[Deschler-Brown Precedents, Volume 14,  Chapter 30]
[Chapter 30. Voting]
[C. Yeas and Nays and Other Votes of Record]
[Â§ 26. Ordering of Vote]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 11595-11604]
 
                               CHAPTER 30
 
                                 Voting
 
               C. YEAS AND NAYS AND OTHER VOTES OF RECORD
 
Sec. 26. Ordering of Vote

Generally

Sec. 26.1 The House has voted by the yeas and nays on ordering the 
    previous question on approval of the Journal.

    On July 25, 1949,(9) immediately after the Clerk 
concluded the reading of the Journal, the following exchange took 
place:
---------------------------------------------------------------------------
 9. 95 Cong. Rec. 10092, 10093, 81st Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [John W.] McCormack [of Massachusetts]: Mr. Speaker, I move 
    that the Journal as read stand approved; and on that motion I move 
    the previous question.
        The Speaker: (10) The question is on ordering the 
    previous question.
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10. Sam Rayburn (Tex.).
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        Mr. [James C.] Davis of Georgia: Mr. Speaker, on that I demand 
    the yeas and nays.
        Mr. [John E.] Rankin [of Mississippi]: Mr. Speaker, I demand 
    the yeas and nays on ordering the previous question.
        The yeas and nays were ordered.

    The question was then taken; and there were--yeas 259, nays 88, not 
voting 85. So, the previous question was ordered.

Sec. 26.2 The yeas and nays have been ordered on a motion to dispense 
    with further proceedings under the call for a quorum.

[[Page 11596]]

    On June 5, 1946,(11) shortly after the Chair's 
announcement that it was Calendar Wednesday, Mr. Dan R. McGehee, of 
Mississippi, made the point of order that a quorum was not present. The 
Chair's count revealing the absence of a quorum, Mr. Howard W. Smith, 
of Virginia, moved a call of the House which was so ordered. Two 
hundred seventy-two Members then responded to their names, and the 
Chair announced that a quorum was present.
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11. 92 Cong. Rec. 6352, 79th Cong. 2d Sess.
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    Immediately thereafter, the following occurred:

        The Speaker: (12) On this roll call 272 Members have 
    answered to their names, a quorum.
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12. Sam Rayburn (Tex.).
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        Mr. [John E.] Rankin [of Mississippi]: Mr. Speaker, I move that 
    further proceedings under the call be dispensed with.
        Mr. Smith of Virginia: Mr. Speaker, on that I ask for the yeas 
    and nays.
        The Speaker: Those Members desiring the yeas and nays will rise 
    and remain standing until counted. [After counting.] Forty-five 
    Members have risen. The Chair, in looking over the membership since 
    the announcement that 272 had answered, notes that 45 is more than 
    one-fifth of the Members present now.
        Mr. Smith of Virginia: Mr. Speaker, I ask for a division.
        The Speaker: The yeas and nays are ordered.
        The Clerk will call the roll.

Sec. 26.3 Whether a proposition will be subject to a roll call vote at 
    a future time is a matter for the House, not the Chair, to decide.

    On June 29, 1961,(13) Mr. Samuel N. Friedel, of 
Maryland, called up a resolution (H. Res. 354) which called for the 
creation and dissemination to each Member of a flag symbolizing 
membership in the House. The Speaker (14) put the question 
on the resolution, it was taken; and he announced that the ``ayes'' 
appeared to have it. Mr. H. R. Gross, of Iowa, then objected to the 
vote on the ground that a quorum was not present and made the point of 
order at the Speaker's request. Mr. Friedel sought to withdraw the 
resolution.
---------------------------------------------------------------------------
13. 107 Cong. Rec. 11798, 11799, 87th Cong. 1st Sess.
14. Sam Rayburn (Tex.).
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    Thereafter, the following proceedings occurred:

        Mr. Gross: Mr. Speaker, a parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Gross: Is it necessary to ask unanimous consent to withdraw 
    the resolution?
        The Speaker: It is, but the Chair did not think anyone would 
    object to that unanimous consent request.
        Mr. Gross: Mr. Speaker, a further parliamentary inquiry.

