[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8.  Elections and Election Campaigns]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 827-833]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns


[[Page 827]]



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    Commentary and editing by Peter D. Robinson, J.D.
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A. Apportionment; Voting Districts

    Sec. 1. In General; Functions of Congress and the States
    Sec. 2. Census and Apportionment; Numerical Allocation of 
            Representatives
    Sec. 3. Districting Requirements; Duty of States
    Sec. 4. Failure of States to Redistrict

B. Time, Place, and Regulation of Elections

    Sec. 5. In General; Federal and State Power
    Sec. 6. Elector Qualifications; Registration
    Sec. 7. Time and Place; Procedure
    Sec. 8. Ballots; Recounts
    Sec. 9. Elections to Fill Vacancies

C. Campaign Practices

   Sec. 10. Regulation and Enforcement
   Sec. 11. Campaign Practices and Contested Elections
   Sec. 12. Expulsion, Exclusion, and Censure
   Sec. 13. Investigations by Standing Committees
   Sec. 14. Investigations by Select Committees

D. Certificates of Election

   Sec. 15. In General; Form
   Sec. 16. Grounds for Challenge
   Sec. 17. Procedure in Determining Validity; Effect


[[Page 828]]


                         DESCHLER'S PRECEDENTS

                          INDEX TO PRECEDENTS

Apportionment
    directory and not mandatory following census, Sec. 1.2
    legislation considered in Committee of the Whole, Sec. 2.5
    method of, by equal proportions, Sec. 2.6
    method of, by major fractions, Sec. 2.6
    motion to consider legislation not privileged, Sec. 2.4
    reduction of seats for denial of voting rights, Sec. Sec. 2.7, 2.8
Ballots
    impoundment of, by Congress, Sec. Sec. 8.9, 8.10
    validity of, Sec. 8.11
Campaign practices
    acts and regulations
        Clerk's role under Election Campaign Act, Sec. Sec. 10.6, 10.7
        committee jurisdiction, Sec. Sec. 10.2-10.5
        Committee on Standards of Official Conduct and its 
            jurisdiction, Sec. 10.5
    contested elections
        Corrupt Practices Act affecting validity of elections, 
            Sec. Sec. 11.1 et seq.
        expenditures, reports and limitations, Sec. Sec. 11.1 et seq.
    disciplinary action
        censure for corrupt practices, Sec. Sec. 12.3, 12.4
        exclusion for corrupt practices, Sec. 12.2
        expulsion for corrupt practices, Sec. 12.1
    investigations by select committees
        former select committee on standards and conduct, Sec. 14.9
        select committee to investigate campaign expenditures, creation 
            of, Sec. Sec. 14.1-14.3
        Senate select committees on campaign practices, 
            Sec. Sec. 14.10-14.12
        use of select committee findings to judge elections, 
            Sec. Sec. 14.4-14.8
    investigations by standing committees
        Committee on Elections, former, Sec. 13.3
        Committee on House Administration, Sec. Sec. 13.2, 13.4, 13.5
        Committee on Standards of Official Conduct, Sec. 13.6
        Senate investigation into election of House Member, Sec. 13.7
Census
    additional statistics taken, Sec. 2.1
    Congress' authority over, Sec. Sec. 1.1, 2.1
    Indians included in, Sec. Sec. 1.1, 2.3
    submission of results by President, Sec. 2.2
Certificates of election
    Delegates and Resident Commissioner, Sec. Sec. 15.6, 15.7
    issuance of by state executive, Sec. Sec. 15.1 15.4
    oath administration where certificate delayed, Sec. 15.5
    return of to state by Senate, Sec. 9.14
    Senate practice, Sec. Sec. 15.8, 15.9
Certificates of election, challenges to
    impeachment by ``citizens' certificate,'' Sec. 16.5
    impeachment by collateral matters, Sec. Sec. 16.6, 16.7
    impeachment by court order, Sec. Sec. 16.3, 16.4
    impeachment by other papers and evidence, Sec. 16.2
    irregular form, Sec. 16.1
Certificates of election, validity of
    jurisdiction of House, Sec. Sec. 17.1, 17.2
    nullification of certificate, Sec. Sec. 17.3, 17.4

[[Page 829]]

    reliance on state communications absent certificate, Sec. 17.5
Clerk of House
    authorized to investigate violations, Sec. 10.10
    authorized to obtain counsel, Sec. 10.8
    ex officio member of Federal Election Commission, Sec. 10.11
    role under election campaign statutes Sec. Sec. 10.6-10.11
Committee jurisdiction (see also Campaign practices)
    Committee on House Administration, validity of elections, 
        Sec. Sec. 5.2, 6.3, 8.5
    Committee on Judiciary, congressional districting, Sec. 3.2
    Committee on Judiciary, constitutional amendments, Sec. 6.8
    committees on elections, Sec. 8.11
    former census committee, Sec. 2.6
    select committees on campaign expenditures, election 
        irregularities, Sec. 8.3
Committee of the Whole
    consideration of redistricting and apportionment legislation in, 
        Sec. Sec. 2.5, 3.4
Congressional districting
    absence of judicial standards, Sec. 3.2
    congressional power over, Sec. Sec. 1.3, 3.1-3.3
    consideration of, in Committee of the Whole, Sec. Sec. 3.4
    consideration under special rules, Sec. 3.5
    former federal standards, Sec. 3.1
    jurisdiction of Committee on Judiciary, Sec. 3.2
    single-member districts, Sec. 3.3
    unequal representation in primary, Sec. 3.7
Constitution
    article I, Sec. 2, clause 1 (elector qualifications), Sec. 6.7
    article I, Sec. 2, clause 3 (census), Sec. Sec. 2.1-2.3
    article I, Sec. 2, clause 4 (elections to fill vacancies), Sec. 9.4
    article I, Sec. 4, clause 1 (congressional state authority over 
        elections), Sec. Sec. 1.3. 3.1, 3.3, 7.1, 9.7
    article I, Sec. 5, clause 1 (House judge of elections and returns), 
        Sec. Sec. 5.2, 5.4, 17.1
    article II, Sec. 2, clause 2 (appointments clause), Sec. 10.11
    24th amendment (poll tax prohibited), Sec. 6.9
Federal Election Commission
    composition, Sec. 10.11
    regulations, congressional disapproval of, Sec. 10.12
 Illegal control of election machinery, Sec. 7.8
Judiciary
    power of courts over congressional elections, Sec. Sec. 5.1-5.3, 
        7.2, 8.1 8.4, 9.8, 15.2, 15.3, 16.3, 16.4
    requiring congressional districting, Sec. 3.2
Poll officials, conduct of, Sec. Sec. 7.6, 8.11
Poll tax requirements, Sec. Sec. 6.6-6.9
President
    transmits census results and apportionment formula to Congress, 
        Sec. Sec. 1.1, 2.2
Primary elections, Sec. Sec. 7.2-7.5
Recounts
    congressional deference to state recount law, Sec. Sec. 8.2-8.4
    congressional power over state recount, Sec. Sec.  8.6, 8.7
    congressional recount, Sec. 8.5
    power of states, Sec. 8.1
    procurement of ballots by Congress, Sec. Sec. 8.9. 8.10

[[Page 830]]

Resignations effective on unspecified future date. Sec. Sec. 9.3, 9.4
Senate
    amendment abolishing poll tax, Sec. 6.9
    appointees to fill vacancies, Sec. Sec. 9.14-9.16
    certificates of election, Sec. Sec. 15.8, 17.6
    disciplinary action for corrupt practices, Sec. Sec. 12.1-12.3
    exclusion proceedings based on conspiracy to prevent voter 
        participation, Sec. 6.5
    expulsion proceedings based on illegal control of election 
        procedure, Sec. 7.8
    impoundment of ballot boxes, Sec. 8.10
    investigations into campaign practices, Sec. Sec. 14.10-14.12
Speaker
    appointments to former Federal Election Commission, Sec. 10.11
    declined to administer oath, Sec. 9.8
    granted authority to notify state of vacancy in House, Sec. 9.2
    notified by Clerk of receipt of certificates of election to fill 
        vacancy, Sec. 9.11
    submits constitutional questions to House, Sec. 1.2
    submits validity of certificates to House, Sec. 17.1
States
    application of state law over special elections, Sec. Sec. 9.7, 9.8
    campaign practices acts, effect of, on validity of elections, 
        Sec. 11.4
    denial of voting rights by alleged action of, Sec. Sec. 5.6, 5.7
    duty to call elections to fill vacancies, Sec. Sec. 9.4-9.6
    informal communications to House where certificate delayed, 
        Sec. 17.5
    issuance of certificate of election, Sec. Sec. 15.1-15.4
    jurisdiction over election procedure in general, Sec. Sec. 5.1-5.3
    laws regulating primaries, Sec. Sec. 7.2-7.4
    notification and declaration of vacancies, Sec. Sec. 9.1-9.6
    poll officials, conduct of, Sec. Sec. 7.6, 8.11
    recount by, Sec. Sec. 8.1, 8.2
    residency requirements for electors, Sec. Sec. 6.10, 6.11
    voter registration laws, Sec. Sec. 6.1, 6.2
    voting facilities, Sec. 7.7
Territories and seat of government
    certificates of election for Delegates and Resident Commissioner, 
        Sec. Sec. 15.6, 15.7
    territory, power over elections, Sec. 5.5
Time and place of election
    state authority to prescribe, Sec. 7.1
Vacancies, elections to fill
    certificate of election, Sec. Sec. 9.11-9.13
    congressional and state power over special elections, 
        Sec. Sec. 9.7, 9.8
    reelection of Representative to succeed himself, Sec. 9.10
    resignations effective on date of special election, Sec. Sec. 9.3, 
        9.4
    Senate, appointees to fill vacancies in, Sec. Sec. 9.14-9.16, 15.9
    state duty to call special election, Sec. Sec. 9.4-9.6
Vacancies, notification of, Sec. Sec. 9.1, 9.2
Vacancies, proposals to fill by appointment, Sec. 9.9
Voter registration and qualifications
    challenges to seats for denial of voting rights, Sec. Sec. 6.3-6.5
    federal protection of voting rights, Sec. 6.12
    poll tax requirements, Sec. Sec. 6.6-6.9
    residency requirements, Sec. Sec. 6.10, 6.11
    state action denying voting rights, Sec. Sec. 5.6, 5.7
    violation of state registration laws, Sec. Sec. 6.1, 6.2

[[Page 831]]

Voting facilities, Sec. 7.7
Voting rights legislation, Sec. Sec. 2.8, 5.3, 6.12

[[Page 833]]


                    Elections and Election Campaigns



 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                   A. APPORTIONMENT; VOTING DISTRICTS
 
