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


[Page 892-904]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
              B. TIME, PLACE, AND REGULATION OF ELECTIONS
 
Sec. 9. Elections to Fill Vacancies

    Article I, section 2, clause 4 of the Constitution provides that 
upon the creation of a vacancy in the House, the executive authority of 
the state shall issue a writ of election to fill the vacancy. A vacancy 
in the Senate may be filled either by a writ of election or by state 
executive appointment under the 17th amendment.(13)
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13. For Senate appointments, see Sec. Sec. 9.149.16, infra.
            Proposals to amend the Constitution to allow the 
        appointment of Representatives to fill temporary vacancies have 
        been rejected. See Sec. 9.9, infra.
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    Whether a vacancy arises by death, resignation, declination, or 
action of the House,(14) the vacancy must be officially 
declared, either by the state executive or by the House, in order that 
a special election may be held. Usually state authorities take 
cognizance of the vacancy without the requirement of notice by the 
House, and normally the state executive declares the vacancy to exist, 
particularly in cases of death, declination, or 
resignation.(5)
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14. For the ways in which vacancies may be created, see House Rules and 
        Manual Sec. Sec. 18-24 (comments to U.S. Const. art. I, Sec. 2, 
        clause 4) (1973).
15. See House Rules and Manual Sec. Sec. 18, 19 (1973).
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    If a Member resigns directly to the state Governor, as is the 
customary practice, the House is thereafter notified and the House need 
take no action.(16) If he re

[[Page 893]]

signs directly to the Speaker, the Speaker may be given authority by 
the House to notify the state Governor of the vacancy.(17) 
Although a resigning Member may specify that his resignation take 
effect in the future,(18) there is doubt as to the validity 
or effectiveness of a resignation which does not specify its effective 
date.(19)
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16. See Sec. 9.1, infra.
17. See Sec. 9.2, infra.
18. See Sec. 9.3, infra.
19. Id.
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    If a Governor does not recognize the existence of a vacancy, such 
as in the case of a presumed death not susceptible of proof, the House 
itself may declare the seat vacant, as it does where independent House 
action creates a vacancy by expulsion or exclusion of a 
Member.(20)
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20. See Sec. 9.2, infra (Speaker notifies state of vacancy) and 
        Sec. 9.5, infra (presumed death, House declaration of vacancy).
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    Once the vacancy is declared, the state Governor has a mandatory 
and not merely a directory duty to call for a special 
election.(1)
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 1. See Jackson v Ogilvie, 426 F2d 1333 (7th Cir. 1970), cert. denied, 
        400 U.S. 833; In re Congressional Election, 15 R.I. 624, 9 
        A.224 (1887); In re the Representation Vacancy, 15 R.I. 621, 9 
        A.222 (1887). Contra, People ex rel. Fitzgerald v Voorhis, 222 
        N. Y. 494 119 N.E. 106 (1918) (state court, would not interfere 
        with executive discretion to call special election).
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    The time, place, and manner of special elections are regulated in 
much the same way as in general elections; in the absence of federal 
regulation, state law governs the proceedings.(2) And 
Congress is the sole judge of the elections and returns of Members-
elect to fill vacancies, whose certificates must be transmitted to the 
House and must show the Member-elect regularly elected in accordance 
with federal and state law.(3)
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 2. See Sec. 9.7, infra.
 3. For materials on Congress as judge of elections to fill vacancies, 
        see Sec. Sec. 9.7, 9.8, infra. For the certificates of election 
        of Members-elect to fill vacancies, see Sec. Sec. 9.11-9.13, 
        infra.
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    Although the time for general elections is regulated by federal 
statute,(4) the states appoint the time of special elections 
to fill vacancies.(5) The state in holding a special 
election must comply with constitutional and statutory requirements 
applicable to all federal elections, such as those mandating full 
voting rights and properly drawn congressional districts.(6)
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 4. See 2 USC Sec. 7.
 5. See 2 USC Sec. 8.
 6. For protection of voting rights, see Sec. 6, supra. For districting 
        requirements, see Sec. Sec. 3, 4, supra.
            In cases where congressional district lines were redrawn 
        after the general election but before a special election, the 
        decisions have been in conflict as to whether the special 
        election should be held in the old district or the newly drawn 
        district. See People ex rel. Fitzgerald v Voorhis, 222 N.Y. 
        494, 119 N.E. 106 (1918) (election to be held in new district 
        rather than district at time of original election); contra, 
        Sloan v Donoghue, 20 Cal. 2d 607, 127 P.2d 607, 127 P.2d 922 
        (1942). See also 1 Hinds' Precedents Sec. Sec. 311, 312, 327.

