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


[Page 883-892]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
              B. TIME, PLACE, AND REGULATION OF ELECTIONS
 
Sec. 8. Ballots; Recounts

    The content, form, and disposition of ballots used in congressional 
elections are generally regulated by state law. The only federal 
requirement is that such ballots be written or printed, unless the 
state has authorized the use of voting machines.(15) Federal 
courts do not normally interfere with a state's prerogative to 
establish standards for ballots and voting machines.(16)
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15. 2 USC Sec. 9.
16. See Voorhes v Dempsey, 231 F Supp 975 (D. Conn. 1964), aff'd, 379 
        U.S. 648 (state requirement of party lever on voting machines 
        did not violate the 14th amendment where candidate listing and 
        voter choice not impaired); Voltaggio v Caputo, 210 F Supp 237 
        (D. N.J. 1962), appeal dismissed, 371 U.S. 232 (statute 
        directing manner of listing names on ballot not violative of 
        the 14th amendment; prohibiting independent candidate from 
        having slogan printed beneath name not violative of the U.S. 
        Constitution); Smith v Blackwell, 115 F2d 186 (4th Cir. 1940) 
        (federal court lacked power to set up election machinery by 
        order or to require certain form of ballot); Peterson v Sears, 
        238 F Supp 12 (D. Iowa 1964) (federal court lacked jurisdiction 
        to enjoin county auditors from unlocking voting machines).
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    In judging election contests, the House must on occasion gain 
access to the ballots cast and determine whether they were properly 
included within or omitted from the official count taken by state 
authorities. House committees investigating contests, or investigating 
election irregularities or fraud, may be granted authority to impound 
or otherwise obtain ballots within the custody of state 
officials.(17)
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17. See Sec. Sec. 8.9, 8.10 for impoundment of ballot boxes and their 
        contents.
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    In judging the validity of ballots, the House (or its committee) 
relies on state statutes regarding ballots and on state court opinions 
construing those laws. The general rule is that laws regulating the 
conduct of voters and the casting of votes are mandatory in nature and 
violations thereof invali

[[Page 884]]

date the ballots cast, particularly where the voter's intent cannot be 
clearly ascertained. Laws regulating the functions of election 
officials are directory in nature, and in the absence of fraud the 
officials' conduct will not vitiate ballots, even if they are subject 
to criminal sanction for the breach complained of.(18)
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18. See Sec. 8.11, infra.
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    Under most state election laws, a losing candidate may request a 
recount of votes based on alleged irregularities and errors in the 
administration of the election or the official count. In seeking a 
remedy, the losing candidate should look first to the law of the state 
where the election was held.(19) State courts have held that 
where state law provides for a recount, the election process is not 
final until a recount has been conducted or time to request one has 
elapsed; therefore state courts may assume jurisdiction of 
controversies over recounts without violating article I, section 5, 
clause 1 of the Constitution, vesting final authority over elections 
and returns in the House or Senate.(20)
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19. Neither the due process clause of the Constitution nor the 
        requirement that Representatives be chosen by the people 
        guarantees a federal remedy for unintentional errors in the 
        administration of an election, where a petitioner has failed to 
        properly file for a fair and accurate state remedy which is 
        available. Powell v Power, 436 F2d 84 (2d Cir. 1970).
20. See Blackburn v Hall, 115 Ga. App. 235, 154 S.E.2d 392 (1967) 
        (cited at Sec. 8.3, infra); Wickersham v State Election Board, 
        357 P.2d 421 (Okla. 1960).
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    The House may order its own recount of the votes cast, without 
regard to state proceedings, under article I, section 5, clause 1 of 
the U.S. Constitution; (1) but it has not assumed authority 
to order a state or local elections board to undertake a 
recount,(2) although in some states the law may provide for 
a state-ordered recount to be supervised by a congressional 
committee.(3)
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 1. See Sec. 8.5, infra.
 2. See Sec. 8.7, infra.
 3. See Sec. 8.8, infra.
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                          Collateral Reference
Bushel, State Control Over the Recount Process in Congressional 
    Elections, 23 Syracuse L. Rev. 139 
    (1972).                          -------------------

Power of State to Conduct Ballot Recount

Sec. 8.1 The Senate seated a Senator-elect without prejudice to the 
    outcome of a Supreme Court case where the Senator-elect was 
    challenging

[[Page 885]]

    the constitutional power of his representative state to conduct a 
    recount of the ballots cast.