[[Page 11597]]

        The Speaker: The gentleman will state it.
        Mr. Gross: Will this resolution be subject to a roll call vote 
    when it is called up again?
        The Speaker: That would be up to the House to decide.

Speaker's Determination as to Seconding Support

Sec. 26.4 In deciding whether to order the yeas and the nays, the 
    Speaker counts the total number of Members present in the Chamber 
    in order to determine if those seconding the demand constitute one-
    fifth of those present.

    On July 20, 1939,(15) the Committee of the Whole 
reported back to the House a bill (S. 1871) to prevent pernicious 
political activities with sundry amendments adopted by the Committee. 
Under the rule, the previous question was ordered and the Speaker 
inquired as to whether a separate vote was requested on any amendment. 
Mr. Claude V. Parsons, of Illinois, having demanded a separate vote on 
each amendment, the House proceeded to consider the amendments in 
chronological order.
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15. 84 Cong. Rec. 9637, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

    The House agreed to the first nine amendments by separate votes 
after which the Speaker put the question on the 10th amendment. Mr. 
Parsons then demanding the yeas and nays, the following exchange 
occurred:

        The Speaker: (16) The gentleman from Illinois 
    demands the yeas and nays on the amendment just read. As many as 
    favor ordering the yeas and nays will rise and stand until counted. 
    [After counting.] The Chair will now count the number of Members 
    present to determine whether or not a sufficient number have arisen 
    to order the yeas and nays. [After counting.] Sixty-five Members 
    rose in favor of ordering the yeas and nays. The Chair counted 365 
    Members present, which would require 73 Members rising to order the 
    yeas and nays. Not a sufficient number rose and the yeas and nays 
    are refused.
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16. William B. Bankhead (Ala.).
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        Mr. [Edward W.] Creal [of Kentucky]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.

        Mr. Creal: When the Chair takes the vote of those present and 
    then counts again after they come in from the cloakrooms, is that 
    number counted that comes in after the first number had risen?
        The Speaker: One-fifth of the Members present in the Chamber 
    are required to order the yeas and nays in the House. When the 
    demand is made, the Chair counts those who rise in favor of taking 
    the vote by the yeas and nays, and it is then the duty of the Chair 
    to determine the total number of

[[Page 11598]]

    Members present in the Chamber and divide that count in order to 
    determine whether or not one-fifth have seconded the demand for the 
    yeas and nays.
        The question is on agreeing to the amendment.(17)
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17. Mr. Creal's fundamental question, that is, does the Chair count as 
        present those who enter the Chamber after supporters of the 
        demand have already arisen in computing the ratio, was 
        considered by Speaker Rayburn 11 years later; see Sec. 26.9, 
        infra.
            For routine instances where insufficient support resulted 
        in denial of the yeas and nays, see 93 Cong. Rec. 6392, 80th 
        Cong. 1st Sess., June 4, 1947; and 84 Cong. Rec. 5613, 76th 
        Cong. 1st Sess., May 16, 1939.
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Sec. 26.5 In determining whether a demand for the yeas and nays is 
    supported by one-fifth of those present, the Speaker may use as a 
    basis for such determination, the number of Members who responded 
    on an immediately preceding roll call.

