[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8.  Elections and Election Campaigns]
[B. Time, Place, and Regulation of Elections]
[Â§ 5. In General; Federal and State Power]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 859-865]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
              B. TIME, PLACE, AND REGULATION OF ELECTIONS
 
Sec. 5. In General; Federal and State Power


    The U.S. Constitution delineates the respective areas of state and 
federal regulatory power over congressional elections in the following 
language:

        The Times, Places and Manner of holding Elections for Senators 
    and Representatives, shall be prescribed in each State by the 
    Legislature thereof; but the Congress may at any time by Law make 
    or alter such Regulations, except as to the places of chusing 
    Senators.(18)
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18. U.S. Const. art. I, Sec.  4, clause 1. See generally House Rules 
        and Manual Sec. Sec. 42-44 (1973).
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    This provision of the Constitution was adopted in order to furnish 
a flexible scheme of regulatory authority over congressional elections, 
to depend upon harmony and comity between the individual states and the 
Congress.(19) The discretionary power vested in Congress to 
supersede election regulations made by the states has only been 
exercised where necessity required it to protect constitutional rights 
or to remedy substantial inconsistencies among congressional elections 
in the several states.(20)
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19. See the Federalist No. 59 (Hamilton): ``It will not be alleged that 
        an election law could have been framed and inserted in the 
        Constitution which would have been always applicable to every 
        probable change in the situation of the country; and it will 
        therefore not be denied that a discretionary power over 
        elections ought to exist somewhere. It will, I presume, be as 
        readily conceded that there were only three ways in which this 
        power could have been reasonably modified and disposed: that it 
        must either have been lodged wholly in the national 
        legislature, or wholly in the state legislatures, or primarily 
        in the latter and ultimately in the former. The last mode has, 
        with reason, been preferred by the convention. They have 
        submitted the regulation of elections for the federal 
        government, in the first instance, to the local 
        administrations, which in ordinary cases and when no improper 
        views prevail, may be both more convenient and more 
        satisfactory; but they have reserved to the national authority 
        a right to interpose whenever extraordinary circumstances might 
        render that interposition necessary to its safety.''
20. Congress has acted to unify the time of congressional elections, 2 
        USC Sec. Sec. 1, 7, and the manner of balloting, 2 USC Sec. 9.
            For the general relationship of state power to 
        congressional power over elections, see Ex parte Siebold, 100 
        U.S. 383 (1880).
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    Although Congress has the absolute power, as affirmed by numerous 
decisions of the Supreme

[[Page 860]]

Court, to fashion a complete code for congressional 
elections,(1) congressional regulation has been directed 
largely towards the failure of the states to ensure the regularity of 
elections under their own state laws and to the failure of the states 
to adequately protect the voting rights of all citizens entitled to 
vote.(2) The actual mechanism of holding congressional 
elections is traditionally left by Congress to the province of the 
states. In judging the elections and returns of its Members, the House 
has usually deferred to state law on the procedure of 
elections,(3) on recount remedies and the validity of 
ballots,(4) and on the functions of state election 
officials.(5)
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 1. ``It cannot be doubted that these comprehensive words [art. I, 
        Sec. 4] embrace authority to provide a complete code for 
        congressional elections, not only as to times and places, but 
        in relation to notices, registration, supervision of voting, 
        protection of voters, prevention of fraud and corrupt 
        practices, counting of votes, duties of inspectors and 
        candidates, and making a publication of election returns; in 
        short, to enact numerous requirements as to procedure and 
        safeguards which experience shows are necessary in order to 
        enforce the fundamental right involved.'' Smiley v Holme, 825 
        U.S. 355, 366 (1932).
            Congress as judge of Members' qualifications, Ch. 7, supra.
 2. See Sec. 6, infra. Congress has also legislated extensively in the 
        field of campaign practices (see Sec. Sec. 10 et seq., infra).
 3. See Sec. 7, infra.
 4. See Sec. 8, infra.
 5. See Sec. Sec. 7, 8, infra.
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    The Constitution not only grants the states power over election 
procedure, but also delegates to them the power to prescribe the 
qualifications for voters, who must possess those qualifications 
requisite to vote for the most numerous branch of the state 
legislature.(6) However, variances among the states in 
regard to the qualifications of electors have been greatly diminished 
through constitutional amendment, through judicial decisions, and 
through federal legislation.(7) The franchise has been 
extended to all citizens, male or female, regardless of color, race, 
creed, or wealth, who are at least 18 years of age. The right to vote 
in primaries which are an integral part of the election process, to 
register as voters, and to vote without discrimination, intimidation or 
threats, have been ensured by civil rights legislation spanning from 
1870 to the present. The courts have taken an active role in voiding 
state statutes and practices which deny the