    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.'' (4)
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 4. 117 Cong. Rec. 6, 92d Cong. 1st Sess.
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    Parlimentarian'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.(5)
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 5. Roudebush v Harthe, 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.
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State Proceedings as Affecting House Action

Sec. 8.2 The House rejected a challenge to the returns for a Member-
    elect where state law appointed a state ballot commission as final 
    adjudicator.

    On Jan. 5, 1937, Mr. John J. O'Connor, of New York, arose to object 
to the administration of the oath to Arthur B. Jenks, Member-elect from 
New Hampshire. Mr. O'Connor stated that the certificate of election of 
Mr. Jenks ``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.''  (6)
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 6. 81 Cong. Rec. 12, 13, 75th Cong. 1st Sess.
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    Mr. Bertrand H. Snell, of New York, arose to state that Mr. Jenks 
had the right to be sworn in since he had a duly authenticated 
certificate and since the laws of New Hampshire provided that a ballot 
commission was the final adjudicator in regard to the objection 
presented.(7) The House then adopted a resolution permitting

[[Page 886]]

Mr. Jenks to take the oath of office:
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 7. Id.
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        Resolved, That the gentleman from New Hampshire be now 
    permitted to take the oath of office.

Sec. 8.3 A special committee to investigate campaign expenditures 
    recommended by divided vote to the succeeding Congress that a 
    certified Member-elect not be seated pending determination of the 
    contest, based upon a preliminary state court determination that 
    not all split-ticket ballots had been counted.

    On Jan. 3, 1967, after the adjournment sine die of the 89th 
Congress, a special committee established in the 89th Congress to 
investigate campaign expenditures filed a report on campaign 
expenditures with the House (H. Rept. No. 89-2348), recommending to the 
next Congress by a divided vote that a certified Member-elect from 
Georgia, Benjamin B. Blackburn, not be seated pending the initiation of 
an elections contest to resolve the matter. The committee so 
recommended because of a preliminary state court determination in 
Georgia that some split-ticket ballots had not been 
counted.(8)
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 8. H. Rept. No. 2348, 89th Cong. 2d Sess.
            For the final court decision, see Blackburn v Hall, 115 Ga. 
        App. 235, 154 S.E.2d 392 (1967). It is customary practice for 
        special elections committees to pass their findings on recent 
        elections to the next Congress for use in elections contest 
        determinations (see Sec. 14, infra).
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    On Jan. 10, 1967, at the convening of the 90th Congress, Mr. 
Blackburn's right to be sworn was challenged. The House authorized him 
to be sworn but referred the question of his final right to a seat to 
the Committee on House Administration.(9)
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 9. 113 Cong. Rec. 14, 27, 90th Cong. 1st Sess.
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Sec. 8.4 The Committee on House Administration expressly rejected a 
    requirement that a contestant show that he had no remedy under the 
    law of his state as determined by recourse to the highest state 
    court.

    On Apr. 22, 1958, the Committee on House Administration submitted 
its report in the election contest of Carter v LeCompte (Iowa); the 
committee had ruled that where a contestant seeking a recount had 
served copies of his notice of contest on state election officials but 
had been advised by the state attorney general that state laws 
contained no provision for contesting a House seat, the

[[Page 887]]

contestant need not seek recourse to the highest state court to 
demonstrate that no remedy was available under state 
law.(10)
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10. H. Rept. No. 1626, 104 Cong. Rec. 6939, 85th Cong. 2d Sess.
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    In so ruling, the committee expressly overruled a report of 
Committee on Elections No. 3 in the 76th Congress, which found that the 
House or its elections committee will only order a recount when the 
contestant has shown that he has attempted recourse to the highest 
court of that state to obtain a recount under state 
procedures.(11)
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11. H. Rept. No. 1722, 86 Cong. Rec. 2689, 76th Cong. 3d Sess., Mar. 
        11, 1940. The Committee on Elections No. 3, however, did 
        acknowledge that it had the discretion to order a recount 
        without reference to state proceedings, and proceeded to 
        consider the contestant's evidence of an informal recount which 
        he had conducted to determine whether the committee would be 
        justified in ordering a recount.
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Congressional Recount

Sec. 8.5 Where a standing committee was authorized to investigate the 
    right of two contestants to a seat, the committee ordered a recount 
    of the ballots under its general investigatory power, rather than 
    under the applicable election contest statute.

