and procedure

1. Pleadings before the committee

In most election cases, the protest takes the form of a
petition and complaint, similar to that in a lawsuit,
describing in varying detail the grounds upon which the
challenge is based. The contestee files a response, typically
in the form of an answer or an answer combined with a motion
to dismiss. The parties may submit follow-up replies, and in
some cases the contestant, either on his own or upon the
request of the committee, may file one or more amended
complaints. In addition to formal pleadings, the parties may

[[Page S8770]]

submit various legal memoranda on issues relevant to the
investigation, for example, on questions concerning the scope
and applicability of the state's election laws.\48\

2. Committee hearings

Committee hearings may be held not only in Washington, but
also at the site of the election\49\ The parties and their
counsel are generally permitted an active role in
these hearings. Either the contestants or their counsel
typically make opening statements,\50\ and counsel may be
permitted to make subsequent legal arguments and otherwise
present their client's positions during the hearings.\51\
The parties may be permitted to call witnesses,\52\ and
counsel may be given the right to question and cross-
examine witnesses themselves.\53\ As might be expected
given the politically charged nature of the issues that
may arise in these disputes, hearings may be lengthy,
particularly if a recount is conducted. For example, the
Rules Committee held 46 sessions and 698 rollcall votes in
its attempt to resolve the Durkin v. Wyman content.\54\

3. Committee recount procedures

In many cases, the nature of the protest is such that the
committee will not engage in a recount. In some cases, no
recount will be requested by the contestant. For example, in
the 1975 Edmondson v. Bellmon contest, the challenger's sole
complaint was that the voting machines in one county had been
programmed in violation of Oklahoma law.\55\ In other cases,
the committee may decide to make its recommendations
exclusively on the basis of the pleadings and other evidence
introduced by the parties, and reject any full-scale
investigation or recount.\56\ The committee may also refuse
to conduct a recount because of the contestant's failure to
exhaust available state recount procedures.\57\ The decision
to conduct a recount is generally made by the formal adoption
of a resolution by the committee; \58\ the resolution may
authorize a recount on less than a statewide basis, limited
to selected counties in the state or to a particular group of
protested ballots.\59\
The first step of a recount is to secure immediate
possession of all election records bearing on the contest.
Most Senate recounts have been conducted in Washington.\60\
Committee staff members, often together with the Sergeant at
Arms, may be sent to the state to seal all voting machines
and to bring back paper ballots, tally sheets, ballot stubs,
and other election records.\61\ In some cases, committee
subpoenas have been issued to the responsible state election
officials to obtain these records.\62\ Stringent security
precautions have been observed in transporting these
materials to Washington and in storing them during the
recount. For example, in the Durkin v. Wyman contest,
ballots were kept in a locked room in the basement of the
Russell Office Building with Capitol Police officers on
guard around the clock; two padlocks were placed on the
door, with a different key given to the ranking majority
and minority members of the committee.\63\
Often extensive field investigations may be necessary at
various stages of the recount process. Voting machines may
need to be inspected to verify that the machines accurately
recorded the votes cast and that the total votes recorded on
the machines corresponds with the number of voters listed on
the pollbooks.\64\ Registration records may need to be
examined and compared with the pollbooks to ensure that only
legally authorized voters are included in the count.\65\ In
many election cases, charges of a wide variety of election
irregularities will be at issue, such as illegal assistance
or corruption of voters, tampering with ballot boxes or voter
machines, violation of the secrecy of the ballot, and
fraudulently altered ballots. Investigation of such questions
may require a significant commitment of committee manpower.
For example, in investigating charges of violations of New
Mexico voters' constitutional right to a secret ballot in
Hurley v. Chavez, committee investigators interviewed and
obtained signed and witnessed statements from thousands of
voters throughout the state. A number of Spanish-speaking
investigators were engaged by the committee to aid in this
effort.\66\

