[Cannon's Precedents, Volume 6]
[Chapter 171 - General Election Cases, 1923 To 1925]
[From the U.S. Government Publishing Office, www.gpo.gov]
GENERAL ELECTION CASES, 1923 TO 1925.
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1. Cases in the first session of the Sixty-eighth Congress.
Sections 160, 163.
2. Cases in the second session of the Sixty-eighth Congress.
Sections 164, 165.
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160. The New York election case of Chandler v. Bloom, in the Sixty-
eighth Congress.
The House, overruling its committee, declined to reject the vote of
precincts relative to which charges of fraud were not considered to
have been substantiated.
Instances wherein the House declined to follow its committee in
awarding the seat of a Member of the minority to a Member of the
majority party.
Discussion of impartiality of the House as evidenced in the
consideration and disposition of contested-election cases.
Failure of voters to comply with requirements of State election laws
was held by an Election Committee to invalidate votes so cast.
The Elections Committee in an unsustained report held that illegal
votes, the nature of which could not be ascertained, should be
subtracted pro rata from the votes of the contestant and contestee.
An amended notice of contest having been filed by contestant was
answered by contestee.
Instance in which the contestant in an election case was permitted to
address the House in his own behalf, and closed the debate.
On February 28, 1924,\1\ Mr. Richard N. Elliott, of Indiana, from the
Committee on Elections No. 3, submitted the report of a majority of the
committee in the New York case of Chandler v. Bloom. Samuel Marx, who
had been elected to the House from the nineteenth district of the State
of New York on November 7, 1922, died before Congress convened, and a
special election was held on January 30, 1923, to fill the vacancy. The
official returns gave the contestee 17,909 votes and the contestant
17,718 votes, a plurality for the former of 191 votes. An official
recount of the ballots made pursuant to State law upon application of
the contestant gave contestee 17,802 undisputed ballots and contestant
17,676 undisputed ballots, a majority for the former of 126.
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\1\ First session Sixty-eighth Congress, House Report No. 224.
Sec. 160
The remaining ballots were canvassed by the committee of the House of
Representatives, which awarded 55 additional votes to the contestee and
28 additional votes to the contestant, a net majority of 153 votes in
favor of the sitting Member.
On March 3, 1923, the contestant served on the contestee a notice of
contest setting forth numerous grounds of contest, and on May 10, 1923,
an amended notice of contest setting forth additional grounds of
contest. The grounds of contest as presented in both notices of contest
were considered by the committee and may be divided into two classes,
one relating to illegal voting by persons not properly registered or
failing to comply with State election laws and the other to charges of
frauds and irregularities in certain precincts designated in the notice
of contest.
The election laws of the State of New York require registration of
voters and provide for the transfer of voters removing from one
precinct to another upon application to the board of elections. Fifteen
voters were shown to have removed from the district in which they were
registered and in which they had voted at the regular election, and to
have voted in other precincts at the special election without having
secured such transfers from the board of elections. The majority of the
committee find:
That of the 15 illegal votes cast by the voters who had lost their
right to vote by moving to another precinct, 11 of them were cast for
Bloom and should be deducted from his total vote, and that 3 were cast
for Chandler and should be deducted from his total vote. The committee
is unable to determine from the evidence for whom the other vote was
cast and finds that it should be deducted pro rata from the votes of
the contestant and contestee.
The election laws of the State of New York also require the signature
of voters in the official registry before voting. It was shown that 6
voters failed to comply with this requirement of the law, and the
majority find--
That of the 6 votes cast by the voters who failed to sign their names
in the official registry in the twenty-ninth election district of the
eleventh assembly district, the evidence does not disclose for whom
they were voted, and if they were rejected it would have no bearing
upon this case on account of the fact that they should in that event be
subtracted pro rata from the votes of the contestant and contestee; for
this reason the committee does not feel that it is necessary to decide
the question of the legality of said votes.
The minority fall to controvert either the findings of fact or the
conclusions reached by the majority on these questions. On the
remaining issues in the case, however, the majority and minority
reports divide sharply.
The contestant contended that certain precincts of the eleventh and
seventeenth assembly districts should be rejected because: 1. The board
of inspectors was illegally constituted. 2. Unused ballots were stolen
and substituted for voted ballots. 3. Illegal votes were counted. 4.
Electioneering and pictures of the sitting Member were permitted within
100 feet of the polling place. 5. Unsworn persons handled the ballots.
6. Workers for contestant were intimidated and driven away. 7.
Representatives of contestee were under the influence of liquor and
assumed an attitude amounting to intimidation. 8. Ballots were
improperly counted. 9. Inspectors failed to report unused ballots which
were missing.