    On Jan. 3, 1961,(12) the House adopted a resolution 
providing that the question of the right of either of two contestants 
from Indiana, J. Edward Roush and George O. Chambers, to a seat be 
referred to the Committee on House Administration, and that until that 
committee had reported, neither the Member-elect nor the contestee 
could take the oath of office.
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12. 107 Cong. Rec. 23, 24, 87th Cong. 1st Sess.
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    During its investigation, the Committee on House Administration 
conducted a recount of all the ballots cast in the election. This was 
done under its general power to investigate, not under the election 
contest statutes.(13)
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13. See H. Res. 339, 107 Cong. Rec. 10160, 87th Cong. 1st Sess., June 
        13, 1961.
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    When the House confirmed the right of Mr. Roush to the seat, 
pursuant to the report of the committee, the House adopted a privileged 
resolution providing for expenditures from the contingent fund to pay 
compensation and certain expenses to Mr. Roush and to the contestant. 
Neither was reimbursed for expenses pursuant to the election contest 
statutes since the recount had been ordered by

[[Page 888]]

the Committee on House Administration under its investigative 
power.(14)
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14. See H. Res. 340, 107 Cong. Rec. 10160 (June 13, 1961) and 10391 
        (June 14, 1961), 87th Cong. 1st Sess.
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Congressional Power Over State Recount

Sec. 8.6 By resolution the House denied a joint application, by both 
    parties to an election dispute, petitioning the House to order the 
    state elections board to conduct a recount.

    On Feb. 25, 1943,(15) the House adopted House Resolution 
137, denying a joint application for an order of a recount in a 
disputed election case. The resolution was offered in order to 
establish a ``precedent for all time that jurisdiction of an alleged 
contested election case cannot be conferred on the House or one of its 
committees by any joint agreement of parties to an alleged election 
contest unofficially or otherwise submitted.''
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15. 89 Cong. Rec. 1324, 78th Cong. 1st Sess.
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    The resolution read as follows:

        Resolved, That the joint application for order of recount of 
    John B. Sullivan, contestant, against Louis E. Miller, contestee, 
    Eleventh District of Missouri, be not granted.

Sec. 8.7 An elections committee reported that there were no precedents 
    whereby the House had ordered a state or local board of elections 
    to take a recount.

    On Feb. 25, 1943, the Committee on Elections No. 3 submitted a 
report on a resolution denying a joint application for a recount in the 
contested case of Sullivan v Miller, Eleventh District of Missouri. In 
its report, the committee stated that it had found no precedents 
wherein the House had ordered a state or local board of elections to 
take a recount.(16)
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16. H. Rept. No. 180, 89 Cong. Rec. 1353, 78th Cong. 1st Sess. For the 
        text of the resolution, see Sec. 8.6, supra.
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Sec. 8.8 A recount of votes cast in an election for a House seat was 
    conducted by bipartisan teams and supervised by representatives of 
    a special House committee.

    On Aug. 12, 1958,(17) the House agreed to House 
Resolution 676, relative to the contested election case of Oliver v 
Hale, First Congressional District of Maine:
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17. 104 Cong. Rec. 17119, 85th Cong. 2d Sess.
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        Resolved, That Robert Hale was duly elected as Representative 
    from the First Congressional District of the

[[Page 889]]

    State of Maine in the 85th Congress and is entitled to his seat.

    The resolution, which was reported from the Committee on House 
Administration, was accompanied by House Report No. 2482. The committee 
advised in the report that a special committee on elections had 
traveled to Maine to conduct a recount of ballots pursuant to a Maine 
state statute which provided for a recount to be conducted by 
bipartisan teams and to be supervised by representatives of a special 
House elections committee.