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[[Page 894]]

Notification of Vacancy

Sec. 9.1 Under normal practice, Members notify the Speaker by letter of 
    their resignation after first submitting their resignations to the 
    Governor of their state.

    On Sept. 12, 1968,(7) the Speaker (8) laid 
before the House a communication from Mr. Charles Goodell, of New York, 
which read as follows:
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 7. 114 Cong. Rec. 26541, 90th Cong. 2d Sess. For further illustrations 
        see 108 Cong. Rec. 7, 87th Cong. 2d Sess., Jan. 10, 1962; and 
        89 Cong. Rec. 7779, 78th Cong. 1st Sess., Sept. 23, 1943.
 8. John W. McCormack (Mass.).

                                     House of Representatives,
                                               Washington, D.C.,
                                               September 11, 1968.
                                             Hon. John W. McCormack,
                            Speaker of the House of Representatives,
                                                    Washington, D.C.

        Dear Mr. Speaker: I have today submitted my resignation as 
    United States Representative from the 38th District of the State of 
    New York to the Governor of New York. This resignation is effective 
    at the close of business on September 9, 1968.
        The years I have spent in the House of Representatives have 
    been memorable ones. I will not soon forget the many wonderful 
    friendships I made during these years. The opportunity to serve 
    with you and the many outstanding members of the House of 
    Representatives has been most rewarding.
        I look forward to working with you and your colleagues in 
    another capacity as we continue to pursue constructive and positive 
    solutions to the critical problems of the times.
        With warm personal regards, I am,

            Very truly yours,

                                               Charles E. Goodell.

Sec. 9.2 Where a Member resigns by direct communication to the Speaker 
    only, the House authorizes the Speaker to notify the Governor of 
    the State in order to effectuate the resignation and create a 
    vacancy.(9)
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 9. Where the House itself creates a vacancy, as by its ruling in an 
        election case or otherwise, the Speaker is directed to notify 
        the state executive of the vacancy (see Sec. Sec. 9.5, 9.7, 
        infra). But a Member's resignation is only effective when 
        transmitted to the Governor, and not to the House.
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    On July 12, 1957, after a Member from Pennsylvania had re

[[Page 895]]

signed directly to the House,(10) Speaker Sam Rayburn, of 
Texas, was authorized by the House (by unanimous consent) to notify the 
Governor of Pennsylvania of the vacancy as follows:
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10. 103 Cong. Rec. 11536, 85th Cong. 1st Sess. See also 75 Cong. Rec. 
        2969, 72d Cong. 1st Sess., Jan. 29, 1932; 90 Cong. Rec. 8450, 
        78th Cong. 2d Sess., Nov. 27, 1944; 106 Cong. Rec. 16535, 86th 
        Cong. 2d Sess., Aug. 16, 1960 (during adjournment, previous 
        authority granted).

                                  His Excellency George M. Leader,
                                           Governor of Pennsylvania,
                                                     Harrisburg, Pa.

        Sir: Honorable Samuel K. McConnell, Jr. on Friday July 12, 
    1957, submitted his resignation as a Representative in the Congress 
    of the United States from the Thirteenth District of Pennsylvania, 
    effective September 1, 1957, and pursuant to the order of the House 
    of Representatives on Friday, July 12, 1957, I have been directed 
    to so inform you.

            Very truly yours,
                                                      Sam Rayburn.

Resignations Effective in the Future

Sec. 9.3 Resigning Members have on occasion made their resignations 
    effective on a future date and on one occasion the effective date 
    followed the anticipated date of a special election to fill the 
    vacancy which would be created; but a resignation to become 
    effective when a special election may be held or a successor 
    elected, without specifying an effective date certain, is invalid 
    and does not create a vacancy.