4. Committee report and recommendations

Upon the completion of its investigation and any recount,
the committee submits to the Senate a report, together with
an accompanying resolution, recommending a final disposition
of the election contest. The report may also contain minority
views.\67\ There are several courses of action that the
committee may recommend to the Senate. The committee may
recommend that the petition of contest by dismissed.
Dismissals of contests are commonly based on the ground that
the allegations of the petition are too general to justify
committee investigation.\68\ or that even if the allegations
are accepted as true, they would be insufficient to affect
the result of the election.\69\ Alternatively, based upon its
investigation, the committee may recommend that a certain
candidate has received a majority of the valid votes and
should be declared the winner.\70\ Finally, the committee may
conclude that no winner can be determined, and recommend that
the election be set aside and the seat declared vacant so
that a special election can be held.
However, in the two most recent Senate contested election
cases in which the full Senate has acted, both occurring
during the 94th Congress, the committee was unable to agree
upon recommendations for final disposition of the contests.
As noted in the Durkin v. Wyman contest, the inability of the
committee to resolve the numerous issues on which it was
evenly divided prevented it from reaching agreement on a
final recommendation; the committee was able only to report a
resolution seeking Senate determination of the issues upon
which the committee had deadlocked.\72\ In the Edmondson v.
Bellmon contest the committee found that the Oklahoma
election laws had been violated and that those violations
could have affected the results of the election, but it was
unable to determine who would have won the election had the
violations of law not occurred. The committee reported a
resolution requesting that the Senate determine the
outcome of the election.\73\ A minority report, which
charged that the majority report was partisan, recommended
that the challenge be dismissed. After four days of
debate, the Senate voted 47 to 46 to table the majority's
resolution. By voice vote the Senate then declared that
the state-certified victor should keep his seat.

D. Standard of review

The contestant in an election has the burden of proof to
establish, by a preponderance of evidence,\74\ the
allegations raised in his petition. Sufficient evidence must
be offered to overcome the presumption that the official
returns are prima facie evidence of the regularity and
correctness of the election\75\ and that election officials
have properly performed their legal duties.\76\ Not only must
the contestant overcome these presumptions of regularity, but
he must affirmatively establish that the irregularities
complained of would affect the result of the election.\77\ In
addition to these general standards, common to all election
contests, the committee will often adopt detailed evidentiary
presumptions to govern its consideration of the factual
issues that may be raised in a particular contest.\78\

E. Application of State election laws

The Senate has generally attempted to observe state
election laws in resolving election contests. However, as the
final judge of its elections, the Senate is not bound by
state election laws, and has exercised its power to disregard
those laws, especially in instances where their technical
application would invalidate the will of the voters.\79\ As
Senator Cannon stated about the Senate's investigation of the
Durkin v. Wyman contest, ``The U.S. Senate, as the final
judge or arbiter of elections, returns, and qualifications of
its Members, is not bound by the statutes and case law of a
State, although the committee has consistently given weight
to the New Hampshire law consistent with the attempt to
determine the intent of the voter.'' \80\ In determining
whether to give effect to state election laws, a distinction
is often drawn between ``directory'' and ``mandatory''
provisions of state law. ``Mandatory'' provisions affecting
the right of suffrage itself have been more strictly followed
than ``directory'' provisions, such as those governing
ministerial functions of state election officials and
technical requirements concerning the manner of marking
ballots.

F. Senate disposition

Election contests are generally disposed of, following
floor consideration and debate, pursuant to Senate
resolution. A resolution from the committee disposing of a
contested election case is highly privileged; it does not
have to lie over a day and has precedence over most
unfinished business or motions.\81\ The parties to the
election contest, including bona fide claimants and senators-
elect who have not been permitted to take the oath of
office, are usually granted floor privileges during the
debate on the election contest;\82\ occasionally, they
have even been granted the privilege of addressing the
Senate to present their case. \83\
The Senate may adopt a resolution dismissing the complaint;
such resolutions are frequently adopted by unanimous consent
with little or no floor debate.\84\ If a senator-elect who
has previously been sworn in is determined by the Senate to
be entitled to the seat, the resolution will declare that he
was duly elected for a six-year term as of the date he
received the oath.\85\ Where the contestant is declared the
winner and the incumbent is unseated, or if no one had
earlier been sworn in, upon adoption of the resolution, the
prevailing party has been immediately given the oath of
office and seated.\86\ In most instances, where the Senate
has determined that the state-certified victor should not be
seated, it has declared the seat vacant.\87\