Congressional Impoundment of Ballots

Sec. 8.9 A resolution providing for the procurement of ballot boxes, 
    election returns, and election record books in an investigation of 
    a contested election case is presented as privileged.

    On Jan. 7, 1930,(18) Mr. Willis G. Sears, of Nebraska, 
offered as privileged House Resolution 113, by direction of the 
Committee on Elections No. 3. The resolution related to the subpena of 
witnesses and the procurement of ballot boxes, election returns, and 
election record books in a committee investigation of a contested 
election case. After a Member arose to object to the privileged status 
of the resolution, Speaker Nicholas Longworth, of Ohio, ruled that the 
resolution was a privileged matter.(19) The resolution read 
as follows:
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18. 72 Cong. Rec. 1187, 71st Cong. 2d Sess.
19. See also 3 Hinds' Precedents Sec. 2586, where a resolution offered 
        from the floor providing for an investigation of the election 
        of a Member was held to be privileged.
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        Resolved, That Jack R. Burke, county clerk, or one of his 
    deputies, Perry Robertson, county judge, or one of his deputies, 
    and Lamar Seeligson, district attorney, all of Bexar County, State 
    of Texas, are hereby ordered to appear before Elections Committee 
    No. 3, of the House of Representatives as required then and there 
    to testify before said committee in the contested-election case of 
    Harry M. Wurzbach, contestant, versus Augustus McCloskey, 
    contestee, now pending before said committee for investigation and 
    report; and that said county clerk or his deputy, said county judge 
    or his deputy, and said district attorney bring with them all the 
    election returns they and each of them have in their custody, 
    control, or/and possession, returned in the said county of Bexar, 
    Tex., at the general election held on November 6, 1928, and that 
    said county clerk also bring with him the election record book for 
    the said county of Bexar, Tex., showing the record of returns made 
    in the congressional election for the fourteenth congressional 
    district of Texas, for the said general election held on

[[Page 890]]

    November 6, 1928, and to that end that the proper subpoenas be 
    issued to the Sergeant at Arms of this House commanding him to 
    summon all of said witnesses, and that said county clerk, said 
    county judge, and said district attorney to appear with said 
    election returns, as witnesses in said case, and said county clerk 
    with said election record book; and that the expense of said 
    witnesses and all other expenses under this resolution shall be 
    paid out of the contingent fund of the House; and that said 
    committee be, and hereby is, empowered to send for all other 
    persons or papers as it may find necessary for the proper 
    determination of said controversy.

Sec. 8.10 Committees of the House and Senate investigating elections 
    may be authorized to impound and to examine the content of ballot 
    boxes following congressional elections.(20)
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20. Similarly, a state law vesting custody of ballots in a state 
        official cannot prevail against a grand jury investigation of 
        violations of federal election statutes. In re Massey, 45 F 629 
        (D. Ark. 1890).
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    On several occasions, congressional committees have been authorized 
to impound ballot boxes containing ballots cast in congressional 
elections, either to resolve election contests or to investigate 
charges of election irregularities.
    On Jan. 19, 1931, for example, the Senate authorized by resolution 
a special investigatory committee to impound and to examine the 
contents of ballot boxes. The committee was investigating alleged 
violations of the Corrupt Practices Act.(1)
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 1. S. Res. 403, 74 Cong. Rec. 2569, 71st Cong. 3d Sess. For the 
        establishment of the committee and its powers, see 72 Cong. 
        Rec. 6828, 6829, 71st Cong. 2d Sess., Apr. 10, 1930.
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    Again, during the 86th Congress, a subcommittee on elections of the 
Committee on House Administration traveled to an Arkansas congressional 
district, where a seat was being contested (Mr. Dale Alford was the 
certified Member). Its purpose was to take physical custody of ballots 
and other materials and to isolate questionable ballots for further 
consideration. A federal court impounded the ballots for the use of the 
committee.(2)
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 2. See the remarks at 105 Cong. Rec. 18610, 18611, 86th Cong. 1st 
        Sess., Sept. 8, 1959. The investigation was undertaken pursuant 
        to H. Res. 1, 86th Cong. 1st Sess.
            For another occasion where the Committee on House 
        Administration recounted ballots under its investigatory power, 
        see Sec. 8.5, supra.
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Validity of Ballots

