[Deschler's Precedents, Volume 1, Chapters 1 - 6]
[Chapter 2.  Enrolling Members; Administering the Oath]
[Â§ 6. Challenging the Right to be Sworn]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 127-135]
 
                               CHAPTER 2
 
               Enrolling Members; Administering the Oath
 
Sec. 6. Challenging the Right to be Sworn

    When the Speaker directs the membership-elect of the House to arise 
to take the oath of office, any Member-elect may challenge the right of 
any other Member-elect to be sworn at that time.(15) In 
stating his objection to the right of another to be sworn, the Member-
elect must base his challenge either on his own responsibility as a 
Member-elect, or on specific grounds.(16) If neither basis 
is stated to support the challenge, the House may decline to entertain 
it.(17) A Member-elect may also challenge the right of an 
entire state delegation to be administered the oath.(18) 
Usually, such a challenge relates not to the qualifications or 
elections of the individual members of the state delegation, but to the 
status of the constituency.(~19)
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15. For the procedure of challenging, see Sec. 6.1, infra. The 
        authority to challenge the right of a Member-elect to be sworn 
        is based on U.S. Const. art. I, Sec. 5, clause 1, which 
        constitutes the House as the sole judge of the elections, 
        returns, and qualifications of Members. Challenges are made 
        before the oath is administered because the oath is given under 
        art. VI, clause 3, to ``Representatives before mentioned'', 
        meaning those who meet the qualifications and election 
        requirements stated in the Constitution. The right of one 
        Member-elect not yet sworn to challenge the right of another 
        not yet sworn is unquestioned (see 1 Hinds' Precedents 
        Sec. 141).
            House as judge of qualifications, see The Power of a House 
        of Congress to Judge the Qualifications of Its Members, 81 
        Harv. L. Rev. 673-84 (Jan. 1968).
16. See Sec. 6.2, infra.
17. 1 Hinds' Precedents Sec. 455.
18. See, for example, 1 Hinds' Precedents Sec. Sec. 457, 460-462.
19. See Parliamentarian's Note, Sec. 6.4, infra (systematic state 
        denial of voting rights). For occasions following the Civil War 
        when entire state delegations were challenged on the ground of 
        collective disloyalty, see 1 Hinds' Precedents Sec. Sec. 457, 
        460-462.
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    When a challenge is proposed, the Speaker asks the challenged 
Member(s) not to rise to take the oath with the rest of the membership, 
as the House and not the Speaker determines both the preliminary and 
the final action to be taken on any challenges.(20)
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20. See Sec. 6.1, infra. The statement has been made that the Speaker 
        may, but is not required to, direct the challenged Member-elect 
        to stand aside (1 Hinds' Precedents Sec. Sec. 143-146). The 
        Speaker has held, however, that such request is a matter of 
        order, for the convenience of procedure (1 Hinds' Precedents 
        Sec. 145). The Speaker has recently held that debate on the 
        right to be sworn of a challenged Member-elect is not in order 
        until after the remaining Members have been sworn (see 
        Sec. 6.3, infra).

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[[Page 128]]

    When the right to be sworn of an individual Member-elect is 
challenged, he generally loses no rights thereby,(1) except 
for his right to vote.(2) While his case is pending, he may 
be permitted to debate his own right to the seat,(3) and may 
serve on committees.(4) Challenged cases are taken up in the 
order in which challenges were made.(5)
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 1. See 1 Hinds' Precedents Sec. 155. See Sec. 2, supra, for the status 
        of Members-elect.
 2. After the membership of the House has been sworn in en masse, 
        Members-elect who have not taken the oath due to absence or due 
        to challenges are not entitled to vote until being sworn. See 
        Sec. 2.2, supra.
 3. See Sec. 2.5, supra. Rule XXXII clause 1, House Rules and Manual 
        Sec. 919 (1973) grants the privilege of the floor to 
        contestants in election cases.
 4. See 4 Hinds' Precedents Sec. 4483. This is the traditional view, as 
        stated by Jefferson's Manual: ``. . . Before a return be made a 
        Member elected may be named of a committee, and is to every 
        extent a Member except that he cannot vote until he is sworn.'' 
        House Rules and Manual Sec. 300 (1973). For a summary of the 
        rights and privileges of Members-elect not yet sworn, see 
        Sec. 2, supra.
 5. See 1 Hinds' Precedents Sec. Sec. 147, 148. Where a division is 
        demanded on one resolution to seat several claimants, the oath 
        may be administered to each as soon as his case is decided (see 
        1 Hinds' Precedents Sec. 623).
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    The pendency of a challenge does not preclude the entertainment of 
other business before the House, and all other organizational business 
may be completed before a challenge is resolved.(6) By 
unanimous consent, the House may also proceed to general legislative 
business pending consideration of the right of a Member to be 
sworn.(7)
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 6. See 1 Hinds' Precedents Sec. 474.
 7. See 1 Hinds' Precedents Sec. Sec. 151, 152.
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    After the unchallenged membership of the House has been sworn, some 
preliminary action is usually taken on each challenge. The House may 
simply seat a Member by authorizing the administration of the oath; 
such a resolution may determine his prima facie as well as final right 
to the seat.(8) A com

