[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8.  Elections and Election Campaigns]
[D. Certificates of Election]
[Â§ 16. Grounds for Challenge]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 951-957]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                      D. CERTIFICATES OF ELECTION
 
Sec. 16. Grounds for Challenge

    Before Members-elect rise together to be administered the oath of 
office at the convening of Congress, any Member-elect may object to the 
right of a colleague to be sworn in. Similarly, the right to be sworn 
of a Member-elect who is elected to fill a vacancy during a Congress 
may be objected to.(14) Most challenges are made to the 
validity of an election, or to the procedure followed therein, or to 
the qualifications of the Member-elect. However, a challenge may be 
directed specifically against the certificate of election itself by 
reason of formal defects or of impeachment by other facts or 
documents.(15)
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14. For the procedure of challenging the right to be sworn, see Ch. 2, 
        supra.
15. Some challenges which are in fact objections to the election or 
        qualifications of a Member-elect are stated as objections to 
        his certificate (see Sec. Sec. 16.6, 16.7, infra).
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    Since certificates are prepared in accordance with a customary 
format (16)~ and in accordance with state 
law,(17) defects in form and improper terminology constitute 
grounds for challenge to a certificate of election. However, if the 
House is satisfied that a certifi

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cate clearly indicates when and where a Member-elect was chosen, and 
for what term and district, he will be seated.(18)
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16. See Sec. 16.1, infra.
17. See 2 USC Sec. 26.
18. See Sec. 16.1, infra.
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    A more substantial ground for challenge is the claim that the 
certificate was issued in violation of state law. For example, 
objection may be made to a certificate issued before the expiration of 
an interim period mandated by state law, or issued in disregard of 
official results.(19)
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19. See Sec. 16.2, infra.
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    On occasion, citizens' groups or candidates have obtained state 
court injunctions prohibiting the issuance of a certificate to a 
certain candidate for reason of election irregularities. Some courts 
have held, however, that they have no jurisdiction to entertain such 
suits because they infringe upon the absolute congressional power to 
judge elections and returns.(20)
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20. See Sec. 16.3, infra. See, for an occasion where a ``citizens' 
        certificate'' was received, Sec. 16.5, infra.
            The House has received certificates additional to those 
        allotted to a state, issued by the state executive, where the 
        state claimed representation additional to that apportioned to 
        it by Congress; such certificates have been rejected (see 1 
        Hinds' Precedents Sec. Sec. 314-319).
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    Certificates may also be challenged by evidence of other papers and 
findings of fact. Official transcripts contradicting the certified 
result of the vote may impeach a certificate. On one occasion, a 
congressional investigatory committee of a Congress discovered election 
irregularities of such magnitude as to impeach the certificate of a 
Member-elect to the next Congress.(1)
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 1. See Sec. 16.2, infra.
            Findings of fact by investigatory election committees in 
        one Congress are delivered to the next Congress for use in 
        election contests and challenges to seats (see Sec. 14, 
        supra).                          -------------------
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Form

Sec. 16.1 In one instance, the certificate of a Member-elect was 
    objected to on the ground that the certificate stated he was ``duly 
    elected as Congressman,'' instead of ``Representative in 
    Congress.''

    On June 2, 1930,(2) Mr. Robert H. Clancy, of Michigan, 
arose to object to the validity of the certificate of election of 
Thomas L. 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,''

[[Page 953]]

instead of as ``Representative in Congress.''
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 2. 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.(3)
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 3. Id. at p. 9892.
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Impeachment by Other Evidence

Sec. 16.2 Where a candidate's certificate of election was contradicted 
    by other papers of state and county officials and by fact findings 
    of a special campaign expenditures committee, the House declared 
    that neither candidate was to be sworn and that the question be 
    referred to the Committee on House Administration for a 
    determination.