    On Oct. 2, 1963,(11) W. Homer Thornberry notified 
Speaker John W. McCormack, of Massachusetts, of his resignation as a 
Representative from Texas, the resignation to become effective Dec. 20, 
1963. Mr. Thornberry delayed the effective date of his resignation 
because of the press of business in the House and because a special 
election, for another purpose, had previously been scheduled for Dec. 9 
in Texas; that date was therefore considered an opportune time to 
conduct a special election for Mr. Thornberry's seat. James J. Pickle, 
of Texas, was elected to fill the seat in the Dec. 9 special election 
and took the oath as a Member on Dec. 21, 1963.
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11. 109 Cong. Rec. 18583, 88th Cong. 1st Sess.
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    On Dec. 1, 1944,(12) in the 78th Congress, second 
session, Dave E. Satterfield notified Speaker Sam Rayburn, of Texas, of 
his resignation as a Representative from Virginia, ``to become 
effective as soon as my successor can be elected.''
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12. 90 Cong. Rec. 8689, 78th Cong. 2d Sess.
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[[Page 896]]

Mr. Satterfield had already been re-elected in November to a House seat 
in the 79th Congress. No special election was called in Virginia and 
Mr. Satterfield took his seat as a Representative from Virginia to the 
79th Congress. On Jan. 29, 1945, Mr. Satterfield resigned from the 
House, effective on Feb. 15, 1945.

    On Jan. 18, 1965 (see Sec. 9.4, infra), Albert W. Watson notified 
Speaker John W. McCormack, of Massachusetts, of his resignation as a 
Representative from South Carolina, to be effective ``upon such date as 
the Governor may set for a special election to fill the vacancy.'' The 
Governor of South Carolina declined to take any action on the 
conditional resignation and no special election was called. On Jan. 28, 
1965, Mr. Watson notified the Speaker of his resignation as a 
Representative to take effect immediately.
    On Sept. 26, 1956,(13) Senator Marion Price Daniel (who 
had begun his six-year term in 1953) resigned his seat in the Senate 
from the State of Texas, to become effective Jan. 15, 1957, ``or at 
such earlier date as my successor has been elected and qualified.'' 
Senator Daniel's letter of resignation to the Governor of Texas stated 
that ``although the date of the election . . . is a matter within your 
discretion, please permit me to express the hope that it will be held 
in time for my successor to take office not later than January 3.'' The 
Governor of Texas did not call a special election, since no vacancy 
could be created by the qualified resignation until Jan. 15, 1957, in 
the 85th Congress first session. Senator William A. Blakley was 
appointed to fill the vacancy created on Jan. 15 and took his seat in 
the Senate on Jan. 17.
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13. 103 Cong. Rec. 3, 85th Cong. 1st Sess., Jan. 3, 1957 (letter of 
        resignation laid before the Senate at convening of 85th 
        Congress).
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    Parliamentarian's Note: For a discussion in the Senate in the 58th 
Congress on the impropriety of a resignation to take effect on a future 
unspecified date, see 2 Hinds' Precedents Sec. 1229. The view was 
expressed on that occasion (involving a contested election case) that 
any resignation to take effect in the future, whether or not an 
effective date was specified, only constituted notice of the intention 
to resign, since the resigning Member could withdraw his resignation 
before it took effect. See, for example, the resignation of a Member to 
take effect on a future specified date cited at 6 Cannon's Precedents 
Sec. 231; the Member withdrew his resignation

[[Page 897]]

after it had been received by the State Governor but before its 
effective date.
    The precedents of the House have established that a resignation may 
be made effective on a future date (see 2 Hinds' Precedents 
Sec. Sec. 1220-1227), but as the precedents above indicate, a 
resignation which does not specify a date certain on which it becomes 
effective is invalid and does not create a vacancy. And in view of the 
possibility of the withdrawal of a resignation which is not yet 
effective, a special election to fill the seat should be withheld until 
the effective date of the resignation.

State Duty to Call Special Election

Sec. 9.4 Where a Member resigned, his resignation to be effective on 
    the date of an election to fill the vacancy, and the Governor 
    failed to call a special election, the Member immediately resigned 
    from the House.