Sec. 1. In General; Functions of Congress and the States


    The compromise reached at the original Constitutional Convention 
and approved by the ratifying conventions in the 18th century provided 
for one House of the national legislature to equally represent the 
states and for the other House to equally represent the people of the 
several states.(1) While the drafters of the Constitution 
provided for a periodic enumeration of the national population to be 
used in computing representation in the House of 
Representatives,(2) and provided for both state and federal 
regulation over elections,(3) the specific mechanism by 
which Representatives would be allocated to states and by which they 
would be elected by the people were not described in the Constitution. 
The procedures for determining the size of the House, allocating seats 
to states, and equally distributing the right to vote for 
Representatives have gained form through congressional and state 
practice, federal statute, and judicial interpretations of the 
Constitution.(4)
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 1. See Wesberry v Sanders, 376 U.S. 1, 14 (1964) for a discussion of 
        the ``Great Compromise.'' The composition of the House is 
        dictated by U.S. Const. art. I, Sec. 2, clause 1, and the 
        composition of the Senate is dictated by U.S. Const., 17th 
        amendment. For a general discussion of the intention of the 
        drafters of the Constitution as to House apportionment and 
        districting, see Hacker, Congressional Districting, Brookings 
        Institution (Washington, rev. ed., 1964).
 2. U.S. Const. art. I, Sec. 2, clause 3.
 3. U.S. Const. art. I, Sec. 4, clause 1.
 4. Collateral matters relating to districts are not described in this 
        chapter. For example, the allowances the Representative may use 
        within his district and his power to send franked material 
        outside his district are discussed in Ch. 7, supra.
            For coverage of elections and election procedures prior to 
        1936, see 1 Hinds' Precedents Sec. Sec. 756 et seq. and 6 
        Cannon's Precedents Sec.  Sec.  121 et seq.
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    Due to the recent proliferation of judicial decisions and 
collateral materials on the general subject of equality of political 
representation, important terms relating to

[[Page 834]]

the subject have become ill-defined and interchangeable. Therefore, 
such terms as ``apportionment,'' ``reapportionment,'' ``census,'' 
``district,'' and ``districting,'' are defined and used herein in their 
strict constitutional meaning.
    The taking of the census is the first step in the process of 
effecting equal representation in the House of 
Representatives.(5) The U.S. Constitution (art. I, Sec. 2, 
clause 3) provided for the allocation of Representatives among the 
states in accordance with an enumeration to be made of the national 
population every 10 years. The 14th amendment altered that clause in 
requiring the enumeration of all persons including former slaves, and 
in requiring reduction in a state's allocation of seats for denial of 
voting rights.(6) Congress has sole authority under the 
Constitution to direct the manner in which the enumeration or census 
shall be taken and compiled.(7) Although the taking of the 
census and its uses have broadened in scope, its primary purpose 
remains to enumerate the people as the basis for the equal allocation 
of Representatives in the House.
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 5. Taking the census, see Sec. 2, infra.
 6. See Sec. 2, infra.
 7. U.S. Const. art. I, Sec. 2, clause 3 states that the enumeration 
        shall be made in such manner as Congress shall direct.
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    Apportionment is the method by which seats in the House are 
distributed among the states in accordance with the results of the 
decennial census.(8) The term has been used interchangeably 
in recent years to refer to the districting within a state for the 
election of the allotted number of Representatives.(9) The 
terms apportionment and reapportionment have also been used to refer to 
the allocation of state legislators and other nonfederal officials 
among state subdivisions; that area of the law is not germane to this 
discussion and must not be confused with apportionment and districting 
for the U.S. House of Representatives.
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 8. The 14th amendment of the U.S. Constitution states: 
        ``Representatives shall be apportioned among the several States 
        according to their respective numbers, counting the whole 
        number of persons in each State, excluding Indians not taxed.''
 9. References in U.S. constitutional provisions relating to the House 
        of Representatives and election of Members thereof, and to the 
        enumeration of the population of the various states, have to do 
        with apportionment of Representatives among the states, and not 
        within them. Meeks v Avery, 251 F Supp 245 (D. Kan. 1966).
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    The function of apportioning the seats in the House is vested exclu

[[Page 835]]

sively in Congress,(10) and neither states nor courts may 
direct greater or lesser representation than that allocated by an act 
of Congress.(11) Before seats in the House can be 
apportioned, the number of seats in the House must be set at a fixed 
number; this determination is within the province of Congress and has 
been directed by federal statute.(12)
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10. Although the power of Congress to allocate seats to the states is 
        not expressly stated in the Constitution, the power is 
        logically implied from the congressional power to direct the 
        taking of the census. Prigg v Pennsylvania, 41 U.S. (16 Peters) 
        619 (1842).
11. For states' claims to greater representation, see Sec. 2, infra. A 
        court cannot reduce the number of Representatives allotted to a 
        state by Congress pursuant to statute. Saunders v Wilkins, 152 
        F2d 235 (4th Cir. 1945), cert. denied, 328 U.S. 870, rehearing 
        denied, 329 U.S. 825 (1946).
12. ``The power to district a state, in accordance with the Federal 
        apportionment, is by this section [art. I, Sec. 4, clause 1] 
        conferred upon the state, subject to the control of Congress, 
        whereas the power to fix or alter the number of Members of the 
        House of Representatives of the United States is vested 
        exclusively in the Federal Government . . . there is no doubt 
        that a state cannot exercise the power to fix the size of the 
        Federal House of Representatives, whether through its ordinary 
        legislature, or its constitutional convention, or in any other 
        way.'' H. Rept. No. 51, Committee on Elections, 41st Cong. 2d 
        Sess. (cited at 1 Hinds' Precedents Sec.  318).
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    Under the Constitution, each state is entitled to at least one 
Representative.(13) Since the first Congress, a specific 
mathematical method has been used in the allocation of the remaining 
seats in the House to the states.(4) The first such method, 
devised by Thomas Jefferson, called for a predetermined ratio of 
inhabitants per Representative and a rejection of all remaining 
fractions. Under the second method, beginning about 1840, major 
fractions were accounted for by the assignment of an additional 
Representative.
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13. U.S. Const. art. I, Sec. 2, clause 3.
14. See The Decennial Population Census and Congressional 
        Apportionment, H. Rept. No. 91-1314, 91st Cong. 2d Sess., 
        Subcommittee on Census and Statistics, Committee on Post Office 
        and Civil Service. See also Huntington, Methods of 
        Apportionment in Congress, Government Printing Office 
        (Washington, 1940).
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    The method of major fractions in use until 1940 employed a 
mathematical formula and a list of ``priority values,'' based on the 
size of the population of each state, to allocate seats in the House. 
The priority list is also the principal feature of the present method 
of ``equal proportions,'' which uses a different mathe

[[Page 836]]

matical formula to produce more evenly distributed apportionment than 
the major fractions method. (15)
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15. For a technical comparison between the methods of major fractions 
        and equal proportions in relation to apportionment, see Shaw v 
        Adkins, 202 Ark. 856, 153 S.W.2d 415 (1941). The court 
        discussed these and other contemporary formulas, such as the 
        harmonic mean, smallest divisors, and greatest divisors, in 
        order to choose the best method of apportioning state 
        legislators. Federal experience was extensively discussed.
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    Apportionment under the ``equal proportions'' method is complex. 
The problem is to allocate a finite number of seats (385, after each 
state has received one) among 50 states of widely varying population, 
where no seat can be shared between two states, and where the principal 
aim is to allot each seat to as nearly as practicable an equal number 
of constituents. The allotment is accomplished by dividing the 
population of each state by the geometric mean of successive numbers of 
Representatives (n x [n-1] where ``n'' is the number of the seat). For 
example, the population of state A is first divided by 2 x (2-1) to 
establish its priority value for a second seat, then by 3 x (3-1) to 
establish its priority value for a third seat, and so on. Priority 
values are computed for all the states, for successive numbers of 
seats, and then all the values are listed in descending order. If state 
A has a very large population, its claims for a second, third, and more 
seats will be listed ahead of the claim of state B for a second seat, 
if state B is sparsely populated. Thus the 385 seats are allotted to 
the states whose priority values are the first 385 on the priority 
list.(16)
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16. For a comprehensive discussion and examples of apportionment under 
        the method of equal proportions, see Guide to Congress, p. 509, 
        Congressional Quarterly Inc. (Wash., 1971).
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    If only one seat is allocated to a state under the method of equal 
proportions, the Representative is elected by and represents the total 
population of the state. If more than one Representative is allocated, 
the state must be divided into subdivisions which elect 
Representatives. Such subdivisions are called congressional districts, 
the formation of which is primarily a matter for the state 
government.(17)
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17. Congress ``apportions'' Representatives among the states, while the 
        states ``district'' by actually drawing congressional district 
        lines. ``Apportionment'' in its technical sense refers solely 
        to the process of allocating legislators among political 
        subdivisions, while ``districting'' entails the actual drafting 
        of district lines. Kilgarlin v Martin, 252 F Supp 404 (D. Tex. 
        1966), reversed on other grounds, 386 U.S. 120, rehearing 
        denied, 386 U.S. 999 (1967).
            Congressional districting is a legislative matter for the 
        several states. Smiley v Holm, 285 U.S. 355 (1932); Carroll v 
        Becker, 285 U.S. 380 (1932); Koenig v Flynn, 285 U.S. 375 
        (1932).

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[[Page 837]]

    The function of the state in dividing itself into districts has 
been included within the label of ``reapportionment.'' The decisions of 
the U.S. Supreme Court and of the federal courts since 1964 which have 
dealt with congressional representation and which have been termed 
``reapportionment'' cases are in actuality decisions on the designation 
of congressional districts within a state and not on the apportionment 
of Representatives to states by Congress.(18)
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18. For a discussion of those decisions, see Sec. 3, infra (districting 
        requirements) and Sec. 4, infra (failure of states to 
        redistrict).
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    Another term which the reader may encounter in this chapter is 
``at-large'' elections.(19) An at-large Representative was 
elected by and represented all the people of the state rather than a 
specific subdivision thereof. At-large elections and multi-member 
districts are now prohibited by federal statute, (20) 
reflecting the prevailing view that such elections were not 
contemplated by the drafters of the Constitution. (1)
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19. See 2 USC Sec. 2a(c) (superseded by 2 USC Sec. 2c).
20. See Sec. 3, infra.
 1. See Norton v Campbell, 359 F2d 608 (10th Cir.), cert. denied, 385 
        U.S. 839 (1966). See also Hacker, Congressional Districting, 
        Brookings Institution (Washington, rev. ed., 1964).
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    Reapportionment and districting issues do not arise in relation to 
the elections of Delegates and Resident Commissioners, since the 
controlling constitutional provisions relate solely to Representatives 
of the states. Delegates and Resident Commissioners are created by 
statute, and each territory has been entitled to only one Delegate, 
elected by all the people of the territory.(2)
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 2. For the nature of the office of Delegate and Resident Commissioner, 
        see Ch. 7, supra.
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                         Collateral References
The Decennial Population Census and Congressional Apportionment, H. 
    Rept. No. 91-1314, 91st Cong. 2d Sess., Subcommittee on Census and 
    Statistics, Committee on Post Office and Civil Service.
Hacker, Congressional Districting, Brookings Institution (Wash., rev. 
    ed., 1964).
Keefe and Ogul, The American Legislative Process: Congress and the 
    States, Prentice-Hall (1964).