[[Page 129]]

mon type of resolution authorizes the administration of the oath to the 
challenged Member-elect based on his prima facie right to the seat, but 
refers the determination of his final right to committee.(9) 
The third type of resolution refers the prima facie as well as the 
final right to the seat to committee, without authorizing the 
administration of the oath.(10) The determination by the 
House as to which kind of resolution to adopt depends on both the 
sufficiency of the credentials and on the strength of the grounds for 
challenge.(11)
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 8. See, for example, the resolution at Sec. 6.5, infra. The Member 
        proposing a resolution to seat a challenged Member-elect may, 
        prior to the adoption of rules, move the previous question and 
        cut off all debate on the subject, since House Rule XXVII 
        clause 3 (House Rules and Manual Sec. 907 [1973]), allowing 40 
        minutes debate in certain situations when the previous question 
        is moved, is inapplicable prior to the adoption of rules (see 
        Ch. 1, supra, for a full discussion; see Sec. 5.5, supra, for a 
        recent instance thereof). If the previous question is rejected, 
        or if the proposing Member yields for the purpose, amendments 
        may be offered, if germane, to a resolution authorizing the 
        administration of the oath to a Member-elect (see Ch. 1, 
        Sec. 12, supra, for a general discussion; see Ch. 1, Sec. 12.7, 
        supra, for an occasion where such an amendment was held not 
        germane).
 9. Admission on prima facie right, without regard to final right, 
        usually occurs when the Member-elect comes from a recognized 
        constituency, vith credentials in due form and with 
        unquestioned qualifications (see 1 Hinds' Precedents 
        Sec. Sec. 528-534)
10. See Sec. Sec. 6.6, 6.7, infra.
11. For specific election contests and House action thereon, see Ch. 9, 
        infra.
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    Except for the exclusion of Members-elect from the Clerk's roll for 
irregularities in credentials, no action is taken upon the right of a 
Member-elect to his seat until the time comes for his taking the oath. 
Therefore, when a Representative-elect was excluded from the 90th 
Congress and was re-elected to the same Congress after a vacancy in the 
seat had been declared, Speaker John W. McCormack, of Massachusetts, 
ruled that no action would be taken upon his right to membership until 
he appeared to take the oath and was challenged once 
again.(12)
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12. See Sec. 6.8, infra, for the ruling. See Sec. 6.9, infra, for the 
        challenge that was made when the Representative-elect appeared 
        to take the oath.
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                                 Forms

        Form of resolution providing that a Member, who had been asked 
    to stand aside when the oath was administered to the other Members, 
    be permitted to take the oath of office.

            Resolved, That the gentleman from Missouri, Mr. Morgan M. 
        Moulder, be now permitted to take the oath of 
        office.(13)
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13. 107 Cong. Rec. 24, 87th Cong. 1st Sess., Jan. 3, 1961.

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        Form of resolution authorizing the Speaker to administer the 
    oath of office to a challenged Member-elect and providing that the 
    question of final right to his seat be referred to the Committee on 
    House Administration.

