[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8.  Elections and Election Campaigns]
[D. Certificates of Election]
[Â§ 15. In General; Form]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 945-951]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                      D. CERTIFICATES OF ELECTION
 
Sec. 15. In General; Form


    After congressional elections have been conducted and results 
tabulated, the official returns are transmitted to the state executive, 
or other official designated to receive them under state law, for the 
issuance of a certificate of election.(3) These 
certificates, also termed ``credentials,'' are sent to the Clerk of the 
House for initial use in composing the Clerk's roll before the 
convening of Congress.

[[Page 946]]

Once Congress meets, the certificate constitutes evidence of a prima 
facie right to a congressional seat in the House.(4)
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 3. The subject of this division is the issuance and form of election 
        certificates, substantive grounds for challenge to their 
        validity, and the practice of the House in determining whether 
        a Member-elect may be sworn on the strength of his certificate.
            On occasion, challenges to the validity of an election or 
        to the satisfaction of qualifications (see Sec. Sec. 16.6, 
        16.7, infra) or to other matters are stated as challenges to 
        the credentials. Such challenges are treated elsewhere; see Ch. 
        2, supra (enrolling Members and administering the oath), Ch. 7, 
        supra (qualifications of Members), and Ch. 9, infra (election 
        contests).
 4. The term ``certificate of election'' has been preferred herein to 
        ``credentials'' since reference is to a specific document and 
        not to qualifications in general.
            For the procedure of presenting credentials, the status of 
        Members-elect, and the functions of House officers at or before 
        the convening of Congress, see Ch. 2, supra.
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    The certificate is neither binding on the House nor essential to 
the administration of the oath, since the House is the sole and final 
judge of the elections and returns of its Members.(5) Any 
Member or Member-elect has the right to object to the administration of 
the oath to another by delivering a challenge either to the validity of 
the election or to the validity of the certificate 
itself.(6)
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 5. U.S. Const. art. I, Sec. 5, clause 1. Many Members-elect have been 
        sworn in absent a certificate of election (see Sec. 15.5, 
        infra).
 6. For the form of challenges, and the procedure by which they are 
        made, see Ch. 2, supra.
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    The certificate must show that the Representative-elect was 
regularly elected in accordance with the laws of his state or the laws 
of the United States.(7) Most state laws provide for the 
Governor to issue the certificate under the seal of the state, although 
some provide for the secretary of state to perform the 
function,(8) and some require the concurrent action of 
another body, such as an executive council.(9) A citizens' 
group or party committee has no authority to issue a certificate based 
on an election conducted by them, even if the regular election was 
conducted in violation of state or federal law.(10)
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 7. 2 USC Sec. 26. See also 2 USC Sec. 34 (referring to ``credentials 
        in due form of law'').
 8. See Sec. Sec. 15.2, 15.7, infra
 9. See Sec. 17.5, infra.
10. See Sec. 15.1, infra.
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    The state Governor, or other official charged with the function, 
has an affirmative duty to issue and deliver the credentials and cannot 
reject the official results.(11) Where no regular election 
is held, there being only one qualified candidate, the Governor may 
proclaim him duly elected and thereafter issue a certificate of 
election.(12)
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11. See Sec. 15.3, infra. See also 1 Hinds' Precedents Sec. 553 
        (administration of oath ordered by House, where Governor 
        declined to issue credentials for a Member-elect whose election 
        was unquestioned).
12. See Sec. 15.4, infra.
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    A Member may be enrolled and even sworn by action of the House even 
though a state court has enjoined the issuance of a certificate

[[Page 947]]

by the state executive.(13) Indeed, it is doubtful whether 
state courts have jurisdiction to enjoin the issuance of a certificate, 
most courts holding they do not since Congress is the sole judge of 
elections and returns.(14)
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13. See Sec. Sec. 16.3, 16.4, infra.
14. See Sec.  15.2, infra.
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    The certificate is sent, usually by certified mail, directly to the 
Clerk of the House, who retains it for a period of four 
years.(15) The certificate is not in contemporary practice 
carried to the House by the Member-elect. At the convening of Congress, 
the Clerk states that credentials have been received showing that the 
persons named therein were elected in accordance with state and federal 
law.(16)
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15. The certificates are retained for four years because those of the 
        Resident Commissioner are effective for that period (see 
        Sec. 15.6, infra). Subsequently they are delivered to the 
        National Archives.
16. See, i.e., 117 Cong. Rec. 9, 92d Cong. 1st Sess., Jan. 21, 1971.
            For the Clerk's preliminary review of the certificate, see 
        Ch. 2, supra. The Clerk has declined to enroll some Members-
        elect because their certificates were irregular.
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    Although the form of the certificate is not specified by law, it 
normally contains the following elements: signatures of both the 
Governor and the secretary of state; stamp of the great seal of the 
state; specification of the term to which the Member-elect was chosen; 
and attestation to the validity of the election.(17)
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17. A further element of some credentials may be the attestation to the 
        death of a Member, where the credentials are for a Member-elect 
        to fill an unexpired term in such a case (see 1 Hinds' 
        Precedents Sec. 568).
            When the fact of a Member's death does not appear from his 
        successor's credentials, the House has inquired into the status 
        of the seat (see 2 Hinds' Precedents Sec. Sec. 1208, 
        1209).                          -------------------
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Issuance of Certificate by State Executive