These charges are taken up by the minority report and denied in
detail, both as unsupported by evidence and as being without material
effect upon the validity
Sec. 160
of the returns, and resolutions are recommended denying the election of
the contestant and confirming the right of the sitting Member to his
seat.
The majority report makes no detailed reference to specific charges
preferred by the contestant but concludes:
That in the twenty-third election district of the eleventh assembly
district and in the thirtieth and thirty-first election districts of
the seventeenth assembly district there was such an utter, complete,
and reckless disregard of the provisions of the election laws of the
State of New York involving the essentials of a valid election, and the
returns of the election boards therein are so badly tainted with fraud
that the truth is not deducible therefrom, and that it can be fairly
said that there was no legal election held in the said election
districts.
Consequently in accordance with the universally accepted principles
of the law governing contested elections and in conformity with a long
line of congressional precedents, the committee is of the opinion that
the entire returns of the twenty-third election district of the
eleventh assembly district and the thirtieth and thirty-first districts
of the seventeenth assembly district should be rejected.
Rejecting the returns from these three precincts, and deducting from
the total vote of the contestant the three votes illegally cast for
him, and from the total vote of the contestee the 11 votes illegally
cast for him in the remaining precincts, the majority conclude that the
contestant received 17,504 votes and the contestee 17,280 votes, a
majority of 224 votes for the contestant.
The majority of the committee therefore recommend to the House the
adoption of the following resolutions:
Resolved, That Sol Bloom was not elected a Member of the House of
Representatives from the nineteenth congressional district of the State
of New York in this Congress and is not entitled to retain a seat
herein.
Resolved, That Walter M. Chandler was duly elected a Member of the
House of Representatives from the nineteenth congressional district of
the State of New York in this Congress and is entitled to a seat
herein.
The report was debated at length in the House on April 10.\1\ On
motion of Mr. Elliot, by unanimous consent, the Members in charge of
the time allotted for debate were permitted to yield time to the
contestee and the contestant, respectively, and the latter closed the
debate.
In the course of the debate emphasis was laid upon the fact that the
New York delegation in the House was almost equally divided politically
and the unseating of the sitting Member would change the political
complexion of the delegation by a majority of one Member, a situation
which might prove material from a political point of view in event of
the pending presidential election being thrown into the House by the
failure of the Electoral College to make a choice. Excerpts from
circular letters by both party whips urging members of their respective
parties to be present in the House when the case was to be decided were
read, and the impartiality of the House in deciding past election
contested-election cases without regard for party considerations was
discussed at length.
The question being first taken on the substitute proposed by the
minority, the substitute was agreed to, yeas 210, nays, 198. The
resolution as amended by the substitute was then agreed to, yeas 209,
nays 198.
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\1\ Record, p. 6034; Journal, p. 419.
Sec. 161
It is to be noted that Mr. Bloom, the sitting Member whose title to
his seat was thus sustained, was a member of the minority party in the
House, while Mr. Chandler, the unsuccessful contestant was a member of
the majority party.
161. The Georgia election case of Clark v. Moore, in the Sixty-eighth
Congress.
No evidence having been adduced to sustain any allegation of
contestant, the House confirmed the title of the sitting Member.
Instance in which an elections committee recommended that unwarranted
contests be discouraged.
On March 26, 1924,\1\ Mr. John M. Nelson, of Wisconsin, from the
Committee on Elections No. 2, submitted the report of the committee on
the Georgia case of Don H. Clark v. R. Lee Moore.
The following statement of the case appears in the report:
At the election held in the first congressional district of the State
of Georgia on November 7, 1922, according to the official returns R.
Lee Moore, the contestee, who was the Democratic candidate, received
5,579 votes; P. M. Anderson, running as a Republican candidate,
received 426 votes; Don H. Clark, running as a Republican candidate,
received 196 votes. As a result of these returns R. Lee Moore, the
contestee, was declared elected and a certificate of election was duly
issued him by the proper State officials.
The contestant in his notice of contest alleged various errors,
frauds, and irregularities, including the burning of ballots, failure
to open the polls, and conspiracy to prevent his name from appearing on
the ballot.
The committee, considering each charge separately, are unanimous in
reporting that no evidence was adduced in support of any charge set
forth in contestant's brief.
After quoting excerpts from contestant's brief, the committee
recommend:
The above quotations are typical of the nature of the contestant's
brief in this case, and your committee is of the opinion that such
loose, extravagant, and unfounded charges being made the basis for an
election contest with the consequent expense to the Government should
be discouraged in the future.
The committee therefore find that the contestee was duly elected and
submit resolutions declaring contestant not elected and confirming the
title of the sitting Member to his seat.
