[House Report 110-177]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-177

======================================================================



 
       DISMISSING THE ELECTION CONTEST RELATING TO THE OFFICE OF 
   REPRESENTATIVE FROM THE FOURTH CONGRESSIONAL DISTRICT OF LOUISIANA

                                _______
                                

June 6, 2007.--Referred to the House Calendar and ordered to be printed

                                _______
                                

Mr. Brady of Pennsylvania, from the Committee on House Administration, 
                        submitted the following

                              R E P O R T

                       [To accompany H. Res. 462]

    The Committee on House Administration, having had under 
consideration an original resolution dismissing the election 
contest relating to the office of Representative from the 
Fourth Congressional District of Louisiana, report the same to 
the House with the recommendation that the resolution be agreed 
to.

DISMISSING THE ELECTION CONTEST IN THE FOURTH CONGRESSIONAL DISTRICT OF 
                               LOUISIANA

    The Committee on House Administration, having had under 
consideration an original resolution dismissing the election 
contest against James Otis (``Jim'') McCrery, reports the same 
to the House with recommendation that the resolution be agreed 
to.

                            COMMITTEE ACTION

    On May 8, 2007, by voice vote, a quorum being present, the 
Committee agreed to a motion to report the resolution favorably 
to the House.

                      COMMITTEE OVERSIGHT FINDINGS

    In compliance with clause 3(c)(1) rule XIII of the Rules of 
the House of Representatives, the Committee states that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

            STATEMENT ON BUDGET AUTHORITY AND RELATED ITEMS

    The resolution does not provide new budget authority, new 
spending authority, new credit authority or an increase or 
decrease in revenues or tax expenditures. Thus, clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
the provisions of section 308(a)(1) of the Congressional Budget 
Act of 1974 are not applicable.

                           STATEMENT OF FACTS

    On December 20, 2006, Patti M. Cox (``Contestant'') filed 
with the Clerk of the House of the House of Representatives a 
Notice of Contest captioned ``Patti M. Cox, Contestant, v. 
James Otis (``Jim'') McCrery, Contestee.'' The document, 
prepared by Contestant, was filed pursuant to the Federal 
Contested Elections Act (``FCEA'').\1\
---------------------------------------------------------------------------
    \1\ 2 U.S.C. Sec. Sec. 381-96.
---------------------------------------------------------------------------
    Contestant ran as one of two Democratic candidates for the 
United States House of Representatives from the Fourth 
Congressional District of Louisiana in the general election 
held on November 7, 2006 against incumbent Republican James O. 
McCrery (``Contestee''). The other participants in the 
Congressional race were Artis R. Cash, Sr. and Chester T. 
Kelley. The returns as certified by the Secretary of State of 
Louisiana were:
          Jim McCrery 77,078 57%
          Artis R. Cash, Sr. 22,757 17%
          Patti Cox 17,788 13%
          Chester T. Kelley 16,649 12%
    Contestee, based on the certified returns, was declared the 
winner of the Fourth Congressional District seat on November 
20, 2006.

                            BASIS OF CONTEST

    In the Notice of Contest, Contestant alleges that Contestee 
was not, when elected on November 7, 2006, an inhabitant of the 
state of Louisiana within the meaning of the Qualification 
clause, Article 1 2, cl. 2, of the United States 
Constitution.\2\ Therefore Contestant claims that Contestee is 
not qualified to serve as a Representative to the Congress from 
the state of Louisiana. Contestant does not challenge the 
accuracy of the returns or allege any irregularity in the 
election.
---------------------------------------------------------------------------
    \2\ No person shall be a Representative who shall not have attained 
to the Age of twenty-five Years, and been seven Years a Citizen of the 
United States, and who shall not, when elected, be an inhabitant of the 
State in which he shall be chosen.
---------------------------------------------------------------------------
    The essence of Contestant's claim is that Contestee did not 
maintain a sufficient physical presence in Louisiana to qualify 
him as an inhabitant of the state for the purposes of the 
Qualifications clause. Contestant alleges that Contestee had no 
home apartment, habitation or other place of abode in the state 
on Election Day. According to Contestant, Contestee sold his 
home in Louisiana in July 2004 and subsequent to that date did 
not have a Louisiana residence. On his statement of candidacy 
filed with the Louisiana Secretary of State, Contestee listed 
his domicile as 10855 Longfellow Trace, Shreveport, Louisiana. 
Based on a phone call that a Dr. Kirkikis purportedly had with 
one of the owners of that property, Contestant claims that 
Contestee did not ``live'' at that address. Contestant further 
claims without any documentary support that the apartment that 
Contestee now leases in Louisiana was only leased after the 
date of the election. These allegations, if proven to be true, 
Contestant claims, would be sufficient to demonstrate that 
Contestee is not qualified to hold the office of Representative 
to the Congress from the state of Louisiana.