G. Reimbursement of election contest expenses

The Senate has by resolution authorized the payment of
expenses incurred by the parties in contested election
cases.\88\ Reimbursement is not automatic, however, and the
Senate has refused to authorize payment of expenses even in
instances where the committee recommended such payment.\89\
Most of these resolutions authorizing reimbursement specify
the amount of the payments, typically less than the actual
expenses incurred by the parties during the contest. In the
Durkin v. Wyman contest, however, the resolution authorized
payments out of the contingent fund of the Senate to
reimburse both Durkin and Wyman in an amount to be determined
by the committee.\90\

duration of contested election cases

Investigations

Edmondson v. Bellmon, Oklahoma, 1975 election: 18 months;
investigation delayed 9 months during New Hampshire case.
Hurley v. Chavez, New Mexico, 1952 election: 15 months;
fraud investigation.

[[Page S8771]]

Tydings v. Butler, Maryland, 1950 election: 8 months;
campaign finance and slander investigation.
Sweeney v. Kilgore, West Virginia, 1948 election: 18
months; fraud investigation.
Hook v. Ferguson, Michigan, 1948 election: 9 months; fraud
investigation.
Long and Overton, Louisiana, 1932 election: 20 months;
fraud investigation by special committee.
Heflin v. Bankhead, Alabama, 1930 election: 17 months;
fraud investigation.
Smith, Illinois, 1926 election: 20 months; campaign finance
and bribery investigation by special committee.
Wilson v. Vare, Pennsylvania, 1926 election: 3\1/2\ years;
fraud and campaign finance investigation by special
committee.
Peddy v. Mayfield, Texas, 1992 election: Over 2 years;
fraud investigation and recount.
Ford v. Newberry, Michigan, 1918 election: 3\1/2\ years;
fraud and campaign finance investigation.

Recounts

Durkin v. Wyman, New Hampshire, 1975 election: 9 months.
Markey v. O'Conor, Maryland, 1946 election: 16 months.
Steck v. Brookhart, Iowa, 1924 election: 15 months.
Note--dates measured from date of election.

------------------------------------------------------------------------
Any Committee
Action Taken
Case During Sine Die State Certified
Adjournment of Candidate Seated?
Congress?
------------------------------------------------------------------------
Steck v. Brookhart............... Yes............... Yes.
Durkin v. Wyman.................. Yes............... No.
William Lorimer.................. Yes............... Yes.
Frank L. Smith................... Yes............... No.
Wilson v. Vare................... Yes............... No.
------------------------------------------------------------------------

