[Congressional Record (Bound Edition), Volume 157 (2011), Part 8]
[House]
[Pages 11382-11383]
[From the U.S. Government Publishing Office, www.gpo.gov]




     COMMUNICATION FROM THE CLERK OF THE HOUSE (H. DOC. NO. 112-44)

  The SPEAKER laid before the House the following communication from 
the Clerk of the House of Representatives; which was read and, together 
with the accompanying document, referred to the Committee on House 
Administration and ordered to be printed:

                                     House of Representatives,

                                    Washington, DC, July 19, 2011.
     Hon. John Boehner,
     The Speaker, House of Representatives,
     Washington, DC.
       Dear Mr. Speaker: I have received the following 
     correspondence regarding the election of Janice Hahn to fill 
     the vacancy of the 36th congressional district for the state 
     of California. The correspondent was not a candidate for 
     office and affirms that he is not eligible to contest the 
     election under the law. As such, I forward the correspondence 
     to the House for its disposal.
       With best wishes, I am,
           Sincerely,
                                                    Karen L. Haas,
                                                            Clerk.
       Enclosure.
                                  ____

                                                    July 18, 2011.
     Hon. Karen L. Haas,
     Clerk of the House of Representatives,
     Washington, DC.
       Dear Ms. Haas, I am protesting the election of Janice Hahn 
     in the July 12, 2011 Special Election to fill the vacancy for 
     the Thirty-Sixth Congressional District of California.
       As I was not a candidate for this election, I am not 
     eligible to challenge the election under the preferred method 
     specified by the Federal Contested Elections Act. I am, 
     however, eligible to protest the election according to 
     Chapter 9 of Volume 2 of Deschler's Precedents of the United 
     States House of Representatives which provides for a protest 
     filed by ``any other person'' to be referred to the Committee 
     on House Administration for investigation.
       The House of Representatives has the constitutional 
     authority to determine if a Member-elect is ``duly elected.'' 
     See Powell v. McCormack (1969). Further, the U.S. Supreme 
     Court made it clear that the House of Representatives is the 
     final authority to make ``an unconditional and final 
     judgment'' in determining questions regarding the elections 
     of Members of that body, and that the courts have no role in 
     reviewing any such determination. See Roudebush v. Hartke 
     (1972).
       The election referenced above was not a valid election 
     because it violated Article 1, Section 4, clause 1 of the 
     Constitution:
       ``The Times, Places and Manner of holding Elections for 
     Senators and Representatives, shall be prescribed in each 
     State by the Legislature thereof; but the Congress may at any 
     time by Law make or alter such Regulations, except as to the 
     Places of chusing Senators.''
       The Manner of holding this special election was not 
     prescribed by the California State Legislature, but rather 
     through a ballot process which amended the State 
     Constitution. Senate Bill 6 approved a ballot measure to be 
     placed for consideration before the people of the State of 
     California. This action did not prescribe the manner of 
     elections. The people of the California, and not the 
     legislature thereof, then prescribed the manner of holding 
     elections by voting in favor of Proposition 14, which 
     institutes a ``top two primary system'' within the California 
     State Constitution. The merits and shortcomings of this 
     particular system are irrelevant to the constitutional 
     question being raised. The process by which this system was 
     prescribed is a direct violation of both the letter and the 
     spirit of the U.S. Constitution.
       Further, since Proposition 14 instituted the election 
     process within the state constitution, the state legislature 
     is not able to specify a different process, should it so

[[Page 11383]]

     choose. This is also a direct violation of both the letter 
     and the spirit of the U.S. Constitution. Finally, choosing 
     the manner of holding elections is not a duty that can be 
     delegated directly to the legislature. Such delegation would 
     violate both the previously mentioned clause as well as 
     Article 4, Section 4 of the Constitution:
       ``The United States shall guarantee to every State in this 
     Union a Republican Form of Government, and shall protect each 
     of them against Invasion; and on Application of the 
     Legislature, or of the Executive (when the Legislature cannot 
     be convened), against domestic Violence.''
       As such, any election held under this process, which was 
     not prescribe by the legislature of California, is not valid 
     and the office should remain unfilled until such time as a 
     constitutional election can take place.
           Respectfully,
     Tony DeTora.

                          ____________________