[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 2. Enrolling Members; Administering the Oath]
[§ 4. The Clerk's Roll]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 102-112]
CHAPTER 2
Enrolling Members; Administering the Oath
Sec. 4. The Clerk's Roll
The Clerk's roll is the list of Members-elect, arranged
alphabetically by states, which the Clerk prepares in advance of the
convening of a new Congress based on the certificates of election
received by his office.(7) That
[[Page 103]]
particular roll is called only once, directly after the Congress
convenes, in order to establish a quorum of Representatives-elect to
proceed to the organization of the House.(8) The roll does
have a further purpose, in that it constitutes the first official
declaration as to which persons claiming seats in the House are
entitled to participate in the proceedings prior to election of the
Speaker, and in the election itself.(9)
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7. See 2 USC Sec. 26, directing the preparation of the Clerk's roll.
As to the form of credentials and their transmission to the
Clerk's office, see Sec. 3, supra.
8. See, generally, Ch. 1, Sec. 5, supra, for the procedure at
organization when the Clerk is presiding. The roll to elect the
Speaker is called alphabetically on a roll call vote, with each
Member casting his vote by declaring the name of the nominee of
his choice. (See Ch. 1, Sec. 6, supra.) For the relationship
between the Clerk's roll and regular rolls of the House, see
Sec. 4.1, infra.
9. As the roll to elect a Speaker is based exclusively upon the
Clerk's roll, a claimant to a seat who is not enrolled will not
be called on the roll call vote (see Sec. 2, supra, for the
right to participate of Members-elect). For the proposition
that claimants not enrolled may not participate in organization
until the House takes some action on their claims, see 1 Hinds'
Precedents Sec. Sec. 83-86. On the other hand, Members-elect
enrolled may participate before the House decides that they
were enrolled on insufficient evidence (see 1 Hinds' Precedents
Sec. 366).
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As indicated above,(10) every Member-elect with regular
credentials on file with the Clerk has a right to be included on the
Clerk's roll;(11) whether or not a specific set of
credentials shows the person named therein to be regularly elected is a
matter solely for the decision of the Clerk,(12) who is the
only official authorized to prepare the Clerk's roll (unless his office
is vacant, in which case the Sergeant at Arms, or in his absence, the
Doorkeeper, performs the Clerk's functions).(13)
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10. Sec. 3, supra.
11. In Page v U.S., 127 U.S. 67(1888), the Supreme Court held, inter
alia, that a Representative-elect whose credentials showed he
was regularly elected must have been placed on the Clerk's roll
under Sec. 31 of the Revised Statutes (now, 2 USC Sec. 26).
12. See the provisions of 2 USC Sec. 26, which do not specify the
required form of credentials, or the factors for determining
whether they show the Member-elect was ``regularly elected.''
In early times, a committee examined the credentials with the
object of ensuring the regularity (see 1 Hinds' Precedents
Sec. Sec. 386, 387). Mere enrollment does not entitle a Member-
elect to a seat, however, as the House determines both the
prima facie and final entitlement to that right (see Sec. 6,
infra); the House may review the action of the Clerk in
enrolling Members-elect (see, generally, 1 Hinds' Precedents
Sec. Sec. 589-610).
13. See 2 USC Sec. 26. For a recent occasion where the Doorkeeper
assumed the Clerk's functions, see Sec. 4.2, infra.
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Whether or not the Clerk may go behind the document of creden
[[Page 104]]
tials itself to determine whether to enroll a particular Member-elect
depends on the specific circumstances of the case. In past Congresses,
Members-elect have been enrolled where there was no certificate but
there were communicated official statements from state authorities
showing election return,(14) or where the credentials were
irregular but state law forbade rejection of credentials for mere
informalities.(15) On at least one occasion, the Clerk has
inquired into the age qualification of a Member-elect who was not yet
25 years old when his credentials were presented, but who reached the
age limit after Congress had convened.(16) In contemporary
practice, the Clerk will not enroll a Member-elect unless credentials
regular in form and in strict compliance with state law have been
received.(17)
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14. See 6 Cannon's Precedents Sec. 597. For a recent instance of such
action, see Sec. 4.4, infra.
15. See 6 Cannon's Precedents Sec. 557.
16. See 1 Hinds' Precedents Sec. 418. For a full discussion of the
meeting of qualifications before appearing to take the oath,
but after the election or even after the convening of Congress,
see Ch. 7, infra. A line of precedents in both the Senate and
House suggest that a Member-elect lacking the age and
citizenship requirements of U.S. Const. art. I, Sec. 2, clause
2, at the time of election may forestall presenting his
credentials and taking the oath until he satisfies those
qualifications, after the convening of Congress.