The report was called up in the House on June 3,\2\ 1924, and agreed
to without debate or division.
162. The Illinois election case of Gorman v. Buckley, in the Sixty-
eighth Congress.
A contestant having failed to take or file testimony within the time
required by law, the House without further examination confirmed
returned Member's title.
Form of motion to strike depositions from the record.
Instance wherein the House declined to seat a contestant belonging to
the majority party in the House.
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\1\ First session Sixty-eighth Congress, House Report No. 367.
\2\ Record p. 10323; Journal, p. 369.
Sec. 162
Application of a rule of the Committee on Elections.
On May 13, 1924,\1\ Mr. Richard N. Elliott, of Indiana, from the
Committee on Elections No. 3, submitted the report of the committee on
the Illinois case of John J. Gorman v. James R. Buckley.
At this election there were three candidates, but the contest was
between contestant and the sitting Member, who had been returned by a
plurality of 42 votes. Contestant served notice of contest on January
2, 1923, alleging error, mistake, and irregularity, to which contestee
answered January 27, 1923.
Following the printing of testimony and filing of briefs, the
contestee filed the following motion to strike depositions from the
record:
To the honorable the House of Representatives of the Sixty-eighth
Congress of the United States:
Now comes James R. Buckley, contestee herein, by William Rothman, his
attorney, and moves that the depositions herein and each of them filed
herein by the commissioners respectively designated by the parties to
hear and take the testimony be stricken from the record, on the ground
that said commissioners failed to file the said depositions with the
Clerk of this House, ``without unnecessary delay'' after the taking of
the same was completed as required by section 127 of the Revised
Statutes as amended, in that the same were not filed within 30 days
after the completion of the taking of mid testimony as required by the
rules of the Committee on Elections of this honorable House; and in
this connection the contestee respectfully represents that the taking
of testimony herein was completed on April 28, 1923, at the hour of
12:30 o'clock p.m., at which time the further hearing of the said cause
was adjourned sine die; that the only further proceedings had in said
cause subsequent to said April 28, 1923, were hearings which were had
before his honor, Judge Wilkerson, in the United States district court,
which were had on June 2 and June 4, 1923; and that no further
proceedings of any kind or nature were had in the said cause subsequent
to said June 4, 1923; and that the depositions filed herein by the
commissioner designated by the contestant were filed with the Clerk of
this honorable House on, to wit, November 5, A.D. 1923, more than 191
days following the completion of the taking of testimony and more than
154 days after the date when the last proceedings of any sort were had
in said contest.
Dated at Chicago, Ill., November 20, 1923.
The committee report as findings of fact:
The contestee's answer was served on contestant January 27, 1923. The
act of Congress approved March 2, 1875 (U. S. Stat. L., vol. 18, ch.
119, p. 338), provides that in all contested-election cases the time
allowed for taking testimony shall be 90 days, and the testimony shall
be taken in the following order: The contestant shall take testimony
during the first 40 days, the returned Member during the succeeding 40
days, and the contestant may take testimony in rebuttal only during the
remaining 10 days of said period.
In this case, therefore, the contestant, under said law, was allowed
until March 9 in which to take his testimony in chief and the law
required that the taking of all testimony should be completed on April
27, 1923. As a matter of fact, however, the contestant took only a part
of his testimony in chief in the first 40 days, which expired on the
9th day of March, 1923. The contestee took no testimony in the next 40
days. During the 10-day period at the end of the 90 days the contestant
took some additional testimony, which was not in rebuttal, but was
intended as testimony in chief. The testimony in this case was filed
with the Clerk of the House of Representatives, on the 5th day of
November, 1923.
After citing the Federal statute providing that all testimony in
contested-election cases shall be taken within 90 days and forwarded
``without unnecessary delay'' to the Clerk of the House, and quoting
rule 8 of the Committee on Elections,
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\1\ First session Sixty-eighth Congress, House Report No. 722.
Sec. 163
construing the phrase ``without unnecessary delay'' to mean within 30.
days of completion of taking testimony, the committee reports:
Your committee finds that the contestant in this case ignored the
plain mandate of the law and the rules of the Committees on Elections
of the House and that he has no standing as a contestant before the
House of Representatives.
In conclusion the committee find--
That the contestant, not having complied with the provisions of the
law governing contested-election cases, has no case which can be
legally considered by the committee or by the House of Representatives.
The committee therefore recommend the adoption of resolutions
declaring the contestant was not elected, and confirming the title of
sitting Member to his sent, which were unanimously agreed to by the
House, June 3, 1924, without debate.
163. The New York election case of Ansorge v. Weller in the Sixty-
eighth Congress.
The House sustained a recount authorized by and conducted pursuant to
State laws.