Sec. 15.1 A citizens' group has no authority to issue certificates of 
    election.(18)
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18. Although by federal statute certificates of Senators-elect must be 
        issued by the Governor under the state seal and countersigned 
        by the secretary of state (2 USCA Sec. Sec. 1a and 1b), the 
        certificate of a Representative-elect must show only that he 
        was elected in accordance with state or federal law. 2 USCA 
        Sec. 26.
            State statutes provide for the Governor, or in some cases, 
        the secretary of state, to issue the certificate for a 
        Representative-elect.

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[[Page 948]]

    In the 73d Congress (19) and in the 89th Congress 
(20) the House determined that a citizens' group could 
neither call an election of its own nor issue a certificate of election 
to a person allegedly chosen as Representative-elect in such an 
election.
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19. 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934 (H. Res. 231 
        and H. Rept. No. 334, Committee on Elections).
20. 111 Cong. Rec. 24292, 89th Cong. 1st Sess., Sept. 17, 1965 
        (dismissal of election contest).
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Sec. 15.2 A state executive official has issued a certificate of 
    election notwithstanding an injunction against such issuance by the 
    state judiciary.(1)
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 1. Since Congress is the judge of elections and returns, most courts 
        have refused to enjoin or prohibit the issuance of a 
        certificate. See Keogh v Horner, 8 F Supp 933 (D. Ill. 1934); 
        Odegard v Olson, 264 Minn. 439, 119 N.W. 2d 717 (1963); 
        Burchell v State Board of Election Commissioners, 252 Ky. 823, 
        68 S.W. 2d 427 (1934). Contra, People ex ref. Brown v Board of 
        Suprs. of Suffolk County, 216 N.Y. 732, 110 N.E. 776 (1915) 
        (see also Sec. 16.4, infra).
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    On Jan. 3, 1949, the Clerk advised the House that he had placed on 
the roll the name of Member-elect John C. Davies, from New York, 
although the Clerk had been advised that a state court had issued an 
order restraining the secretary of state from issuing the 
certificate.(2)
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 2. 95 Cong. Rec. 8, 81st Cong. 1st Sess. See also Sec. 16.4, infra, 
        wherein the House adopted a resolution authorizing the 
        administration of the oath to a Member-elect, a citizens' group 
        having obtained a state court injunction against the issuance 
        of a certificate by the state Governor.
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Sec. 15.3 A state Governor, pursuant to the finding of a state court 
    issued a certificate to a contestee based on an official canvass of 
    votes.

    On Aug. 12, 1958,(3) Mr. Robert Hale, of Maine, was 
declared entitled to the seat for the First Congressional District in 
his state, the Governor having issued a certificate of election to him 
based on a state court finding and on an official canvass of 
votes.(4)
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 3. 104 Cong. Rec. 17119, 85th Cong. 2d Sess.
 4. See also H. Rept. No. 2482, 85th Cong. 2d Sess., Committee on House 
        Administration, to accompany H. Res. 676, relating to the 
        election contest of Oliver v Hale for the First Congressional 
        District of Maine.
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Sec. 15.4 In one instance, a Member was sworn without a certificate of 
    election but pursuant to a proclamation by the state Governor that 
    he was duly elected to fill a vacancy.

[[Page 949]]

    On Oct. 18, 1965,(5) the oath was administered to Mr. 
Edwin W. Edwards, of Louisiana, to fill a vacancy in a congressional 
seat from his state. His certificate of election had not been sent to 
the Clerk, but a proclamation from the state Governor declaring Mr. 
Edwards to be duly elected to fill a vacancy was transmitted to the 
Clerk's office. No general election had been held since Mr. Edwards had 
won the Democratic primary election and was the only qualified 
candidate to stand for general election to fill the vacancy.
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 5. 111 Cong. Rec. 27171, 89th Cong. 1st Sess.
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Effect of Delay in Arrival of Certificate

