[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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