footnotes

\1\ U.S. Const. art. I, Sec. 5, cl. 1.
\2\ Ford v. Newberry, S. Rep. No. 277, pt. 1, 67th Cong. 1st
Sess. 9 (1921).
\3\ Roudebush v. Hartke, 405 U.S. 15, 19 (1972).
\4\ 277 U.S. 376, 388 (1928).
\5\ See generally United States Senate Election, Expulsion
and Censure Cases 1793-1990, S. Doc. No. 33, 103d Cong., 1st
Sess. (1995) (hereafter ``Senate Election Cases''). This
publication, compiled by the Senate Historian's Office,
contains a brief description of all Senate election,
expulsion, and censure cases during the period 1793 to 1990.
\6\ Two involve the unseating of Senators who were found
ineligible under the Constitutional requirement that a
Senator be a U.S. citizen for nine years; see Senate Election
Cases at 3 (Albert Gallatin, 1793-94) and 54 (James Shields,
1849); and two others involve challenges to the method to
elect U.S. Senators used by state legislatures prior to the
1913 ratification of the Seventeenth Amendment, id. at 74
(James Harlan, 1855-57) and 127 (John Stockton, 1865-66).
\7\ Id. at 424 (John A. Durkin v. Louis C. Wyman, 1974-75);
id. at 333 (Frank L. Smith, 1926-28); id. 328 (William B.
Wilson v. William S. Vare, 1926-29); id. at 283 (William
Lorimer, 1910-12); id. at 129 (John P. Stockton, 1865-66);
id. at 76 (James Harlan, 1855-57); id. at 55 (James Shields,
1849); id. at 4 (Albert Gallatin, 1793-94).
\8\ The Senate has maintained consistently the majority's
position. See infra at 26, 27.
\9\ S. Rep. No. 942, pt. 1, 61st Cong., 3d Sess. 2 (1910).
\10\ S. Rep. No. 769, 62d Cong., 2d Sess. 91 (1912).
\11\ Id. at 100-14.
\12\ See id. at 101 (noting that one of the bribed
legislators had successfully blackmailed Lorimer to obtain
employment, and that an ``innocent [man] would indignantly
have refused to have anything else to do with such a
blackmailer.'')
\13\ Senate Election Cases at 325.
\14\ 139 Cong. Rec. S4-S7 (daily ed. Jan. 5, 1993). As
discussed below, see discussion infra at 17, such qualifying
language probably has no legal effect.
\15\ However, the FEC found that Senator Coverdell's 1992
campaign committee had accepted $66,000 in improper
contributions from 95 people. The FEC fined the committee
$32,000 and directed it to return the improper contributions.
\16\ 139 Cong. Rec. S4-S7 (daily ed. Jan. 5, 1993).
\17\ See 139 Cong. Rec. S6294 (daily ed. May 21, 1993)
(statement of Senator Ford).
\18\ 141 Cong. Rec. S4 (daily ed. Jan. 4, 1995).
\19\ Michael Doyle, Huffington Concedes Nov. 8 Senate Race,
The Fresno Bee, Feb. 8, 1995, at A3.
\20\ The Federal Contested Election Act of 1969, 2 U.S.C.
Sec. Sec. 381-396 (1994). Prior to 1969, House election
contests were governed by the provisions of the Contested
Elections Act, 2 U.S.C. Sec. Sec. 201-226 (repealed), which
derived from the Act of Feb. 19, 1851, ch. 11, 9 Stat. 568.
\21\ Senate Election, Expulsion and Censure Cases from 1793
to 1972, S. Doc. No. 7, 92d Cong., 1st Sess. vii (1972).
\22\ Id.
\23\ See William Langer, S. Rep. No. 1010, 77th Cong., 2d
Sess. 1 (1942). Following the 1992 election, five groups of
Oregon voters filed petitions with the Senate contesting the
election of Senator Robert Packwood, charging that he had
engaged in election fraud by lying during the campaign about
his treatment of women.
\24\ Steck v. Brookhart, S. Rep. No. 498, 69th Cong., 1st
Sess. 2 (1926).
\25\ See, e.g., In the Matter of the United States Seat from
California in the 104th Congress of the United States (1994)
(petition filed by Michael Huffington contesting the election
of Senator Dianne Feinstein); Petition to Deny Seating to, or
Seat Conditionally, Senator Bob Packwood (1992) (filed by
Oregon voter Keith Skelton); Petition by Certain Voters and
Citizens of the State of Oregon (1992) (also contesting the
election of Senator Packwood).
\26\ Petition Challenging the Election of Paul Coverdell
(1993) (filed by three Georgia citizens).
\27\ Investigations of improper campaign expenditures and
