[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 23. Election of Members]
[From the U.S. Government Publishing Office, www.gpo.gov]
HOUSE PRACTICE
Sec. 1. In General
Sec. 2. Campaign Practices
Sec. 3. Certificates of Election
Sec. 4. Resignations; Deaths; Filling Vacancies
Research References
U.S. Const. art. I, Sec. 5, cl. 1
1 Hinds Sec. Sec. 277-633
6 Cannon Sec. Sec. 38-89
Deschler Ch 8
Sec. 1 . In General
Generally
Although Congress has enacted extensive legislation to protect the
right to vote and to secure the process against fraud, bribery, and
illegal conduct, the actual mechanism for conducting and holding
congressional elections has been left largely to the States. Deschler
Ch 8 Sec. Sec. 5, 7. However, under article I, section 5, clause 1 of
the Constitution, the ultimate validity of elections rests on
determinations by the House and Senate as final judges of the
elections and returns of their respective Members. Deschler Ch 8
Sec. 5. Therefore, where the conduct of election officials or of
candidates and their agents constitutes fraud or illegal control of
election machinery, the House or Senate may void an election and
refuse to administer the oath to a Member-elect. Deschler Ch 8 Sec. 7;
see Deschler Ch 8 for complete treatment of elections and election
campaigns.
Apportionment and Reapportionment
Since the admission of Alaska and Hawaii to statehood, the total
membership of the House has remained fixed by statute at 435 seats.
Manual Sec. 227. By law, these 435 seats are automatically apportioned
among the States according to each decennial census. 2 USC Sec. 2a.
Under this law, a statistical model known as the ``method of equal
proportions'' is used to determine the number of Representatives to
which each State is entitled. Although other methods for apportioning
House seats may be permitted, the equal proportions method chosen by
Congress has been
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upheld under the Constitution and was plainly intended to reach as
close as practicable the goal of ``one person, one vote.''
Massachusetts v. Mosbacher, 785 F. Supp. 230 (D. Mass. 1992), rev'd on
other grounds Franklin v. Massachusetts, 505 U.S. 788 (1992). The
courts also have recently upheld under Federal law and the
Constitution a counting methodology used by the Census Bureau in a
decennial census. This method, known as ``imputation,'' was held to be
different than ``sampling,'' a method prohibited under section 195 of
title 13, United States Code. Utah v. Evans, 536 U.S. 452 (2002). The
method of apportioning the seats in the House is vested exclusively in
Congress, and neither States nor courts may direct greater or lesser
representation than that allocated by statute. Deschler Ch 8 Sec. 1.
The States create their own congressional districts, which must be
redrawn after reapportionment so that each district is as equally
populated as practicable. Manual Sec. 229.
Section 2a of title 2, United States Code, mandates the manner in
which a State must conduct an election after any apportionment but
before the State is redistricted. Section 2a addresses an election
where the number of Representatives has not changed, has increased, or
has decreased. The authority under section 2a(c) of title 2 for a
State to retain an at-large seat pending its redistricting should be
read in light of section 2c of title 2, which requires all States
entitled to more than one seat to elect representatives only from
single-Member districts. Manual Sec. 227.
Reapportionment proposals have been considered in the House, but
have no privileged status under the Constitution and cannot interrupt
the regular proceedings of the House. Deschler Ch 8 Sec. 2.
Reapportionment legislation also has been considered in the Committee
of the Whole. Deschler Ch 8 Sec. 2.5. Under clause 1(l) of rule X,
proposals relating to apportionment are within the jurisdiction of the
Committee on the Judiciary.
Sec. 2 . Campaign Practices
The power of Congress to regulate the election process extends to
the regulation of campaign practices. Deschler Ch 8 Sec. 10. The
Federal Election Campaign Act established a new and comprehensive code
for campaign practices and expenditures, and contains provisions for
investigations and enforcement. 2 USC Sec. 431.
The Federal Election Commission is the agency empowered with
primary jurisdiction over the administration, interpretation, and
civil enforcement of the Federal Election Campaign Act. Federal
Election Comm'n v. American Intern. Demographic Services, Inc., 629 F.
Supp. 317 (E.D. Va. 1986). However, the House itself has the power to
judge elections and to
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determine whether a candidate was improperly elected to a seat. If
violations of the election campaign statutes are so extensive as to
render an election void, the House may deny the right to a seat.
Deschler Ch 8 Sec. 12.
Under clause 1(k) of rule X, the Committee on House Administration
has jurisdiction over measures relating to the election of the
President, Vice President, or Members of Congress and over measures
relating to the raising, reporting, or use of campaign contributions
for House candidates. Investigations of specific elections or election
practices usually are undertaken by that committee. See, e.g., 105-2,
H. Res. 355, Feb. 12, 1998, p 453. Investigations of Members'
elections may be conducted under the statutory election-contest
procedures or offered on the floor of the House as questions of
privilege. Manual Sec. 701; see Election Contests and Disputes.
Formerly, investigations were undertaken by select committees created
to review election campaigns and proceedings, which were created by
privileged resolution reported from the Committee on Rules. Deschler
Ch 15 Sec. 1.3. Under the modern practice, investigations are
undertaken by the Committee on House Administration.