    On Jan. 18, 1965,(14) Speaker John W. McCormack, of 
Massachusetts, laid before the House a letter from Mr. Albert W. 
Watson, of South Carolina, advising the Speaker of his resignation to 
the Governor of his state, such resignation to be effective upon such 
date as the governor may set for a special election to fill the 
vacancy.
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14. 111 Cong. Rec. 805, 806, 89th Cong. 1st Sess.
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    On Jan. 28, 1965,(15) the Speaker laid before the House 
a communication from Mr. Watson stating that it appeared that the 
Governor of South Carolina intended to take no affirmative action on 
his provisional resignation or to call a special election to fill the 
vacancy that would be created. Mr. Watson therefore immediately 
resigned his seat as a Representative, to the Governor with notice to 
the Speaker.(16)
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15. 111 Cong. Rec. 1452, 89th Cong. 1st Sess.
16. When a vacancy in a congressional seat is created, the state 
        Governor has an affirmative duty under U.S. Const. art. I, 
        Sec. 2, clause 4 to call a special election to fill the 
        vacancy. See Jackson v Ogiluie, 426 F2d 1333 (7th Cir. 1970), 
        cert. denied, 400 U.S. 833.
            Under 2 USC Sec. 8, the state legislature may prescribe the 
        time for a special election to fill a congressional vacancy.
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Sec. 9.5 Where a Member-elect disappeared between the issuance of his 
    certificate of election and the convening of the Congress, and the 
    Governor took no action, the House declared the seat va

[[Page 898]]

    cant and notified the Governor thereof.

    On Jan. 3, 1973, at the convening of the 93d Congress, Speaker Carl 
Albert, of Oklahoma, laid before the House communications from the 
Clerk advising him of the disappearance of an aircraft carrying two 
Representatives-elect to the House, N.J. Begich, of Alaska, and Hale 
Boggs, of Louisiana.(17) The Clerk's communication stated 
that, for one of those Members-elect, the Governor of the state had 
declared the congressional seat vacant, pursuant to a presumptive death 
verdict and a certificate of presumptive death.
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17. 119 Cong. Rec. 15, 16, 93d Cong. 1st Sess.
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    As to the other Member-elect, Mr. Boggs, the Clerk advised the 
Speaker that the attorney general of Louisiana had informed him that no 
action had been taken by the Governor and no action was contemplated to 
change the status of Mr. Boggs or to change the status of the 
certificate of election for Mr. Boggs filed with the Clerk.
    The House then adopted House Resolution 1, declaring the seat of 
Mr. Boggs to be vacant and notifying the Governor of Louisiana of the 
existence of the vacancy.(18)
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18. Id.
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Sec. 9.6 After a vacancy was created by the death of a Representative, 
    the state Governor proclaimed the winner of the special primary 
    election to be duly elected to the House without holding a general 
    election, since the primary winner was the only qualified candidate 
    for the general election.

    On Oct. 18, 1965,(19) Mr. Edwin W. Edwards took the oath 
of office to fill a vacancy from the State of Louisiana. On Oct. 15, 
1965, the Governor of Louisiana had proclaimed Mr. Edwards duly elected 
to the House of Representatives, without holding a general election, 
since Mr. Edwards had won the special Democratic primary election and 
no other candidates had qualified to stand for office in the general 
election to fill the vacancy.
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19. 111 Cong. Rec. 27171, 89th Cong. 1st Sess.
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Application of State Law as to Special Elections

Sec. 9.7 Congress in judging the elections of Members to fill vacancies 
    follows state law regulating the time and procedure for such 
    elections, in the absence of federal regulation.(20)
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20. See U.S. Const. art. I, Sec. 4, clause 1 and 2 USC Sec. 8.

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[[Page 899]]

    On Jan. 20, 1934, a Committee on Elections submitted House 
Resolution 231 and House Report No. 334, declaring null and void an 
election to fill a vacancy and denying the seat to either of the two 
contestants, one with a certificate of election from the Governor and 
one with a certificate of election from a citizens' 
committee.(1)
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 1. 78 Cong. Rec. 1035, 73d Cong. 2d Sess. On Jan. 3, 1934, the House 
        had denied the right to be sworn to either contestant and had 
        referred the matter to the Elections Committee. 78 Cong. Rec. 
        11, 12, 73d Cong. 2d Sess.
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    The committee (see H. Rept. No. 334) had determined, after 
examining the relevant state law, that: The election to fill the 
vacancy, held pursuant to the governor's proclamation, was invalid 
because held prior to expiration of the period required by state law to 
precede the election; and although the election was invalid, a party 
committee could not itself nominate a candidate and hold an election to 
choose him as a Representative.(2) The House adopted the 
resolution declaring the election null and void:
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 2. See 78 Cong. Rec. 1108-11, 73d Cong. 2d Sess., Jan. 22, 1934 and 78 
        Cong. Rec. 1510-21, 73d Cong. 2d Sess., Jan. 29, 1934.
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        Resolved, That there was no valid election for Representative 
    in the House of Representatives of the Seventy-third Congress from 
    the Sixth Congressional District of the State of Louisiana on the 
    5th day of December, or the 27th day of December 1933, and that 
    neither Mrs. Bolivar E. Kemp nor J. Y. Sanders, Jr., is entitled to 
    a seat therein; and be it further
        Resolved, That the Speaker communicate to the Governor of the 
    State of Louisiana that there is a vacancy in the representation of 
    that State in the Sixth Congressional District 
    thereof.(3)
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 3. 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934.
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Sec. 9.8 Where a state court issued a preliminary injunction against 
    the issuance of a certificate to a Member-elect to fill a vacancy 
    and the Speaker declined to administer him the oath, without the 
    certificate and without unanimous consent of the House, the House 
    authorized that he be sworn and referred to committee the question 
    as to his final right to a seat.