[[Page 861]]

right to vote or prescribe unreasonable and discriminatory 
qualifications. Thus, although earlier judicial decisions suggested 
that Congress had no right to interfere with state regulation of state 
elections,(8) Congress in the Voting Rights Acts of 1964 and 
1965 enacted regulations applicable to elections for both state and 
federal officials.(9) The Supreme Court later upheld 
Congress' power under the 14th and 15th amendments to the Constitution 
to act to protect voters from state interference in state 
elections.(10)
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 6. U.S. Const. art. I, Sec. 2, clause 1. See generally House Rules and 
        Manual Sec. Sec. 7, 8 (1973).
 7. See generally Sec. 6, infra.
 8. See Lackey v United States, 107 F 114 (6th Cir. 1901), cert. 
        denied, 181 U.S. 621; United States v Belvin, 46 F 381 (Cir. 
        Ct. Va. 1891); Ex parte Perkins, 29 F 900 (Cir. Ct. Ind. 1887).
 9. Pub. L. No. 88-352, 78 Stat. 241 (1964); Pub. L. No. 89-110, 79 
        Stat. 437 (1965).
10. South Carolina v Katzenbach, 383 U.S. 301 (1966); Katzenbach v 
        Morgan, 384 U.S. 641 (1966).
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    The ultimate validity of elections rests on determinations by the 
House and Senate as final judges of the elections and returns of their 
respective Members,(11) and the temporary denial of a state 
to a seat in the House or Senate is a necessary consequence of 
Congress' power to judge such elections.(12) The House and 
the Senate construe the effect of state and federal legislation on 
elections both through the election contest process (13) and 
through independent investigations of the regularity and propriety of 
individual congressional elections.(14)
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11. U.S. Const. art. I, Sec. 5, clause 1.
12. See Barry v United States ex rel. Cunningham, 279 U.S. 597 (1929).
13. See Sec. Sec. 5.4, 5.5, infra. See also Ch. 9, infra.
14. See Sec. 14, infra, for committee investigations of elections, and 
        Ch. 15, infra, for the investigative power of the House in 
        general.
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    Although there is no constitutional provision for representation in 
the national legislature by territories of the United States or by the 
seat of government, Congress has by statute extended nonvoting 
representation in the House to those entities.(15) Where 
popular elections are held in territories or in the seat of government, 
limited power is delegated by Congress to the governing bodies thereof 
to regulate the conduct of such elections. Election contests 
challenging the regularity of elections or of results may be instituted 
in regard to territorial elections as well as to congressional 
elections within the states.(16)
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15. For Delegates and the Resident Commissioner, see Ch. 7, supra.
16. See Sec. 5.5, infra.
            Contested election statutes, procedures and cases, see Ch. 
        9, infra.                          -------------------
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Jurisdiction of States

Sec. 5.1 The Senate delayed judging an election pending a de

[[Page 862]]

    termination by the U.S. Supreme Court that a state could order an 
    election recount without violating the Senate's sole authority as 
    the judge of the elections and returns of its Members.