17. Strenuous opposition was voiced in the House on the last occasion
when the Clerk enrolled a claimant to a seat whose credentials
had not yet been received (see Sec. 4.4, infra). The Clerk has
enrolled a Member-elect despite an order of the state supreme
court restraining the issuance of the certificate of election
(see Sec. 4.3, infra). For similar past instances where
credentials already delivered to the Clerk took precedence over
adverse decisions by the highest court of the representative
state, see 1 Hinds' Precedents Sec. Sec. 56, 57.
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The Clerk's roll is directed to be read at the opening of a
Congress by the Clerk, or by the officer who assumes his functions. The
roll is called in the same manner in which it is prepared,
alphabetically by state.(18)
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18. See Sec. 4.1, infra.
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Occasionally it is necessary to correct the roll, due to technical
errors or due to changes in the membership. The roll has been corrected
on the floor of the House by reference to credentials, when the roll
contained a typographical error;(19) where there are alleged
errors in substance, the Clerk's roll will not be corrected until the
[[Page 105]]
time for the administration of the oath to Member.(~20~)
Before the House meets, the Clerk may strike from the roll names of
Members-elect whose certificates of election are on file, but who have
resigned or who have died before the convening of a
Congress.(1) However, such corrections are only made by the
Clerk pursuant to official declarations by the executive of the state
of representation. For example, in the 93d Congress, the name of a
Member-elect whose seat the Governor had declared vacant pursuant to a
presumptive death verdict was stricken from the Clerk's
roll.(2) But the name of a companion Member-elect, who had
disappeared under the same circumstances as the former, was not
stricken from the roll, since the state of representation had not
declared his seat vacant nor recognized the possibility of presumed
death.(3)
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19. See 1 Hinds' Precedents Sec. 25 (name of state Governor, instead of
Member-elect, called by error).
20. The Clerk may not entertain motions to ``correct'' the roll by
substituting the name of a claimant for the name of a Member-
elect (see 1 Hinds' Precedents Sec. Sec. 22-24). Challenges,
which attempt to add the name of one person to the roll and to
strike the name of another, are not made until the Speaker
indicates that the administration of the oath is in order (see
Sec. 6, infra).
1. See Sec. Sec. 4.6, 4.8, infra. For an exception to that procedure,
see Sec. 4.7, infra (where a Member-elect died moments before
Congress convened, his name was not stricken from the roll
until the House was informed of the death). The Clerk's power
to strike the names of dead and resigned Members-elect is
traditional (see 1 Hinds' Precedents Sec. Sec. 26-28).
2. See Sec. 4.8, infra.
3. See Sec. 4.9, infra. Subsequently, the House itself declared the
seat vacant, pursuant to presumptive death evidence, and the
Member's-elect name was then stricken from further roll calls.
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The composition of the Clerk's roll is determinative of those
persons entitled to be counted for the initial quorum of the House, and
those persons entitled to vote for Speaker at the opening of a new
Congress.(4) In that respect, the regular roll differs
substantially from the roll to establish a quorum or to elect a new
Speaker at the beginning of a second session.
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4. See Sec. 2, supra.
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When the Speaker died between sessions of the 87th Congress, and
several Members-elect appeared to fill vacancies at the beginning of
the second session, those Members-elect were not called to establish a
quorum or to elect a new Speaker, although their certificates of
election were on file with the Clerk. They could not be sworn until
after the Speaker was elected, and the regular roll of the House
includes only those Mem
[[Page 106]]
bers who have qualified for membership by taking the
oath.(5) Therefore, although the Clerk's roll furnishes the
preliminary basis for the regular roll of the House, the latter
reflects changes in membership occurring after Congress convenes, such
as adverse determination of election contests, resignations of Members-
elect who decline to take the oath in favor of another office, and
deaths.(6)
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5. See Sec. 4.11, infra. On the same occasion, resignations of Members
received during adjournment were not laid down prior to the
vote for Speaker, although their names had been stricken from
the roll of the House (see Sec. 4.10, infra). That practice is
to be distinguished from the procedure at the convening of a
new Congress, where the Clerk announces before the election of
the Speaker the names of those resigned Members-elect whose
names have been stricken from the roll. See, e.g., announcement
of the Clerk as to a vacancy in the 92d Congress, 117 Cong.
Rec. 10, Jan. 21, 1971.
6. After organization, the roll of the House consists of those Members
chosen, sworn, and living whose membership has not been
terminated by resignation or by the action of the House. See 4
Hinds' Precedents Sec. Sec. 2889 2890; 6 Cannon's Precedents
Sec. 638.