    On Mar. 26, 1935,(18) the House had under consideration 
a resolution (H. Res. 174) which provided that upon its adoption, a 
joint resolution (H.J. Res. 117) pertaining to relief appropriations 
would be taken from the Speaker's table, with Senate amendments 
thereto, and a conference would be agreed to by the House.
---------------------------------------------------------------------------
18. 79 Cong. Rec. 4474, 4475, 4476, 74th Cong. 1st Sess.
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    Following considerable discussion, the question was put on ordering 
the previous question. Mr. John E. Rankin, of Mississippi, then 
demanded the yeas and nays which were ordered. The question was taken; 
and there were--yeas 265, nays 108, answered ``present'' 1, not voting 
57. Accordingly, the previous question was ordered.
    Immediately thereafter, the following proceedings occurred:

        The Speaker Pro Tempore: (19) The question is on the 
    adoption of the resolution.
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19. Henry Ellenbogen (Pa.).
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        Mr. Rankin: Mr. Speaker, on that I demand the yeas and nays.
        The Speaker Pro Tempore: The Chair will count. [After 
    counting.] Sixty-four Members have risen; not a sufficient number.
        Mr. Rankin: Mr. Speaker, I challenge the count.
        The Speaker: (20) The Chair may state that according 
    to the roll call there were 371 Members present. It is very evident 
    that the number who arose was not one-fifth of the number present 
    as shown by the roll call.
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20. Joseph W. Burns (Tenn.).
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        Mr. Rankin: Mr. Speaker, I counted 70 myself.
        The Speaker: It would take more than 70 to order the yeas and 
    nays.
        So the yeas and nays were refused.

    Immediately thereafter, Mr. Rankin demanded a teller vote on

[[Page 11599]]

the passage of the resolution. This demand having been supported, 
tellers were ordered; the House divided; and there were--ayes 186, noes 
78. The result of this vote prompted further inquiries on the Chair's 
prior refusal to order the yeas and nays:

        Mr. Rankin: Mr. Speaker, I make the point of order we were 
    entitled to a roll-call vote, because this vote shows there are not 
    five times as many Members in the House as stood up a while ago and 
    asked for a roll-call vote.
        The Speaker: By the gentleman's own count of 70, he was not 
    entitled to a roll-call vote, because it requires 75, according to 
    the roll call which has just been completed.
        Mr. Rankin: I beg the Chair's pardon; what was the report?
        The Speaker: This vote was on an entirely different question, 
    and the Chair has no doubt but what many Members have gone to their 
    offices since the roll call was completed.
        Mr. Rankin: No; Mr. Speaker, many Members have come in since 
    then.
        The regular order was demanded.
        Mr. [William D.] McFarlane [of Texas]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. McFarlane: Is there any way by which we can get a roll-call 
    vote at this time?
        The Speaker: The House has refused a roll-call vote on the 
    passage of the resolution.
        So the resolution was agreed to.
        Mr. [Gerald J.] Boileau [of Wisconsin]: Mr. Speaker, a 
    parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Boileau: Mr. Speaker, is it possible to have a roll-call 
    vote on the basis of the number of Members present, as indicated by 
    the teller vote, if one-fifth of the number shown by the teller 
    vote would now ask for a roll-call vote?
        The Speaker: The Chair will state to the gentleman that quite a 
    number of minutes--15 or 20, or perhaps one-half an hour--has 
    elapsed since the House refused the roll call, and that roll call 
    was requested immediately after a roll call of the House which 
    disclosed 371 Members present. It therefore took 75 Members to 
    order a roll call, and according to the count there were not 75 
    Members standing.

    The Chair having explained the situation, there were no further 
requests for a roll call vote on the passage of the resolution.
    Parliamentarian's Note: Using the number of Members responding on 
an immediately preceding roll call as a basis to determine whether the 
yeas and nays should be ordered is a practice which is not normally 
followed. See, for example, 92 Cong. Rec. 6352, 79th Cong. 2d Sess., 
June 5, 1946, where Speaker Rayburn stated, ``The Chair, in looking 
over the membership since the announcement [of an immediately preceding 
roll call] that 272 answered, notes that 45 is more than one-fifth of 
the Members present now.'' In the current prac

[[Page 11600]]

tice, this is the way the Chair would count, that is, he would not rely 
upon an immediately preceding vote.

