[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8.  Elections and Election Campaigns]
[D. Certificates of Election]
[Â§ 17. Procedure in Determining Validity; Effect]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 957-962]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                      D. CERTIFICATES OF ELECTION
 
Sec. 17. Procedure in Determining Validity; Effect

    Once a challenge has been made to the administration of the oath to 
a Member-elect, based on the validity of his certificate, the Speaker 
requests him to stand aside as the oath is administered to the other 
Members en masse. Thereafter the House may either finish the 
organizational business or may immediately proceed to determine whether 
the challenged Member-elect may be sworn on the strength of his 
certificate.(18)
---------------------------------------------------------------------------
18. See Ch. 2, supra, for the procedure of oath administration and 
        challenges to the right to be sworn. For the procedure 
        governing the House at convening, both before and after the 
        adoption of House rules, see Ch. 1, supra.
---------------------------------------------------------------------------

    In determining whether a certificate of election is valid or 
whether it entitles a Member-elect to a seat in the House, the House 
does not bind itself to rigid criteria. The House is the sole judge of 
the elections and returns of its Members, and the certificate, prepared 
and relayed by state officials, is only prima facie proof of 
entitlement to a seat.(19)
---------------------------------------------------------------------------
19. U.S. Const. art. I, Sec.  5, clause 1. For judicial construction of 
        Congress' power over elections and returns, see USCA Notes to 
        U.S. Const. art. I, Sec. 5, clause 1.
---------------------------------------------------------------------------

    The House and not the Speaker or other official determines whether 
a Member may be sworn in, and whether a Member may take the oath with 
final right to the seat.(20) If a challenge has been di

[[Page 958]]

rected to a mere irregularity in the form of the certificate, the House 
will ordinarily seat the Member-elect and declare him finally entitled 
to the seat.(1)
---------------------------------------------------------------------------
20. See Sec. 17.1, infra (Speaker submitted the question to the House 
        for determination and declined to himself rule).
 1. See Sec. 17.1, infra. See also Sec. 17.6, infra (where the Senate 
        corrected an irregularity in the date for beginning a term by 
        resolution).
---------------------------------------------------------------------------

    If however a certificate is challenged by the institution of an 
election contest or by the allegation of election irregularities, the 
House may authorize the Member-elect to be sworn but provide that his 
final right to the seat be referred to committee. That procedure is 
often followed where a certificate is on file in order not to deprive a 
state of representation in the House resulting from protracted 
proceedings.(2) Of course, an election may be separately 
contested under the procedure set forth in 2 USC Sec. Sec. 381 et seq. 
without recourse to a challenge on the floor of the right of a Member-
elect to take the oath.
---------------------------------------------------------------------------
 2. See Sec. 16.4, supra. The Committee on House Administration has 
        jurisdiction under House rules over credentials, House Rules 
        and Manual Sec. 693 (1973), and the matter is often referred to 
        an elections subcommittee of the Committee on House 
        Administration.
---------------------------------------------------------------------------

    A circumstance which may require the nullification of a certificate 
is the intervening death or disappearance of the Member-elect named 
therein. Normally the state executive will declare the seat vacant in 
such a situation. On one occasion where a Member-elect had disappeared 
and was presumed dead but the state executive refused to nullify the 
certificate, the House itself declared the seat vacant.(3)
---------------------------------------------------------------------------
 3. See Sec. 17.4, in ra.
---------------------------------------------------------------------------

    The House does not always require a certificate in order to 
determine final right to a seat. Where a Member-elect appears without a 
certificate but his election is uncontested and unquestioned, the House 
will authorize him to be sworn in by unanimous consent.(4) 
In some cases where a certificate is delayed, the state of 
representation will deliver informal communications to the House 
attesting to the validity of the election of the Member-elect; the 
House places reliance on such communications in the absence of a 
certificate.(5) Even where a Member-elect arrives without a 
certificate and his election is disputed, the House may authorize him 
to be sworn in, although a resolution rather than unanimous consent may 
be necessary to order such action.(6)
---------------------------------------------------------------------------
 4. See Sec. 15.5, supra (oath administration where certificate 
        delayed).
 5. See Sec. 17.5, indra.
 6. See Sec. 17.2, infra (pending election contest).

---------------------------------------------------------------------------

[[Page 959]]

                          -------------------Jurisdiction of House

Sec. 17.1 When objection is made to the irregularity of a certificate, 
    the question is a matter for the House to determine under the U.S. 
    Constitution.