            Resolved, That the Speaker is hereby authorized and 
        directed to administer the oath of office to the gentleman from 
        Arkansas, Mr. Dale Alford.
            Resolved, That the question of the final right of Dale 
        Alford to a seat in the 86th Congress be referred to the 
        Committee on House Administration, when elected, and said 
        committee shall have the power to send for persons and papers 
        and examine witnesses on oath in relation to the subject matter 
        of this resolution.(14)
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14. 105 Cong. Rec. 14, 86th Cong. 1st Sess., Jan. 7, 1959.
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        Form of resolution providing that the question of the right of 
    either of two contestants for a seat be referred to the Committee 
    on House Administration, and providing that until that committee 
    has reported, and the House decided, neither the Member-elect nor 
    the contestee should take the oath of office.

            Resolved, That the question of the right of J. Edward Roush 
        or George O. Chambers, from the Fifth Congressional District of 
        Indiana, to a seat in the 87th Congress be referred to the 
        Committee on House Administration, when elected, and said 
        committee shall have the power to send for persons and papers 
        and examine witnesses on oath in relation to the subject matter 
        of this resolution; and be it further.
            Resolved, That until such committee shall report upon and 
        the House decide the question of the right of either J. Edward 
        Roush or George O. Chambers to a seat in the 87th Congress, 
        neither shall be sworn.(15)
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15. 107 Cong. Rec. 24, 87th Cong. 1st Sess., Jan. 3, 
        1961.                          -------------------
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Form and Procedures of Challenges

Sec. 6.1 A Member-elect challenges the right of another Member-elect to 
    take the oath prior to the swearing in of Members-select en masse, 
    whereupon the Speaker requests the challenged Member-elect to stand 
    aside.

    On Jan. 5, 1937,(16) after Speaker William B. Bankhead, 
of Alabama, had requested the membership of the House to rise for the 
administration of the oath of office, Mr. John J. O'Connor, of New 
York, arose and said:
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16. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
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        Mr. Speaker, I ask that the gentleman from New Hampshire [Mr. 
    Jenks] stand aside.
        Despite the fact that a certificate of his election has been 
    filed with the Speaker, it may be impeached by certain facts which 
    tend to show that he has not received a plurality of the votes duly 
    cast in that congressional district.
        The Speaker: The gentleman from New Hampshire will stand aside 
    momentarily.(17)
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17. For examples of similar requests by the Speaker when challenges 
        have been made, see 111 Cong. Rec. 18, 19, 89th Cong. 1st 
        Sess., Jan. 4, 1965; 113 Cong. Rec. 14, 90th Cong. 1st Sess., 
        Jan. 10, 1967; 115 Cong. Rec. 15, 91st Cong. 1st Sess., Jan. 3, 
        1969.

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Sec. 6.2 A Member-elect challenging the right of another to be sworn 
    offers, as a basis for challenge, either his own responsibility as 
    a Member-elect, or the strength of documents, or both.

    On Jan. 10, 1967,(18) Member-elect Lionel Van Deerlin, 
of California, stated a challenge to the right of another Member-elect 
to be sworn in the following terms:
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18. 113 Cong. Rec 14, 90th Cong. 1st Sess.
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        Mr. Speaker, upon my responsibility as a Member-elect of the 
    90th Congress, I object to the oath being administered at this time 
    to the gentleman from New York [Mr. Adam C. Powell]. I base this 
    upon facts and and statements which I consider reliable. ...

The same language has often been used to propose 
challenges,(19) although on Jan. 3, 1937,(20) 
Member-elect John J. O'Connor, of New York, stated a challenge not on 
the basis of his responsibility but on facts tending to show that the 
challenged Member-elect had not received a plurality of votes in the 
district from which elected.(1)
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19. See, e.g., statement of Mr. William F. Ryan (N.Y.), 111 Cong. Rec. 
        18, 89th Cong. 1st Sess., Jan. 4, 1965; statement of Mr. 
        Clifford Davis (Tenn.), 107 CONG. REC. 23, 87th Cong. 1st 
        Sess., Jan 3, 1961.
20. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
 1. If a challenge does not propose either the strength of documents or 
        the responsibility of the challenging Member-elect, the House 
        will not entertain it. 1 Hinds' Precedents Sec. 455.
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Debate on Challenges

Sec. 6.3 It is not in order to debate a challenged Member's right to 
    take the oath of office at the beginning of a Congress until the 
    remaining Members-elect have been sworn in.