Chair's Count for Second

Sec. 26.6 The Chair has reversed his determination that an insufficient 
    number have seconded a request for the yeas and nays where a 
    subsequent count of the House indicated that one-fifth of those 
    present had indeed stood to second the demand.

    On Aug. 10, 1976, Speaker Carl Albert, of Oklahoma, had put the 
question of consideration with respect to a resolution called up in the 
House immediately after it had been reported by the Committee on Rules. 
The yeas and nays being demanded on the question, the Speaker counted 
60 Members standing to support the demand, and then based on his 
estimate of those present, declared that ``an insufficient number'' had 
risen. A point of no quorum was then made and the Chair counted the 
House, finding on his count 240 Members in the Hall. He then reversed 
his decision and affirmed that a sufficient number had in fact stood to 
second the demand.(1) The proceedings were as follows:
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 1. 122 Cong. Rec. 26793, 26794, 94th Cong. 2d Sess. While the count of 
        the Chair in determining whether a requisite number of those 
        Members present has sustained a demand for the yeas and nays is 
        not subject to verification or appeal (8 Cannon's Precedents 
        Sec. Sec. 3112-3118), the Chair may on his own initiative 
        reverse his determination when satisfied that his prior count 
        was erroneous.
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        Mr. Sisk, from the Committee on Rules, reported the following 
    privileged resolution (H. Res. 1473, Rept. No. 94-1421), which was 
    referred to the House Calendar and ordered to be printed:

                                  H. Res. 1473

            Resolved, That immediately upon the adoption of this 
        resolution it shall be in order to take from the Speaker's 
        table the bill (S. 3735) to amend the Public Health Service Act 
        to authorize the establishment and implementation of an 
        emergency national swine flu immunization program and to 
        provide an exclusive remedy for personal injury or death 
        arising out of the manufacture, distribution, or administration 
        of the swine flu vaccine under such program, and to consider 
        said bill in the House.

        Mr. [B. F.] Sisk [of California]: Mr. Speaker, I call up House 
    Resolution 1473 and ask for its immediate consideration.
        The Speaker: The Clerk will report the resolution.
        The Clerk read the resolution.
        The Speaker: The question is, Will the House now consider House 
    Resolution 1473?
        The question was taken.
        Mr. [John D.] Dingell [of Michigan]: Mr. Speaker, on that I 
    demand the yeas and nays.

[[Page 11601]]

        The Speaker: Those Members in favor of taking this vote by the 
    yeas and nays will rise and remain standing until counted.
        Sixty Members are standing, an insufficient number.
        Mr. [Walter] Flowers [of Alabama]: Mr. Speaker, I object to the 
    vote on the ground that a quorum is not present and make the point 
    of order that a quorum is not present.
        The Speaker: The Chair will count the House.
        Mr. Flowers: Mr. Speaker, I have a parliamentary inquiry.
        The Speaker: The gentleman will state his parliamentary 
    inquiry.
        Mr. Flowers: Mr. Speaker, did the Chair count the House?
        The Speaker: The Chair counted just those standing.
        Mr. Flowers: How many were standing, Mr. Speaker?
        The Speaker: There were 60 Members standing.
        Mr. Flowers: How many are required, Mr. Speaker?
        The Speaker: One-fifth of all the Members present.
        Mr. Flowers: Mr. Speaker, if 60 Members were standing, I make 
    the point of order that a quorum is not present.
        The Speaker: The Chair will count.
        The Chair counts 240 Members present. A quorum is present, but 
    the Chair is going to reverse his decision and declare the yeas and 
    nays to be ordered. . . .
        The Chair is going to reverse his decision because he did not 
    initially count the House, and 60 is a sufficient number to order 
    the yeas and nays under the count just made.
        Mr. [Robert E.] Bauman [of Maryland]: Mr. Speaker, I have a 
    further parliamentary inquiry.
        The Speaker: The gentleman will state it.
        Mr. Bauman: Mr. Speaker, is a two-thirds vote necessary in 
    order to pass this and consider the legislation?
        The Speaker: The Chair will state that in order to consider the 
    resolution, a two-thirds vote is necessary, not to adopt it, but to 
    consider it.
        Mr. Bauman: I thank the Speaker.
        The Speaker: The question is, Will the House now consider House 
    Resolution 1473, on which the yeas and nays are ordered.