corrupt practices have often been instituted in this manner.
See, e.g., Frank L. Smith, Senate Election Cases, supra note
5, at 330-33; Wilson v. Vare, id. 323-29.
\28\ See Hurley v. Chavez, S. Rep. No. 1081, 83d Cong., 2d
Sess. 2 (1954).
\29\ See S. Rep. No. 597, 94th Cong., 2d Sess. 8 (1976)
(Edmondson v. Bellmon); S. Rep. No. 156, part 2, 94th Cong.,
1st Sess. 3-6 (1975) (Durkin v. Wyman); Senate Election Cases
at 419 (Roudebush v. Hartke, 1970-72); id. at 399 (Hurley v.
Chavez, 1952-54). See also S. Rep. No. 802, 81st Cong., 1st
Sess. 9 (1949) (Sweeney v. Kilgore) (where contestant had
withdrawn his request for a recount by the state, the
Subcommittee did not conduct a recount in keeping ``with the
policy of the subcommittee to conduct no recount in any State
wherein the laws of that State provide for a recount by
candidates for United States Senator.''). But see Senate
Election Cases at 391-93 (Tydings v. Butler, 1950-51) (no
effort to pursue state remedies where Senate was conducting a
hearing and investigation into allegations of campaign
irregularities, including slander and smear tactics).
Following the 1994 general election, Michael Huffington
contested the election of Senator-elect Dianne Feinstein in
the Senate without first seeking a recount in California.
Huffington later withdrew his Senate petition before the
Rules Committee could report to the Senate. See Susan
Yoachum, Huffington Concedes, Drops Voter Challenge, S.F.
Chron., Feb. 8, 1995, at A3; Michael Doyle, Huffington
Concedes Nov. 8 Senate Race, The Fresno Bee, Feb. 8, 1995, at
A3.
\30\ There is no such requirement; petitions are frequently
filed after the contestee has been seated. See, e.g., Hook v.
Ferguson (1949), Senate Election Cases, supra note 5, at 386.
\31\ The Senate has adopted forms of suggested certificates
of election and appointment of senators. See Rule 2.3,
Standing Rules of the Senate, S. Doc. 8, 104th Cong., 1st
Sess. 2 (1994). Credentials should be signed by the governor
and attested by the secretary of state of the state in which
the election was held.
\32\ 37 Cong. Rec. 1 (1903) (statement of Sen. Hoar). See
also Riddick's Senate Procedure, S. Doc. No. 28, 101st Cong.,
2d Sess. 704 (Alan S. Frumin ed., rev. ed. 1992) (``Under
orderly procedure, a Senator-elect, upon presentation of
credentials, should be sworn in, and all matters touching his
qualifications should be determined thereafter.''); Senate
Election Cases, supra note 5, at xviii.
\33\ 60 Cong. Rec. 4, 337-38 (1927). As discussed above in
Section II, the certified senator-elect from Illinois, Frank
L. Smith, was also asked to step aside, based upon similar
indications for fraud and corruption discovered by the
special committee. See Senate Election Cases, supra note 5,
at 333. The Senate has also refused to seat members-elect
presenting credentials in a number of cases predating the
adoption of the Seventeenth Amendment in 1913. In many of
these cases, the credentials were invalid for reasons either
apparent on their face or otherwise within the knowledge of
the Senate, for example, because a governor was attempting to
make an appointment to fill a vacancy which had not been
filled by the legislature while it was in session. E.g.
Matthew Quay (1899), id. at 261-62; Henry W. Corbett (1897),
id. at 253-55; Lee Mantle (1893), id. at 243-45. A number of
cases involved instances where more than one candidate
presented credentials for a seat. E.g., Lucas v. Faulkner
(1887), id. at 230-31; Reynolds v. Hamilton (1870), id. at
164-65; Stanton v. Lane (1861), id. at 92-94. Many occurred
during the Civil War when there was concern about seating
senators disloyal to the Union cause or senators representing
states in a state of rebellion. E.g., Fishback, Baxter and
Snow (1864), id. at 117-20; Cutler Smith and Hahn (1864), id.
at 121-23; Segar and Underwood (1865), id. at 124-26.
\34\ 279 U.S. 597 (1929).
\35\ Id. at 614-15.
\36\ 121 Cong. Rec. 4-5 (1975).
