[Cannon's Precedents, Volume 6]
[Chapter 170 - General Election Cases, 1921 To 1923]
[From the U.S. Government Publishing Office, www.gpo.gov]
GENERAL ELECTION CASES, 1921 TO 1923.
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1. Cases in the first session of the Sixty-seventh Congress.
Sections 152, 153.
2. Cases in the second session of the Sixty-seventh Congress.
Sections 154, 155.
3. Senate cases in the third session of the Sixty-seventh
Congress. Sections 156, 157.
4. Cases in the fourth session of the Sixty-seventh
Congress.Sections 158, 159.
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152. The election case of John P. Bracken of Pennsylvania.
In the event of the death of a Member-elect from the State at large,
the candidate receiving the next highest number of votes is not
entitled to the seat.
An instance of adverse action on a memorial presented by a person
claiming to have been elected to the House of Representatives.
On July 14, 1921,\1\ Mr. Robert Luce, of Massachusetts, from the
Committee on Elections No. 2, submitted the report of the committee in
the Pennsylvania case of John P. Bracken.
The case was initiated through a memorial presented by John P.
Bracken, a citizen of Pennsylvania, claiming to have been elected to
the House of Representatives of the Sixty-seventh Congress.
At this election four Members of the House of Representatives were to
be elected at large. Between the day the votes were cast and the
completion of the canvass. Mr. Mahlon M. Garland, one of the four
receiving the largest number of votes, died. The memorialist, John P.
Bracken, stood fifth on the list.
In the debate in the House Mr. Luce explained that the memorialist
relied on certain decisions by State courts, among them the decision in
the case of Morris v. Bulkeley,\2\ in which the court said:
The election of State officers in this State is a process. It
includes the preliminary registration, by which those persons who have
the right to vote are determined; the time when, the place where, and
the manner in which the votes are to be given in, and also the manner
in which the votes are to be counted and the result made known. Each of
these steps must be taken in pursuance of the law existing at the time
the election is had. That part of the election process which consists
of the exercise by the voters of their choice is wholly performed by
the electors themselves in the electors' meetings. That part is often
spoken of as the election. But it is not the whole
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\1\ First session Sixty-seventh Congress, House Report No. 265;
Record, p. 2033.
\2\ 61 Conn., pp. 287, 359.
Sec. 153
of the election. The declaration of the result is an indispensable
adjunct to that choice, because the declaration furnishes the only
authentic evidence of what the choice is.
The committee, however, held:
Upon the canvass of votes cast in the State of Pennsylvania November
2, 1920, Hon. Mahlon M. Garland was declared to have been elected as
one of the four Representatives at large in Congress from that State.
Before the completion of the canvass Mr. Garland died. Mr. Bracken
received the highest vote given to any candidate not declared to have
been elected. In the judgment of your committee this state of facts
does not warrant the conclusion that Mr. Bracken was elected, and
therefore the committee recommends the passage of the following
resolution:
``Resolved, That John P. Bracken was not elected a Representative at
large to the Sixty-seventh Congress from the State of Pennsylvania.''
The case was perfunctorily debated in the House on October 20,
1921,\1\ when the resolution recommended by the committee was agreed to
without division.
153. The Alabama election case of Kennamer v. Rainey in the Sixty-
seventh Congress.
The contestant failing to produce evidence sustaining charges made in
notice of contest, the House confirmed the title of the sitting member
to his seat.
On October 31, 1921, \2\ Mr. Cassius C. Dowell, of Iowa, from the
Committee on Elections No. 3, submitted the report of the committee in
the Alabama case of Charles B. Kennamer v. L. B. Rainey.
The sitting Member had been returned by an official majority of 739
votes.
The contestant charged that the state officials, including the
governor and members of the State legislature, had conspired to delay
legislation authorizing the registration of women voters, and had
delayed the appointment of registrars.
The committee find:
The proclamation of the ratification of the woman's suffrage
amendment was made on August 26, 1920. The governor issued a call for a
special session of the legislature on August 28, 1920, to convene on
September 14, 1920. The record shows that the legislature convened on
the 14th day of September, 1920, in special session, and the
legislation referred to was completed and signed by the governor on
October 2, 1921, which was the last day of the extra session. It
appears that other legislation was considered and acted upon by the
legislature during this time.
Your committee do not find the charge of conspiracy to delay this
legislation and to delay the appointment of registrars to be sustained
by the evidence.
Testimony submitted by the contestant to show that a number of women
who would have voted for him were not permitted to register is also
held by the committee to be too indefinite and uncertain to sustain the
charge.
After full consideration of the case the committee conclude:
Your committee find from a careful inspection of the evidence that
some persons were registered unlawfully, and the evidence shows that a
small number not legally entitled to vote voted for the contestee, Mr.
Rainey; but the testimony does not show that the number of votes cast
of those who were not properly registered and who were not legally
entitled to vote materially affected the result of the election.
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\1\ Journal, p. 494; Record, p. 6564.
\2\ First session Sixty-seventh Congress, House Report No. 453;
Record, p. 7058.
Sec. 154
While there were some other irregularities, and perhaps violations of
the law in some instances, the evidence does not disclose that these
irregularities or violations affected the result of the election in
this district. Neither does the evidence disclose that the persons who
failed to vote in said district were deprived of their right to
register and vote, nor is it shown by competent evidence that they
offered to register or vote.
On the whole case the official returns show that contestee, L. B.
Rainey, received a majority of 739 votes, and the evidence submitted in
this case does not sustain the charges of the contestant that
contestant should be declared elected.
The committee therefore recommend the usual resolutions declaring the
contestant was not elected and confirming the title of the sitting
Member to his seat.
The case was called up in the House on November 2,\1\ and after a
short statement by Mr. Dowell, the resolutions were agreed to without
division.
154. The North Carolina election case of Campbell v. Doughton in the
Sixty-seventh Congress.
Discussion of methods of determining the domicile of a voter.
In the absence of fraud, electors may not be deprived of their vote
by omission of election officers to perform duties imposed upon them by
law.
Unfair campaign tactics directed at one candidate may not be taken as
the basis of a contest in behalf of another candidate on the same
ticket.
When performance of a statutory duty is within the discretion of an
election official and its performance is accompanied by no denial of
right, such performance may not be impeached on the score of
partiality.
On April 2, 1922,\2\ Mr. Robert Luce, of Massachusetts, from the
Committee on Elections No. 2, submitted the report of the majority of
the committee in the North Carolina case of James I. Campbell v. Robert
L. Doughton.
The sitting Member had been returned by an official majority of 1,088
votes.