    On June 2, 1930, when an objection was made to the formal 
regularity of a certificate of election, Speaker Nicholas Longworth, of 
Ohio, declined to assume the responsibility of refusing administration 
of the oath to the Member-elect, but submitted the matter to the House, 
since section 5 of article I of the Constitution makes the House the 
judge of the elections, returns, and qualifications of its 
Members.(7)
---------------------------------------------------------------------------
 7. 72 Cong. Rec. 9891, 9892, 71st Cong. 2d Sess., June 2, 1930. The 
        House affirmed the right of the Member-elect to his seat. The 
        objection to the form of the certificate was based on the fact 
        that the certificate stated that the Member-elect was duly 
        elected as ``Congressman'' instead of ``Representative in 
        Congress'' (see Sec. 16.1, supra).
---------------------------------------------------------------------------

Sec. 17.2 In one instance, the House by resolution authorized the 
    Speaker to administer the oath to a Member-elect whose election was 
    in dispute and who did not possess a certificate of election.

    On Mar. 9, 1933, the convening day of the 73d Congress, a 
resolution was offered to authorize the Speaker to administer the oath 
to John G. Utterback, of Maine, a Member-elect who appeared without 
credentials and whose election was being contested under the election 
contest statutes.(80) The House adopted the resolution, 
despite an objection of Mr. Bertrand H. Snell, of New York, that the 
right to take the oath should be referred to the elections committee, 
since ``one of the first requisites for any Member of this House to 
receive the oath of office is a certificate in legal and due form from 
the sovereign State from which he comes.''
---------------------------------------------------------------------------
 8. H. Res. 5, 77 Cong. Rec. 71, 72, 73d Cong. 1st Sess. Where Members-
        elect appear without credentials and there is no contest or 
        question as to their elections, the House normally authorizes 
        the administration of the oath by unanimous consent (see 
        Sec. 15.5, supra).
---------------------------------------------------------------------------

Nullification of Certificate

Sec. 17.3 House adoption of a resolution, authorizing a committee 
    investigation of the right of either of two candidates to a seat 
    and declaring that pending investigation neither candidate shall be 
    sworn, has the effect of

[[Page 960]]

    nullifying a certificate of election issued to one of the 
    candidates by the state Governor.

    On Jan. 3, 1961,(9) the House adopted House Resolution 
No. 1, referring the question of the right of two contestants to a seat 
from the Fifth Congressional District of Indiana to the Committee on 
House Administration. The resolution declared that until the committee 
shall have reported, neither contestant should have the right to be 
sworn. One of the contestants, George O. Chambers, had a certificate of 
election from the Governor of the State of Indiana. By adopting the 
resolution, the House nullified the certificate of election of Mr. 
Chambers pending the House investigation.
---------------------------------------------------------------------------
 9. 107 Cong. Rec. 23, 24, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

    The other contestant to the election, J. Edward Roush, who had not 
been issued a certificate of election, was finally declared entitled to 
the seat by the House on June 14, 1961.(10)
---------------------------------------------------------------------------
10. H. Res. 339, 107 Cong. Rec. 10391, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 17.4 Where a Member-elect disappeared between the issuance of his 
    certificate of election and the convening of Congress, and the 
    state executive took no action in relation to the certificate, the 
    House, after receiving a report from the Clerk setting forth the 
    circumstances surrounding the disappearance, declared the seat 
    vacant by resolution.

    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.(11) 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 jury verdict and a certificate of presumptive death.
---------------------------------------------------------------------------
11. 119 Cong. Rec. 15, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

    As to the other Member-elect, Hale Boggs, of Louisiana, 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 a resolution (H. Res. 1) declaring the

[[Page 961]]

seat of Mr. Boggs to be vacant and notifying the Governor of Louisiana 
of the existence of the vacancy.(12)
---------------------------------------------------------------------------
12. Id.
---------------------------------------------------------------------------

Reliance on State Communications Absent Certificate

Sec. 17.5 In authorizing the administration of the oath to Members-
    elect who appear without credentials, the House may rely upon 
    communications from state executive officials attesting to the 
    validity of the election and results.