    On May 24, 1972, the House authorized the Speaker to administer the 
oath to Member-elect William S. Conover II, to fill a vacancy in a 
congressional seat from Pennsylvania.(4) House Resolution 
986, authorizing the administration of the oath, provided that Mr.

[[Page 900]]

Conover's final right to a seat be referred to the Committee on House 
Administration, since a citizens' group had obtained a state court 
preliminary injunction prohibiting the state Governor from issuing a 
certificate of election to Mr. Conover:
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 4. H. Res. 986, 118 Cong. Rec. 18654, 92d Cong. 2d Sess.
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        Whereas the Honorable James G. Fulton, Representative from the 
    Twenty-seventh District of Pennsylvania, died on the 5th day of 
    October 1971;
        Whereas Governor Milton Shapp, duly elected Governor of the 
    Commonwealth of Pennsylvania, ordered a special election for the 
    purpose of filling the seat vacated by the death of the Honorable 
    James G. Fulton;
        Whereas said special election was held on the 25th day of April 
    1972;
        Whereas the laws of Pennsylvania provide that any candidate may 
    challenge the results of said election within twenty days of the 
    election;
        Whereas twenty days have expired and neither Douglas Walgren, 
    Democratic candidate in that special election, nor Willard Holt, 
    Constitution candidate in said special election, have filed suit in 
    any court challenging said election;
        Whereas the Bureau of Elections, Allegheny County, has 
    forwarded the official certified vote to the Secretary of the 
    Commonwealth of Pennsylvania, according to the laws of the 
    Commonwealth of Pennsylvania, showing that William S. Conover II 
    received twenty-eight thousand six hundred and forty-seven votes; 
    Douglas Walgren received twenty-five thousand nine hundred and 
    fifty-six votes; and Willard Holt received one thousand five 
    hundred and seventeen votes;
        Whereas a citizens' group has instituted a suit against Milton 
    Shapp, Governor of the Commonwealth of Pennsylvania, and C. Delores 
    Tucker, Secretary of the Commonwealth of Pennsylvania, and did on 
    May 11, 1972, obtain in the Commonwealth Court of Pennsylvania a 
    preliminary injunction restraining Milton Shapp, Governor of the 
    Commonwealth of Pennsylvania, from issuing a certificate of 
    election based on the aforementioned results of the special 
    election held April 25, 1972;
        Whereas legal proceedings emanating from this suit may result 
    in protracted litigation thereby depriving the Twenty-seventh 
    Congressional District of Pennsylvania of representation in the 
    House of Representatives for an indefinite period; and
        Whereas under article I, section 5 of the Constitution of the 
    United States the House of Representatives is the judge of the 
    elections, returns and qualifications of its own Members: Therefore 
    be it
        Resolved, That the Speaker is hereby authorized and directed to 
    administer the oath of office to the gentleman from Pennsylvania, 
    Mr. William S. Conover II; and be it further
        Resolved, That the question of the final right of William S. 
    Conover II to a seat in the Ninety-second Congress be referred to 
    the Committee on House Administration, 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.

    Parliamentarian's Note: Mr. Conover had originally appeared to take 
the oath of office shortly

[[Page 901]]

after the special election to fill the vacancy was held on Apr. 25, 
1972, but Speaker Carl Albert, of Oklahoma, declined to administer the 
oath due to the preliminary injunction and the likelihood of an 
objection being raised to Mr. Conover's taking the oath without a 
certificate of election.