The election laws of the State of North Carolina provided that
electors absent from the precinct in which they were entitled to vote,
or physically incapacitated from going to the polls, might vote by
mail. The law originally specified a form of certificate to accompany
such ballots and provided that certificates and ballots should be
preserved by the proper officials for six months after the elections.
The contestant charges gross irregularities through the counting of
ballots accompanied by fraudulent certificates and their destruction in
violation of the statute as soon as counted.
The majority deem the evidence submitted by contestant insufficient
to establish his contention.
As to uncertainty of domicile:
The committee does not think the charges are borne out by the
evidence. The difficult problem of domicile, so greatly involving in
its determination the question of intent, seems on the whole to have
been met by the local officials with as much fairness and wisdom as
could have been reasonably expected, and the testimony presents little
if any suggestion of conscious misfeasance. In the case of new
registrations a registrar is rarely in position to question the
applicant's declaration of intent. In the case of voters already on the
roll the declaration in the certificate accompanying the ballot of an
absentee, that he is ``a qualified voter,'' seems virtually to preclude
the officials at the polls from rejecting the ballot on the gound that
the absentee has abandoned his residence.
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\1\ Journal, p. 514; Record, p. 7214.
\2\ Second session Sixty-seventh Congress, House Report No. 882:
Record, p. 5183.
Sec. 154
The practical effect is to postpone inquiry until the result of the
election is contested. Such inquiry must then be largely confined to
persons other than the absentee voters themselves, as it turned out in
the present case. The testimony of such other persons must be largely
opinion testimony, which is always of doubtful weight. For this reason
it was held in Lowe v. Wheeler, Forty-seventh Congress, that the mere
statement of a witness that an elector is a nonresident is
insufficient; the witness must give facts to justify his opinion.
Furthermore, lack of acquaintance on the part of a single witness will
not be adequate proof. In Letcher v. Moore, Twenty-third Congress, the
committee unanimously adopted as a rule of decision ``that no name be
stricken from the polls as unknown upon the testimony of one witness
only that no such person is known in the county.'' This becomes of all
the more importance in the case of absentee voters because they are so
often persons who are little at home and who may indeed have passed
most of the time away for years. If these things be borne in mind, much
of the contestant's testimony aimed at the absentee vote will be found
to fall to the ground.
The committee further find that only about 175 absentee votes are
specifically questioned and the number is so small that the rejection
of all of them would not change the result of the election.
The contestant, however, insists that all absentee votes cast should
be rejected because of the failure to preserve the ballots and
certificates.
The statute \1\ on which he relies is as follows:
In voting by the method prescribed in chapter 23 of the Public laws
of 1917 the voter may, at his election, sign, or cause to be signed,
his name upon the margin or back of his ballot or ballots, for the
purpose of identification. The ballot or ballots so voted, together
with the accompanying certificates, and also the certificates provided
in section two of this act, in case the voter ballots by that form,
shall be returned in a sealed envelope by a registrar and poll holders,
with their certificates of the result of the election and kept for six
months, or, in case of contest in the courts, until the results are
finally determined.
The majority claim the statute had been so amended as to obviate this
requirement, and explain:
This was in an act ratified March 11. On the previous day had been
ratified the work of a commission that had been engaged in revising and
consolidating the public and general statutes, and it had been provided
that the commissioners should insert the enactments of the current
general assembly, with proper technical changes ``and make such other
corrections which do not change the law as may be deemed expedient.''
The Consolidated Statutes were to be in force from and after August
1. When they appeared, they contained this provision (sec. 8101):
``All public and general statutes passed at the present session of
the general assembly shall be deemed to repeal any conflicting
provisions contained in the Consolidated Statutes.''
From all this it is evident that when the commissioners dropped from
section 4a of chapter 322 the words italicized in the section as quoted
above, they could not change the purport of the original provision;
could not legitimate any interpretation of the section other than the
natural interpretation of the original phraseology.
This confutes the argument that the word ``so'' in the phrase, ``The
ballot or ballots so voted, together with accompanying certificates,''
refers back to all the absentee ballots and certificates. Otherwise
there would be no significance in the word ``also'' in the phrase
omitted by the commissioners. It is clear, then, that the actual law
required the keeping of only the ballots signed for the purpose of
identification. Such was the interpretation generally given to it by
the election officials of both parties.
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\1\ Section 4a of Chapter 322 of the Public Laws of 1919.
Sec. 154
It was an interpretation buttressed by the fact that the laws of
North Carolina make no provision for the preservation of main election
ballots in general; and that no apparent gain would result from
segregating at any rate such unmarked ballots as were sent in by the
absentee.
It is clear that failure to preserve the certificates by which a
straight party ballot was cost was a violation of the actual law, but
it is to be remembered that the phraseology of what purported to be the
law, as contained in the Consolidated Statutes and in the extract
therefrom printed as a pamphlet entitled ``Election Law,'' which
undoubtedly the election officials commonly relied upon, might fairly
be construed to mean that only the certificates accompanying marked
ballots were to be kept. Election officials can not reasonably be
expected to unravel the technical difficulties found in such a
situation as this. Indeed, as far as they grow out of the changes made
by the commissioners who consolidated the statutes, their very
existence was left to your committee itself to ascertain and disclose.
Even if errors were committed in this matter by the election
officials, it is well established that ``in the absence of fraud the
voter can not be deprived of his vote by the omission of election
officers to perform the duties imposed upon them by law.''
It was charged by the contestant that at Furr and Big Lick precincts
voting was purposely delayed and preference was given those who desired
to vote for the contestee.
The minority views, filed by Mr. John L. Cable, of Ohio, claim that
the opening of the polls in the Furr precinct was delayed at least an
hour and a half and quote the report in the case of Yates v. Martin in
the Forty-sixth Congress, holding that failure to open the polls on
time shifted the burden of proof to the party seeking to to uphold the
election, to show that the result was not affected. It is claimed that
in these two precincts 254 electors, who would have voted for the
contestant, and only 24 who would have voted for the contestee, were
deprived of the opportunity to vote. This vote alone, if counted, the
minority views contend, would have given the contestant a majority of
all the votes cast in the district.
The majority decide, however:
In two precincts of Stanly County (Big Lick and Furr) the conduct of
the polling was not inconsistent with the possibility of conspiracy.
Insufficient accommodation was provided for the voters; apparently the
crowd was not handled with ordinary skill; there were instances of
delay that might well have aroused suspicion. On the other hand
although the total vote polled was much less than in sundry other
precincts, and it was charged that 264 voters were unable to vote
before the polls closed at sunset, yet in one case 750 and in the other
695 ballots were cast, more than one a minute, leaving no ground to
infer conspiracy simply from the total of the figures. The weight of
the evidence showed no discrimination, except in favor of the women and
most of the elderly men, who regardless of party were given precedence.