[[Page 838]]

 Congressional Power Over Taking the Census

Sec. 1.1 The manner of taking the census is for Congress to decide.

    On Jan. 8, 1941, the results of the 1940 census were laid before 
the House, accompanied by a Presidential message stating that all 
Indians had been included in the enumeration since they had become 
subject to federal taxation.(3) The President's message read 
in part as follows:
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 3. 87 Cong. Rec. 70, 77th Cong. 1st Sess. The 14th amendment excludes 
        from the enumeration all Indians not taxed.
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        The effect of this [enumeration of Indians] upon apportionment 
    of Representatives, however, appears to be for determination by the 
    Congress, as concluded in the Attorney General's opinion of 
    November 28, 1940, to the Secretary of Commerce, a copy of which is 
    annexed hereto.

    No objection was made to the inclusion of Indians within the 
enumeration.
    The opinion of the Attorney General referred to by the President 
stated that ``what construction the Congress will now give to the 
phrase `Indians not taxed' is a question for it to decide, and action 
taken by it with respect thereto will be final, subject only to review 
by the courts in proper cases brought before them.''
    Pursuant to Congress' sub silentio ratification of the enumeration, 
Indians have been counted in the census since 1940.

Congressional Power to Allocate House Seats

Sec. 1.2 The House has determined that the constitutional provision 
    requiring Congress to reapportion seats in the House to the states 
    after the taking of the census is directory and not 
    mandatory.(4)
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 4. For a prior elections committee report reaching the same 
        conclusion, see 6 Cannon's Precedents Sec. 54.
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    On Apr. 8, 1926, the House determined by a yea and nay vote a 
question submitted to the House by Speaker Nicholas Longworth, of Ohio, 
pertaining to the constitutional privilege of a motion to consider 
reapportionment legislation.(5) Preceding the vote on the 
question, there ensued a lengthy debate in the House on the nature of 
the requirement of the Constitution that Congress order a 
reapportionment of seats in the House to the states following each 
decennial census.(6) By finding that the motion was not 
constitu

[[Page 839]]

tionally privileged, the House overruled prior precedents holding to 
the contrary and determined that the House could not be forced to 
consider reapportionment legislation.(7)
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 5. 67 Cong. Rec. 7148, 7149, 69th Cong. 1st Sess.
 6. Id. at pp. 7138-48. See Sec.  2.4, infra, for more detailed 
        discussion of this precedent.
 7. Congress thereafter provided for an automatic system of 
        reapportionment. See the act of June 18, 1929, Ch. 28, Sec. 22, 
        46 Stat. 26, as amended, 2 USC Sec. 2a.
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Congressional Power Districting

Sec. 1.3 Congress has constitutional authority to establish 
    congressional districting requirements for the states and to compel 
    compliance therewith.

    On Jan. 9, 1951, the results of the 1950 census were transmitted to 
Congress, accompanied by a Presidential message recommending the 
enactment by Congress of congressional districting standards to correct 
wide variances in the size and composition of districts.(8) 
The message cited Congress' power to preempt state regulation over the 
times, places, and manner of congressional elections in order to 
establish standards for congressional districting and to compel state 
compliance therewith.(9)
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 8. 98 Cong. Rec. 114, 82d Cong. 1st Sess. Prior to 1929, Congress had 
        enacted statutes regulating the size and composition of 
        congressional districts (see Sec. 3.3, infra).
 9. Id. Districting legislation was passed in later years (see 
        Sec. 3.3, infra).
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                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                   A. APPORTIONMENT; VOTING DISTRICTS
 
Sec. 2. Census and Apportionment; Numerical Allocation of 
    Representatives

    Article I, section 2, clause 3 of the U.S. Constitution requires 
that an enumeration of the people be made every 10 years in order that 
seats in the House may be apportioned among the states according to the 
number of persons counted in each state. As originally adopted, this 
provision made certain distinctions between free persons, slaves, and 
``Indians not taxed.'' (10) The 14th amendment, ratified 
after the emancipation of slaves,(11) altered that provision

[[Page 840]]

by mandating the counting of the ``whole number'' of persons in each 
state and by directing that a denial of voting rights proportionately 
reduces a state's basis of representation.
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10. The original constitutional provision provided that three-fifths of 
        the persons not freed be counted to compute a state's basis of 
        representation. Enumeration was excluded, both in that 
        provision and in the 14th amendment, for ``Indians not taxed.'' 
        Indians are now included in the enumeration since they are 
        subject to federal taxation (see Sec. 2.3, infra).
11. The Emancipation Proclamation was issued on Jan. 1, 1863, and, 
        although of no binding force, was sanctioned by the 
        ratification of the 13th amendment in December of 1865. The 
        14th amendment was ratified in July of 1868.
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    Congressional apportionment legislation adopted pursuant to these 
constitutional provisions allocates a certain number of seats in the 
House to each state, and also fixes the maximum numerical membership of 
the House.(12)
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12. For a historical analysis of the mathematical methods which have 
        been used to apportion seats in the House based on census 
        results, see Sec. 1, supra.
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    The census has been taken decennially since 1790,(13) 
and has been administered since 1889 by the Bureau of the Census, a 
subdivision of the Department of Commerce.(14) The data 
gathered through the census has been broadened to include information 
other than population statistics,(15) since reports prepared 
by the Bureau of the Census aid the Congress in the informed 
performance of its legislative function.(16)

[[Page 841]]

Proposals related to the census fall under the jurisdiction of the 
Committee on Post Office and Civil Service.(17)
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13. Under 41 USC Sec. 141, as amended by Pub. L. No. 94-521, 90 Stat. 
        2459, a mid-decade census is to be taken in 1985 and every 10 
        years thereafter, but information gained therein may not be 
        used for apportionment or congressional districting.
14. For the establishment power, and duties of the Bureau of the Census 
        and the Director of the Census, see 13 USCA Sec. Sec. 1 et seq. 
        For the scope of the census director's authority and the 
        constitutionality of Congress' delegation of power to him, see 
        the annotations to title 13, USCA. For the reasonableness of 
        criteria used by the Census Bureau in computing the population 
        of respective states, see Borough of Bethel Park v Stans, 449 
        F2d 575 (3d Cir. 1971).
15. The Constitution does not prohibit the gathering of statistics 
        other than those affecting population, United States v 
        Moriarty, 106 F 886 (Cir. Ct. S.D. N.Y. 1901), and the fact 
        that many personal questions may be asked in order to provide 
        statistical reports on housing, labor, health, and welfare 
        matters (see 13 USCA Sec. Sec. 141-146) does not render census 
        questions an unconstitutional invasion of a person's right to 
        privacy. United States v Little, 321 F Supp 388 (D. Del. 1971).
16. ``While Sec. 2 [article I, clause 3] expressly provides for an 
        enumeration of persons, Congress has repeatedly directed an 
        enumeration not only of the freed persons in the states, but 
        also those in the territories, and has required all persons 
        over 18 years of age to answer an ever-lengthening list of 
        inquiries concerning their personal and economic affairs. This 
        extended scope of the census has received the implied approval 
        of the Supreme Court [Legal Tender Cases, 79 U.S. (12 Wall.) 
        457, 536 (1870)]; it is one of the methods whereby the national 
        legislature exercises its inherent power to obtain the 
        information necessary for intelligent legislative action.'' 
        Constitution of the United States of America: Analysis and 
        Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., p. 106.
17. Rule XI clause (16)(a), House Rules and Manual Sec. 711 (1973). The 
        former Committee on the Census was consolidated into this 
        committee by the Legislative Reorganization Act of 1946, 60 
        Stat. 812, Jan. 2, 1947.
---------------------------------------------------------------------------

    Although the 14th amendment provides that when the right to vote in 
certain elections is denied to any male inhabitants of a state, the 
basis of representation shall be proportionately 
reduced,(18) a reduction in the representation of a state in 
the House for denial of voting rights has never been 
made.(19) Unsuccessful attempts have been made by Members of 
the House (20) and by citizens to require that in taking the 
census the Census Bureau determine the number of disenfranchised 
persons in each state and make the reduction provided for in the 14th 
amendment.(1)
---------------------------------------------------------------------------
18. Proportionate reduction of representation for denial of right to 
        vote, under the 14th amendment, Sec. 2, refers to the right to 
        vote as established by the laws and constitution of the state. 
        Lassiter v Northampton County Bd. of Elections, 360 U.S. 45 
        (1959); McPherson v Blacker, 146 U.S. 39 (1892); Daly v 
        Madison, 378 Ill. 357, 38 N.E. 2d 160 (1941).
            A collateral attack was made on the composition of the 
        House, for alleged violation of the 14th amendment, in Dennis v 
        United States, 171 F2d 986 (D.C. Cir. 1948), aff'd, 339 U.S. 
        162 (1950), where a defendant in a congressional contempt 
        proceeding unsuccessfully claimed that committee action was 
        invalid, one Member being an ``interloper'' rather than a 
        Representative since his state was entitled to four instead of 
        seven Representatives pursuant to the 14th amendment.
19. Congress has provided by statute that in case of apparent 
        disenfranchisement by a particular state, certain steps be 
        taken to regulate federal elections in such state. See 42 USCA 
        Sec. 1971(e), and the discussion thereof in South Carolina v 
        Katzenbach, 383 U.S. 301 (1966).
20. See Sec. Sec. 2.7, 2.8, infra.
            For an analysis of legislative attempts to enforce the 14th 
        amendment, Sec. 2, since it was ratified, see Zuckerman, A 
        Consideration of the History and Present Status of Section 2 of 
        the Fourteenth Amendment, 30 Fordham L. Rev. 93 (1961).
 1. Some appellate courts have held that enforcement of the provision 
        is within Congress' discretion and presents a nonjustifiable 
        political question. Saunders v Wilkins, 152 F2d 235 (4th Cir. 
        1945), cert. denied, 328 U.S. 870 (1946); Lampkin v Connor, 239 
        F Supp 757 (D.D.C. 1965), aff'd, 360 F2d 505 (D.C. Cir. 1966).
            Omission from a census form of a question relating to voter 
        disenfranchisement does not render the taking of a census 
        unconstitutional notwithstanding the provisions of the 14th 
        amendment. United States v Sharrow, 309 F2d 77 (2d Cir. 1962), 
        cert. denied, 372 U.S. 949, rehearing denied 372 U.S. 982 
        (1963).
            A New York resident had no standing to seek an injunction 
        against the transmittal to the President by the Census Director 
        of the 1970 census on grounds that the 14th amendment reduction 
        had not been made, where the plaintiff failed to show that he 
        had been injured thereby. Sharrow v Brown, 447 F2d 94 (2d Cir. 
        1971).