Objections by contestee that notice of contest was insufficient were
disregarded by the elections committee.
Form of resolution providing for inspection of contested ballots.
Form of resolution providing program of procedure in recount of
contested ballots.
While not considering the committee bound by stipulations and
agreements of parties, such agreements were substantially sustained by
the committee.
On May 14, 1924,\1\ Mr. Clint R. Cole, of Ohio, from the Committee on
Elections No. 1, submitted the report in the New York case of Martin C.
Ansorge v. Royal H. Weller.
Sitting Member had been returned by an official plurality of 245
votes, which the contestant attacked on the grounds that--
The count, canvass, and handling of the ballots in the election
districts of the said congressional district were not conducted in the
lawful, orderly, and proper manner provided for by the election law to
prevent fraud and unintentional error.
A motion by contestee that contestant's petition be dismissed for the
reason that his notice of contest was--
insufficient in that it contained no facts or proof whatsoever to raise
any presumption whatever of mistake, irregularity, or fraud in the
original count or canvass,
was disregarded by the committee.
A recount of the ballots, made by both parties, pursuant to the
election laws of the State of New York, gave the contestant a plurality
of 115 votes over the contestee on conceded ballots, with 820 ballots
remaining in dispute.
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\1\ First session Sixty-eighth Congress, House Report No. 756.
Sec. 163
On March 31, 1924,\1\ the following resolution providing for a
recount of the 820 disputed ballots was agreed to by the House:
Resolved, That John Voorhis, Charles E. Heydt, James Kane, and Jacob
Livingston, constituting the board of elections of the city of New
York, State of New York, their deputies or representatives, be, and
they are hereby, ordered to appear by one of the members, the deputy,
or representative, before Elections Committee No. 1 of the House of
Representatives forthwith, then and there to testify before said
committee or a subcommittee thereof, in the contested election case of
Martin C. Ansorge, contestant, v. Royal H. Weller, contestee, now
pending before said committee for investigation and report; and that
said board of elections bring with them all the disputed ballots marked
as exhibits cast in every election district at the general election
held in the twenty-first congressional district of the State of New
York on November 7, 1922. That said ballots be brought to be examined
and counted by and under the authority of said Committee on Elections
in said case; and to that end, that the proper subpoena be issued to
the Sergeant at Arms of this House commanding him to summon said board
of elections, a member thereof, or its deputy or representative, to
appear with such ballots as a witness in said case; and that the
expense of said witness or witnesses, and all other expenses under this
resolution, shall be paid out of the contingent fund of the House, and
that said committee be, and hereby is, empowered to send for all other
persons or papers as it may find necessary for the proper determination
of said controversy; and also be, and it is, empowered to select a
subcommittee to take the evidence and count said ballots or votes, and
report same to Committee on Elections No. 1, under such regulations as
shall be prescribed for that purpose; and that the aforesaid expense be
paid on the requisition of the chairman of said committee after the
auditing and allowance thereof by said Committee on Elections No. 1.
The ballots in question having been brought before the committee,
counsel for contestee submitted a program of procedure which was agreed
to by all parties and adopted by the committee, as follows:
Resolved, That in order to expedite the work of the committee,
counsel for the respective candidates be, and they hereby are,
instructed, during the next hour, to arrange the various ballots which
have been brought from New York to Washington into the following piles:
1. Ballots marked otherwise than with a pencil having black lead--
that is, ballots marked in ink or with a blue crayon or with an
indelible pencil, etc.
2. Ballots bearing a mark for the office of Congressman challenged on
the ground that the lines of the alleged cross mark do not cross--i.e.,
alleged y's, v's, and t's.
3. Ballots bearing a cross mark where the lines cross but challenged
because of extra lines forming part of the cross, or because of other
irregularities in character or form of the mark.
4. Ballots bearing a cross mark outside of the voting squares.
5. Ballots bearing two cross marks for the office of Congressman,
irrespective of whether such marks were made by the voter or claimed to
be reprints or impressions.
6. Ballots bearing erasures, smudges, or ink marks.
7. Ballots bearing any name written on the ballot.
8. Ballots challenged because they appear to have been torn by some
one.
9. Ballots other than the above which are challenged by either party
because of extra lines, dots, and dashes disconnected with the cross
mark.
10. All other ballots.
During the argument before the committee counsel for both parties
agreed as to a number of the ballots in dispute as belonging to one
party or the other, or as being void or remaining in dispute.
Upon the close of argument the committee proceeded, in executive
session, to divide the ballots into the 10 groups agreed upon and 2
additional groups.
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\1\ Record, p. 5271.