Proposals to Fill Vacancies by Appointment

Sec. 9.9 Proposals to amend the Constitution to provide for filling 
    vacancies in the House by appointment have been 
    rejected.(5)
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 5. See, e.g., 106 Cong. Rec. 1715, 1747, 1748, 86th Cong. 2d Sess., 
        Feb. 2, 1960 (S.J. Res. 39).
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Re-election of Representative to Succeed Himself

Sec. 9.10 A Member who resigns or who is excluded from the House may be 
    re-elected in a special election to succeed himself in the same 
    Congress.

    On Nov. 20, 1944,(6) Mr. James Domengeaux appeared to 
take the oath of office. He was elected to fill a vacancy created when 
he had resigned his congressional seat from the State of Louisiana in 
the same Congress.
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 6. 90 Cong. Rec. 8201, 78th Cong. 2d Sess.
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    Parliamentarian's Note: Mr. Domengeaux resigned to enter the armed 
forces and after approximately 90 days was discharged because of 
physical disability.
    On May 1, 1967,(7) Speaker John W. McCormack, of 
Massachusetts, laid before the House a letter from the Clerk, advising 
receipt of a certificate showing the special election of Mr. Adam C. 
Powell, of New York, to fill a vacancy created when the House, on Mar. 
1, 1967, adopted a resolution excluding Mr. Powell from membership and 
declaring his seat vacant. In response to a parliamentary inquiry, the 
Speaker indicated that if Mr. Powell appeared to take the oath and was 
again challenged, the House would have to determine, at that time, what 
action it should take.
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 7. 113 Cong. Rec. 11298, 90th Cong. 1st Sess.
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    On June 16, 1965,(8) Mr. Albert W. Watson, of South 
Carolina, elected in a special election to fill the vacancy created 
when he himself resigned from the House, was administered the oath of 
office. He had originally been elected as a Democrat, resigned from the 
House, and was re-elected to the House as a Republican.(9)
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 8. 111 Cong. Rec. 13774, 89th Cong. 1st Sess.
 9. See also Sec. 7.5, supra, where a Senator elected by a ``write-in'' 
        vote resigned to permit a regular primary election and 
        announced his candidacy therein.

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[[Page 902]]

Certificate of Election to Fill Vacancy

Sec. 9.11 The Clerk notifies the Speaker when he receives certificates 
    of elections to fill vacancies in the House.

    On Jan. 3, 1956,(10) the Speaker laid before the House a 
communication from the Clerk stating as follows:
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10. 102 Cong. Rec. 5, 84th Cong. 2d Sess. See also 104 Cong. Rec. 5, 
        85th Cong. 2d Sess., Jan. 7, 1958; 112 Cong. Rec. 6, 89th Cong. 
        2d Sess., Jan. 10, 1966 (certificates for Members to fill 
        vacancies are not laid before the House until after the roll 
        call, on the convening day of the second session); 114 Cong. 
        Rec. 25508, 90th Cong. 2d Sess., Sept. 4, 1968; 115 Cong. Rec. 
        26056, 26057, 91st Cong. 1st Sess., Sept. 18, 1969 (Governor of 
        state, having named appointee to fill vacancy, appeared on 
        Senate floor to witness taking of oath by appointee).
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        A certificate of election in due form of law for the Honorable 
    John D. Dingell as a Representative-elect to the Eighty-fourth 
    Congress from the Fifteenth Congressional District of the State of 
    Michigan, to fill the vacancy caused by the death of his father, 
    the late Honorable John D. Dingell, has been received from the 
    secretary of state of Michigan, and is on file in this office.

Sec. 9.12 Members-elect to fill vacancies may be sworn by unanimous 
    consent where their certificates of elections have not arrived and 
    their elections are not contested.(11)
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11. 115 Cong. Rec. 28487, 91st Cong. 1st Sess., Oct. 3, 1969 (sworn in 
        as Member prior to vote on military procurement authorization 
        for 1970); 111 Cong. Rec. 27171, 89th Cong. 1st Sess., Oct. 18, 
        1965 (only candidate for the vacancy); 111 Cong. Rec. 13774, 
        89th Cong. 1st Sess., June 16, 1965 (re-election of Member who 
        resigned); 100 Cong. Rec. 13282, 83d Cong. 2d Sess., Aug. 4, 
        1954 (Delegate-elect); 90 Cong. Rec. 8194, 78th Cong. 2d Sess., 
        Nov. 16, 1944.
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Sec. 9.13 A Member-elect elected to fill a vacancy was sworn in, 
    although his certificate was objected to on the ground that it 
    stated he was ``duly elected as Congressman,'' instead of 
    ``Representative in Congress.'' (12)
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12. Although no special form for the certificate of a Representative-
        elect is required by federal law, the certificate of a Member-
        elect to fill a vacancy should identify the vacancy and term he 
        is filling. See, in general, Sec. 15, infra.
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    On June 2, 1930,(13) Mr. Robert H. Clancy, of Michigan, 
arose to object to the validity of the certificate of election of 
Thomas L.