    On Jan. 21, 1971, the Senate ordered ``that the oath may be 
administered to Mr. Hartke, of Indiana, without prejudice to the 
outcome of an appeal pending in the Supreme Court of the United States, 
and without prejudice to the outcome of any recount that the Supreme 
Court might order.'' (17)
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17. 117 Cong. Rec. 6, 92d Cong. 1st Sess.
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    Parliamentarian's Note: Senator Vance Hartke was challenging the 
request of his opposing candidate that the state order a recount of the 
votes cast. Senator Hartke claimed that the recount was barred by 
article I, section 5 of the Constitution, delegating to the Senate the 
sole power to judge the elections and returns of its Members. The 
Supreme Court later held that the constitutional provision did not 
prohibit a state recount, it being mere speculation to assume that such 
a procedure would impair the Senate's ability to make an independent 
final judgment.(18)
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18. Roudebush v Hartke, 405 U.S. 15 (1972). The Supreme Court cited the 
        action of the Senate in seating Senator Hartke, without 
        prejudice to the outcome of the court case, as a basis for 
        declaring the controversy not moot.
            Generally, where state law provides a remedy for 
        maladministration of an election, the state may retain 
        jurisdiction over election results until the remedial process 
        has been completed, although the House or Senate may make its 
        own independent judgment (see for example Sec. Sec. 8.1-8.4, 
        infra, and the cases cited therein). For an occasion where a 
        state court ruled to the contrary, see Sec. 5.2, infra.
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Sec. 5.2 A Member who had been defeated in a primary election inserted 
    in the Record a state court opinion that the court lacked 
    jurisdiction to pass upon that Member's allegations of election 
    irregularities since the House had exclusive jurisdiction to decide 
    such questions and to declare the rightful nominee.

    On Sept. 23, 1970,(19) Mr. Byron G. Rogers, of Colorado, 
addressed the House in order to insert in the Record a recent opinion 
of the supreme court of Colorado, holding that the court had no 
jurisdiction to consider Mr. Rogers' allegations of election 
irregularities in a primary election where he had been defeated, and 
that the House had

[[Page 863]]

exclusive jurisdiction to decide such questions.
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19. 116 Cong. Rec. 33320, 91st Cong. 2d Sess.
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    Parliamentarian's Note: The matter was later investigated by the 
Committee on House Administration, which did not report to the House 
thereon. The latter committee found that while there were 
irregularities in the election, there was no practical way of 
ascertaining whether they would have changed the result of the primary 
election.(20)
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20. The opinion inserted by Mr. Rogers was later officially reported as 
        Rogers v Barnes, 172 Colo. 550, 474 P.2d 610 (1970). Compare 
        Roudebush v Hartke, 405 U.S. 15 (1972), cited at Sec.  5.1, 
        supra.
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Sec. 5.3 To a bill vesting in federal courts jurisdiction over certain 
    voting rights actions, amendments prohibiting preemption of 
    jurisdiction of the state courts over elections in general were 
    held to be germane.

    On June 17, 1957, the House was considering H.R. 6127, a civil 
rights measure. The bill provided that jurisdiction should be vested in 
federal district courts over certain civil actions for protection of 
voting rights. An amendment was offered to prohibit preemption of 
jurisdiction of the state courts over elections. Chairman Aime J. 
Forand, of Rhode Island, held that the amendment was germane, since it 
was offered to sections of the bill that have to do with voting, and 
therefore with elections.(1)
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 1. 103 Cong. Rec. 9394, 9395, 85th Cong. 1st Sess.
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House Construction of State Election Statutes

Sec. 5.4 In judging the elections of its Members, the House may 
    construe the language of the applicable state election laws and 
    determine the effect of any violations thereof on such an 
    election.(2)
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 2. See 78 Cong. Rec. 8921, 73d Cong. 2d Sess., May 25, 1934. For 
        detailed analysis, see Sec. 7.1, infra, and the precedents 
        referred to therein.
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Sec. 5.5 Where a territorial act passed by Congress required the 
    Governor of the territory to deliver the certificate of election to 
    the Delegate but allowed the territorial legislature power over 
    election laws, a statute of the territory requiring the secretary 
    thereof to declare and certify election results was found 
    controlling in an election contest.(3)
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 3. Unlike the states, which have power under U.S. Const. art. I, 
        Sec. 4, clause 1 to regulate elections by law, any power of 
        territories and of the seat of government over elections must 
        be delegated by congressional enactment.