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Form and Call of the Roll
Sec. 4.1 Unlike regular roll calls of the House, the Clerk's roll to
establish a quorum of Representatives-elect at the convening of a
new Congress is prepared and called alphabetically by states.
The Clerk's roll at the beginning of the 92d Congress was both
prepared and called by state delegations, listed
alphabetically.(7) The roll to establish a quorum has taken
that form at the beginning of every Congress.(8) However,
unless the roll is taken by electronic device (see Chs. 20, 30, infra)
regular roll calls of the House are required to be called
alphabetically by surname under House Rule XV.(9) (After a
quorum is established at the opening of a new Congress, the roll to
elect a Speaker is called alphabetically, to which the Member responds
by calling the surname of the nominee of his choice.)(10)
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7. 117 Cong. Rec. 9, 10, 92d Cong. 1st Sess., Jan. 21, 1971.
8. In former Congresses, the roll to establish a quorum at the
beginning of a new session during the term of a Congress was
also called by states (see 1 Hinds' Precedents Sec. 83).
9. Rule XV clause 1, House Rules and Manual Sec. 765 (1973).
10. See, e.g., 117 Cong. Rec. 10, 11, 92d Cong. 1st Sess., Jan. 21,
1971. See also 1 Hinds' Precedents Sec. Sec. 204-222.
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Sec. 4.2 Where the Clerk has died between Congresses, and in
[[Page 107]]
the absence of the Sergeant at Arms, the Doorkeeper of the House
directs the call of the roll of Representatives-elect, prepared
under his auspices.
On Jan. 3, 1947,(11) the opening of the 80th Congress,
the Doorkeeper of the House, Ralph R. Roberts, directed the call of the
roll to establish a quorum and to elect a Speaker. The Doorkeeper
assumed the functions of the Clerk of the House, in preparing the roll
and directing the call thereof, pursuant to title 2, United States
Code, section 26, appointing the Doorkeeper to perform those duties in
the absence of both the Clerk and the Sergeant at Arms.
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11. 93 Cong. Rec. 33, 34, 80th Cong. 1st Sess.
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Clerk's Review of State Law
Sec. 4.3 A certificate of election in due form having been filed, the
Clerk placed the name of the Member-elect on the roll, although he
was subsequently advised that the state supreme court had issued a
writ restraining the Secretary of State from issuing such
certificate.
On Jan. 3, 1949,(12) Clerk John Andrews, of
Massachusetts, made the following announcement:
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12. 9.5 Cong. Rec. 8. 81st Cong. 1st Sess.
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A certificate of election is on file in the Clerk's office,
showing the election of John C. Davies as a Representative-elect to
the Eighty-first Congress from the Thirty-fifth Congressional
District of the State of New York.
Several communications have been received from the executive
deputy secretary of state for the State of New York informing the
Clerk that a case is pending before the supreme court, Albany
County, N.Y., and that the said secretary of state is restrained
from certifying the election of a Representative from this
congressional district. However, in view of the fact that a
certificate of election in due form has been filed with the Clerk
by John C. Davies, the Clerk has therefore placed his name on the
roll. (13)
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13. Under New York law, although Congress is the final judge of the
qualifications of its own Members, until the certificate of
election has been transmitted to and acted upon by Congress,
New York state courts are open to a candidate who alleges that
the certificate is being issued in violation of the law. People
ex rel. Brown v Board of Suprs. of Suffolk County, 216 N.Y.
732, 110 N.E. 776 (1915) (mem.).
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Sec. 4.4 The House may authorize the Speaker to administer the oath of
office to a Member-elect who appears with
[[Page 108]]
out credentials but whose name has been placed upon the roll of
Members-elect by the Clerk, pursuant to a communication from the
state Governor.
On Mar. 9, 1933,(14) the House adopted a resolution
authorizing the administration of the oath of office to Mr. John G.
Utterback, of Maine, who reported on opening day without a signed
certificate of election from the Governor of the State of Maine. The
Clerk had placed the name of Mr. Utterback upon the Clerk's roll
pursuant to a letter from the Governor of Maine stating that although
the Member-elect apparently received a majority of the votes cast in
the district the Governor was without authority to issue credentials
due to the terms of a state law which required the concurrent action of
the Governor and executive counsel before an election certificate could
be issued.(l5)
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14. 73 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
15. See the remarks, in opposing the enrolling of and the
administration of the oath to the Member-elect without
credentials, of Mr. Bertrand Snell (N.Y.), arguing that the
action of the House and of the Clerk set a dangerous precedent.
73 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
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Adding New States to Roll
Sec. 4.5 The Clerk announced receipt of the proclamation of statehood
for a new state during the call of the Clerk's roll, and directed
that the new state be called.