        The vote was taken by electronic device, and there were--yeas 
    293, nays 70, not voting 68. . . .
        So, two-thirds having voted in favor thereof, the House agreed 
    to consider House Resolution 1473.
        The result of the vote was announced as above recorded.
        The Speaker: The gentleman from California (Mr. Sisk) is 
    recognized for 1 hour.

Sec. 26.7 While the Chair's count of one-fifth of those Members present 
    in the House to order the yeas and nays under section 5 of article 
    I of the U.S. Constitution is not subject to challenge, the Chair 
    may respond to a Member's inquiry as to the exact count.

    On May 3, 1994,(2) the following proceedings took place 
on the floor of the House:
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 2. 140 Cong. Rec. p. --------, 103d Cong. 2d Sess.

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[[Page 11602]]

        Mr. [Joseph P.] Kennedy [II, of Massachusetts]: Mr. Speaker, I 
    yield back the balance of my time.
        The Speaker Pro Tempore: (3) The question is on the 
    motion offered by the gentleman from Massachusetts [Mr. Kennedy] 
    that the House suspend the rules and pass the bill, H.R. 3191, as 
    amended.
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 3. George Darden (Ga.).
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        The question was taken.
        Mr. [Porter J.] Goss [of Florida]: Mr. Speaker, I demand the 
    yeas and nays.
        The Speaker Pro Tempore: All those in favor of the yeas and 
    nays will stand and remain standing.
        A sufficient number having arisen, pursuant to clause 5 of rule 
    I, and the Chair's prior announcement----
        Mr. Kennedy: Mr. Speaker, I would inquire of the Chair what the 
    rule is about a sufficient number of Members rising.
        The Speaker Pro Tempore: The Chair advises that one-fifth of 
    those present constitutes a sufficient number.
        Mr. Kennedy: I would ask if the Chair would just count them up, 
    please, Mr. Speaker.
        The Speaker Pro Tempore: The Chair already counted two Members 
    standing. There are less than 10 Members on the floor.
        Mr. Kennedy: Mr. Speaker, I withdraw my request.
        The Speaker Pro Tempore: Pursuant to the provisions of clause 5 
    of rule I and the Chair's prior announcement, further proceedings 
    on this motion will be postponed.

Chair's Count for Second Not Subject to Appeal

Sec. 26.8 The Speaker's count of the House to determine whether one-
    fifth of those Members present have risen to support a request for 
    the yeas and nays is not subject to verification by appeal.

    Where the yeas and nays were demanded in the House on the question 
of passing a bill under suspension, the Speaker, after counting those 
standing to second the demand and then counting the House, declared 
that less than one-fifth of those present had risen to support the 
demand. The Speaker declared that no appeal on the Chair's count was in 
order. The proceedings were as follows: (4)
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 4. 124 Cong. Rec. 28949, 28950, 95th Cong. 2d Sess., Sept. 12, 1978.
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        The Speaker Pro Tempore: (5) The question is on the 
    motion offered by the gentleman from Oregon (Mr. Ullman) that the 
    House suspend the rules and pass the bill H.R. 12578, as amended.
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 5. B. F. Sisk (Calif.).
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        The question was taken.
        The Speaker Pro Tempore: In the opinion of the Chair, two-
    thirds have voted in the affirmative.
        Mr. [Harold A.] Volkmer [of Missouri]: Mr. Speaker, on that I 
    demand the yeas and nays.