Although as these precincts were strongly Republican, the loss fell
chiefly on the Republican ticket, yet Democrats suffered as well as
Republicans, and it is hard to believe that men would deliberately plan
to deprive their own partisans of exercising the right of suffrage in
the hope that a larger number of their opponents would be shut out.
Direct evidence of conspiracy was wholly lacking, and the circumstances
could be explained as due to the inefficiency of election officials.
Another issue raised was the circulation of literature, aimed at
another candidate on the same ticket with contestant, and calculated to
arouse undue prejudice. The majority, while strongly condemning such
tactics, do not consider the interests of other candidates on the
ticket sufficiently prejudiced by such attacks to warrant interference
by the House, and declare:
Language strong enough for the censure of such methods of campaigning
is hard to find, but it would be unwise to say that because of a
vicious attack, wholly indefensible, aimed at a
Sec. 155
candidate for one of the various offices to be filled at an election,
candidates for other offices should be imperiled.
As to charges of discrimination in the registration of voters the
majority say:
In North Carolina the law requires the attendance of registrars at
the place of registration on the four Saturdays preceding an election,
and permits the registrars at any other time to register elsewhere. The
contestant averred unfairness by registrars when away from the
registration places, in that they would then devote their energies
mainly to registering voters of their own faith, to the neglect of
voters of opposite faith. If there was violation of law in this
particular, it was to be found only in disregard of that part of the
oath taken by the registrar which imposed on him the duty of acting
``impartially.'' Undoubtedly a registrar would have been delinquent if
he had refused to register any qualified voter presenting himself at
the registration place on the appointed days, for registration was then
obligatory. To register elsewhere and at other times was wholly
permissive. Where it is altogether within the discretion and pleasure
of an official whether an act shall be performed at all, and its
performance is accompanied by no denial of rights, can the act be
impeached on the score of partiality? No voter in North Carolina has
either an inherent or a statutory right to be registered away from the
registration place. If there was neglect to give any voter an
opportunity that in fact was within the discretion of the official
concerned, it can not be treated as partiality from the legal point of
view.
Complaint was made that in various instances friends of the
contestant were impeded in getting access to registration books in time
to make proper inquiry as to ground for preferring challenges on
challenge day or at the polls. However, even putting the worst face on
the episodes cited, the offenders, if they were such, generally kept
within the letter of the law, and the exceptions were neither
considerable nor important enough to be given much weight in the
balancing of considerations.
155. The election case of Campbell v. Doughton, continued.
Where voting by electors who had not paid a poll tax, although in
violation of the State constitution, was permitted by common consent,
the committee strongly condemned the practice but did not recommend
rejection of such voters.
Where provisions of the State constitution forbidding registration
unless able to read and write were generally ignored, the committee, in
an inconclusive case, censured the procedure but did not recommend
invalidation of the vote.
Where acts violative of the provisions of a State constitution do not
appear to have changed the result, the House is not justified in
declaring the seat vacant.
Failure to enforce the provisions of a State constitution, when
acquiesced in by candidates and electors without heinous circumstances
or injustice and without effect in altering the result, does not of
itself suffice to vitiate the election.
Instance wherein final action was not taken in an election case.
Violations of requirements embodied in the State constitution, making
prepayment of poll taxes and ability to read and write qualifications
for voting, are discussed by the majority at length.
Relative to the prepayment of poll taxes as a qualification the
majority say:
The constitution of the State required, with certain exceptions, the
prepayment of poll taxes as a qualification for voting. The requirement
was in general disfavor, and indeed at this very election was taken out
of the constitution. Nevertheless, it was at the time a living thing
and
Sec. 155
should have functioned universally and impartially. It did not so
function. In one county, by definite agreement between the
organizations of both parties, the law was not enforced at all.
Throughout the district it was not enforced against men in the military
service, justification being supposedly found in an opinion of the
attorney general of the State which held that such men might be
exempted. In many other instances enforcement or refusal to enforce was
more or less arbitrary and accidental, seeming to depend on the whim of
the officials or the sentiment of the locality. Of course this opened
wide the door for abuse, and abuse walked in. Each side contends that
many votes improperly cast accrued therefrom to the benefit of the
other. To determine the facts and strike a completely accurate balance
would be impossible without prolonged and exhaustive individual inquiry
on the spot, and even then the lack of certain records would so
embarrass investigation as to cloud its results. For example, in
Iredell County, where it was agreed that the poll-tax requirement
should not be enforced, the sheriff did not certify the list of those
who had paid, as required by law. This might entail individual inquiry
as to the legality of every vote cast in the county. Furthermore, that
would be of no avail unless the voters were compelled to disclose the
character of their votes, which raises the mooted question of violation
of the secrecy of the ballot. Indeed, the situation is so confused that
the contestant asks us to throw out the whole vote of the county. Such
drastic treatment does not seem to us called for by the circumstances.
The contestant saw fit not to rely solely upon his request, but
proceeded with examination of many Iredell County witnesses in this
particular, and we deem it sufficient to content ourselves with their
testimony and that of witnesses for the contestee in the same field.
The same course has been pursued in respect of the contentions about
votes said to be invalid because of nonpayment of poll taxes in the
other counties and of absentee votes as well as of those personally
cast.
The question of literacy qualifications is then discussed:
The constitution of the State requires, with exceptions not now of
material consequence, that every person presenting himself for
registration shall be able to read and write. As in the case of the
poll-tax provision, this requirement was extensively ignored. In
certain parts of the district the people seem to have been unanimous in
the opinion that their judgment in this particular was above the
constitution. Each side contends that as a consequence the other gained
many votes with which it ought not to have been credited. Here, too, an
attempt to determine the facts with complete accuracy would require
lengthy and laborious inquiry on the spot, with little promise of
satisfactory conclusion, and we have thought it sufficient to rely on
the testimony.
These kindred contentions, relating to constitutional requirements in
the matter of poll-tax and literacy qualifications, furnish the main
question of principle involved in this case. It will be seen to differ
from the usual contest in that the important complaint is not of
restraint of suffrage, nor its improper extension on a large scale
without the knowledge or consent of a candidate or his adherents, but
of such an extension made with common knowledge and general consent.
Strictly speaking, there is no difference in effect between the
suppression of votes and their nullification by offsetting votes
illegally cast. The question here is whether the approval, avowed or
tacit, by the candidates and their adherents, prior to the conclusion
of the election, alters the situation.