Sec. 8.11 Absent fraud, violations of directory state laws gov

[[Page 891]]

    erning the conduct of election officials as to ballots are not 
    sufficient to invalidate ballots, but laws regulating the conduct 
    of voters as to ballots must be substantially complied with, as the 
    latter are mandatory.(3)
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 3. The only federal statute on the form of ballots is 2 USC Sec. 9, 
        requiring a written or printed ballot unless voting machines 
        have been authorized by state law.
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    Elections committees of the House examining allegedly invalid 
ballots have determined, often in reliance on state court opinions, 
that those state laws regulating the conduct of election officials in 
relation to ballots are merely directory in nature, violations thereof 
not constituting sufficient grounds to invalidate ballots. Laws 
governing the conduct of voters in marking and handling ballots are on 
the other hand mandatory in nature, and substantial violations operate 
to void the respective ballots.(4)
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 4. A state law requiring alternation of names on ballots and 
        publication and display of ballots for a certain period prior 
        to an election has been considered mandatory where invoked 
        prior to the election. Committee on House Administration, 
        report submitted Aug. 21, 1951, 97 Cong. Rec. 10494, 82d Cong. 
        1st Sess.
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    The following laws have been ruled as directory in nature and not 
sufficient to invalidate ballots: a requirement that certain 
instruments be made available to mark ballots; (5) a law 
regarding poll procedure and disposition of absentee ballots, 
envelopes, and applications; (6) a law requiring initials of 
precinct or poll clerks on ballots; (7) a law prohibiting 
sticker votes and write-in votes where the state customarily accepted 
such votes and the state attorney general had opined that their use was 
legal.(8)
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 5. Committee on House Administration, report submitted June 13, 1961, 
        107 Cong. Rec. 10186, 87th Cong. 1st Sess. (law not made 
        mandatory by fact that election officials were subject to 
        criminal sanctions for violation thereof).
 6. Committee on House Administration, report submitted Aug. 6, 1958, 
        104 Cong. Rec. 16481, 85th Cong. 2d Sess.
 7. Committee on House Administration, report submitted June 13, 1961, 
        107 Cong. Rec. 10186, 87th Cong. 1st Sess. (adoption of state 
        court opinion).
 8. Committee on House Administration, report submitted Sept. 8, 1959, 
        105 Cong. Rec. 18610, 86th Cong. 1st Sess. (where a 
        subcommittee had unanimously recommended that the state clarify 
        the use of stickers and write-in voting in its election laws).
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    The following laws have been regarded as mandatory, with violations 
thereof voiding ballots: a law containing provisions declar

[[Page 892]]

ing an act of an election official essential to the validity of an 
election; (9) a law requiring the county clerk's seal and 
initials on absentee ballots; (10) a law requiring voter 
compliance with absentee voting laws; (11) and a law 
requiring that a ballot be invalidated if the voter's choice could not 
be ascertained for any reason.(12)
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 9. Committee on Elections No. 3, report submitted Feb. 15, 1944, 90 
        Cong. Rec. 1675, 78th Cong. 2d Sess.
10. Committee on House Administration, report submitted June 13, 1961, 
        107 Cong. Rec. 10186, 87th Cong. 1st Sess. (adoption of state 
        court opinion).
11. Report submitted Aug. 6, 1958, 104 Cong. Rec. 16481, 85th Cong. 2d 
        Sess. (listing nine types of mandatory absentee voting laws). 
        The report concluded that where absentee ballots should be 
        rejected due to improper envelopes and applications, the method 
        of proportionate deduction could be used to equitably deduct 
        votes from the totals of the respective candidates.
12. Report submitted Aug. 6, 1958, 104 Cong. Rec. 16481, 85th Cong. 2d 
        Sess. (adoption of state court opinion.)
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