[[Page 11603]]

        The Speaker Pro Tempore: The gentleman from Missouri (Mr. 
    Volkmer) demands the yeas and nays. All those in favor of taking 
    this vote by the yeas and nays will rise and remain standing until 
    counted.
        Not a sufficient number have risen.
        Mr. Volkmer: Mr. Speaker, I have a parliamentary inquiry.
        Is the requirement one-fifth of the Members present?
        The Speaker Pro Tempore: Yes. The Chair will state that the 
    requirement is that one-fifth of the Members present be standing 
    for the yeas and nays, and there is not one-fifth of the Members 
    standing.
        Mr. Volkmer: Mr. Speaker, I count four Members standing.
        The Speaker Pro Tempore: In the opinion of the Chair, an 
    insufficient number have arisen.
        The Chair will be glad to count, if the gentleman desires.
        Mr. Volkmer: Would the Chair count, please? I believe there are 
    only 25 Members here.
        The Speaker Pro Tempore: The Chair will count. Thirty Members 
    are present.
        Two-thirds having voted in the affirmative, the rules are 
    suspended and the bill, as amended, is passed, and without 
    objection, a motion to reconsider is laid on the table.
        There was no objection. . . .
        Mr. [John F.] Seiberling [of Ohio]: Mr. Speaker, is it in order 
    to appeal the ruling of the Chair on the last vote?
        The Speaker Pro Tempore: The Chair will state to the gentleman 
    that no appeal lies on the count of the Chair.

Sec. 26.9 Where the Speaker counted the Members rising to second a 
    demand for the yeas and nays on a motion to adjourn and then 
    counted the total number of Members present to determine whether 
    one-fifth seconded such demand, he declined a Member's request that 
    a new count be taken on the ground that some Members entered the 
    Chamber and were counted after the count of those seconding the 
    demand.

    On Jan. 23, 1950,(6) toward the end of the day, Mr. John 
W. McCormack, of Massachusetts, moved that the House adjourn. 
Immediately thereafter, Mr. Vito Marcantonio, of New York, demanded the 
yeas and nays. The Chair then counted and announced that ``fifty-four 
Members . . . [had] arisen, not a sufficient number.''
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 6. 96 Cong. Rec. 785, 81st Cong. 2d Sess.
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    The following then occurred:

        Mr. [Earl] Wilson of Indiana: Mr. Speaker, a point of order. 
    There were many Members who came in and were counted after the 
    standing count was taken. I ask that the vote be taken again.
        The Speaker: (7) The Chair is not going to make the 
    count again because

[[Page 11604]]

    he has just counted both the total number of Members and the number 
    standing to demand the yeas and nays.
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 7. Sam Rayburn (Tex.).
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        The question is on the motion to adjourn.(8)
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 8. See also Sec. Sec. 26.4, supra and 31.1, infra.
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Sec. 26.10 Although a demand for the yeas and nays had been seconded by 
    20 percent of those voting, the Speaker noted that, counting 
    himself, less than the minimum number of Members present had 
    seconded the demand--so the yeas and nays were refused.

    On June 30, 1937,(9) Mr. Sam Rayburn, of Texas, moved 
that the House adjourn. The Speaker (10) put the question; 
it was taken, and on a division vote demanded by Mr. John E. Rankin, of 
Mississippi, there were--ayes 41, noes 24.
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 9. 81 Cong. Rec. 6642, 75th Cong. 1st Sess.
10. William B. Bankhead (Ala.).
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    Immediately thereafter, Mr. Rankin demanded the yeas and nays. The 
Speaker then proceeded to count those in favor of that demand, and 
announced that:

        . . . Thirteen gentlemen have arisen, not a sufficient number. 
    The rule provides that the yeas and nays may be ordered by one-
    fifth of the Members present.

    Since the Speaker had counted himself in reaching his conclusion, 
the 13 seconding Members--while comprising one-fifth of those who had 
voted--did not comprise one-fifth of those present. Accordingly, the 
demand was refused.