This question is restated and answered in the following form:
When an electorate deliberately and with common consent disregards
the provisions of a State constitution to an extent clouding the
result, has there been a valid election?
It is a question of much perplexity. On the one hand there is grave
danger in encouraging the belief that a constituency may violate
constitutional injunctions with impunity. On the other hand there is
grave doubt whether Congress may properly mete out punishment where
there is no clear and convincing proof that the will of the
constitutional majority has been thwarted. Balancing these
considerations, your committee has concluded, though not without
misgivings, that when acts alleged to have violated the provisions of a
State constitution do not, appear to have changed the result, either by
themselves or in combination with statutory misdemeanor, the House is
not justified in declaring a seat vacant.
Sec. 156
This neither excuses nor palliates the conduct in question. We have
no hesitation in declaring that it was reprehensible. Respect for law
and observance of constitutions are essential to the safety of our
common rights. If either basic or secondary law ceases to represent the
will of the majority, it should be annulled or changed, but while it
stands, it should be enforced. We are not called upon to consider what
may be the duty of the State itself in the way of prevention or
penalty. Our position simply is that failure to enforce the provisions
of a State constitution, a failure generally approved or acquiesced in
by candidates and electors, without conscious defiance of authority,
and without heinous circumstances, resulting from no wish or intent to
work injustice, and not proved to have altered the result, will not in
and of itself suffice to vitiate an election to the House of
Representatives.
Accordingly the majority conclude that, even with liberal allowance
of the contestant's claims, the sitting Member would still have a
majority of the votes cast in the district. They therefore recommend
resolutions declaring the contestant was not elected and confirming the
title of the contestee, while the minority views recommend resolutions
to the contrary.
The case was debated on May 27.\1\ After much difficulty in
maintaining a quorum, the House adjourned before debate was concluded.
The case was not again considered by the House, and Mr. Doughton
continued to occupy the seat.
156. The Senate case relating to qualifications of Rebecca Latimer
Felton, of Georgia, in the Sixty-seventh Congress.
Discussion as to the term of service of a Senator appointed by a
State executive to fill a vacancy.
The first woman to sit in the Senate.
On October 3, 1922, during recess of Congress, Rebecca Latimer Felton
was appointed Senator from Georgia by the governor of that State, to
fill a vacancy occurring in the Senate by the death of Thomas E.
Watson. At the election held November 7, Walter E. George was elected
to fill the unexpired term.
The third session of the Sixty-seventh Congress commenced November
20, and on the following day,\2\ while credentials were being
presented, Mr. William J. Harris, of Georgia, said:
Mr. President, after the death of my late colleague, Thomas E.
Watson, the governor of my State appointed as his successor Mrs.
Rebecca Latimer Felton. Her credentials were sent to the Secretary of
the Senate and have been here for some days. I hope no Senator will
object to her taking the oath of office. The Senator elect from
Georgia, Hon. Walter F. George, very generously and very graciously has
withheld his credentials in order that Mrs. Felton may take the oath
and, as I said, I hope no Senator will object. This will not in any way
prejudice Mr. George's claim to his seat in the Senate, to which the
people of my State have elected him, and his credentials will be
presented to-morrow.
Discussing at length the question raised by Mrs. Felton's attendance
in the Senate as the appointee of the governor of the State after the
issuance of a certificate of election to the Senator elect elected to
fill the vacancy to which she had been appointed, Mr. Thomas J. Walsh,
of Montana, said:
I have said this much because I did not like to have it appear, if
the lady is sworn in--as I have no doubt she is entitled to be sworn
in--that the Senate had so far departed from its duty in the premises
as to extend so grave a right to her as a favor, or as a mere matter of
courtesy,
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\1\ Second session Sixty-seventh Congress, Journal, p. 389; Record,
p. 7808.
\2\ Third session Sixty-seventh Congress, Record, p. 8.
Sec. 156
or being moved by a spirit of gallantry, but rather that the Senate,
being fully advised about it, decided that she was entitled to take the
oath.
Mrs. Felton's credentials having been presented, the oath was
administered and she took her seat, the first woman \1\ to sit in the
Senate.
On the following day the credentials of Mr. Walter F. George, as
Senator elect, were presented and he took the oath.
On November 23, 1922 \2\ in the Senate, following the approval of the
minutes, Mr. Walsh said:
Mr. President, there was introduced on yesterday by the senior
Senator from Georgia, Mr. Harris, a Senate resolution reading as
follows:
``Resolved, That the Secretary of the Senate be, and he hereby is,
authorized and directed to pay from the contingent fund of the Senate
to Rebecca Latimer Felton $287.67 for compensation, and $280 as
mileage, the same being amounts due her as a Senator from the State of
Georgia from November 8 to November 21, 1922.''
The resolution was appropriately referred to the Committee to Audit
and Control the Contingent Expenses of the Senate. I hope, however,
that the resolution will not be adopted by the Senate. I trust that we
shall not throw further confusion into the matter by now exhibiting
some doubt as to whether Mrs. Felton was really a Member of the Senate
from November 8 to November 21. If she were a Member--and the Senate so
decided by admitting her and swearing her in--she is to be paid out of
the regular appropriation, as is every other Senator. This is not a
matter which should be charged against the contingent fund of the
Senate. If the appropriations do not cover the item, it will be very
proper for the Committee on Appropriations to bring in a deficiency
item in the deficiency bill to take care of it. The payment should be
made as the
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\1\ The first woman to sit in the Congress of the United States was
Miss Jeannette Rankin, elected to the House of Representatives in the
Sixty-fifth Congress from the State of Montana at large. No woman was
returned to the Sixty-sixth Congress, but women have occupied seats as
Members of each succeeding Congress as follows:
In the Sixty-seventh Congress: Mrs. Rebecca Latimer Felton, appointed
to the Senate from the State of Georgia; Miss Alice Mary Robertson,
elected to the House from the second district of Oklahoma; Mrs.
Winnifred Mason Huck, elected to the House from the State of Illinois
at large to fill the vacancy occasioned by the death of her father; and
Mrs. Mae E. Nolan elected to the House from the fifth district of
California to fill the unexpired term of her husband.
In the Sixty-eighth Congress: Mrs. Mae E. Nolan, elected to the
Sixty-eighth Congress, at the same election in which she was returned
to the Sixty-seventh Congress.
In the Sixty-ninth Congress: Mrs. Mary T. Norton, elected to the
House from the twelfth district of New Jersey; and Mrs. Florence P.
Kahn, from the fourth California district, and Mrs. Edith Nourse
Rogers, from the fifth Massachusetts district, each elected to the
vacancy occasioned by the death of her husband.