Sec. 164
As to weight accorded stipulations by parties and their counsel, the
report says:
While not considering that the committee was bound by the
stipulations and agreements of counsel as to good, void, and protested
ballots, the members of the committee have substantially sustained the
agreements of counsel.
The final canvass by the committee is tabulated as follows:
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Good
ballots for Good
ballots for
contestant. contestee.
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Class 1............................................................................... 17 8
Class 2............................................................................... 12 20
Class 3............................................................................... 12 7
Class 4............................................................................... ........... 1
Class 5............................................................................... 2 33
Class 6............................................................................... 30 43
Class 7............................................................................... 2 2
Class 8............................................................................... ........... 1
Class 9............................................................................... 5 15
Class 10.............................................................................. 29 70
Class 11.............................................................................. 7 29
Class 12.............................................................................. 64 69
Envelopes............................................................................. 7 14
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Total............................................................................. 187 312
New York recount totals............................................................... 31,892 31,777
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Grand total....................................................................... 32,079 32,089
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The sitting Member having received a plurality of 10 votes thus
tabulated, the committee recommended the adoption of the following
resolutions:
Resolved, That Martin C. Ansorge was not reelected a Representative
from the twenty-first congressional district of the State of New York
and is not entitled to a seat herein.
Resolved, That Royal H. Weller was duly elected a Representative from
the twenty-first congressional district of the State of New York and is
entitled to retain a seat herein.
On May 27, 1924,\1\ the resolutions were unanimously agreed to by the
House without debate.
164. The New York election case of Frank v. LaGuardia, in the Sixty-
eighth Congress.
Contestant failing to take testimony within time provided by law, the
House discharged the committee from further consideration of the case.
Laches of contestant in prosecuting contest having rendered
impossible the submission of final report by elections committee within
time provided by rule of the House, the committee declined to consider
the merits of the case and were discharged.
Stipulation by parties in the nature of an agreement can not waive
plain provisions of the statutes.
Procedure to be followed where parties require time beyond that
provided by law.
While constitutional provisions exempt the House from the operation
of the law relating to the taking of testimony in election cases, such
law is binding upon the parties thereto.
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\1\ Journal, p. 593; Record, p. 9631.
Sec. 164
Effort by opposing counsel to profit by laches authorized in void
stipulations, to which he was himself party, were criticised as
unethical.
In the absence of evidence of fraud or irregularities, proof of which
would change the result of the election, the committee declined to
subpoena ballots.
The House and its committees are not to be considered boards of
recount, and returns made by boards, charged with that duty by the
State in which the election is held, are presumed correct until
impeached by proof of irregularity or fraud.
On January 7, 1925,\1\ Mr. John M. Nelson, of Wisconsin, from the
Committee on Elections No. 2, submitted the report of the committee in
the New York case of Henry Frank v. Fiorello H. LaGuaxdia.
The official returns gave contestee 8,492 votes, contestant 8,324 and
all other candidates a total of 5,358 votes, a plurality of 168 votes
for the sitting Member.
On December 28, 1922, the contestant served notice of contest setting
forth numerous grounds for contest of a general nature. The taking of
testimony in behalf of contestant began February 23, 1923, and
continued until November 30, 1923.
Taking of testimony by contestee began on December 20, 1923, and was
concluded on March 1, 1924. The case was reported by the Clerk of the
House to the Speaker on June 3, 1924, and briefs were filed, the first
on June, 30 and the last on August 28, 1924.
On March 1, 1923, the parties entered into stipulation as follows:
It is stipulated by and between the parties hereto, through their
respective attorneys and counsel, that the time limit as fixed by the
rules of the House of Representatives and the statues of the United
States governing contested elections shall be deemed as directory and
not mandatory, and that either party may have more than the period of
time allotted and fixed therein within which to present his respective
case in this proceeding, and both sides waive specifically any right to
object that they may have under the law with respect to the time so
fixed.
In repudiation of this stipulation the committee hold:
A stipulation by parties in the nature of an agreement can not waive
the plain provision of the statutes.
Indicating proper procedure to have been followed where further time
was required, the committee quote:
If either party to a case of contested election should desire further
time and Congress should not then be in session, he should give notice
to the opposite party of a procedure to take testimony and preserve the
same and ask that it be received, and upon good reason being shown, it
doubtless would be allowed.
The committee add:
It is to be noted that Congress was in session from December 3, 1922,
to June 7, 1924, but parties did not ask the consent of Congress either
to extend the time or to validate the stipulation even in the face of a
special rule of the House that cases must be disposed of within six
months after the opening of the Congress.
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\1\ Second session Sixty-eighth Congress, House Report No. 1082.