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[[Page 842]]

    Results of the census are transmitted to Congress by the President, 
who is directed by law to compute the prospective allocation of 
Representatives to states pursuant to the mathematical method appointed 
by Congress.(2) Since 1941, the method of ``equal 
proportions'' has been used to determine reapportionment 
questions.(3)
---------------------------------------------------------------------------
 2. The power of Congress to direct how the enumeration shall be made 
        and transmitted is derived from U. S. Const. art. I, Sec. 2, 
        clause 3: ``The actual enumeration shall be made within three 
        years after the first meeting of the Congress of the United 
        States, and within every subsequent term of 10 years, in such 
        manner as they shall by law direct.''
            The transmission of the census results to Congress is 
        provided for by 2 USC Sec. 2a.
            Under the act of June 18, 1929, 46 Stat. 26, the President 
        was required to ascertain the number of Representatives to 
        which each state would be entitled under both the methods of 
        equal proportions and of major fractions. For a description of 
        those methods, see Sec. 1, supra.
 3. See Sec. 2.6, infra.
---------------------------------------------------------------------------

     Until 1920, at the time of the 16th census, congressional 
reapportionment legislation was adopted based on each new 
enumeration.(4) Following the 1920 census, however, no 
legislative action was taken, and Congress determined in 1926 that the 
constitutional provision providing for reapportionment following a 
census was directory rather than mandatory.(5) In 1929, 
Congress enacted into law a procedure whereby apportionment following 
and based upon a census would automatically take effect if Congress 
chose not to act.(6) Under

[[Page 843]]

this procedure, reapportionment is based on the method of equal 
proportions, and the Clerk of the House notifies state officials of the 
number of seats in the House to which the state is 
entitled.(7)
---------------------------------------------------------------------------
 4. Although art. I, Sec. 2, clause 3 directs that Representatives be 
        apportioned among the states according to their respective 
        numbers, and expressly authorizes Congress to provide for an 
        enumeration every 10 years by law, the power to allocate seats 
        in the House to the states after the enumeration is not 
        expressly stated within the clause but has always been acted 
        upon by Congress as ``irresistibly flowing from the duty'' 
        directed by the Constitution. Prigg v Pennsylvania, 41 U.S. (16 
        Peters) 619 (1842).
 5. See 1.2, supra.
 6. Act of June 18, 1929, 46 Stat. 26.
 7. 2 USC Sec. 2a (the act of 1929 as amended by the act of Apr. 25, 
        1940, 54 Stat. 162 and the act of Nov. 15, 1941, 55 Stat. 761).
---------------------------------------------------------------------------

    Reapportionment legislation has no privileged status under the 
Constitution and cannot interrupt the regular rules of proceeding of 
the House. Reapportionment legislation has been considered in the 
Committee of the Whole,(8) and proposals on apportionment 
are within the jurisdiction of the Committee on the 
Judiciary.(9)
---------------------------------------------------------------------------
 8. See Sec. 2.5, infra.
 9. Rule XI clause 14(b), House Rules and Manual Sec. 707 (1973).
---------------------------------------------------------------------------

    If a reapportionment of seats causes an increase or decrease in the 
number of seats to which a state is entitled, the state must redistrict 
itself into single-member districts consistent with constitutional 
requirements.(10)
---------------------------------------------------------------------------
10. See 2 USCA Sec. Sec. 2a and 2c. For redistricting in general, see 
        Sec. 3, infra.
---------------------------------------------------------------------------

    Maximum numerical membership of the House was fixed at 435 by the 
act of 1911.(11) There was a temporary increase to 437 
Members between 1959 and 1963 when two new states were 
added,(12) but the membership has returned to 435.
---------------------------------------------------------------------------
11. The act of Aug. 8, 1911, 37 Stat. 13 provided, under the 13th 
        census, for 433 Members, with the stipulation that if the 
        Territories of Arizona and New Mexico should become states they 
        should have one Representative each. Arizona and New Mexico 
        became states in 1912; see the Presidential proclamation set 
        out in 37 Stat. 1723.
12. Alaska and Hawaii were admitted as states and granted one 
        Representative each. See 2 USCA Sec. 2a.
---------------------------------------------------------------------------

    A state has no claim to seats additional to those allotted by 
Congress, and attempts by states to send to Congress more than its 
allotted number of Representatives have been 
unsuccessful.(13)
---------------------------------------------------------------------------
13. See 1 Hinds' Precedents Sec. Sec. 314-319. For a discussion of the 
        supremacy of congressional authority over allocation of seats 
        in the House to the several states see 1, supra.
---------------------------------------------------------------------------

                         Collateral References
The Decennial Population Census and Congressional Apportionment, H. 
    Rept. No. 91-1314, 91st Cong. 2d Sess., Subcommittee on Census and 
    Statistics, Committee on Post Office and Civil Service.
Van Alstyne, The Fourteenth Amendment, the ``Right'' to Vote, and the 
    Understanding of the Thirty-Ninth Congress, 1965 Sup. Ct. Rev. 33 
    (1965).
Zuckerman, A Consideration of the History and Present Status of Section 
    2 of the Fourteenth Amendment, 30 Fordham L. Rev. 93 (1961).

[[Page 844]]

Taking the Census

Sec. 2.1 When providing for the taking of the census and submission of 
    results to Congress, Congress may also provide for the taking of 
    other statistics.(14)
---------------------------------------------------------------------------
14. See generally 13 USC Sec. Sec. 1 et seq.
---------------------------------------------------------------------------

    On June 4, 1929, when the House was considering in the Committee of 
the Whole a bill dealing with the taking of the census and the 
submission of the results to Congress, Chairman Carl R. Chindblom, of 
Illinois, ruled that amendments to take additional statistics, such as 
to take a census of aliens,(15) and to take a census of 
qualified voters whose right to vote has been denied or 
abridged,(16) were germane.
---------------------------------------------------------------------------
15. 71 Cong. Rec. 2338, 2339, 71st Cong. 1st Sess.
16. Id. at p. 2348.
---------------------------------------------------------------------------

Sec. 2.2 The President transmits to the Congress the results of the 
    decennial census and the proposed reapportionment of 
    Representatives among the states.

    On Jan. 2, 1961,(17) the President sent to the Congress 
a message relating to the census of 1960 and to a reapportionment of 
House seats:
---------------------------------------------------------------------------
17. 107 Cong. Rec. 649, 87th Cong. 1st Sess., Jan. 12, 1961. See also 
        97 Cong. Rec. 114, 82d Cong. 1st Sess., Jan. 9, 1951; and 87 
        Cong. Rec. 70, 77th Cong. 1st Sess., Jan. 8, 1941.

    To the Congress of the United States:

        Pursuant to the provisions of section 22(a) of the act of June 
    18, 1929, as amended (2 U.S.C. 2a), I transmit herewith a statement 
    prepared by the Director of the Census, Department of Commerce, 
    showing (1) the whole number of persons in each State, as 
    ascertained by the Eighteenth Decennial Census of the population, 
    and (2) the number of representatives to which each State would be 
    entitled under an apportionment of the existing number of 
    representatives by the method of equal proportions.

                                         Dwight D. Eisenhower,
                                                The White House,
                                                 January 10, 1961.

Sec. 2.3 Since 1940, all Indians have been included in the census 
    enumeration, with the acquiescence of Congress, because they are 
    subject to federal taxation.

    On Jan. 8, 1941, the Presidential message transmitting the results 
of the 1940 census and the projected allocation of seats in the House 
to the states was laid before the House.(18)
---------------------------------------------------------------------------
18. 87 Cong. Rec. 70, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

    The last paragraph of the President's message read as follows:

        The Director of the Census has included all Indians in the 
    tabulation of

[[Page 845]]

    total population since the Supreme Court has held that all Indians 
    are now subject to Federal taxation (Superintendent v Commissioner, 
    295 U.S. 418). The effect of this upon apportionment of 
    representatives, however, appears to be for determination by the 
    Congress, as concluded in the Attorney General's opinion of 
    November 28, 1940, to the Secretary of Commerce, a copy of which is 
    annexed hereto.(1)
---------------------------------------------------------------------------
 1. The U.S. Constitution, amendment 14, Sec. 2 provides that all 
        persons be counted in the census except ``Indians not taxed.''
            The Attorney General has stated that whatever 
        ``construction the Congress will now give to the phrase 
        `Indians not taxed' is a question for it to decide, and action 
        taken by it with respect thereto will be final, subject only to 
        review by the courts in proper cases brought before them.'' 87 
        Cong. Rec. 71, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

    The President's message was ordered referred and printed, and no 
challenge or objection was made to the inclusion of Indians within the 
enumeration.(2)
---------------------------------------------------------------------------
 2. See also 97 Cong. Rec. 114, 82d Cong. 1st Sess., Jan. 9, 1951 
        (Indians included in 1950 census).
---------------------------------------------------------------------------

Consideration of Apportionment Legislation

Sec. 2.4 The House has determined that a motion to consider 
    reapportionment legislation following the taking of a census is not 
    privileged under the Constitution.

    On Apr. 8, 1926, Mr. Henry E. Barbour, of California, rose ``to 
present a privileged question under the Constitution of the United 
States.'' The purpose of the motion was to discharge the Committee on 
the Census from further consideration of a bill for the apportionment 
of Representatives in Congress among the several states under the 14th 
census and to provide that the House proceed to the immediate 
consideration thereof. Mr. Bertrand H. Snell, of New York, made a point 
of order against the motion, contending that it was not privileged 
under House rules or procedures. He stated that there was ``no 
mandatory provision in the Constitution itself which provides for 
immediate apportionments; and, furthermore, if we did grant there was 
such a provision, that there is no mandatory provision in the 
Constitution which provides that it shall be done contrary to the rules 
and procedure of the House.''
    Mr. Snell analyzed a long line of precedents which had held that 
motions to consider reapportionment legislation were privileged under 
the Constitution but stated that those decisions should be overruled, 
since the requirement in the Constitution that the House reapportion 
Representatives following a census was directory and not 
mandatory.(3)
---------------------------------------------------------------------------
 3. 67 Cong. Rec. 7138-48, 69th Cong. 1st Sess.
            Reference was also made to a report of the Committee on 
        Elections No. 3, 68th Cong. 1st Sess., Mar. 29, 1924, 
        indicating that a person could not claim a seat in the House 
        that was not allotted to the state by the House where 
        reapportionment following a census had not been made, since 
        reapportionment following the taking of a census is a customary 
        practice but not a constitutional requirement (see 6 Cannon's 
        Precedents Sec. 54).