    On Jan. 5, 1937,(2) after Mr. John J. O'Connor, of New 
York, had challenged the right of a Member-elect to take the oath, Mr. 
Bertrand H. Snell, of New York, arose to state certain remarks as to 
the certificate held by the challenged Member-elect and as to the 
principle that in standing aside, the challenged Member-elect yielded 
none of his rights or privileges as a Member of the House. Mr. O'Connor 
then arose to state a point of order, as follows:
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 2. 81 Cong. Rec. 13, 75th Cong. 1st Sess.
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        Mr. O'Connor: Mr. Speaker, I make the point of order that at 
    this par

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    ticular time the matter is not debatable. . . .
        Mr. Snell: I think I have the right to make this statement now 
    and under the circumstances should be allowed to make it.
        The Speaker:(3) The request made by the gentleman 
    from New York was that the gentleman holding the certificate of 
    election from the State of New Hampshire stand aside momentarily.
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 3. William B. Bankhead (Ala.).
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        The Chair is of the opinion that he waives no rights and just 
    as soon as the other Members take the oath the matter can be 
    settled. ...

        The Chair will recognize the gentleman later if he desires to 
    extend his argument.

Challenge to a Delegation

Sec. 6.4 The right of an entire state delegation of Representatives-
    elect to take the oath may be challenged.

    On Jan. 4, 1965,(4) Mr. William F. Ryan, of New York, 
challenged, on his behalf and on the behalf of a number of colleagues, 
the right of the Representatives-elect from Mississippi (Mr. Abernathy, 
Mr. Whitten, Mr. Williams, Mr. Walker, and Mr. Colmer) to take the oath 
of office. Speaker John W. McCormack, of Massachusetts, requested the 
Representatives-elect from Mississippi as well as a challenged Member-
elect from another state not to rise to take the oath with the other 
Members being sworn in en masse.
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 4. 111 Cong. Rec. 18, 19, 89th Cong. 1st Sess.
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    Parliamentarian's Note: The challenge to the Mississippi delegation 
was based on the constitutional argument that systematic denial of 
Negro voting rights throughout Mississippi invalidated the election of 
the entire House delegation from that state.

Sec. 6.5 The House may authorize, through one resolution, the 
    administration of the oath to an entire state delegation which has 
    been challenged.

    On Jan. 4, 1965,(5) after unchallenged Members of the 
House had been sworn in, the following resolution was offered, in 
relation to an entire state delegation that had been challenged:
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 5. 111 Cong. Rec. 18, 19, 89th Cong. 1st Sess.
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        Resolved, That the Speaker is hereby authorized and directed to 
    administer the oath of office to the gentlemen from Mississippi, 
    Mr. Thomas G. Abernathy, Mr. James L. Whitten, Mr. John Bell 
    Williams, Mr. William M. Colmer, and Mr. Prentiss Walker.

    Immediately after the adoption of the resolution, the five Members-
elect from Mississippi were sworn in all at one time.

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Preliminary House Action on Challenges

Sec. 6.6 When two persons claimed a seat in the House from the same 
    congressional district, one with a certificate of election signed 
    by the Governor of the state and the other with a certificate of 
    election from a citizens' election committee of the congressional 
    district, the House refused to permit either to take the oath of 
    office and referred the question of their prima facie as well as 
    final right to the seat to the Committee on Elections.

    On Jan. 3, 1934,(6) the Clerk of the House, South 
Trimble, transmitted to the House a signed certificate of the Governor 
of Louisiana attesting to the election of Mrs. Bolivar E. Kemp, Sr., to 
fill the vacancy caused by the death of the Honorable Bolivar E. Kemp. 
He also transmitted a communication from the Citizens' Election 
Committee of the Sixth Congressional District of the State of Louisiana 
in the form of a certificate of election of Mr. J.Y. Sanders, Jr., to 
fill the same vacancy. The House then adopted the following resolution:
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 6. 78 Cong. Rec. 11, 12, 73d Cong. 2d Sess.
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        Resolved, That the question of prima facie as well as the final 
    right of Mrs. Bolivar E. Kemp, Sr., and J.Y. Sanders, Jr., 
    contestants, respectively, claiming a seat in this House from the 
    Sixth District of Louisiana, be referred to the Committee on 
    Elections No. 3; and until such committee shall have reported in 
    the premises and the House decided such question neither of said 
    contestants shall be admitted to a seat.