On Jan. 7, 1959,(16) after the commencement of the call
of the Clerk's roll on opening day, and after the call of the names of
Members-elect from Alabama, the Clerk made the following announcement:
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16. 105 Cong. Rec. 11, 86th Cong. 1st Sess.
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A certified copy of the Presidential proclamation indicating
that the Territory of Alaska has qualified as a State pursuant to
provisions of law has been received.
The clerk will proceed.
The Representative-elect from Alaska was then called.
Correcting the Roll for Deaths
Sec. 4.6 At the opening of a Congress the Clerk informs the House of
vacancies in the Clerk's roll, occasioned by the death of Members-
elect.
On Jan. 3, 1973,(17) the opening day of the 93d
Congress, the Clerk announced after the call of the Clerk's roll, which
did not include the name of Member-elect George W. Collins, that the
death of that Member-elect created a va
[[Page 109]]
cancy in the state delegation of Illinois.
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17. 119 Cong. Rec. 12, 93d Cong. 1st Sess.
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Sec. 4.7 On an exceptional occasion, where a Representative-elect whose
certificate of election was on file with the Clerk died moments
before the House convened, his name was included on the Clerk's
roll until the House was informed of his death after assembly.
On Jan. 10, 1967,(18) the opening day of the 90th
Congress, the name of Member-elect John E. Fogarty, of Rhode Island,
was included on the Clerk's roll to establish a quorum, although Mr.
Fogarty had died in his office shortly before the House was to convene.
His name was not stricken from the roll of the House until the Clerk
informed the House of his death, shortly after the call of the roll.
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18. 113 Cong. Rec. 11, 12, 90th Cong. 1st Sess.
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Sec. 4.8 The Clerk of the House omitted from the roll at the beginning
of the 93d Congress the name of a Representative-elect, pursuant to
the receipt of judicial certification of presumptive death, and of
the state executive's declaration of vacancy.
On Jan. 3, 1973,(19) the opening day of the 93d
Congress, the Clerk of the preceding House, W. Pat Jennings, directed
the call of the Clerk's roll to establish a quorum. The reading clerk
announced that the delegation of the State of Alaska was vacant. The
name of Mr. Nick Begich, Representative-elect at large from that state,
had been omitted from the Clerk's roll pursuant to the receipt by the
Clerk of a certified copy of the certificate of presumptive death of
Mr. Begich. The Clerk also informed the House, after the election of
the Speaker, that the Governor of Alaska had declared the seat of Mr.
Begich vacant.
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19. 119 Cong. Rec. 11 et seq., 93d Cong. 1st Sess.
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Sec. 4.9 Where the state of representation did not certify, either
through its judiciary or through its executive, the presumptive
death of a Representative-elect, his name was placed on the Clerk's
roll and not stricken from the roll of the House until the House
determined the seat to be vacant.
On Jan. 3, 1973,(20) the opening day of the 93d
Congress, Clerk of
[[Page 110]]
the House W. Pat Jennings informed the House that he had placed upon
the roll of Representatives-elect the name of Mr. Hale Boggs, of
Louisiana, pursuant to the receipt of his certificate of election. The
Clerk had, however, omitted from the roll the name of Mr. Nick Begich,
of Alaska, who had been missing since Oct. 16, 1972, the date of the
disappearance of an airplane on which Mr. Boggs had also been a
passenger. Mr. Begich's name had been omitted from the roll pursuant to
the receipt by the Clerk of a presumptive death certificate from the
State of Alaska and pursuant to a telegram from the Governor of that
state notifying the House that he had declared Mr. Begich's seat
vacant. In Mr. Boggs' case, however, the Clerk had received
certification from the State of Louisiana stating that no state court
actions had been instituted to change Mr. Boggs' status or to affect
the validity of his certificate of election, and stating that the
Governor himself had taken no action to affect Mr. Boggs' status as a
Representative-elect. Therefore Mr. Boggs' name had been placed on the
roll and called to establish a quorum.
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20. 119 Cong. Rec. 15, 93d Cong. 1st Sess.
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The House subsequently adopted a resolution determining Mr. Boggs'
seat to be vacant, based on documentary evidence and on the official
certification by the State of Alaska of Mr. Begich's presumptive death.
The name of Mr. Boggs was stricken from subsequent roll calls.