Sec. 164
The law providing for the taking of evidence has been held to be not
binding upon the House. It has been correctly stated, ``That the House
possesses all the power of a court having jurisdiction to try to the
question who was elected. It is not even limited to the power of a
court of law merely, but under the Constitution clearly possesses the
functions of a court of equity also.''
The law, however, is binding upon the parties, as evidenced by the
use of the mandatory word ``shall``. The House alone, upon proper
application, may grant a further extension of the time for taking
evidence for cause shown as a matter of equity but not of right, or to
protect the rights of the people of a district.
In confirmation of this interpretation, the committee cites
precedents in which the House has granted or refused extension of time
on application, and differentiates between instances in which the
merits of the case warranted or did not warrant such extension.
Agreement of contestee's attorney to the stipulation is not
considered by the committee to mitigate contestant's laches. The report
says:
While the contestee's attorney joined in the stipulation to waive the
requirements of the law, indeed, himself dictated it and was afterwards
guilty of a breach of legal ethics when he raised the point of lack of
diligence, nevertheless, it is incumbent upon the contestant to
prosecute his case speedily. The contestee holds the certificate of
election. His title can only be overturned upon satisfactory evidence
that he was not elected. His seat in this body can not be jeopardized
by the faults of others. It has been held that the House has no right
unnecessarily to make the title of a Representative to his seat depend
upon the acts, omissions, diligence, or laches of others.
However, Mr. John L. Cable, of Ohio, a member of the committee
concurring in the conclusions of the committee, files additional views
on this point in which he adds:
Neither is contestee without fault. His counsel prepared and entered
into a stipulation with contestant's attorney that the rules of
Congress and the laws of the United States should not be binding and
that--
``either party may have more than the period of time allotted and fixed
therein within which to present his respective case in this proceeding,
and both sides waive specifically any right to object that they may
have under the law with respect to the time so fixed.''
Contestee's counsel now raises the issue of delay. In his brief he
claims:
``The contestant has thoughout deliberately ignored the limitations
and abused the privileges imposed and granted by the act.''
He also contends:
``The contest should be dismissed because the contestant, without
consent of the House or its proper committee, did not take and state
his proof within the time limited by act of Congress.''
He seeks to profit by a violation of his own agreement; to win his
client's cause by the disregard of the laws of Congress, of which he
also is guilty; to benefit from a situation he aided and assisted in
creating; to use the violation of the law as a weapon of offense and
defense--as a shield and a sword.
This action on the part of contestee's attorney is neither ethical
nor professional. It is particularly a subject of condemnation.
Contestee should not have permitted such a claim to be presented in his
brief.
A few days before the case came up for hearing counsel for contestant
requested that subpoenas issue for the production of 82 ballots in
dispute. The committee gave as its reasons for denying this request:
The record is bare of any evidence or proof to sustain the general
allegations of intimidation, fraud, or of other misconduct alleged in
the notice of contest.
Sec. 164
Contestant's counsel by failing to stress at all these contentions in
the argument conceded that such allegations could not be sustained.
The record fails to reveal any real ground for contest other than the
hope that a recount of the ballot might overturn the narrow majority of
168 by which the election of the contestee had been certified by the
secretary of state.
But there is nothing in the record at all persuasive that a recount
would change the result. The ballots said to be in dispute involve
merely considerations of the kind of lead pencil used by voters, hair
lines seen on the face of the ballots, and alleged erasures. There is
no question involved of fraud or of other serious irregularities.
In the further support of its refusal to subpoena ballots for recount
the committee asserts that the House and its committees are not boards
of recount and quotes with approval the following statement of counsel
in the case of Amsorge v. Weller:
It has been said again and again by the House, by the courts, by
every tribunal that has this duty of passing upon contested elections,
that the returns which are made by the inspectors, regularly appointed
by the laws of the State where the election is held, are presumed to be
correct until they are impeached by proof of irregularity and fraud,
and that the House will not erect itself, nor will it erect its
committees as mere boards of recount. It is conceived that when the
statutes of the State have set up these bipartisan boards and made due
and proper provision for their selection, that it is, a matter of
public policy, wise and right that their conclusions shall be accepted
by the parties to the election, by the public, and by any board charged
with the duty of passing on the result, until such time as such
irregularities and frauds are proved as to raise a fair presumption
that their duties were not honestly performed.
The principal issue, however, on which the committee decides the
case, is the failure of contestant to complete and file testimony
within the time required by law and contemplated by the rules of
procedure approved by the rules of procedure approved by the election
committees and by clause 58 of Rule X1 of the rules of the House. The
committee say:
The controlling factors, however, in our minds in reaching the
conclusion in this case, were the imperative necessity of safeguarding
the printed rules unanimously approved by the three election
committees, a special rule of the House recently adopted, the plain and
explicit provisions of a law of Congress, and a long and unbroken line
of House precedents.