In the Seventieth Congress: Mrs. Pearl Peden Oldfield, of Arkansas;
Mrs. Kahn; Mrs. Rogers; Mrs. Katherine Langley, of Kentucky; and Mrs.
Norton.
In the Seventy-first Congress: Mrs. Oldfield; Mrs. Kahn; Mrs. Ruth
Bryan Owen, of Florida; Mrs. Ruth Hanna McCormick, of Illinois; Mrs.
Rogers; Mrs. Langley; Mrs. Norton; and Mrs. Ruth Baker Pratt, of New
York.
In the Seventy-second Congress: Mrs. Hattie W. Caraway, of Arkansas,
appointed to succeed her husband and subsequently elected, the second
woman to sit in the Senate and the first to be elected to that body;
Mrs. Effiegene Wingo, of Arkansas; Mrs. Kahn; Mrs. Owen; Mrs. Rogers;
Mrs. Norton; Mrs. Pratt; and Mrs. Willa B. Eslick, of Tennessee.
In the Seventy-third Congress: Mrs. Caraway; Mrs. Isabella Greenway,
of Arizona; Mrs. Kahn; Mrs. Virginia E. Jenckes, of Indiana; Mrs.
Kathryn O'Loughlin McCarthy, of Kansas; Mrs. Rogers; and Mrs. Norton.
\2\ Record, p. 47.
Sec. 157
payment of the salaries of all Senators is made, not out of the
contingent fund of the Senate, but out of the regular fund.
It occurs to me that the manner proposed in the resolution is not the
proper way to take care of this particular item. I feel like saying
that it would throw a very grave doubt upon the action taken by the
Senate in seating Mrs. Felton as a Senator.
The resolution was agreed to,\1\ however, and mileage and
compensation for the same period were paid to Mr. George from the
regular appropriation.
157. Senate election case of Smith W. Brookhart in the Sixty-seventh
Congress.
Although the fact of election was unquestioned, a Senator-elect
delayed attendance until credentials were received.
Credentials being delayed, a Senator appointed by a State executive
continued to serve after another had been elected to fill the vacancy.
Charles A. Rawson, Senator from Iowa, was appointed by the Governor
of Iowa, February 21, 1922, to fill a vacancy in the Senate occurring
by the resignation of William S. Kenyon, and took his seat February
23.\2\ Under these credentials Mr. Rawson held his seat during the
remainder of the second session of the Sixty-seventh Congress, ending
September 22, 1922.
On November 7, 1922, Smith W. Brookhart was elected to fill the
unexpired term. Under the election laws of the State of Iowa,\3\
election boards are allotted twenty days in which to canvass returns
and certificates of election may not issue prior thereto. The third
session of the Sixty-seventh Congress commenced on November 20, and in
the absence of Mr. Brookhart's credentials, which under the State law
could not be issued prior to November 27, Mr. Rawson attended as the
junior Senator from Iowa and continued to serve until December 2,\4\
when Mr. Brookhart's credentials arrived and were presented.
On December 7, 1922,\5\ the following resolutions were agreed to by
the Senate:
Resolved, That the Secretary of the Senate be, and he hereby is,
authorized and directed to pay out of the contingent fund of the Senate
to Hon. Charles A. Rawson $493.15, salary from November 8, 1922, to
December 1, 1922, both dates inclusive, and $459.20, mileage for
attendance at the third session of the Sixty-seventh Congress, said
sums being due him as a Senator from the State of Iowa.
Resolved, That the Secretary of the Senate be, and he hereby is,
authorized and directed to pay out of the contingent fund of the Senate
to Roy H. Rankin $182.67 and to Edna T. Vovo, $122.67, for clerical
services rendered the Hon. Charles A. Rawson, a Senator from the State
of Iowa, from November 8, 1922, to December 1, 1922, both dates
inclusive.
Salary and mileage due Mr. Brookhart, and compensation due his
clerks, from November 8, 1922, to December 1, 1922, inclusive, were
disbursed from the regular appropriations provided in the legislative
bill for the current year.
158. The Virginia election case of Paul v. Harrison in the Sixty-
seventh Congress.
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\1\ Record, p. 452.
\2\ Second session Sixty-seventh Congress, Record, p. 2987.
\3\ Section 877, Iowa Revised Statutes, 1924.
\4\ Third session Sixty-seventh Congress, Record, p. 440.
\5\ Fourth session Sixty-seventh Congress, Record, p. 179.
Sec. 158
Requirements of State constitution that voters be registered on
application in their own handwriting only, held to be mandatory and
registration of voters, without written application as provided by
State constitution is void.
Votes of persons assisted in the preparation of their ballots, in
violation of the provisions of the State constitution, are void and
should not be counted.
Defective applications for registration, when once received by
registrar and supplemented by examination under oath, are not void but
merely voidable, under the Virginia law, and votes cast under such
registration should not be rejected.
Votes of persons failing to pay poll taxes as required by State
constitution should not be counted.
On June 14, 1922,\1\ Mr. Frederick W. Dallinger, of Massachusetts,
from the Committee on Elections No. 1, submitted the report of the
majority of the committee in the Virginia case of John Paul v. Thomas
W. Harrison.
The sitting Member in this case was returned by an official majority
of 448 votes. The contestants sets forth numerous grounds of contest
which are summarized in the report under three heads:
One. That a large number of persons voted at this election who were
not lawfully registered, and therefore under the constitution of
Virginia were not qualified to vote, and that if the votes of these
persons were eliminated the contestant would be elected.
Two. That a number of persons voted at this election without paying
their poll tax, as required by the constitution and laws of Virginia,
and that if the votes of these persons were eliminated together with
the other facts in the case, the contestant would be elected.
Three. That the conduct of the election in certain precincts of the
district was marked by such reckless disregard of the provisions of the
constitution and laws of Virginia that the returns from those precincts
do not represent the expression of the will of the people; that there
was no valid election in those precincts, and therefore the returns
from them should be thrown out, in which case the contestant would be
elected.
(1) Illegal registration:
Under section 18 of the constitution of the State of Virginia no one
is allowed to vote who has not been registered as provided in section
20. Requirements on the voter for registration are as follows:
1. That he has personally paid to the proper officer all State poll
taxes assessed or assessable against him, under this or the former
constitution, for the three years next preceding that in which he
offers to register; or, if he came of age at such time that no poll tax
shall have been assessable against him for the year preceding the year
in which he offers to register, has paid $1.50, in satisfaction of the
first year's poll tax assessable against him.