\37\ 121 Cong. Rec. 1495 (1975).
\38\ 121 Cong. Rec. 25960-61 (1975). See generally, D.
Tibbetts, The Closest U.S. Senate Race in History (1976).
\39\ See, e.g., 141 Cong. Rec. S4 (daily ed. Jan. 4, 1995)
(Senator-elect Feinstein); 139 Cong. Rec. S4-S7 (daily ed.
Jan. 5, 1993) (Senators-elect Coverdell and Packwood); 121
Cong. Rec. 8 (1975) (Senator-elect Bellmon); 117 Cong. Rec. 6
(1971) (Senator-elect Hartke); 110 Cong. Rec. 18120 (1964)
(Senator-elect Salinger) (appointee); 97 Cong. Rec. 3 (1951)
(Senator-elect Butler).
\40\ 87 Cong. Rec. 3 (1941) (statement of Senator Barkley on
the seating of Senator-elect Langer).
\41\ See 87 Cong. Rec. 4 (1941) (ruling of the presiding
officer that ``[i]f this agreement is entered into, only a
majority of the Senate will be required to pass on the
qualifications of the Senator-elect'').
\42\ Democratic Leader Senator Daschle added his concurrence
to Senator Dole's remarks. Id. In 1993 Senators Coverdell and
Packwood took the oath of office while challenges to their
election were pending. At that time, Senator Dole, as
Republican Leader, stated his view that ``the phrase `without
prejudice' used today is of course meaningless, in its effect
upon any subsequent Senate action.'' 139 Cong. Rec. S7 (daily
ed. Jan. 4, 1993).
\43\ See, e.g., 121 Cong. Rec. 8 (1975) (referral of petition
of contest and reply in Edmondson v. Bellmon contest).
Election contests were often initially heard by the
Subcommittee on Privileges and Elections of the Rules
Committee; that subcommittee was disbanded in 1977. Election
contests during the period 1871-1946 were referred to the
Committee on Privileges and Elections; prior to 1871, such
disputes were usually referred to special committees or to
the Committee on the Judiciary. In this section of this
memorandum, the term ``committee'' will be used generally to
refer to the Rules Committee and its predecessor committees.
\44\ Rule 25.1(n)(1)(4), Standing Rules of the Senate, S.
Doc. No. 104-8, supra note 31, at 30 (1944).
\45\ Rule 26.1, Standing Rules of the Senate, S. Doc. No.
104-8, supra note 31, at 36.
\46\ See 121 Cong. Rec. 1472 (1975) (statement of Sen.
Allen); Senate Election, Expulsion and Censure Cases From
1909-1960, S. Doc. No. 71, 87th Cong., 2d Sess. viii (1962).
\47\ See Durkin v. Wyman, S. Rep. No, 94-156, part 2, supra
note 29, at 5-6.
\48\ See, e.g., Senator from Oklahoma: Hearings Before the
Subcomm. on Privileges and Elections of the Senate Comm. on
Rules and Administration, 94th Cong., 1st Sess. 221-464
(1975) (hereinafter ``Edmondson v. Bellmon Hearings'')
(collecting together pleadings and memoranda of contestants).
\49\ For example, in the Edmondson v. Bellmon contest,
committee staff members held hearings in Oklahoma, which were
followed with hearings before the committee in Washington. S.
Rep. No. 94-597, supra note 29, at 5-6 (1976).
\50\ See, e.g., Edmondson v. Bellmon Hearings, supra note 48,
at 11-47; Senator from New Hampshire: Hearings Before the
Subcomm. on Privileges and Elections of the Senate Comm. on
Rules and Administration, 93d Cong., 2d Sess. 136-205 (1975)
(hereafter ``Durkin v. Wyman Subcommittee Hearings''); Steck
v. Brookhart, S. Rep. No. 69-498, supra note 24, at 5.
\51\ See Durkin v. Wyman, S. Rep. No. 94-156, part 1, supra
note 29, at 2; Senator from New Mexico: Hearings Before
Subcomm. on Privileges and Elections of the Senate Comm. on
Rules and Administration, 83d Cong., 1st Sess. 159-82 (1953)
(hereafter ``Hurley v. Chavez Hearings'') (argument of
counsel on motion of dismiss).
\52\ See Edmondson v. Bellmon Hearings, supra note 48, at 49-
50.
\53\ See Steck v. Brookhart, S. Rep. No. 69-498, supra note
24, at 6-7; Johnson v. Schall, S. Rep. No. 1021, 69th Cong.,
1st Sess. 3-8 (1926).
\54\ S. Rep. No. 94-156, part 1, supra note 29, at 2. This
was in addition to hearings held by the Subcommittee on
Privileges and Elections. See Durkin v. Wyman Subcommittee
Hearings, supra note 50.