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

[[Page 846]]

    After lengthy discussion, Speaker Nicholas Longworth, of Ohio, 
stated that in his opinion the prior precedents, according 
constitutional privilege to reapportionment legislation, should be 
overruled. He declined to rule on the question, however, stating that 
the question should be submitted to the House. The House then voted 
that the consideration of the bill called up by Mr. Barbour's motion 
was not in order as a question of constitutional privilege.

Sec. 2.5 Bills pertaining to the apportionment of seats to the several 
    states have been considered in the Committee of the 
    Whole.(4)
---------------------------------------------------------------------------
 4. 71 Cong. Rec. 2258, 2259, 71st Cong. 1st Sess., June 3, 1929; 111 
        Cong. Rec. 5080, 5084, 89th Cong. 1st Sess., Mar. 16, 1965; 87 
        Cong. Rec. 1071-89, 77th Cong. 1st Sess., Feb. 17 1941; and 86 
        Cong. Rec. 4373, 76th Cong. 3d Sess., Apr. 11, 1940.
            See also 6 Cannon's Precedents Sec. Sec. 51, 52.
---------------------------------------------------------------------------

Method of ``Equal Proportions''

Sec. 2.6 In 1941, Congress determined that seats for Representatives 
    should thereafter be allotted to the states under the method of 
    ``equal proportions.''

    Following the census of 1940, Congress determined, based on reports 
of the House Census Committee incorporating recommendations of 
prominent scientists, that seats for Representatives should thereafter 
be allotted to the states under the method of equal 
proportions.(5) If Congress passes no reapportionment 
legislation following a census, the equal proportion method is 
automatically used and the Clerk notifies the state of the number of 
seats to which it is entitled in the House.(6)
---------------------------------------------------------------------------
 5. Act of Nov. 15, 1941, 55 Stat. 761, codified as 2 USC Sec. 2a. For 
        detailed discussion of the mechanics of the method of equal 
        proportions, see Sec. 1, supra (summary).
            In 1929, Congress provided that in submitting the results 
        of the decennial census to Congress, the President should 
        direct to be ascertained the number of Representatives to which 
        each state would be entitled under both the method of major 
        fractions and the method of equal proportions. Act of June 18, 
        1929, Ch. 28, Sec. 22, 46 Stat. 26.
 6. 2 USCA Sec. 2a(b).
            For House debate on H.R. 2665, on Feb. 17 and 18, 1941, to 
        adopt the method of equal proportions for apportionment of 
        Members to the states, see 87 Cong. Rec. 1071-89, 1123-30, 77th 
        Cong. 1st Sess. The method of equal proportions had been 
        preferred by the National Academy of Sciences (at p. 1072), and 
        extensive hearings were held by the Committee on the Census in 
        1940 on comparison between the various mathematical methods of 
        reapportionment and the degree to which they produced equal 
        representation in the House of Representatives.
            By adoption of the equal proportions method retroactive to 
        the 1940 census, the apportionment in 1941 caused the State of 
        Arkansas to lose one seat and the State of Michigan to gain one 
        seat.

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

[[Page 847]]

Reduction of Representation for Denial of Voting Rights

Sec. 2.7 To a bill dealing with the date for the periodic apportionment 
    of Representatives in Congress, an amendment providing that, in 
    submitting the statement to Congress and making the apportionment, 
    the reduction provided in section 2 of the 14th Amendment to the 
    Constitution shall be made, was held not germane.

    On Apr. 11, 1940, the House was considering, in the Committee of 
the Whole, S. 2505 to amend the 1929 apportionment bill in order to 
change the date of subsequent apportionments. The change in date was 
considered necessary in light of the 20th amendment to the 
Constitution, which had changed the convening date of Congress and the 
Presidential inauguration day.(7)
---------------------------------------------------------------------------
 7. 86 Cong. Rec. 4373, 76th Cong. 3d Sess. The bill was passed and 
        became law (act of Apr. 25, 1940, Ch. 152, Sec. Sec.  1, 2, 54 
        Stat. 162); see 2 USC Sec.  2a, as amended.
---------------------------------------------------------------------------

    Mr. John C. Schafer, of Wisconsin, offered an amendment directing 
that in submitting the census to Congress, the President reduce the 
basis of representation for states where required by the 14th amendment 
of the U.S. Constitution.(8)
---------------------------------------------------------------------------
 8. The 14th amendment, Sec. 2, provides that where the right to vote 
        is denied by a state, the basis of representation in the state 
        shall be reduced in the proportion which the number of male 
        citizens denied the vote shall bear to the whole number of such 
        citizens in the state.
---------------------------------------------------------------------------

    Chairman Marvin Jones, of Texas, ruled that the amendment was not 
germane to the pending bill, since the bill dealt only with the 
mechanics of the apportionment and not with the census itself. He cited 
a past precedent where a similar amendment, providing for a 
proportionate reduction in the number of Representa

[[Page 848]]

tives allotted to a state pursuant to the 14th amendment, was held not 
germane to reapportionment legislation.(9)
---------------------------------------------------------------------------
 9. See also 8 Cannon's Precedents Sec. 2996 for a ruling that, to a 
        bill providing for reapportionment of Representatives in 
        Congress, an amendment authorizing redistricting of states in 
        accord with such apportionment was not germane.
---------------------------------------------------------------------------

Sec. 2.8 To a civil rights bill, an amendment establishing a 
    ``Commission on Voting'' to report the number of citizens in each 
    state denied the right to vote and to calculate a new apportionment 
    of Representatives on the basis of such findings, was ruled out as 
    not germane.

    On Feb. 4, 1964, while the House was considering title I of the 
Civil Rights Bill of 1963, an amendment was offered to establish a 
Commission on Voting to report the number of citizens in each state 
denied the right to vote and to calculate a new apportionment of 
Representatives on the basis of such findings.(10)
---------------------------------------------------------------------------
10. 110 Cong. Rec. 1899, 88th Cong. 2d Sess.
---------------------------------------------------------------------------

    Chairman Eugene J. Keogh, of New York, ruled that the amendment was 
not germane, citing the precedent of July 19, 1956, wherein Chairman 
Aime J. Forand, of Rhode Island, held not germane a similar amendment 
to a similar bill.(11)
---------------------------------------------------------------------------
11. For unsuccessful proposals to create a joint congressional 
        committee to implement the 14th amendment of the U.S. 
        Constitution by providing for reduction in representation for 
        denial of voting rights, see S. 2709, 85th Cong. 1st Sess. 
        (1957) and S. 1084, 86th Cong. 1st Sess. (1959).
---------------------------------------------------------------------------



 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                   A. APPORTIONMENT; VOTING DISTRICTS
 
Sec. 3. Districting Requirements; Duty of States

    After Congress has allocated a certain number of Representatives to 
a state following a census,(12) some method must be 
appointed by the state legislature for the election of such 
Representatives. The power of a state legislature under article I, 
section 4 of the U.S. Constitution, to divide the state into districts 
to elect and to be represented by Members of the House is unquestioned, 
although the way in which the state districts itself may be directed by 
federal statute or by court order. A state must redistrict itself to 
reflect changes in its allocated representation in the House as well as 
population shifts indicated by the census.(13)
---------------------------------------------------------------------------
12. See 2, supra.
13. See Sec. 1, sup a, for a discussion of the delineations of power 
        between Congress, the states, and the courts over the census, 
        apportionment, and congressional districting.
            See also, Schmeckebier, Congressional Apportionment 
        (Washington, 1941); Celler, Congressional Apportionment--Past, 
        Present and Future, 17 Law and Contem. Prob. 286 (1952); 
        Hearings on Congressional Districting (H.R. 8953 and related 
        proposals), subcommittee No. 5, House Committee on the 
        Judiciary, 92d Cong. 1st Sess.

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

[[Page 849]]

    The first attempt by Congress to exercise its constitutional power 
over state districting under article I, section 4, providing for 
preemption of state law by federal law over election procedure, was 
undertaken in 1842, when Congress provided that states with more than 
one Representative should establish single-member districts of 
contiguous territory.(14) The single-member districting 
requirement was eliminated in 1850 (15) but reinstated in 
1862.(16) In 1872, Congress added a requirement that 
districts be as equal in population as practicable (17) and 
in 1901 a requirement was added that districts be compact as well as 
contiguous.(18) The three requirements--of single-member 
districts, of contiguity, and of compactness--were consolidated in the 
Reapportionment Act of 1911.(19)
---------------------------------------------------------------------------
14. Act of June 25, 1842, 5 Stat. 491.
15. Act of May 23, 1850, 9 Stat. 428.
16. Act of July 14, 1862, 12 Stat. 572.
17. Act of Feb. 2, 1872, 17 Stat. 28.
18. Act of Jan. 16, 1901, 31 Stat. 733.
19. Act of Aug. 8, 1911, 37 Stat. 13.
---------------------------------------------------------------------------

    Between 1842 and 1911 Congress did not enforce the statutory 
provisions mandating state districting requirements for congressional 
elections. In 1842, 1901, and 1910,(20) the House rejected 
challenges to rights to seats based on state noncompliance with the 
federal districting standards. There was, in addition, some question as 
to the power of the courts to enforce the requirements for 
congressional districts.(1)
---------------------------------------------------------------------------
20. 1 Hinds' Precedents Sec. Sec. 310, 313; 6 Cannon's Precedents 
        Sec. 43.
 1. See the following language in Oregon v Mitchell, 400 U.S. 112, 121 
        (1970): ``And in Colgrove v. Green, 328 U.S. 549 (1946), no 
        Justice of this court doubted Congress' power [under article I, 
        Sec. 4] to rearrange the congressional districts according to 
        population; the fight in that case revolved about the judicial 
        power to compel redistricting.''
---------------------------------------------------------------------------

    When the Apportionment Act of 1929,(2) establishing a 
permanent procedure for apportionment of seats in the House, was 
enacted, none of the prior districting requirements were included 
therein. Following that legislative action, the Supreme Court in a 1932 
case ruled the federal districting standards no longer 
operative.(3)
---------------------------------------------------------------------------
 2. Act of June 18, 1929, 46 Stat. 26.
 3. Wood v Broom, 287 U.S. 1 (1932). See also Exon v Tiemann, 279 F 
        Supp 603 (D. Neb. 1967).