2. That, unless physically unable, he make application to register in
his own handwriting, without aid, suggestion, or memorandum, in the
presence of the registration officers, stating therein his name, age,
date and place of birth, residence and occupation at the time and for
two years next preceding, and whether he has previously voted; and if
so, the State, county, and precinct in which he voted last.
3. That he answer on oath any and all questions affecting his
qualifications as an elector submitted to him by the officers of
registration, which questions and his answers thereto shall be reduced
to writing, certified by the said officers, and preserved as a part of
their records.
-----------------------------------------------------------------------
\1\ Second session Sixty-seventh Congress, House Report No. 1101,
Record, p. 8733.
Sec. 158
The majority report thus reviews this phase of the case:
In the voluminous record in this case there is evidence of hundreds
and even thousands of cases of persons who were registered although no
applications at all had been filed with the registrar. There are also
numerous instances in the record where assistance was given to
applicants for registration, either by the registrar himself or by some
third person. In addition to this the contestee introduced in evidence
a large number of cases of persons who were placed on the registration
list whose applications were not in strict conformity with the
requirements of the constitution.
Both the contestee and his counsel contended that these provisions of
the constitution were merely directory and not mandatory, and that the
votes of persons not registered in conformity with the constitution
could not be questioned at the election, the only remedy being to have
the names of persons thus illegally registered stricken from the voting
list previous to the election as provided in the constitution. On the
other hand the contestant and his counsel contended that these
provisions of the constitution being mandatory on the legislature of
the State are also mandatory on the registration and election
officials; and that where application is filed the registrar acquires
no jurisdiction and the vote of any person placed on the registration
list in the absence of such application is void ab initio.
The committee is firmly of the opinion that the great weight of
authority sustained the contention of the contestant.
After citing authorities in support of their views, the majority
continue:
It is true that in Virginia were all members of the party to which
the contestee belonged, and they testified that they registered the
voters whose names were inquired of without requiring any written
applications as required by the constitution. In a large number of the
precincts registrars testified that they had never received any written
applications during their entire terms of office. The committee finds
that there were almost 1,900 cases of such illegal registration of
persons whose names were set out in the contestant's notice and in the
contestee's answer. In addition there were almost 31,200 additional
cases of void registrations not set out in the notice and answer but
shown by the evidence, making a total of over 5,000 cases of persons
who voted at the last congressional election in this district whose
registration and therefore whose votes were invalid. In its
consideration of the evidence the committee has in the first instance
confined itself to the names set forth in the notice and answer on the
theory that where the parties in their pleadings set up particular
names they should be strictly held to the names set forth in the
pleadings.
The contestant further contended that the votes of persons who were
assisted in making their applications, either by the registrar or by
other parties, are equally void ab initio and should not be counted. In
view of the fact that the constitution provides that the voter must
make application ``without aid, suggestion, or memorandum, in the
presence of the registration officer,'' the committee is of the opinion
that this contention is sound, as the written applications in such
cases would not be the applications of the voters themselves.
While the contestee vigorously contended throughout the taking of the
testimony and at the hearings before the committee that all the votes
of persons registered contrary to the provisions of the constitution
should be counted on the ground that the registration could not be
attacked collaterally, he also contended that if the committee should
decide against him, all applications which did not strictly contain all
the information set forth in the constitution should be treated in the
same manner, and he had placed in the record a large number of alleged
defective applications.
The committee has examined with care the applications in the cases of
all persons whose names were set forth in the contestee's answer and
finds that a very large number of the applications contain all the
information required by the second clause of section 20 of the
constitution. In the case of a considerable percentage of the
applications which are technically defective the voters, mostly women,
voting for the first time under the nineteenth amendment to the Federal
Constitution, have simply neglected to state that they had never before
voted, a fact of which any court might well take judicial notice. The
contestant contends that it would be absurd to place such defective
applications in the same category as cases where no applications were
filed
Sec. 158
or where assistance was given, and cites the analogy of the validity of
a judgment, even though the notice, in a court of record, is grossly
defective in form, once the court has acted on it and when judgment is
given. He also calls attention to the fact that, although a notice in a
suit is defective, amendments are invariably allowed by the courts
whenever the interests of justice demand.
The committee is of the opinion that this analogy is sound. As Judge
McLemore well says in the Suffolk Local Option Election case (17 Va.
Law Reg. 358) ``the registrar has no jurisdiction in the premises until
there has been an application as specifically provided by the
constitution.'' The fact that the third paragraph of section 20 of the
Virginia constitution provides for an examination under oath of the
applicant by the registrar as to his qualifications, implies that the
written application might not contain all of the required information;
otherwise the registrar would not need to ask the applicant any
questions but could from the application itself, after having sworn the
applicant, make the proper entries on the registration book. If,
however, the written application is imperfect then the registrar can
put the name of the applicant on the registration book after asking him
questions as to his qualifications. In other words, while the registrar
has no authority under the constitution to ask any questions or to do
anything else until a written application has been made to him by a
person in his own handwriting, without aid, suggestion, or memorandum,
when such application has been made, however defective it may be, then
the registrar has jurisdiction to act, and he can ask the applicant any
questions about his qualifications to vote, the registrar in such cases
being required to reduce such questions and answers to writing and to
preserve them. Consequently the committee is of the opinion that
defective applications when once received by a registrar, under the
Virginia law are not void but merely voidable, and the vote of a person
registered on such an application supplemented by the examination under
oath by the registrar should not be thrown out in an election contest.
On this point the contestant maintained, that registration of voters
by the registrar was conclusive; that even though registrars put on the
registration books the names of persons who had not made application to
register as prescribed by law, which was denied, and in respect to
which the contestee called for strict proof, the votes of such persons
should not be rejected, and the right of such persons to vote could not
be collaterally attacked in this proceeding, but the names of such
persons should have been stricken from the registration list as
provided by section 107 of the Code of Virginia. The minority views,
signed by Messrs. C. B. Hudspeth and A. L. Bulwinkle, assert in
approval:
At practically every precinct in the district in respect to which
evidence was taken concerning the action of the registrar at such
precinct the registrar acted fairly and impartially and did not
discriminate against either the contestant or the contestee, and that
so far as registration is concerned the contestant has no ground of
complaint. The registrars can not be criticized for their refusal to
register any applicants for registration, and the contestant has no
ground of complaint on that score. An examination of the record shows
that the entire number of instances throughout the district where the
registrars refused registration to applicants does not exceed 66, and
such refusal was for the most part based upon the inability of the
registrant to read or write, or to make any sort of application, or
failure to have paid the requisite poll taxes or insufficient residence
in the State or county. The only other ground for complaint against the
action of the registrars must be based upon the contention of laxity or
liberality on the part of registrars in registering persons not
entitled to be registered. There is no evidence in the record to bear
out this contention.