A Member's resignation during an investigation effectively
terminates the investigation, because the Committee on House
Administration has no further jurisdiction in the matter thereafter.
95-1, May 4, 1977, p 13391.
Under clause 5 of rule XIII, a resolution reported from the
Committee on House Administration relative to the right of a Member to
a seat is considered as privileged. Deschler Ch 8 Sec. 13.5.
Sec. 3 . Certificates of Election
Certificates of election are issued by each State after
congressional elections have been conducted and the results tabulated.
The certificates, also termed ``credentials,'' are sent to the Clerk
of the House for use in composing the Clerk's roll. Although the
certificate is not essential to the administration of the oath, any
Member or Member-elect has the right to object thereto, by delivering
a challenge either to the validity of the election or to the validity
of the certificate itself. Deschler Ch 8 Sec. 15. For a discussion of
challenging the administration of the oath, see Oaths.
The House (and not the Speaker or other official) determines
whether a Member may be sworn in after an election certificate has
been challenged. If a challenge has been directed to a mere
irregularity in the form of the certificate, the House will ordinarily
seat the Member-elect and declare such individual finally entitled to
the seat. Deschler Ch 8 Sec. 17.1. However, if a certificate is
challenged through an election contest or by an allegation of election
irregularities, the House may authorize the Member-elect to be
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sworn but provide that the question of the final right to the seat be
referred to committee. That procedure often is followed where a
certificate is on file in order not to deprive a State of
representation in the House because of protracted proceedings.
Deschler Ch 8 Sec. 16.4. Another procedural option that may be pursued
by the House is to declare that neither candidate be sworn and that
the question of prima facie and final right to the seat be referred to
committee. Manual Sec. 204.
A circumstance which may require the nullification of a
certificate is the intervening death or disappearance of the Member-
elect named therein. Deschler Ch 2 Sec. Sec. 4.8, 4.9.
The House does not always require a certificate in seating a
Member-elect. If such individual appears without a certificate but the
election is uncontested and unquestioned, the House may authorize such
Member-elect to be sworn by unanimous consent. Manual Sec. 204. A
photographic copy of the original certificate has been accepted
without invoking the unanimous-consent procedure. 106-1, June 8, 1999,
p 3773. In some cases where a certificate is delayed, the State
represented will deliver informal communications to the House
attesting to the validity of the election of the Member-elect. The
House may accept such communications by unanimous consent in the
absence of a certificate. Deschler Ch 2 Sec. 3.3. Even where a Member-
elect arrives without a certificate and the election of such
individual is disputed, the House may by resolution authorize the
swearing of such Member-elect. Deschler Ch 8 Sec. 17.2.
Sec. 4 . Resignations; Deaths; Filling Vacancies
A Member properly submits a resignation to an official designated
by State law and simply informs the House of such action, the latter
communication being satisfactory evidence of the resignation. Manual
Sec. 19; 1 Hinds Sec. 567; Deschler-Brown-Johnson Ch 37 Sec. 3.
Where a vacancy arises in the House by death, resignation,
declination, or action of the House, the vacancy must be officially
declared in order that a special election may be held. Deschler-Brown-
Johnson Ch 38 Sec. 2. Usually, the State executive declares the
vacancy to exist, particularly in cases of death, declination, or
resignation. Deschler Ch 8 Sec. 9. The State executive then issues a
writ of election to fill the vacancy. U.S. Const. art. I, Sec. 2, cl.
4. If a Governor does not recognize the existence of a vacancy, such
as in the case of a presumed death not susceptible of proof, the House
itself may initiate the action to have the seat declared vacant.
Deschler Ch 8 Sec. 9.5. Such a declaration is proper where independent
House action has created a vacancy by expulsion or exclusion of a
Member. Deschler Ch 8 Sec. 9. In
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such cases, the House, by privileged resolution, directs the Speaker
to notify the State executive. Manual Sec. 22. The State executive
also is notified where the Member purports to resign directly to the
Speaker, rather than to the relevant State official of such Member's
State as is customary. Deschler-Brown-Johnson Ch 37 Sec. 3.2.
Under clause 5 of rule XX, in the case of the death of a Member,
the Speaker may lay before the House such documentation from Federal,
State, or local officials deemed pertinent. Deschler-Brown-Johnson Ch
38 Sec. 5.
A resolution declaring a seat vacant is used where a Member-elect
is unable to take the oath or declines the office due to an
incapacitating illness. Manual Sec. 22; Deschler-Brown-Johnson Ch 38
Sec. 2.17. In one instance, a letter to the Speaker from the attending
physician was inserted in the Congressional Record to document the
physical condition of the Member-elect. The letter stated that she was
in a coma and would be unable to take the oath. Manual Sec. 205. The
House, by declaring the seat vacant by majority vote, was in effect
judging a constitutional qualification of the Member; that is, the
requirement that she take the oath. The resolution was not tantamount
to an expulsion, which requires a two-thirds vote to adopt.
The House has adopted a resolution expressing the sense of the
House that each State should examine its existing statutes, practices,
and procedures governing special elections so that, in the event of a
catastrophe, vacancies in the House may be filled in a timely fashion.
107-2, H. Res. 559, Oct. 2, 2002, p 18919. See also Deschler-Brown-
Johnson Ch 38 Sec. 5.