Sec.  15.5 The oath is administered by unanimous consent to Members-
    elect whose certificates of elections have not arrived, there being 
    no contest or question as to the validity of their 
    elections.(6)
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 6. 115 Cong. Rec. 17622, 91st Cong. 1st Sess., June 27, 1969; 115 
        Cong. Rec. 11209, 91st Cong. 1st Sess., May 5, 1969; 115 Cong. 
        Rec. 8129, 91st Cong. 1st Sess., Apr. 1, 1969; 114 Cong. Rec. 
        4441, 90th Cong. 2d Sess., Feb. 28, 1968; 113 Cong. Rec. 36514, 
        90th Cong. 1st Sess., Dec. 14, 1967; 105 Cong. Rec. 9571, 86th 
        Cong. 1st Sess., June 2, 1959; 105 Cong. Rec. 3600, 86th Cong. 
        1st Sess., Mar. 9, 1959; 104 Cong. Rec. 10164, 85th Cong. 2d 
        Sess., June 4, 1958; 104 Cong. Rec. 1072, 85th Cong. 2d Sess., 
        Jan. 27, 1958; 104 Cong. Rec.  669, 85th Cong. 2d Sess., Jan. 
        20, 1958; 102 Cong. Rec. 2383, 84th Cong. 2d Sess., Feb. 8, 
        1956; 97 Cong. Rec. 11481, 82d Cong. 1st Sess., Sept. 17, 1951; 
        97 Cong. Rec. 9316, 82d Cong. 1st Sess., Aug. 1, 1951; 92 Cong. 
        Rec. 1852, 79th Cong. 2d Sess., Mar. 4, 1946.
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Certificates of Delegates and Resident Commissioner

Sec. 15.6 Certificates of election for Delegates to the House, 
    effective for two years, and for the Resident Commissioner, 
    effective for four years, are transmitted to the 
    House.(7)
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 7. In former practice, the Resident Commissioner was appointed rather 
        than elected, and his certificate of appointment was 
        transmitted to the House by the President of the United States. 
        80 Cong. Rec. 2053, 74th Cong. 2d Sess., Feb. 14, 1936. See 
        also 90 Cong. Rec. 7102, 78th Cong. 2d Sess., Aug. 18, 1944.
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    At the convening of the 93d Congress, the Clerk addressed the 
House, after the call of the roll, to state that certificates of 
election had been received for the Delegates from Guam, the Virgin 
Islands, and the District of Columbia, and for the Resident 
Commissioner of Puerto Rico, the latter for a term of four 
years.(8)
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 8. 119 Cong. Rec. 11-15, 93d Cong. 1st Sess., Jan. 3, 1973.

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[[Page 950]]

Sec. 15.7 Where a territorial act passed by Congress required the 
    Governor to declare the election result and to deliver the 
    certificate to the Delegate but allowed the territorial legislature 
    power over election laws, a territory law requiring the secretary 
    thereof to declare and certify election results was held 
    controlling in an election contest.

    On May 21, 1936, a committee on elections submitted House 
Resolution 521 and Report 2736 in the contested election case of 
McCardless v King for the seat of Delegate from the territory of 
Hawaii.(9)
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 9. 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 proposed resolution declared Mr. Samuel Wilder King to be duly 
elected as Delegate. The report also construed the Hawaiian Organic 
Act, passed by Congress, to determine whether contest had been filed 
within the 30 days required by law. The act required the territorial 
Governor to declare elected and 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 the 
territory legislature to amend the election laws.

    The committee held 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 as to 
whether the contestant had filed notice of contest within the time 
required by law.(10)
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10. H. Rept. No. 2736, Committee on Elections No. 2, 74th Cong. 2d 
        Sess.
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Senate Certificates

Sec. 15.8 At the convening of Congress, the Vice President announces 
    the receipt of certificates of election for Senators-elect, 
    indicates whether they are regular in form, and causes them to be 
    printed in the Record.

    On Jan. 21, 1971, the convening date of the Senate in the 92d 
Congress,(11) Vice President Spiro T. Agnew announced as 
follows:
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11. 117 Cong. Rec. 3, 92d Cong. 1st Sess.
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        The Chair lays before the Senate the credentials of 33 Senators 
    elected for 6-year terms beginning January 3, 1971.
        All certificates, the Chair is advised, are in the form 
    suggested by the Senate, except the ones from Pennsylvania

[[Page 951]]

    and Massachusetts which use the word ``Commonwealth'' instead of 
    ``State,'' and five others in various State forms.
        If there be no objection, the reading of the 28 certificates in 
    the form recommended by the Senate will be waived and they will be 
    printed in full in the Record.

    No objection was heard and the certificates were printed in full in 
the Congressional Record.(12)
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12. 117 Cong. Rec. 3-5, 92d Cong. 1st Sess. 2 USC Sec. Sec. 1a and 1b 
        require a certain form for Senate certificates.
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Sec. 15.9 On one occasion, the Senate ordered the return to a state of 
    a certificate of appointment to fill a vacancy in that body on 
    receipt of a telegraphic request from the Governor, who advised the 
    Senate that the appointee had declined to serve.

    On June 21, 1956,(13) acting President pro tempore 
William R. Laird 3d, of West Virginia, laid before the Senate two 
communications from the Governor of Kentucky, one certifying the 
appointment of a Senator-elect to fill a vacancy, and one to request 
the return of the certificate, since the appointee had declined to 
serve. The Senate ordered the certificate returned to the Governor.
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13. 102 Cong. Rec. 10769, 84th Cong. 2d Sess.
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