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[[Page 864]]

    On May 21, 1936, the Committee on Elections No. 2 submitted House 
Resolution 521 in the contested election case of McCandless v King for 
the seat of the Delegate from the territory of Hawaii.(4) 
The proposed resolution declared Mr. Samuel Wilder King to be duly 
elected as Delegate. The report analyzed the Hawaiian Organic Act, 
passed by Congress, to determine whether the contest had been filed 
within the proper time. The act required the territorial Governor to 
deliver a certificate of election to the Delegate, but also provided 
that the election be conducted in conformity with the general laws of 
the territory and permitted its legislature to amend the election laws.
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 4. 80 Cong. Rec. 7765, 74th Cong. 2d Sess. The House passed the 
        resolution, without debate, on June 2, 1936, 80 Cong. Rec. 
        8705, 74th Cong. 2d Sess.
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    The committee found that a law of the Hawaiian territorial 
legislature which required the secretary of the territory to declare 
and certify election results was controlling as to the question of 
whether the contestant had filed notice of contest within the time 
required by law.(5)
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 5. H. Rept. No. 2736, Committee on Elections No. 2, 74th Cong. 2d 
        Sess.
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State Action Denying Voting Rights

Sec. 5.6 Where the right of an entire state delegation to take the oath 
    was challenged by a citizens group which claimed systematic denial 
    of voting rights and which held citizen elections, the House 
    affirmed the right of the original delegation to the seats in 
    question.

    On Jan. 4, 1965, objection was made to the administration of the 
oath to the entire delegation of Members-elect from Mississippi. The 
House then adopted a resolution (H. Res. 1) authorizing those Members-
elect to be sworn in.(6)
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 6. 111 Cong. Rec. 18-20, 89th Cong. 1st Sess.
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    The challenge to the administration of the oath to the Members from 
Mississippi was based on the constitutional argument that systematic 
denial of Negro voting rights throughout the state invalidated the 
entire election. The citizens group challenging the election had held 
its own election to choose five representatives.
    A formal election contest was instituted but was dismissed by the 
House on Sept. 17, 1965.(7)
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 7. 111 Cong. Rec. 24291, 89th Cong. 1st Sess. For other materials on 
        the challenge, see pp. 18691 (July 29, 1965), 22364 (Aug. 31, 
        1965), 24263-92 (Sept. 17, 1965).

[[Page 865]]



Sec. 5.7 The House refused to overturn an election in a state with a 
    ``county unit'' primary election system, under which less populous 
    counties were entitled to a disproportionately larger electoral 
    vote than other counties in the same state.

    On Apr. 27, 1948, the House adopted without debate House Resolution 
553, dismissing the Georgia election contest of Lowe v 
Davis.(8)
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 8. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
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    Parliamentarian's Note: The House thereby refused to invalidate the 
Georgia ``county unit'' system for primaries, requiring use of county 
electoral votes rather than popular votes for choosing nominees. Under 
that system each candidate was required to receive a majority of county 
unit votes for nomination, and unit votes were allotted to less 
populous counties rather than strictly on the basis of 
population.(9)
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 9. See the elections committee report in the case, H. Rept. No. 1823, 
        80th Cong. 2d Sess. The Supreme Court later invalidated the use 
        of the ``county unit'' system. Gray v Sanders, 372 U.S. 368 
        (1963).
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