The rules of the election committees were carefully prepared and
unanimously adopted by the three election committees.
They were prepared specifically to expedite the determination of
election case. The contestant's attorney admitted that he had not
brought himself within these rules.
Citing clause 58 of Rule XI, the committee quote a statement in
debate on the adoption of the clause by the chairman of the then
Committee on Rules: \1\
Everyone is opposed to allowing contested election cases to run along
until the last day of the session, as is often done, and we can see no
good reason for doing so. * * * But with that rule enforced, we thought
we could hurry them up and get better action from the election
committees than we have had in the past.
Citing section 107 of the Revised Statutes, the committee quote
statements in debate on the enactment of the law by the then chairman
of the Committee on Elections: \2\
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\1\ First session Sixty-eighth Congress, Record, p. 950.
\2\ Second session Thirty-first Congress, Globe, p. 108.
Sec. 165
I have had during this Congress considerable experience of the
difficulty under which the House and the Committee on Elections labor
in determining upon those cases of contested elections which are
brought before it. I have determined during the last session of
Congress that I would endeavor to promote such a bill as would remove
most of the evils and enable the House to dispose of those cases
without such great consumption of its time but without suffering the
evils under which it has labored in past years.
If this bill is approved, the result will be that instead of several
months' delay, as has been the case heretofore, the testimony will be
in the hands of the printer the very first day of the session, and the
decision of the House will be made before the 1st day of January in
every session.
And by another member of the Elections Committee: \1\
This thing of contesting the right to a sitting Member on this floor
has become the greatest of all humbugs in this age of humbugs. A --
comes here and claim that he is entitled to the seat of the person in
it under proper authority of the State. The consequences is that during
a long nine-mouth session the Member retains his seat, but at the close
of the session the House decides that he is not entitled to it and is
turned out after having exercised the conventions of an office nine
months to which he had not been entitled, and although the contestant
and the sitting Member are paid full wages of Members of Congress.
As to failure of contestant to comply with express provisions of the
statute and the rules of the committee and of the House, the committee
conclude:
The record reveals the fact that the contestant had permitted the
contest to drag along up to within a few months of the termination of
the Congress to which he claimed election; that the recount, even if
successful for the contestant, would still further reduce the value of
it for him to the nominal distinction of having been declared elected,
but of course he would get the substantial emoluments of salary and
clerk hire for two years.
The precedents of the House have recently been very specific and
direct in holding that parties guilty of laches would have no standing
before the House unless sufficient cause was disclosed for delay.
These precedents are well fortified by a long line of decisions in
election cases.
The committee therefore recommended the adoption of the following
resolution:
Resolved, That the Committee on Elections No. 2 shall be, and is
hereby, discharged from further consideration of the contested-election
case of Henry Frank v. Fiorello H. LaGuardia from the twentieth
congressional district of New York.
165. The Senate election case of Peddy v. Mayfield in the Sixty-
eighth Congress.
A memorial, having been filed charging conspiracy and excessive
expenditure of money in the election of a Senator, the Senate by
resolution authorized an investigation.
Discrepancies in returns disclosed by a recount and reported by the
committee as insufficient to change the result of the election were not
further examined by the Senate.
Failure to comply with statutory requirements in the signing,
numbering, and stamping of ballots was disregarded by the Senate.
The Senate recognizes the power of the party or the State to provide
regulations governing party primaries.
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\1\ Second session Thirty-first Congress, Globe, p. 109.
Sec. 165
Discussion of litigation in State courts to place names of candidates
on the ballot.
Excessive and unlawful amounts of money spent without the knowledge
or consent of the candidate do not warrant the sustaining of a contest.
In the Sixty-eighth Congress \1\ the Senate considered the case of
George E. B. Peddy v. Earle B. Mayfield, of Texas.
The credentials of Mr. Mayfield as a Senator from the State of Texas
were presented December 3, 1923, at the beginning of the first session
of the Sixty-seventh Congress, and being in due form he took his seat
in the Senate.
Subsequently: \2\
George E. B. Peddy (contestant) filed with the Senate February 22,
1923, a petition contesting the election of Earle B. Mayfield
(contestee) as Senator from Texas in the general election of November
7, 1922, and a protest both against the election and the qualification
of the contestee. A first and second supplemental petition were filed
by the contestant and an answer was filed by the contestee.
The charges alleged by the contestant were:
1. That illegal votes were counted for Mr. Mayfield and that legal
votes were not counted for contestant.
2. That undue advantage and illegal discrimination in favor of
contestee was such as to invalidate his election.