(2) Nonpayment of poll taxes:
The constitution and laws of the State of Virginia prescribe, as a
qualification for voting, the payment of a poll tax. There was little
disagreement as to findings of fact relating to charges that persons
who had not paid such tax had been allowed to vote, and the majority
say:
Sec. 159
Both parties in the present case agree that the votes of persons who
have failed to pay their poll taxes, as required by the constitution,
should not be counted in determining the result of the election. Wb1le
a great deal of space in the printed record and in the briefs is taken
up with this question of poll taxes owing to the fact that both the
contestant and the contestee in their pleadings, charged that a large
number of persons were illegally permitted to vote who had not paid
their poll taxes, the committee finds that the charges were sustained
in only about a hundred cases. Where the evidence shows for whom the
person voted deduction has been made from the vote of that particular
candidate, and where there is no evidence how the party voted a
deduction has been made pro rata, from the total vote of both
candidates in the particular precinct.
The minority views, while concurring in a limited way in the findings
of the majority, sustain the contention of the contestee, citing
numerous authorities in support of that view and dissent from their
decision rejecting such votes as follows:
Although in the inception of the case the contestant charged that 580
persons who had not paid their poll taxes voted for contestee, yet as
the result of the evidence, in his reply brief, it is admitted that the
total number of persons voting without payment of poll taxes in the
city of Charlottesville and Albemarle and Clarke Counties amounted to
108, of whom 5 were shown to have voted for the contestant. The
contestee, on the other hand, contends that the number of such persons
who had not paid the requisite poll taxes was only 25, and in view of
the rule that when a vote received without challenge at the ballot box
is attacked in an election contest the contestant must remove the
possibility that it was legal, and if he fails to do this it will be
presumed that his failure to meet this essential requirement was due to
his inability to do it, we agree with the contention of the contestee
that the number of those who are shown not to have paid their poll
taxes in the precincts complained of by the contestant does not exceed
25. Every reasonable intendment should be indulged in favor of the
voter, and before a vote accepted by the judges of election can be
thrown out it must be shown that it was illegal.
159. The case of Paul v. Harrison, continued.
In submitting evidence of illegal voting, parties to a contested
election proceedings are confined to the names of alleged illegal
voters set forth in the pleadings.
Instance wherein the report criticizes election laws of a State.
Where evidence shows for whom illegal votes were cast, deduction is
made from the vote of that particular candidate; but where such
evidence is lacking, deduction is made pro rata from the total vote of
all candidates in that precinct.
Complete and reckless disregard for mandatory laws, involving the
essentials of a valid election, requires rejection of entire returns of
the precincts affected.
The minority also protest a preliminary ruling of the majority
limiting the parties in their charges of illegal voting to names set
forth in the pleadings.
On this question the minority say:
We cannot agree with the report of the committee that the parties to
an election proceeding should be confined to the names of alleged
illegal voters set forth in the pleadings. Such a view is not sustained
by the decisions of the courts or the House of Representatives.
In 20 Corpus Juris, section 294, page 29, it is said:
``Where the ground of contest is the reception of illegal votes, the
weight of authority is that, unless required by statute, it is not
necessary to set out the names of the electors whose votes are alleged
to have been improperly accepted or rejected; at least in the absence
of a motion to make them more definite or specific * * *. And it seems
settled in the House of Representatives
Sec. 159
that it is not necessary in a notice of contest to give the names of
illegal voters objected to or to furnish a list of them to the sitting
Member.''
In 20 Corpus Juris, section 307, page 233, it is said that the same
rule applies to the answer of the contestee.
A number of court decisions and reports in contested election cams
are referred to in support of this doctrine, and the minority views
claim:
In taking his evidence the contestant did not confine himself to the
names set out in the exhibits to his notice, but in many instances
introduced evidence of alleged illegal registrations in respect to
other persons whose names were not on the exhibit, and persisted in
doing so over the objection of the contestee, yet when contestee
attempted to follow the precedent set by the contestant the contestant
objected thereto. The majority of the committee in considering the
alleged illegal votes on account of no applications or applications
where assistance was claimed to have been given, have taken into
consideration names not on the original exhibit attached to the notice;
but in the view that we take of this case this is immaterial, for as
above seen the authorities are to the effect that neither party is
confined to the names set out in the pleadings.
(3) The minority considered at length a number of issues raised by
the contestant but not discussed in the majority report.
As to the failure to provide voting booths:
While at some of the precincts in question there was a failure to
have booths, yet the evidence will show that the requirements in
respect to booths, or what substantially constituted booths, were at a
large number of precincts substantially complied with, and at only a
few of the precincts was there not a substantial compliance with these
requirements, and in all the precincts the voter had the opportunity to
cast and did cast a full, free, and secret ballot. The authorities hold
that the failure to have booths will not vitiate an election where
there was no showing that anyone was intimidated or prevented from
casting or failed to cast a free ballot because of the lack of secrecy
at the polls.
As to failure to keep the ballot box in view:
The majority of the committee in its report comments upon the keeping
of the ballot box in view. What is meant by this is not explained. The
contestant in his brief contended that section 27 of the Virginia
constitution requiring the ballot box ``to be kept in public view
during the election'', means that it shall be kept in view of the
public generally outside of the room in which the election is held. The
contestee, however, took the position that it was sufficient if the
ballot box be kept in view of the judges and clerks of election, and
that it could not possibly have been intended that the law meant that
the ballot box should be kept in the view of the public generally.
Sections 161 and 167 of the Code of Virginia make it unlawful for
persons other than election officials and the elector offering to vote
to come within a certain distance of the polling place, and show that
the construction contended for by the contestant cannot be correct.
According to contestant's contention an election held on the second
floor of a building would not meet with the requirements of the statute
as to the ballot box being within public view, and a room having only a
door in front and not having windows through which the public could
look into the room would be an improper place to hold an election.
However, we do not consider the objection well taken, as in Suffolk
Local Option case (17 Va. Law Register, 353) the fact that the ballot
box was not in public view was held not to vitiate the election. (See
also Augustin v. Eggleston, 12 La. 366.)
As to assistance rendered voters by judges in the preparation of
ballots:
There remains but one other reason advanced by the majority for the
rejection of the returns at the precincts in question, and that is the
claim that the judges of election openly and flagrantly assisted a
voters who desired it in the preparation of their ballots without
regard to the date of their registration or without regard to whether
they were physically disabled.
