[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8. Elections and Election Campaigns]
[B. Time, Place, and Regulation of Elections]
[§ 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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