3. That the primary elections, both the first primary election and
the second, or run-off primary election were illegally controlled by
secret influences, by fraud, by excessive use of money, and by
lawlessness in the interests of contestee and against the rights of
contestant.
4. That there was a general conspiracy between the Knights of the Ku-
Klux Elan and the contestee of a character and result that invalidated
the election of contestee.
5. That contestee was disqualified for membership in the Senate of
the United States largely because of the alleged ``illegal practices
that were directly or indirectly connected with his election.''
6. Contestant asked for a recount and recanvass of the votes cast at
the general election and claimed in his first supplemental petition
that he, contestant, was entitled to the office.
The memorial with accompanying papers was referred to the Committee
on Privileges and Elections. After consideration the committee reported
a resolution authorizing an investigation by the Committee on
Privileges and Elections which was Weed to by the Senate on January 3,
1924.\3\
Under authority conferred by the resolution:
The ballots were gathered in the State of Texas through the office of
the Sergeant at Arms and were transmitted in sealed pouches by the Post
Office Department under lock and key, with every safeguard against
possible tampering. The recount, conducted in the Senate Office
Building, was begun on February 18, 1924, and was completed on April 8,
1924. The official return from the State of Texas as taken from the
county clerks' records shows the following result:
Mayfield 266,307
Peddy 132,529
----------
Total 398,836
The total number of votes which were brought to Washington were
$67,513, of which 28,319 were no votes. The result of the recount of
these ballots showed that--
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\1\ Second session Sixty-eighth Congress, Senate Report No. 973.
\2\ First session Sixty-eighth Congress, Record, p. 317.
\3\ Record, p. 488.
Sec. 165
Mayfield received 221,596
Peddy received 117,599
The inspection of the ballots also disclosed--
many irregularities and discrepancies and clear violations of law in
connection with the casting of the ballots, as, for example, the laws
of Texas provide that the ballots shall be signed by the judge of
election.
30,209 Mayfield ballots were not thus signed.
14,609 Peddy ballots were not thus signed.
The law provides that the ballots shall be numbered.
1,723 Mayfield ballots were not numbered.
1,021 Peddy ballots were not numbered.
The law provides that the ballots that are cast shall be stamped
``voted.''
187,387 Mayfield ballots were not thus marked.
92,192 Peddy ballots were not thus marked.
As to the effect upon the validity of the election of these
discrepancies in the count and the failure to comply with the statutory
requirement specified, the committee in its report submitted January 3,
1924,\1\ hold:
These are illustrations of the irregularities, discrepancies, and
violations of law, but no one of them, nor all of them together, in the
judgment of your committee, either did or ought to change the result.
As to the power of a party or a State to provide regulations
governing party primaries within the State, the committee conclude:
The contestant complained of the law and practice in Texas which
prevented any member of a party from voting at a primary election who
had not voted, if he voted at all, for the regular party ticket at the
last preceding general election.
It was claimed by the contestant that except for this rule Mayfield
would not have been nominated at the primary. Similar regulations are
in force in other States, and your committee has no doubt as to the
power of a party or of a State to make such regulations if they see fit
so to do.
The committee further determine:
The contestant alleged that there was a general conspiracy between
the Knights of the KuKlux Klan and the contestee in order to bring
about the election of the contestee and that pursuant to this
conspiracy unlawful sums of money were spent in favor of contestee and
that the Knights of the Ku-Klux Klan, a corporation, were prohibited by
law from contributing to or interfering in their corporate capacity
with elections, and also that intimidation was resorted to in the
interest of the contestee.
The evidence does not, in the opinion of your committee, show that
excessive and unlawful amounts of money were spent, and certainly not
with the knowledge or consent of Senator Mayfield, nor do they find
from the evidence that there was any such lawlessness or conspiracy in
connection with the Ku-Klux Klan or otherwise as would in their
judgment warrant the sustaining of the contest.
In conclusion, the committee say:
Undoubtedly there were, particularly in the primary election, and in
the general election as well, acts of omission and commission in
violation of express statutes, and some of them doubtless
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\1\ Record, p. 489.
Sec. 165
were intended to unlawfully produce a desired result in the election,
but the evidence from the beginning to the end of it does not show
either a knowledge or a consent of Senator Mayfield in these matters,
nor are they of a character or extent which in the judgment of your
committee warrant either the sustaining of the contest or the protest
against the seating of Senator Mayfield.
The report also recounts at length the course of litigation in the
State courts over the placing of names of candidates on the ballot.
The committee therefore:
unanimously recommend that the contest in this case be dismissed and
the protests against the seating of Senator Mayfield be overruled.
The Senate, without debate or division, agreed \1\ to the report.
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\1\ Second session Sixty-eighth Congress, Record, p. 2929.