[[Page S8772]]

\55\ S. Rep. No. 94-597, supra note 29, at 3-5.
\56\ See Willis v. Van Nuys, S. Rep. No. 281, 76th Cong., 1st
Sess. 8 (1939) (rejecting recount because of the absence of a
prima facie showing that it might result in unseating of the
contestee); Bursum v. Bratton, S. Rep. No. 724, 69th Cong.,
1st Sess. 7-10 (1926) (recount unjustified because no
preliminary evidence was offered tending to cast doubt upon
the accuracy of the official returns).
\57\ See Sweeney v. Kilgore, S. Rep. No. 81-802, supra note
29, at 9.
\58\ See, e.g., Hurley v. Chavez, S. Rep. No. 83-1081, supra
note 28, at 265.
\59\ For example, in the Durkin v. Wyman contest, the
committee ordered a recount of the approximately 3,500
ballots that had been before the state ballot law commission.
S. Rep. No. 94-156, part 2, supra note 29, at 8. The
committee may also begin with a limited recount to determine
if there are sufficient grounds for a wider investigation and
state-wide recount. See O'Conor v. Markey, S. Rep. No. 1284,
80th Cong., 2d Sess. 3, 11-12 (1948) (preliminary five-county
recount subsequently widened to state-wide recount in light
of trend reducing incumbent's lead).
\60\ An alternative approach is to count the ballots at
locations in the state, and only bring to Washington those
ballots remaining in dispute for committee review. See
O'Conor v. Markey, S. Rep. No. 80-1284, supra note 59, at 3.
\61\ See Durkin v. Wyman, S. Rep. No. 94-156, part 1, supra
note 29, at 4; Heflin v. Bankhead, S. Rep. No. 568, 72d
Cong., 1st Sess. 36 (1932); Peddy v. Mayfield, S. Rep. No.
973, 68th Cong., 2d Sess. 3 (1925).
\62\ See Hurley v. Chavez, S. Rep. No. 83-1081, supra note
28, at 75; Steck v. Brookhart, S. Rep. No. 69-498, supra note
24, at 2.
\63\ D. Tibbetts, supra note 38, at 60.
\64\ See Durkin v. Wyman, S. Rep. No. 94-156, part 1, supra
note 29, at 35; Hurley v. Chavez, S. Rep. No. 83-1081, supra
note 28, at 276.
\65\ Hurley v. Chavez, id. at 55.
\66\ Id. at 16. In the Sweeney v. Kilgore contest, 22
investigators hired by the committee spent a total of 7,006
man-days over a period of 18 months conducting field
investigations. S. Rep. No. 81-802, supra note 29, at 6.
\67\ See Edmondson v. Bellman, S. Rep. No. 94-597, supra note
29, at 27-50; Steck v. Brookhart, S. Rep. No. 69-498, supra
note 24, at 23-33.
\68\ See Pritchard v. Bailey, S. Rep. No. 1151, 72d Cong., 2d
Sess. 1 (1933); Hoidale v. Schall, S. Rep. No. 1066, 72d
Cong., 2d Sess. 6 (1933).
\69\ See Willis v. Van Nuys, S. Rep. No. 76-281, supra note
56, at 2; Heflin v. Bankhead, S. Rep. No. 72-568, supra note
61, at 20-21.
\70\ E.g., Sweeney v. Kilgore, S. Rep. No. 81-802, supra note
29, at 18; Hook v. Ferguson, S. Rep. No. 801, 81st Cong., 1st
Sess. 1 (1949); O'Conor v. Markey, S. Rep. No. 80-1284, supra
note 59, at 17; Steck v. Brookhart, S. Rep. No. 69-498, supra
note 24, at 15; Bursum v. Bratton, S. Rep. No. 69-724, supra
note 56, at 10.
\71\ See Hurley v. Chavez, S. Rep. No. 83-1081, supra note
28, at 5. The Senate rejected the committee's recommendation
and permitted Chavez to retain his seat.
\72\ S. Rep. No. 94-156, part 1, supra note 29, at 1.
\73\ S. Rep. No. 94-597, supra note 29, at 1-2.
\74\ Although the standard has not been expressly stated by
the committee in these terms, this would appear to be the
most accurate characterization of the burden of proof that
the committee has applied in election contests. See, e.g.,
Wilson v. Vare, S. Rep. No. 47, 71st Cong., 2d Sess. 2 (1929)
(``it must be found, not beyond a reasonable doubt, perhaps,
but it must be the conviction of reasonable men, at least,
that the proof sustained the charges'').
\75\ Pritchard v. Bailey, S. Rep. No. 72-1151, supra note 68,
at 1.
\76\ O'Conor v. Markey, S. Rep. No. 80-1284, supra note 59,
at 14; Wilson v. Vare, S. Rep. No. 71-47, supra note 74, at 5
(1927); Sweeney v. Kilgore, S. Rep. No. 81-802, supra note