[[Page 903]]

Blanton, Member-elect from Texas, to fill a vacancy. Mr. Clancy's 
objection was based on the description in the credentials of Mr. 
Blanton as ``Congressman,'' instead of as ``Representative in 
Congress.''
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13. 72 Cong. Rec. 9891, 9892, 71st Cong. 2d Sess.
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    Mr. John N. Garner, of Texas, arose to state that Mr. Clancy's 
objection was frivolous, since the certificate clearly stated that Mr. 
Blanton was elected from the 17th District of Texas, and to succeed Mr. 
Robert Q. Lee, who all the Members of the House knew represented the 
17th District in the House. Mr. Clancy responded that the Clerk of the 
House had notified the authorities in Texas a number of times that they 
should not designate the office as ``Congressman,'' but as 
``Representative in Congress,'' and that the precedents of the House 
mandated that the credentials must be in order and must correctly 
describe the office.
    The House then voted on the question and directed that the Speaker 
administer the oath to the challenged Member-elect.

Appointees to Fill Vacancies in Senate

Sec. 9.14 An appointee to fill a vacancy in the Senate declined to 
    serve, whereupon his certificate of appointment was returned to the 
    state Governor.

    On June 21, 1956,(14) there was laid before the Senate 
two communications from Governor Chandler of Kentucky, one appointing 
Senator-elect Joseph Leary to fill a vacancy, and one asking the return 
of the certificate of appointment, since Mr. Leary had declined to 
serve. The Senate ordered the return of the certificate:
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14. 102 Cong. Rec. 10769, 84th Cong. 2d Sess.
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        Ordered, That in view of the declination of Joseph J. Leary of 
    the appointment by the Governor of Kentucky as Senator from that 
    State to fill the vacancy caused by the death of the late Senator 
    Alben W. Barkley, the certificate of appointment of Mr. Leary be 
    returned by the Secretary of the Senate to the Governor, in 
    comoliance with his request.

Sec. 9.15 Where a candidate was simultaneously elected as a Senator and 
    as Vice President, he was administered the oath as Senator and then 
    immediately resigned from the Senate; this resignation was followed 
    by the administration of the oath to an appointee to fill the 
    vacancy that had been created.

    On Jan. 3, 1961,(15) Senator-elect Lyndon B. Johnson, of

[[Page 904]]

Texas, was administered the oath, after which he submitted his 
resignation from the Senate due to his election as Vice President of 
the United States.
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15. 107 Cong. Rec. 6, 7, 87th Cong. 1st Sess.
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    Following his resignation, there were laid before the Senate a 
letter and telegram from the Governor of Texas appointing Mr. William 
A. Blakley to fill the vacancy created by Mr. Johnson's resignation. 
After the receipt of the communications, Mr. Blakley, who was present, 
was administered the oath.

Sec. 9.16 The Speaker laid before the House a letter of resignation 
    from a Member who had been appointed to the Senate to fill the 
    vacancy caused by the resignation of a Senator whose term of office 
    was about to expire.

    On Dec. 31, 1970, the Speaker laid before the House the resignation 
of Mr. William V. Roth, Jr., of Delaware. Mr. Roth had been appointed 
by the Governor to fill a vacant senatorial seat and was administered 
the oath in the Senate on Jan. 2, 1971, although the term of office for 
the seat was to expire a day later on Jan. 3, 1971.(16)
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16. 116 Cong. Rec. 44516, 91st Cong. 2d Sess.
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    Parliamentarian's Note: Mr. Roth had been elected as a Senator from 
Delaware, his term to begin Jan. 3, 1971; the appointment to fill the 
vacancy in the 91st Congress had the effect of increasing his seniority 
in the 92d Congress.