    On Jan. 3, 1961,(4) the House adopted a resolution 
referring to an elections committee the right of Mr. George O. 
Chambers, of Indiana, who appeared with a certificate of election, and 
Mr. J. Edward Roush, of Indiana, a contestant, to the congressional 
seat from the Fifth Congressional District of that state.(5) 
The House took such action after it appeared that the certificate of 
election had been impeached by: certificates of error filed by county 
officials on the counting and judging of ballots; a transcript from the 
secretary of state of Indiana declaring the contestant duly elected and 
not the Member-elect with the certificate of election; and findings of 
fact by a special campaign expenditures committee, which had held 
hearings on Dec. 16, 1960.(6)
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 4. 107 Cong. Rec. 23, 24, 87th Cong. 1st Sess.
 5. See H. Rept. No. 513, 87th Cong. 1st Sess., Committee on House 
        Administration, relating to the contested election and the 
        validity of the certificate of election.
 6. See the remarks of Mr. Ray R. Madden (Ind.) on Feb. 17, 1961, 107 
        Cong. Rec. 2295-97, 87th Cong. 1st Sess. Mr. Madden also stated 
        that the first certificate issued to Mr. Chambers was illegal 
        because it had been signed seven days after the election, 
        instead of 10 days, as mandated by state statute, and that the 
        second certificate issued to Mr. Chambers was illegal because 
        it ignored the certification transcript of the secretary of 
        state.
            For additional debate on the action taken by the House in 
        the Roush-Chambers contest, on the validity and force of the 
        certificate of election, see 107 Cong. Rec. 10377-91, 87th 
        Cong. 1st Sess., June 14, 1961 (debate on H. Res. 339, 
        declaring Mr. Roush duly elected to the 87th Congress).

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[[Page 954]]

Impeachment by Court Order

Sec. 16.3 The Clerk placed the name of a Member-elect on the roll where 
    a certificate of election in due form had been filed, although the 
    Clerk had been advised that a state court had issued a writ 
    restraining the secretary of state from issuing such 
    certificate.(7)
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 7. Since the Congress is the judge of elections and returns, most 
        courts have refused jurisdiction to 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 rel. Brown v Board of 
        Suprs. of Suffolk County, 216 N.Y. 732, 110 N.E. 776 (1915).
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    On Jan. 3, 1949,(8) at the convening of the 81st 
Congress, the Clerk addressed the House as follows:
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 8. 95 Cong. Rec. 8, 81st Cong. 1st Sess.
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        A certificate of election is on file in the Clerk's office, 
    showing the election of John C. Davies as a Representative-elect to 
    the Eighty-first Congress from the Thirty-fifth Congressional 
    District of the State of New York.
        Several communications have been received from the executive 
    deputy secretary of state for the State of New York informing the 
    Clerk that a case is pending before the supreme court, Albany 
    County, N.Y., and that the said secretary of state is restrained 
    from certifying the election of a Representative from this 
    congressional district. However, in view of the fact that a 
    certificate of election in due form has been filed with the Clerk 
    by John C. Davies, the Clerk has therefore placed his name on the 
    roll.

Sec. 16.4 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, the House 
    authorized that he be sworn but that his final right to a seat be 
    referred to committee.

    On May 24, 1972, the House authorized the Speaker to admin

[[Page 955]]

ister the oath to Member-elect William S. Conover II, to fill a vacancy 
in a congressional seat from Pennsylvania. The authorizing resolution 
provided that Mr. 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.(9)
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 9. H. Res. 986, 118 Cong. Rec. 18654, 92d Cong. 2d Sess. The text of 
        the resolution explained that Mr. Conover was being sworn so as 
        not to deprive the State of Pennsylvania of representation in 
        the House pending ``protracted litigation'' for an ``indefinite 
        period.''
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    Parliamentarian's Note: Mr. Conover had originally appeared to take 
the oath of office shortly after the special election to fill the 
vacancy was held on Apr. 25, 1972, but the oath was not administered 
since it was apparent that unanimous consent would not be granted due 
to the issuance of the preliminary injunction in the state court.

Impeachment by ``Citizens' Certificate''

Sec. 16.5 Where two persons claimed the same seat in the House, one 
    with a certificate signed by the Governor of the state and the 
    other with a certificate from a citizens' elections committee, the 
    House refused to permit either to take the oath of office and 
    referred the question of their prima facie as well as final right 
    to the seat to a committee on elections.