29, at 7.
\77\ Id. at 18; Edmondson v. Bellmon, S. Rep. No. 94-597,
supra note 29, at 22; Heflin v. Bankhead, S. Rep. No. 72-568,
supra note 61, at 21; Senate Election Cases, supra note 5, at
384 (In Sweeney v. Kilgore, the committee found that
fraudulent ballots did not effect the outcome of the
election; therefore, the committee recommended that the
state-certified victor retain his seat.).
\78\ For example, in the Hurley v. Chavez contest, the
committee adopted a number of evidentiary presumptions to
govern its recount. Two examples are illustrative. The
recount rules provided that, absent direct or circumstantial
proof to the contrary, any erasure marks on a ballot would be
treated as made by the voter and the ballot would be thrown
out. On the other hand, where a ballot had been mutilated or
had its secret number exposed, absent proof to the contrary,
someone other than the voter would be deemed responsible and
the vote would be counted. S. Rep. No. 83-1081, supra note
28, at 268.
\79\ Likewise, the Senate is not bound by the decisions of
state courts or the results of state recount proceedings,
though such state determinations are often accorded ``great
weight.'' Johnson v. Schall, S. Rep. No. 69-1021, supra note
53, at 9. For additional references, see supra note 29.
\80\ 121 Cong. Rec. 18620 (1975).
\81\ See 84 Cong. Rec. 3611 (1939) (statement of Sen.
George); 76 Cong. Rec. 3544 (1933) (statement of President
pro tempore). See also Riddich's Senate Procedure, supra note
32, at 706.
\82\ Id. at 560. In the Durkin v. Wyman contest, both
parties, together with their counsel, were permitted to sit
in the rear of the Senate chamber during the debate. See D.
Tibbetts, supra note 38, at 123. Durkin, by unanimous
consent, was given the privilege of the floor. 121 Cong. Rec.
1472 (1975). No such motion was required for Wyman, as he
already had floor privileges as an ex-senator.
\83\ See S. Res. 2, 70th Cong., 1st Sess., 69 Cong. Rec. 338
(1927) (according William Vare ``the privileges of the floor
of the Senate for the purpose of being heard touching his
right to receive the the oath of office and to membership in
the Senate''). There were even early instances when counsel
for the parties were permitted to address the Senate. See 17
Annals of Cong. 187-207 (1808) (statement of Francis Scott
Key); id. at 207-234 (statement of R.G. Harper).
\84\ See, e.g., S. Res. 123, 76th Cong., 1st Sess., 84 Cong.
Rec. 4183 (1929) (Willis v. Van Nuys); S. Res. 115, 76th
Cong., 1st Sess., 84 Cong. Rec. 3611-12 (1929) (Neal v.
Steward); S. Res. 343, 72d Cong., 2d Sess., 76 Cong. Rec.
3544-45 (1933) (Hoidale v. Schall).
\85\ See S. Res. 142, 81st Cong., 1st Sess., 95 Cong. Rec.
10321 (1949) (Sweeney v. Kilgore); S. Res. 141, 81st Cong.,
1st Sess., 95 Cong. Rec. 10321 (1949) (Hook v. Ferguson); S.
Res. 234, 80th Cong., 2d Sess., 94 Cong. Rec. 6160 (1948)
(O'Connor v. Kilgore).
\86\ See S. Res. 194, 69th Cong., 1st Sess., 67 Cong. Rec.
7301 (1926) (Steck v. Brookhart).
\87\ See, e.g., Senate Election Cases, supra note 5, at 333
(Frank L. Smith, 1926-28); id. at 328 (William B. Wilson v.
William S. Vare, 1926-29); id. at 283 (William Lorimer, 1910-
12). But see id. at 314 (Daniel F. Steck v. Smith W.
Brookhart, 1925-26).
\88\ See e.g., S. Res. 346, 72d Cong., 2d Sess., 76 Cong.
Rec. 5008 (1933); S. Res. 256, 69th Cong., 1st Sess., 67
Cong. Rec. 12633 (1926); S. Res. 211 & 212, 69th Cong., 1st
Sess., 67 Cong. Rec. 10563-64 (1926); S. Res. (unnumbered),
47th Cong., 1st Sess., 13 Cong. Rec. 2047 (1992); S. Res.
(unnumbered), 46th Cong., 3d Sess., 11 Cong. Rec. 1911-12
(1991).
\89\ See 79 Cong. Rec. 14449-50 (1935) (declining payment of
attorney's fees for contestant and memorialists in Henyr v.
Holt election contest).
\90\ S. Res. 247, 94th Cong., 1st Sess., 121 Cong. Rec. 39861
(1975).

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