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

[[Page 850]]

    In 1946, when Illinois voters sued in federal court to enjoin the 
holding of a forthcoming congressional election, claiming 
constitutional and statutory violations of districting requirements, 
the Supreme Court affirmed the dismissal of the case because the 
statutory requirements had been superceded by the 1929 Reapportionment 
Act, and because the issue presented a nonjusticiable political 
question.(4) The Court pointed to article I, section 4 of 
the Constitution as conferring ``upon Congress exclusive authority to 
secure fair representation by the states in the popular House'' and 
stated that if Congress failed in that respect, ``the remedy ultimately 
lies with the people.'' (5)
---------------------------------------------------------------------------
 4. Colgrove v Green, 328 U.S. 549 (1946).
 5. Id. at p. 554.
---------------------------------------------------------------------------

    In 1964, the Supreme Court invalidated for the first time, in 
Wesberry v Sanders, a Georgia congressional districting statute which 
accorded some districts more than twice the population of 
others.(6) The political-question doctrine of Colgrove v 
Green (7) was overruled in reliance on the state 
apportionment case of Baker v Carr.(8) The Court held in 
Wesberry that the command of article I, section 2 of the Constitution 
that Representatives be chosen by the people of the several states 
means that as nearly as practicable one man's vote in a congressional 
election is to be worth as much as another's.(9) The Court 
did not establish specific requirements for congressional districts, 
stating that although it may not be possible to draw them with a 
mathematical precision, equal representation for equal numbers of 
people was the fundamental goal of redistricting.(10)
---------------------------------------------------------------------------
 6. 376 U.S. 1 (1964). See also the companion case, Wright v 
        Rockefeller, 376 U.S. 52 (1964) (failure to show racially 
        discriminatory districting in New York).
 7. 328 U.S. 549 (1946).
 8. 369 U.S. 186 (1962).
 9. 376 U.S. 1 at pp. 7, 8 (1964).
10. The court drew on the Constitutional and Ratifying Conventions to 
        demonstrate that the purpose of the ``Great Compromise'' was to 
        afford equal representation for equal numbers of people in the 
        House of Representatives. Id. at pp. 13, 18.
            By 1968, the majority of congressional district lines had 
        been redrawn, with only nine states having a population 
        deviation in excess of 10 percent from the state average, and 
        24 states having no deviation as large as five percent. McKay, 
        Reapportionment: Success Story of the Warren Court, 67 Mich. L. 
        Rev. 223, 229 (1968).
---------------------------------------------------------------------------

    The Supreme Court decision in Wesberry impelled Congress to act

[[Page 851]]

upon federal redistricting requirements, and in 1967 a bill was enacted 
into law requiring that districts be limited to a single 
member.(11) No other congressional requirements were 
established, although attempts were made to legislate allowable 
percentage variances of congressional districts.(12)
---------------------------------------------------------------------------
11. See Sec.  3.3, infra.
            The single-member district requirement of 2 USC Sec. 2c 
        removed the prior command of 2 USC Sec. 2a(c) that elections be 
        held at-large upon legislative failure to redistrict. Preisler 
        v Secretary of State, 279 F Supp 952 (W.D. Mo. 1967), aff'd, 
        394 U.S. 526 (1969), rehearing denied, 395 U.S. 917 (1970).
12. See Sec. 3.3, infra. For other attempts to enact federal 
        districting standards, and the procedure by which their 
        consideration was governed, see Sec. Sec. 3.43.7 infra.
---------------------------------------------------------------------------

    In 1969, the Supreme Court reenforced the Wesberry opinion by 
invalidating congressional redistricting in Missouri, where districts 
were several percentage points above or below the mathematical ideal. 
The Court would allow only ``the limited population variances which are 
unavoidable despite a good faith effort to achieve absolute equality, 
or for which Justification is shown'' (13) and stated that 
economic, social, or political factors do not suffice for justification 
of variances.(14) The Court added that districting could be 
based on eligible voter population rather than total population, if 
accurately and completely computed, and that population shifts over a 
10-year period could be anticipated in redistricting but findings as to 
such shifts must be thoroughly documented and systematically applied 
statewide.(15) In other decisions on congressional 
redistricting the Supreme Court has required a state showing of good 
faith effort to achieve precise mathematical equality among all 
districts,(16) and has applied a test of practicability, 
under the particular circumstances of the state involved, in drawing 
districts.(17)
---------------------------------------------------------------------------
13. Kirkpatrick v Preisler, 394 U.S. 526 (1969). See also the companion 
        case, Wells v Rockefeller, 394 U.S. 542 (1969) (state must 
        demonstrate good faith effort to achieve precise mathematical 
        equality among congressional districts).
14. Kirkpatrick v Preisler, 394 U.S. 526 (1969).
15. Id. See also Lucas v Rhodes, 389 U.S. 212 (1967) (per curiam), 
        where the court affirmed the finding of unconstitutionality 
        applied to congressional redistricting in Ohio where unofficial 
        but incomplete post-census population figures were taken into 
        account.
16. Wells v Rockefeller, 394 U.S. 542 (1969) (New York State).
17. Dinis v Volpe, 264 F Supp 425 (D. Mass. 1967), aff'd, 389 U.S. 570 
        (1968) (per curiam).

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

[[Page 852]]

    The allowable population variance in percentage points for any 
district from the state average remains undefined. However, it has been 
held that a state plan providing for some districts with twice the 
population of others in the same state,(18) or which vary 25 
percent from the state population norm,(19) is 
unconstitutional. A variance of 10 percent to 15 percent has been both 
accepted and rejected by the Court.(20)
---------------------------------------------------------------------------
18. Wesberry v Sanders, 376 U.S. 1 (1964).
19. Dinis v Volpe, 389 U.S. 570 (1968) (per curiam).
20. See the dissenting opinion of Justice Harlan in Rockefeller v 
        Wells, 389 U.S. 421 (1967) (per curiam), stating that the Court 
        had left the lower courts and Congress without guidance for 
        congressional redistricting. See also his dissenting opinions 
        on the same subject in Grills v Branigin, 390 U.S. 932 (1968) 
        (stay denied) and Lucas v Rhodes, 389 U.S. 212 (1967) (per 
        curiam).
---------------------------------------------------------------------------

    On the subject of ``gerrymandering,'' or the drawing of 
congressional district lines with the motivation or affect of 
benefiting an incumbent, political party or racial group,(1) 
the Supreme Court has stated that citizens challenging a congressional 
redistricting act on the grounds of racial discrimination must show 
either racial motivation or actual districting along racial 
lines.(2)
---------------------------------------------------------------------------
 1. See Guide to Congress, pp. 502, 503, 505, 506, Congressional 
        Quarterly Inc. (Washington 1971).
            Districting requirements for special election to fill 
        vacancy, Sec.  9, infra.
 2. Wells v Rockefeller, 376 U.S. 52 (1964). The Court has more 
        pointedly addressed gerrymandering in districting for state and 
        local elective officials. See, for example, Gomillion v 
        Lightfoot, 364 U.S. 339 (1960).
            See also Edwards, The Gerrymander and ``One Man, One 
        Vote,'' 46 N.Y.U.L. Rev. 879 (1971).
---------------------------------------------------------------------------

    Some disputes have arisen concerning the validity under state law 
of redistricting action taken by the states. Following the 1930 census, 
a series of cases arose in which the right of the Governor to veto a 
reapportionment bill was questioned. The U.S. Supreme Court ruled that 
the state function to redistrict itself for congressional elections was 
legislative in character and therefore subject to gubernatorial veto 
under the same terms as other state legislation.(3)
---------------------------------------------------------------------------
 3. See Smiley v Holm, 285 U.S. 355 (1932); Koenig v Flynn, 285 U.S. 
        375 (1932); Carroll v Becker, 285 U.S. 380 (1932).
            In Grills v Branigin, 284 F Supp 176 (D. Ind. 1968), aff'd, 
        391 U.S. 364 (1969), a federal court held that only the state 
        general assembly had the power to create congressional 
        districts, an elections board lacking legislative power under 
        the state and federal constitutions.

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

[[Page 853]]

Congressional Standards for Districting

Sec. 3.1 In transmitting the 1950 census results to Congress, the 
    President recommended the adoption by Congress of federal standards 
    for congressional districting.

    On Jan. 9, 1951, the President transmitted pursuant to statute the 
results of the 1950 census to Congress.(4) Within his 
message on the census he included an appraisal of the wide 
discrepancies in congressional districting among the states and 
recommended that Congress re-establish former statutory requirements of 
compact, contiguous single-member districts with as nearly as 
practicable an equal number of inhabitants. The message also supported 
Congress' power, under article I, section 4 of the Constitution, to 
establish congressional districting requirements and to compel 
compliance therewith.(5)
---------------------------------------------------------------------------
 4. 98 Cong. Rec. 114, 82d Cong. 1st Sess.
 5. Legislation in response to the President's message was introduced 
        by Emanuel Celler, of New York, Chairman of the Committee on 
        the Judiciary, in the 82d and subsequent Congresses but was not 
        acted upon. See, e.g., H.R. 2648, 82d Cong. 1st Sess. (1951); 
        H.R. 6156, 82d Cong. 2d Sess. (1952); H.R. 6428, 83d Cong. 1st 
        Sess. (1953); H.R. 8239, 84th Cong. 2d Sess. (1956).
---------------------------------------------------------------------------

Sec. 3.2 The Committee on the Judiciary has recommended in reports on 
    districting legislation that Congress establish specific guidelines 
    in the absence of judicial standards.

    On several occasions since the Supreme Court's entry into the field 
of congressional districting,(6) the Committee on the 
Judiciary, which has jurisdiction over congressional 
districting,(7) has submitted reports on proposals to 
establish standards for congressional districting by the states. On 
those occasions, the committee has recommended that such guidelines be 
adopted due to the failure of the judiciary to prescribe definite 
standards.(8)
---------------------------------------------------------------------------
 6. See Wesberry v Sanders, 376 U.S. 1 (1964).
 7. Rule XI clause 13(b), House Rules and Manual Sec. 707 (1973).
 8. H. Rept. No. 191, Committee on the Judiciary, 90th Cong. 1st Sess. 
        (1967); H. Rept. No. 486, Committee on the Judiciary, 92d Cong. 
        1st Sess. (1971); H. Rept. No. 140, Committee on the Judiciary, 
        89th Cong. 1st Sess. (1965). Justice Harlan, in his dissenting 
        opinion in Rockefeller v Wells, 389 U.S. 421 (1967) (per 
        curiam), cited the latter report for the proposition that the 
        Court had left both the lower courts and Congress without 
        guidance in drawing congressional district lines.