Sec. 6.7 The House agreed to a resolution excluding a Member-elect 
    pending an investigation of his right to the seat, which referred 
    to a select committee questions of his right to be sworn and to 
    take the seat, permitted him pay and allowances of the House 
    pending a final determination, and required the committee to report 
    back to the House within a prescribed time.

    On Jan. 10, 1967,(7) the House agreed to a resolution 
excluding Mr. Adam C. Powell, Jr., of New York, from his seat pending 
the final determination of his right to be sworn:
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 7. 113 Cong. Rec. 24-26, 90th Cong. 1st Sess.
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        Resolved, That the question of the right of Adam Clayton Powell 
    to be sworn in as a Representative from the State of New York in 
    the Ninetieth Congress, as well as his final right to a seat 
    therein as such Representative, be referred to a special committee 
    of

[[Page 134]]

    nine Members of the House to be appointed by the Speaker, four of 
    whom shall be Members of the minority party appointed after 
    consultation with the minority leader. Until such committee shall 
    report upon and the House shall decide such question and right, the 
    said Adam Clayton Powell shall not be sworn in or permitted to 
    occupy a seat in this House.
        For the purpose of carrying out this resolution the committee, 
    or any subcommittee thereof authorized by the committee to hold 
    hearings, is authorized to sit and act during the present Congress 
    at such times and places within the United States, including any 
    Commonwealth or possession thereof, or elsewhere, whether the House 
    is in session, has recessed, or has adjourned, to hold such 
    hearings, and to require, by subpoena or otherwise, the attendance 
    and testimony of such witnesses and the production of such books, 
    records, correspondence, memorandums, papers, and documents, as it 
    deems necessary; except that neither the committee nor any 
    subcommittee thereof may sit while the House is meeting unless 
    special leave to sit shall have been obtained from the House. 
    Subpoenas may be issued under the signature of the chairman of the 
    committee or any member of the committee designated by him, and may 
    be served by any person designated by such chairman or member.
        Until such question and right have been decided, the said Adam 
    Clayton Powell shall be entitled to all the pay, allowances, and 
    emoluments authorized for Members of the House.
        The committee shall report to the House within five weeks after 
    the members of the committee are appointed the results of its 
    investigation and study, together with such recommendations as it 
    deems advisable. Any such report which is made when the House is 
    not in session shall be filed with the Clerk of the House.

Challenge to Member Once Excluded

Sec. 6.8 Where a Representative-elect, excluded from membership in a 
    particular Congress is re-elected to the same Congress, it is for 
    the House to determine the procedure to be followed if and when he 
    appears to take the oath; no action is taken until such time that 
    the Representative-elect appears to take the oath and is again 
    challenged.

    On May 1, 1967,(8) Speaker John W. McCormack, of 
Massachusetts, responded to a parliamentary inquiry as to the necessity 
of the House to take affirmative action when a Representative-elect, 
excluded from membership ``in the Ninetieth Congress'', by resolution, 
was re-elected to the same Congress. The Speaker stated that when the 
Member appeared, if he was challenged, it would be a matter for the 
House to decide and for the

[[Page 135]]

House to express its will upon. He stated that the leadership intended 
to take no action with regard to the seating of such Member until he 
appeared to take the oath.
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 8. 113 Cong. Rec. 11298, 90th Cong. 1st Sess.
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Sec. 6.9 The right to take the oath of a Member-elect. who had been 
    excluded by resolution from membership in the 90th Congress, was 
    challenged in the 91st Congress.

    On Jan. 3, 1969,(9) the right to be sworn of Mr. Adam C. 
Powell, Jr., of New York, Representative-elect to the 91st Congress, 
was challenged. Mr. Powell had been excluded by the House from 
membership in the 90th Congress. The Speaker(10) asked Mr. 
Powell to stand aside while the oath of office was administered to the 
other Members.
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 9. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
10. John W. McCormack (Mass.).
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Senate Challenges

Sec. 6.10 On one occasion, a Senator-elect died while there was pending 
    in the Senate a question as to his right to take the oath of 
    office.

    On Jan. 4, 1947,(11) the Senate laid on the table the 
credentials of Mr. Theodore G. Bilbo, of Mississippi, whose seat was 
challenged, pending the improvement of his physical condition. Mr. 
Bilbo died on Aug. 21, 1947, before the matter was again brought before 
the Senate.
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11. 93 Cong. Rec. 109, 80th Cong. 1st Sess.
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