The resolution adopted by the House read as follows:
H. Res. 1
Whereas a certificate of election has been received by the
Clerk of this House showing the election of Hale Boggs as a
Representative in the Ninety-third Congress from the Second
Congressional District in the State of Louisiana; and
Whereas Representative-elect Hale Boggs has not appeared to
take the oath of office as a Member of this House; and
Whereas the Clerk of the House of Representatives, acting at
the direction of the Speaker of this House for the Ninety-second
Congress, has ascertained that Representatives Nick Begich and Hale
Boggs, Members of the Ninety-second Congress, together with Russell
L. Brown and Don E. Jonz of the State of Alaska, all of whom
departed together by plane from Anchorage, Alaska, on October 16,
1972, on a flight bound for Juneau, Alaska, have been missing since
that date and despite repeated and thorough searches have not been
located; and
Whereas the District Court for the State of Alaska, Third
Judicial District, after hearing witnesses and studying all
available evidence relative to the disappearance of Representative
Begich, Russell L. Brown and Don E.
[[Page 111]]
Jonz, has determined that these three men cannot be found alive
after such a lapse of time and are presumed dead; and
Whereas as a result of the findings of the jury in the
aforementioned judicial proceeding the judge of the said court has
signed certificates of presumptive death with respect to
Representative Begich, Russell L. Brown and Don E. Jonz; and
Whereas no evidence has been presented to this House or is
known to it which distinguishes the missing status of
Representative-elect Hale Boggs from that of the three men for whom
the aforementioned certificates of presumptive death have been
issued; Therefore be it
Resolved, That based on information provided by its Clerk, this
House of Representatives hereby determines that there is a vacancy
in the Ninety-third Congress in the representation from the Second
Congressional District in the State of Louisiana because of the
absence of Representative-elect Hale Boggs.
Resolved, That the Speaker of the House is hereby directed to
notify the Governor of the State of Louisiana of the existence of
this vacancy so that appropriate measures to fill this vacancy may
be undertaken by the Governor pursuant to Article I, Section 2 of
the Constitution of the United States.
Resolved, That the Speaker be authorized to appoint a
delegation of Members of this House, together with such Members of
the Senate as may be joined, to attend memorial services to be held
for the former Majority Leader in New Orleans, Louisiana, on
January 4, 1973.
Resolved, That the Sergeant at Arms of the House be authorized
and directed to take such steps as may be necessary to carry out
the provisions of these resolutions and that the necessary expenses
in connection therewith, as well as any incurred by the Clerk at
the Speaker's request, be paid out of the contingent fund of the
House.
Resolved, That the Clerk communicate these resolutions to the
Senate, to the Governor of the State of Louisiana, and transmit a
copy to the family of the missing Representative-elect Hale Boggs.
Roll to Begin Session
Sec. 4.10 Election of a new Speaker being the first order of business,
resignations of Members received during the sine die adjournment
after the first session were not laid down prior to the vote, but
their names had been stricken from the roll and were not called to
establish a quorum or to elect a Speaker at the opening of the
second session.(1)
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1. This practice is distinguished from the procedure at the opening of
a new Congress, where the Clerk announces vacancies immediately
after the call of the Clerk's roll (which does not include the
names of resigned Members) but before the election of a
Speaker. See, e.g., announcement of the Clerk as to a vacancy
in the 92d Congress, 117 Cong. Rec. 10, January 21, 1971.
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[[Page 112]]
On Jan. 10, 1962,(2) the opening day of the second
session, following the death of Speaker Sam Rayburn, of Texas, during
the sine die adjournment, Clerk of the House Ralph R. Roberts called
the roll to establish a quorum and proceeded immediately to the
election of a Speaker. The names of Mr. Frank Ikard, of Texas, and Mr.
Lester Holtzman, of New York, who had submitted their resignations
during the sine die adjournment, were not included on the roll to
establish the quorum or to elect a Speaker. Their resignations were not
announced until after the election.
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2. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
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Sec. 4.11 Where the Speaker had died between sessions of the 87th
Congress and a new Speaker was elected immediately after the second
session had convened, Members-elect to fill vacancies with
credentials on file were not called to establish the quorum or to
elect a Speaker.(3)
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3. The procedure followed in this instance differs from the practice
at the opening of a new Congress, where all Members-elect with
regular credentials are called to establish a quorum and to
vote for a Speaker (see detailed discussion at Sec. 4, supra).
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On Jan. 10, 1962,(4) the opening day of the second
session, Mr. Henry B. Gonzalez, of Texas, Mr. Joe Waggonner, Jr., of
Louisiana, and Mr. Lucien N. Nedzi, of Michigan, all Representatives-
elect to fill vacancies, were not sworn in until after the election of
Speaker John W. McCormack, of Massachusetts. Their names were not
placed on the roll to establish a quorum or to elect a Speaker.
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4. 108 Cong. Rec. 5-7, 87th Cong. 2d Sess.
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