Sec. 159
The evidence in respect, to assistance to voters was of the vaguest
and most general character. The character of the assistance was not
shown, and how. many persons were assisted does not appear. The
testimony generally was to the effect that the judges of election would
assist any persons who asked for assistance, but the number of persons
who asked for assistance does not appear, and the contestant sought on
such flimsy testimony to have rejected the vote at every precinct in
respect to which this loose and general testimony was obtained.
Certainly, in the absence of more effort on the part of the contestant
to establish the number who were assisted, this objection should not be
considered. The nature of the assistance, and the number of those
assisted, were facts upon which there should be more evidence than
there is in this record to warrant the rejection of the poll at any
precinct. Especially is this true as at all the precincts a large per
cent of the voters were entitled to assistance.
In summing up the case the majority comment upon the purpose and
effect of the election laws of the State as follows:
No one can read the Virginia constitution of 1902 and the laws
governing elections enacted in pursuance thereof without being
convinced that its manifest purpose was to enable the dominant party to
maintain its control of the State for all time through control of the
election machinery. In justice to the people of the State of Virginia
it ought to be stated that they were never given the opportunity to
ratify the present constitution, that instrument having been proclaimed
by the constitutional convention without submission to the electorate
of the State.
Under this grossly unfair system the legislature elects the judges of
the circuit court, all of whom are members of the dominant party, even
in those circuits where a majority of the voters belong to the minority
party. The decisions of these circuit judges in all election cases are
final, there being no appeal to the appellate court, as in other
States. These judges appoint, in each county and city, electoral boards
of three members each, with no provision for minority representation,
and these boards are almost invariably composed entirely of partisans
of the dominant party. The electoral boards in turn choose the
registrars, who are always members of the party in power, and also the
judges and clerks of election. In the case of the latter the only
provision for minority representation is the loosely drawn requirement
that in the appointment of the judges of election representation ``as
far as possible'' shall be given to each of the two major political
parties, but in all cases the selection of the so-called minority
member is exclusively in the hands of the electoral board, which, as
mentioned above, is always in the control of the majority party.
The minority join issue on this view as follows:
The committee makes an attack upon the election laws of the State of
Virginia. We understand that the precedents of the House of
Representatives are to the effect that the mere fact that the election
laws of a State do not conform to the ideas of what Congress considers
to be model laws is no reason for unseating a person who has been
elected as a Representative to Congress from such State.
The criticism by the majority of the committee of the constitution
and laws of Virginia in respect to elections is of little relevancy in
this case. The whole complaint resolves itself into the fact and to be
based upon the ground that the majority of the people in the State of
Virginia are Democrats and that consequently there is a Democratic
legislature and Democratic judges are elected. There is not evidence to
sustain or justify the contention that the judges in appointing members
of the electoral board have been guilty of unfairness or made unwise
selections, nor is there any evidence to the effect that the contestant
ever requested that representation be given upon the electoral board in
the county.
Sec. 159
Rejecting the returns from precincts involved in their findings, the
majority conclude that the contestant received a majority of the votes
legally cast in the district, and recommend the following resolutions:
Resolved, That Thomas W. Harrison was not elected a Member of the
House of Representatives from the seventh congressional district of the
State of Virginia in this Congress and is not entitled to retain a seat
herein.
Resolved, That John Paul was duly elected a Member of the House of
Representatives from the seventh congressional district of the State of
Virginia in this Congress and is entitled to a seat herein.
The minority contend that the findings of the majority are erroneous
and that the official returns should not be disturbed, and recommend
resolutions embodying statements to that effect.
The minority also dissent from the decision of the majority to reject
the entire poll in certain precincts in which irregularities were
found. The minority views contend:
In our opinion in order to warrant the rejection of the returns at
any precinct it was incumbent upon the contestant to show facts which
warranted the disenfranchisement of every voter at such precinct, or at
least to make an effort to do so. In most of the precincts which were
rejected only a relatively small portion of those registered were shown
not to have complied with the constitutional requirements, and many of
the voters necessarily need not have complied with such requirements.
From an examination of the facts and a consideration of the law we
are of the opinion that the returns from the precincts rejected by the
committee should not have been rejected and that the proper course to
have been pursued would have been to apportion the illegal votes proved
to have been cast. It is said in McCreary on Elections (sec. 523):
``The power to reject an entire poll is certainly a dangerous power,
and though it belongs to whatever tribunal has jurisdiction to pass
upon the merits of a contested-election case, it should be exercised
only in an extreme case-that is to say, where it is impossible to
establish with reasonable certainty the true vote.''
In Paine on Elections (secs. 497 and 498), quoted with approval in
same case, it is said:
``Ignorance, inadvertence, mistake, or even intentional wrong on the
part of local officials should not be permitted to disenfranchise a
district. * * * The rules prescribed by the law for conducting an
election are designed chiefly to afford an opportunity for the free and
fair exercise of the elective franchise, to prevent illegal votes, and
to ascertain the certainty of the result. A departure from the mode
prescribed will not vitiate an election if the irregularities do not
deprive any legal voter of his vote or admit an illegal vote or cast an
uncertainty on the result, and have not been occasioned by the agency
of a party seeking to derive a benefit from it.''
In the case of Chadwick v. Melvin (Brightley's Election Cases (Pa.),
251), it was held that there was nothing which will justify the
striking out of an entire division but an inability to decipher the
returns or the showing that not a single legal vote was polled, or that
no election was legally held. Authorities might be multiplied to show
that the action of the committee in rejecting the returns at precincts
where many persons whose registration could not possibly have been
complained of, and in respect to whom no complaint could be made on the
score of assistance having been given, was erroneous. Certainly the
votes of these persons should in any event have been counted, and the
mere fact that the election officials were guilty of some technical
irregularities should not destroy their votes, especially when, as in
the case now under consideration, there is affirmative and
uncontradicted evidence to the effect that the election was fairly and
honestly conducted, and expressed the will of the voters, and there is
no evidence to show that either the contestant was injured or the
contestee benefited by the failure of the election officials to comply
with all the constitutional and statutory requirements in respect to
the conduct of the election. This is well established not only by the
decisions of the House of Representatives. but also by the judicial
decisions.
Sec. 159
The ease was considered in the House on December 15.\1\ After
extended debate the previous question on the resolutions reported by
the majority was ordered; yeas 203, nays 96.
On a division of the question, the fast resolution declaring the
sitting Member not elected was agreed to, yeas 202, nays 100. The
second resolution, declaring the contestant elected and entitled to the
seat, was then agreed to, yeas 201, nays 99.
Mr. Paul then came forward and took the oath.
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\1\ Fourth session Sixty-seventh Congress, Record, p. 531.