    On Mar. 9, 1933,(13) the House authorized the Speaker to 
administer the oath to Member-elect John G. Utterback, of Maine, whose 
certificate of election had not yet arrived. Although his election was 
being contested, he was sworn on the basis of a letter from the 
Governor stating that although Mr. Utterback had apparently received a 
majority of the votes cast in the district, the Governor lacked 
authority to issue credentials due to the terms of a state law which 
required the concurrent action of the Governor and executive counsel 
before an election certificate could be issued.
---------------------------------------------------------------------------
13. 77 Cong. Rec. 71, 72, 73d Cong. 1st Sess.
---------------------------------------------------------------------------

    Similarly, on Mar. 19, 1964,(14) the House permitted a 
Member-elect to be sworn, although her certificate of election had not 
arrived, after the Clerk advised the House of the receipt of a 
communication from the secretary of state declaring that unofficial 
returns indicated the Member-elect was duly elected and that there was 
no indication of any election contest or dispute.
---------------------------------------------------------------------------
14. 110 Cong. Rec. 5730, 88th Cong. 2d Sess.
---------------------------------------------------------------------------

    On Nov. 27, 1963,(15) the House permitted a Member-elect 
filling a vacancy to be sworn, although a certificate of election had 
not arrived, after the Speaker laid before the House a telegram from 
the secretary of state, stating that the Member-elect had been duly 
elected according to returns received in the secretary's office.
---------------------------------------------------------------------------
15. 109 Cong. Rec. 22838, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

    On Oct. 30, 1963,(16) a Member-elect to fill a vacancy 
was administered the oath in the absence of the certificate of 
election, pursuant to a telegram from the state Governor stating that 
the Member-elect was duly elected according to unofficial returns.
---------------------------------------------------------------------------
16. 109 Cong. Rec. 20612, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

    On Nov. 15, 1937,(17) the House authorized the 
administration of

[[Page 962]]

the oath to three Members-elect to fill vacancies from the State of New 
York, where the Clerk submitted to the House a telegram from the 
attorney general of the state indicating the election of those Members-
elect.
---------------------------------------------------------------------------
17. 82 Cong. Rec. 9, 75th Cong. 2d Sess.
---------------------------------------------------------------------------

    On Oct. 18, 1965,(18) Mr. Edwin W. Edwards, elected to 
fill a vacancy in a congressional seat from Louisiana, was sworn in 
although his certificate of election had not arrived. The secretary of 
state of Louisiana had transmitted to the Clerk a copy of a 
proclamation of the Governor of Louisiana declaring Mr. Edwards to be 
duly elected to the House to fill the vacancy, although a genera] 
election had not been held; the proclamation was issued because Mr. 
Edwards had won the Democratic primary election and was the only 
qualified candidate for the general election to fill the vacancy.
---------------------------------------------------------------------------
18. 111 Cong. Rec. 27171, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

Correction of Date for Beginning of Term (Senate)

Sec. 17.6 The Senate passed a resolution fixing the date a Senator was 
    sworn, in compliance with federal statute, as the beginning of his 
    term, notwithstanding an earlier date stated in his certificate of 
    election.

    On Apr. 29, 1957,(19) the Senate passed the following 
resolution (S. Res. 129):
---------------------------------------------------------------------------
19. 103 Cong. Rec. 6060, 85th Cong. 1st Sess.
            Salaries of Members elected for unexpired terms begin on 
        the date of election (2 USC Sec. 37).
---------------------------------------------------------------------------

        Whereas the certificate of election of Ralph W. Yarborough, 
    chosen a Senator on April 2, 1957, during the present session of 
    the 85th Congress, by the qualified electors of the State of Texas 
    to fill the vacancy in the term ending at noon on the 3d day of 
    January 1959, caused by the resignation of Honorable Price Daniel, 
    states that he was ``duly chosen . . . to represent said State in 
    the Senate of the United States for an unexpired term beginning on 
    the 19th day of April 1957, and expiring on the 3d day of January, 
    1959''; and
        Whereas under title 2, section 36, of the United States Code 
    (49 Stat. 23), and precedents of the Senate based thereon, salaries 
    of Senators elected during a session to succeed appointees shall 
    commence on the day they qualify; and
        Whereas the said Ralph W. Yarborough has this day duly 
    qualified by taking, in the open Senate, as provided by Rule II, 
    the oath required by the Constitution and prescribed by law, and 
    has subscribed to the same; Therefore, be it
        Resolved, That the term of the service of the said Ralph W. 
    Yarborough shall be deemed to have commenced on this the 29th day 
    of April 1957.