    On Jan. 3, 1934,(10) Speaker Henry T. Rainey, of 
Illinois, laid before the House the following communication from the 
Clerk:
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10. 78 Cong. Rec. 11, 12, 73d Cong. 2d Sess.
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        I transmit herewith a certificate of election of Mrs. Bolivar 
    E. Kemp, Sr., to fill the vacancy caused by the death of Hon. 
    Bolivar E. Kemp, from the Sixth Congressional District of the State 
    of Louisiana, received by this office, signed by the Governor of 
    Louisiana, attested by the seal and by the secretary of state of 
    the State of Louisiana.
        I also transmit herewith a communication from the Citizens' 
    Election Committee of the Sixth Congressional District of the State 
    of Louisiana in the form of a certificate of election of Hon. J.Y. 
    Sanders, Jr., to fill the vacancy caused by the death of Hon. 
    Bolivar E. Kemp, from the Sixth Congressional District of the State 
    of Louisiana.

    The House then passed a resolution referring the prima facie as 
well as the final right of Mrs. Kemp and of Mr. Sanders to a committee 
on elections, and de

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cided that neither contestant should be sworn until the committee had 
made its report.(11)
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11. Id. at p. 12.
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    On Jan. 29, 1934, the House passed a resolution declaring the 
election null and void as to both contestants, since the Governor's 
certificate was issued pursuant to an invalid election, and the 
citizens' group certificate was invalid per se.(12)
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12. 78 Cong. Rec. 1521, 73d Cong. 2d Sess. (see H. Res. 231 and H. 
        Rept. No. 334 of the Committee on Elections, submitted Jan. 20, 
        1934, 78 Cong. Rec. 1035).
            See also 111 Cong. Rec. 18-20 (Jan. 4, 1965), 18691 (July 
        29, 1965), 22364 (Aug. 21, 1965), 24263-92 (Sept. 17, 1965), 
        89th Cong. 1st Sess., for an instance where a citizens' group 
        issued a certificate of election on the basis that the regular 
        election was void because of denial of voting rights. The 
        Members-elect with the Governor's certificates were held 
        entitled to their seats.
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Impeachment by Collateral Matters

Sec. 16.6 In the 88th Congress, a challenge to the qualifications of an 
    appointee to the Senate was stated as a challenge to the validity 
    of his certificate of appointment.

    On Aug. 5, 1964, Senator Everett McKinley Dirksen, of Illinois, 
challenged the validity of the certificate of appointment of Senator-
elect Pierre Salinger, on the ground that Mr. Salinger did not meet the 
requirement of the California statute that an appointee to the Senate 
must be a resident for one year before the day of 
election.(13) Mr. Salinger was permitted to take the oath by 
the Senate but his credentials were referred to the Committee on Rules 
and Administration with instructions to report back to the Senate by a 
specified date.(14)
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13. 110 Cong. Rec. 18107, 88th Cong. 2d Sess.
14. Id. at p. 18120.
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    The Senate later affirmed by resolution Mr. Salinger's entitlement 
to a seat in the Senate.(15)
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15. 110 Cong. Rec. 19396, 19422, 88th Cong. 2d Sess., Aug. 13, 1964.
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Sec. 16.7 In one instance, an objection based on the failure of a 
    candidate to receive a plurality of votes was stated as a challenge 
    to the validity of the certificate of election.

    On Jan. 5, 1937,(16) Mr. John J. O'Connor, of New York, 
arose to state an objection to the administration of the oath to Arthur 
B. Jenks, Member-elect from New Hampshire. Mr. O'Connor stated

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that ``despite the fact that a certificate of his election has been 
filed with the Speaker, it 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.''
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16. 81 Cong. Rec. 12, 13, 75th Cong. 1st Sess.
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    Mr. Bertrand H. Snell, of New York, arose and stated:

        The Rules and precedents of the House provide that every man 
    who is duly qualified shall take the oath of office at the 
    beginning of the Congress. Our rules provide that qualification is 
    shown by a duly authenticated certificate from the Governor of the 
    State. The gentleman from New Hampshire, Mr. Jenks, has such a 
    certificate and it has been filed with the Clerk of the House.
        The laws of the State of New Hampshire provide that a ballot 
    commission is the final adjudicator in regard to these matters.

    The House then authorized the administration of the oath to Mr. 
Jenks.(17)
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17. Id. at p. 13.
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