[[Page 854]]

Sec. 3.3 Except to require single-member congressional districts, 
    Congress has declined since 1929 to set standards for congressional 
    districting by the states.(9)

---------------------------------------------------------------------------
 9. Congress has affirmed that it has the constitutional power to 
        establish congressional districting requirements. See 111 Cong. 
        Rec. 5080, 89th Cong. 1st Sess., Mar. 16, 1965; 113 Cong. Rec. 
        11064-71, 90th Cong. 1st Sess., Apr. 27, 1967.
            Prior to 1929, Congress required that the states district 
        themselves so as to produce compact, contiguous, and single-
        member congressional districts. See the act of Aug. 8, 1911, 
        Ch. 5, Sec. 30, 37 Stat. 14. That act, which was formerly 
        codified as 2 USC Sec. 3, expired by its own limitation upon 
        the enactment of the Reapportionment Act of June 18, 1929, Ch. 
        28, 46 Stat. 21, as amended, 2 USC Sec. 2a. See Wood v Broom, 
        287 U.S. 1 (1932), where the Supreme Court held that the 1911 
        act had become inoperative upon the enactment of the 1929 act.
---------------------------------------------------------------------------

    In 1967, Congress required that all states establish a number of 
districts equal to the number of Representatives to which each such 
state is so entitled, with one Representative to be elected from each 
such district.(10)
---------------------------------------------------------------------------
10. Pub. L. No. 90-196, 81 Stat. 581, Dec. 14, 1967 (2 USC Sec. 2c).
            Districting legislation in the 90th Congress as originally 
        proposed by the House Committee on the Judiciary and as passed 
        by the House provided not only for single-member districts but 
        also for compactness and contiguity, and fixed a maximum 
        percentage variance among districts. 113 Cong. Rec. 11089, 90th 
        Cong. 1st Sess., Apr. 27, 1967. The Senate desired a smaller 
        and more immediate percentage variance, and never reached 
        agreement with the House on the bill. 113 Cong. Rec. 31712, 
        90th Cong. 1st Sess., Nov. 8, 1967.
---------------------------------------------------------------------------

    The Congress has declined to set any other standards as to 
congressional redistricting by the states.(11)
---------------------------------------------------------------------------
11. See, for example, the legislative history of H.R. 5505, 89th Cong. 
        1st Sess. (1965), and H.R. 8953 and 10645, 92d Cong. 1st Sess. 
        (1971); see also the announcement of the Chairman of the 
        Committee on the Judiciary describing committee action taken on 
        a redistricting bill, 117 Cong. Rec. 28945, 28946, 92d Cong. 
        1st Sess., Aug. 2, 1971, and the committee's report, H. Rept. 
        No. 92-486, 92d Cong. 1st Sess. (1971).
---------------------------------------------------------------------------

Consideration of Districting Legislation

Sec. 3.4 Legislation regulating congressional redistricting has been 
    considered in the Committee of the Whole.(12)
---------------------------------------------------------------------------
12. 113 Cong. Rec. 11071, 90th Cong 1st Sess., Apr. 27, 1967; 111 Cong. 
        Rec. 5084, 89th Cong. 1st Sess., Mar. 16, 1965.
---------------------------------------------------------------------------

Sec. 3.5 Legislative proposals setting standards for congres

[[Page 855]]

    sional districting have been considered by the House pursuant to a 
    special rule or order limiting amendment of the proposal.

    On Mar. 16, 1965, Howard W. Smith, of Virginia, Chairman of the 
Committee on Rules, offered House Resolution 272, providing that H.R. 
5505, on federal standards for congressional districting, be considered 
under limited power to amend.(13) After some debate, a 
``modified closed rule'' was adopted by the House.(14)
---------------------------------------------------------------------------
13. 111 Cong. Rec. 5080, 89th Cong. 1st Sess.
14. Id. at p. 5084.
---------------------------------------------------------------------------

    On Apr. 27, 1967, the House adopted House Resolution 442, providing 
for a ``closed'' rule on H.R. 2508, requiring the establishment of 
congressional districts of contiguous and compact territory, and for 
other purposes.(15) Mr. B.F. Sisk, of California, a member 
of the Committee on Rules, explained that the closed rule was proposed 
because of the complicated provisions of the legislation and because of 
the urgency of passage, although closed rules were not normally 
considered for such legislation.(16) Opposition to the 
closed rule was voiced by Mr. John Conyers, Jr., of Michigan, and Mr. 
Richard L. Ottinger, of New York, because of the serious constitutional 
and political issues raised by the bill.(17)
---------------------------------------------------------------------------
15. 113 Cong. Rec. 11071, 90th Cong. 1st Sess.
16. Id. at pp. 11064, 11065.
17. Id. at pp. 11069, 11070.
---------------------------------------------------------------------------

Sec. 3.6 To a joint resolution proposing a constitutional amendment 
    relating to the election of the President and Vice President by 
    popular vote rather than through the electoral college process, an 
    amendment pertaining to standards for congressional districting was 
    ruled not germane.(18)
---------------------------------------------------------------------------
18. An amendment providing for the redistricting of states has also 
        been held not germane to a bill dealing with reapportionment. 
        71 Cong. Rec. 2364, 2444, 2445, 71st Cong. 1st Sess., June 6, 
        1929.
---------------------------------------------------------------------------

    On Sept. 18, 1969, the House was considering in the Committee of 
the Whole a joint resolution proposing an amendment to the Constitution 
providing for a popular vote rather than an electoral vote for the 
offices of President and Vice President.(19)
---------------------------------------------------------------------------
19. 115 Cong. Rec. 25966, 91st Cong. 1st Sess. (H.J. Res. 681).
---------------------------------------------------------------------------

    An amendment was offered by Mr. Thaddeus J. Dulski, of New York, 
requiring that the states establish compact and contiguous single-
member districts for con

[[Page 856]]

gressional elections. Chairman Wilbur D. Mills, of Arkansas, ruled that 
the amendment was not germane to the joint resolution, since nothing in 
the resolution pertained to the apportionment or election of 
Representatives.(20)
---------------------------------------------------------------------------
20. Id. at pp. 25983, 25984.
---------------------------------------------------------------------------

Unequal Representation in Primary

Sec. 3.7 The House refused to overturn an election in a state with a 
    ``county unit'' primary election system, where less populous 
    counties were entitled to a disproportionately large electoral vote 
    for nominees.

    On Apr. 27, 1948, the House adopted without debate House Resolution 
553, dismissing the Georgia election contest of Lowe v 
Davis.(1)
---------------------------------------------------------------------------
 1. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
            See also Ch. 9, infra, for election contests generally.
---------------------------------------------------------------------------

    Parliamentarian's Note: The House in this case refused to 
invalidate the Georgia ``county unit'' system for primaries, requiring 
use of county electoral votes rather than popular votes for choosing 
nominees. Under the system each candidate was required to receive a 
majority of county unit votes for nomination, and unit votes were 
allotted in favor of less populous counties rather than strictly by 
population.(2)
---------------------------------------------------------------------------
 2. See the elections committee report in the case, H. Rept. No. 1823, 
        80th Cong. 2d Sess. (1948). The Supreme Court later invalidated 
        the use of the ``county unit'' system. Gray v Sanders, 372 U.S. 
        368 (1963).
---------------------------------------------------------------------------



 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                   A. APPORTIONMENT; VOTING DISTRICTS
 
Sec. 4. Failure of States to Redistrict

    Congressional redistricting is a legislative function for the 
several states.(3) The failure of a state in this regard may 
arise either through neglect to pass any new districting legislation 
after reallocation of House seats or population changes reflected in 
the census, or through enactment of legislation which does not satisfy 
the requirements of the Constitution, federal statutes, or state 
law.(4)
---------------------------------------------------------------------------
 3. For discussion of state responsibility for congressional 
        districting, see Sec. Sec. 1, 3, supra.
 4. For past and present congressional districting requirements, see 
        Sec. 3, supra.
---------------------------------------------------------------------------

    Where a state's districting plan is defective, the remedy lies 
either with Congress or with the courts. Since Congress not only has 
the

[[Page 857]]

power to enact federal standards for congressional 
districts,(5) but also is the sole judge of the elections 
and returns of its Members,(6) the House has the power to 
investigate the congressional districting plan of any state and to deny 
seats to Members from states which have drawn defective district lines 
or no district lines at all.(7) There appears to be no doubt 
that Congress has the power to compel a state to redraw its 
congressional district lines in accordance with existing 
law.(8) However, the House has declined on at least three 
occasions to deny seats to Members from states in violation of federal 
districting statutes.(9)
---------------------------------------------------------------------------
 5. See U.S. Const. art. I, Sec. 4, clause 1. For the relationship of 
        that clause to federal districting standards, see Sec. 3, 
        supra.
 6. U.S. Const. art. I, Sec. 5, clause 1.
 7. However, a court finding that a particular state districting plan 
        is invalid does not cast doubt upon the validity of elections 
        in which Congressmen then serving have been elected, or upon 
        their right to serve out terms for which elected. Grills v 
        Branigin, 284 F Supp 176 (S.D. Ind. 1968), aff'd, 391 U.S. 364 
        (1969).
 8. ``And in Colgrove v. Green, 328 U.S. 549 (1946), no Justice of this 
        court doubted Congress' power [under U.S. Const. art. I, 
        Sec. 4] to rearrange the congressional districts according to 
        population. . . .'' Oregon v Mitchell, 400 U.S. 112, 121 
        (1970).
 9. See 1 Hinds' Precedents Sec. Sec. 310, 313; 6 Cannon's Precedents 
        Sec. 43.
---------------------------------------------------------------------------

    The federal courts and on some occasions the state courts have 
taken affirmative action to correct a failure of a state to 
redistrict.(10) In 1966, the U.S. Supreme Court first 
allowed a federal district court to itself draw congressional district 
lines in a state where the existing districting legislation was 
unconstitutional.(11) On the subject of judicial 
interference with the traditionally legislative function of 
congressional districting, the Court has stated:
---------------------------------------------------------------------------
10. See Hearings on Congressional Districting (H.R. 8953 and related 
        proposals), subcommittee No. 5, House Committee on the 
        Judiciary, 92d Cong. 1st Sess., pp. 141-160.
            Judicial intervention in the area of districting was 
        forecast: ``[T]hat the Constitution casts the right to equal 
        representation in the House in terms of affirmative 
        congressional power should not preclude judicial enforcement of 
        the right in the absence of legislation. Such judicial action 
        is commonplace in other areas.'' Lewis, Legislative 
        Apportionment in the Federal Courts, 71 Harv. L. Rev. 1057, 
        1074 (1958).
            Although the courts may review districting, they have no 
        power over the allocation of seats by Congress to the states. 
        See Saunders v Wilkins, 152 F2d 235 (4th Cir. 1945), cert. 
        denied, 328 U.S. 870, rehearing denied, 329 U.S. 825 (1946).
11. Maryland Citizens' Committee for Fair Congressional Districting v 
        Tawes, 253 F Supp 731 (D. Md. 1966), aff'd sub nom, Alton v 
        Tawes, 384 U.S. 315 (1966).
---------------------------------------------------------------------------

        Legislative reapportionment is primarily a matter for 
    legislative deter

[[Page 858]]

    mination and consideration and judicial relief becomes appropriate 
    only when the legislature fails to reapportion according to Federal 
    constitutional requisites in timely fashion after having had 
    adequate opportunity to do so.(12)
---------------------------------------------------------------------------
12. Dinis v Volpe, 264 F Supp 425 (D. Mass. 1967), aff'd, 389 U.S. 570 
        (1968) (per curiam).