                         RESPONSE BY CONTESTEE

    Contestee filed a formal answer and motion to dismiss in 
response to the Notice of Contest with the Clerk of the House 
of Representatives on January 18, 2007. Contestee answers that 
he fully satisfied the inhabitancy requirement of the 
Qualification Clause. He provided an affidavit from the owner 
of the property attesting to the fact that he maintained a 
residence at 10855 Longfellow Trace, Shreveport, Louisiana 
continually from September 2004 until November 2006. He further 
provided a lease for an apartment that he currently maintains 
with a term that began on November 4, 2006 and runs through May 
31, 2007.

                          NATURE OF PROCEEDING

    The Committee finds that this contest should not have been 
brought before the House under the FCEA and should be 
dismissed.
    Under the precedents of the House, a challenge to the 
qualifications of a Member is not treated as an election 
contest. The question before the House under the Qualification 
clause is not whether the Member was duly elected but whether 
the Member notwithstanding election is constitutionally 
qualified to hold the office. Deschler's Precedents of the U.S. 
House of Representatives: (Deschler's) expressly references the 
distinction:
          A challenge to seating a Member-elect may also be 
        based on his failure to meet the constitutional 
        requirements as to citizenship, residence, or age for 
        the office, and in that context is treated as a matter 
        of ``exclusion'' and not as an election contest.\3\
---------------------------------------------------------------------------
    \3\ Deschler's Precedents, supra at Chapter 9, Sec. 9, p. 362.
---------------------------------------------------------------------------
    Deschler's set forth the procedures under which a challenge 
to the qualifications of a Member-elect is typically brought:
          Alleged failure to meet qualifications is raised, 
        usually by another Member-elect, before the House rises 
        en masse to take the oath of office. [footnote omitted] 
        If a challenge is made, the Speaker requests the 
        challenged Member-elect to stand aside. The Member 
        elect whose qualifications are in doubt may then be 
        authorized to take the oath of office pursuant to a 
        resolution so providing, which resolution may either 
        declare him entitled to the seat, or refer the question 
        of his final right to committee. [footnote omitted] The 
        House may also refuse to permit him to take the oath, 
        and may refer the question of his qualifications and 
        his right to take the oath to committee. [footnote 
        omitted] If the House finds that a Member-elect has not 
        met the qualifications for membership, or has failed to 
        remove disqualifications, a new election must be held. 
        An opposing candidate with the next highest number of 
        votes cannot claim the right to the seat.
    It is important to note that a successful challenge to the 
qualifications of a Member elect does not result in the seating 
of the opposing candidate with the highest number of voters. 
This is a critical fact in evaluating claims under the FCEA. An 
essential element of an election contest under the FCEA is that 
the contestant claims a right to the office. An individual who 
cannot claim a right to the office does not have standing to 
bring an action under the FCEA. In such circumstances a contest 
is properly dismissed.
    The Committee finds that, as a general matter, challenges 
to the qualifications of a member-elect to serve in the 
Congress are not a proper subject for a contest brought under 
FCEA. Nothing in Contestant's Notice of Contest persuades the 
Committee to re-consider its understanding of the FCEA. 
Consequently, the Committee concludes that Contestant's 
arguments regarding Contestee's qualifications to serve in 
Congress do not constitute grounds sufficient to change the 
result of the election and, therefore, recommends that this 
election contest be dismissed.
    The Committee also notes that there is no reason to 
believe, based on evidence that was presented in this contest, 
that Contestee was not an inhabitant of the state of Louisiana 
when he was elected. Indeed, the evidence submitted by the 
contestee suggests that he was in fact an inhabitant, but 
because that question is not properly before the Committee, the 
Committee makes no formal finding in that regard.

                               CONCLUSION

    For the reasons discussed above, the Committee therefore 
concludes that this contest should be dismissed.

                                  