Congressional attempts to restrict the power of the judiciary over 
congressional districting have not been successful.(13)
---------------------------------------------------------------------------
13. On Nov. 8, 1967, the Senate considered a conference report on H.R. 
        2508, to require the establishment of compact and contiguous 
        congressional districts, and for other purposes. A portion of 
        the bill, as reported from conference, provided that no state 
        could be required to redistrict prior to the 19th federal 
        decennial census unless the results of a special federal census 
        were available for use therein. See 113 Cong. Rec. 31708, 90th 
        Cong. 1st Sess. The language of the bill and its effect on the 
        power of the courts to compel congressional districting by the 
        states in accordance with the ``one man-one vote'' principle, 
        was extensively debated as to its clarity and 
        constitutionality. For challenges to the constitutionality of 
        the provision, see pp. 31696-31702. For remarks in support of 
        its constitutionality, see pp. 31707, 31708. The Senate 
        rejected the conference report (at p. 31712).
---------------------------------------------------------------------------

    A federal court may retain jurisdiction of districting matters 
pending appropriate action by the state legislature.(14) A 
federal court may postpone election processes to provide more time for 
redistricting,(15) but has allowed elections to be held 
under invalid districting where there was no other 
alternative.(16)
---------------------------------------------------------------------------
14. Grills v Branigin, 284 F Supp 176 (S.D. Ind. 1968), aff'd, 391 U.S. 
        364 (1969).
15. See Toombs v Fortson, 241 F Supp 65 (N.D. Ga. 1965), aff'd, 384 
        U.S. 210 (1966) (per curiam); Butterworth v Dempsey, 237 F Supp 
        302 (D. Conn. 1965).
16. Skolonick v Illinois State Electoral Board, 307 F Supp 698 (N.D. 
        Ill, 1969). See also Legislature v Reinecke. 99 Cal. Rptr. 481, 
        492 P.2d 385 (1972).
---------------------------------------------------------------------------

    On several occasions, state courts have ordered congressional 
districting plans into effect.(17)
---------------------------------------------------------------------------
17. See Legislature v Reinecke, 99 Cal. Rptr. 481, 492 P.2d 385 (1972); 
        People ex rel. Scott v Kerner, 33 Ill. 2d 460, 211 N.E.2d 736 
        (1965).

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

[[Page 859]]


 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
              B. TIME, PLACE, AND REGULATION OF ELECTIONS
 
Sec. 5. In General; Federal and State Power


    The U.S. Constitution delineates the respective areas of state and 
federal regulatory power over congressional elections in the following 
language:

        The Times, Places and Manner of holding Elections for Senators 
    and Representatives, shall be prescribed in each State by the 
    Legislature thereof; but the Congress may at any time by Law make 
    or alter such Regulations, except as to the places of chusing 
    Senators.(18)
---------------------------------------------------------------------------
18. U.S. Const. art. I, Sec.  4, clause 1. See generally House Rules 
        and Manual Sec. Sec. 42-44 (1973).
---------------------------------------------------------------------------

    This provision of the Constitution was adopted in order to furnish 
a flexible scheme of regulatory authority over congressional elections, 
to depend upon harmony and comity between the individual states and the 
Congress.(19) The discretionary power vested in Congress to 
supersede election regulations made by the states has only been 
exercised where necessity required it to protect constitutional rights 
or to remedy substantial inconsistencies among congressional elections 
in the several states.(20)
---------------------------------------------------------------------------
19. See the Federalist No. 59 (Hamilton): ``It will not be alleged that 
        an election law could have been framed and inserted in the 
        Constitution which would have been always applicable to every 
        probable change in the situation of the country; and it will 
        therefore not be denied that a discretionary power over 
        elections ought to exist somewhere. It will, I presume, be as 
        readily conceded that there were only three ways in which this 
        power could have been reasonably modified and disposed: that it 
        must either have been lodged wholly in the national 
        legislature, or wholly in the state legislatures, or primarily 
        in the latter and ultimately in the former. The last mode has, 
        with reason, been preferred by the convention. They have 
        submitted the regulation of elections for the federal 
        government, in the first instance, to the local 
        administrations, which in ordinary cases and when no improper 
        views prevail, may be both more convenient and more 
        satisfactory; but they have reserved to the national authority 
        a right to interpose whenever extraordinary circumstances might 
        render that interposition necessary to its safety.''
20. Congress has acted to unify the time of congressional elections, 2 
        USC Sec. Sec. 1, 7, and the manner of balloting, 2 USC Sec. 9.
            For the general relationship of state power to 
        congressional power over elections, see Ex parte Siebold, 100 
        U.S. 383 (1880).
---------------------------------------------------------------------------

    Although Congress has the absolute power, as affirmed by numerous 
decisions of the Supreme

[[Page 860]]

Court, to fashion a complete code for congressional 
elections,(1) congressional regulation has been directed 
largely towards the failure of the states to ensure the regularity of 
elections under their own state laws and to the failure of the states 
to adequately protect the voting rights of all citizens entitled to 
vote.(2) The actual mechanism of holding congressional 
elections is traditionally left by Congress to the province of the 
states. In judging the elections and returns of its Members, the House 
has usually deferred to state law on the procedure of 
elections,(3) on recount remedies and the validity of 
ballots,(4) and on the functions of state election 
officials.(5)
---------------------------------------------------------------------------
 1. ``It cannot be doubted that these comprehensive words [art. I, 
        Sec. 4] embrace authority to provide a complete code for 
        congressional elections, not only as to times and places, but 
        in relation to notices, registration, supervision of voting, 
        protection of voters, prevention of fraud and corrupt 
        practices, counting of votes, duties of inspectors and 
        candidates, and making a publication of election returns; in 
        short, to enact numerous requirements as to procedure and 
        safeguards which experience shows are necessary in order to 
        enforce the fundamental right involved.'' Smiley v Holme, 825 
        U.S. 355, 366 (1932).
            Congress as judge of Members' qualifications, Ch. 7, supra.
 2. See Sec. 6, infra. Congress has also legislated extensively in the 
        field of campaign practices (see Sec. Sec. 10 et seq., infra).
 3. See Sec. 7, infra.
 4. See Sec. 8, infra.
 5. See Sec. Sec. 7, 8, infra.
---------------------------------------------------------------------------

    The Constitution not only grants the states power over election 
procedure, but also delegates to them the power to prescribe the 
qualifications for voters, who must possess those qualifications 
requisite to vote for the most numerous branch of the state 
legislature.(6) However, variances among the states in 
regard to the qualifications of electors have been greatly diminished 
through constitutional amendment, through judicial decisions, and 
through federal legislation.(7) The franchise has been 
extended to all citizens, male or female, regardless of color, race, 
creed, or wealth, who are at least 18 years of age. The right to vote 
in primaries which are an integral part of the election process, to 
register as voters, and to vote without discrimination, intimidation or 
threats, have been ensured by civil rights legislation spanning from 
1870 to the present. The courts have taken an active role in voiding 
state statutes and practices which deny the

[[Page 861]]

right to vote or prescribe unreasonable and discriminatory 
qualifications. Thus, although earlier judicial decisions suggested 
that Congress had no right to interfere with state regulation of state 
elections,(8) Congress in the Voting Rights Acts of 1964 and 
1965 enacted regulations applicable to elections for both state and 
federal officials.(9) The Supreme Court later upheld 
Congress' power under the 14th and 15th amendments to the Constitution 
to act to protect voters from state interference in state 
elections.(10)
---------------------------------------------------------------------------
 6. U.S. Const. art. I, Sec. 2, clause 1. See generally House Rules and 
        Manual Sec. Sec. 7, 8 (1973).
 7. See generally Sec. 6, infra.
 8. See Lackey v United States, 107 F 114 (6th Cir. 1901), cert. 
        denied, 181 U.S. 621; United States v Belvin, 46 F 381 (Cir. 
        Ct. Va. 1891); Ex parte Perkins, 29 F 900 (Cir. Ct. Ind. 1887).
 9. Pub. L. No. 88-352, 78 Stat. 241 (1964); Pub. L. No. 89-110, 79 
        Stat. 437 (1965).
10. South Carolina v Katzenbach, 383 U.S. 301 (1966); Katzenbach v 
        Morgan, 384 U.S. 641 (1966).
---------------------------------------------------------------------------

    The ultimate validity of elections rests on determinations by the 
House and Senate as final judges of the elections and returns of their 
respective Members,(11) and the temporary denial of a state 
to a seat in the House or Senate is a necessary consequence of 
Congress' power to judge such elections.(12) The House and 
the Senate construe the effect of state and federal legislation on 
elections both through the election contest process (13) and 
through independent investigations of the regularity and propriety of 
individual congressional elections.(14)
---------------------------------------------------------------------------
11. U.S. Const. art. I, Sec. 5, clause 1.
12. See Barry v United States ex rel. Cunningham, 279 U.S. 597 (1929).
13. See Sec. Sec. 5.4, 5.5, infra. See also Ch. 9, infra.
14. See Sec. 14, infra, for committee investigations of elections, and 
        Ch. 15, infra, for the investigative power of the House in 
        general.
---------------------------------------------------------------------------

    Although there is no constitutional provision for representation in 
the national legislature by territories of the United States or by the 
seat of government, Congress has by statute extended nonvoting 
representation in the House to those entities.(15) Where 
popular elections are held in territories or in the seat of government, 
limited power is delegated by Congress to the governing bodies thereof 
to regulate the conduct of such elections. Election contests 
challenging the regularity of elections or of results may be instituted 
in regard to territorial elections as well as to congressional 
elections within the states.(16)
---------------------------------------------------------------------------
15. For Delegates and the Resident Commissioner, see Ch. 7, supra.
16. See Sec. 5.5, infra.
            Contested election statutes, procedures and cases, see Ch. 
        9, infra.                          -------------------
---------------------------------------------------------------------------

Jurisdiction of States

Sec. 5.1 The Senate delayed judging an election pending a de

[[Page 862]]

    termination by the U.S. Supreme Court that a state could order an 
    election recount without violating the Senate's sole authority as 
    the judge of the elections and returns of its Members.

    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.'' (17)
---------------------------------------------------------------------------
17. 117 Cong. Rec. 6, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    Parliamentarian'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.(18)
---------------------------------------------------------------------------
18. Roudebush v Hartke, 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.
            Generally, where state law provides a remedy for 
        maladministration of an election, the state may retain 
        jurisdiction over election results until the remedial process 
        has been completed, although the House or Senate may make its 
        own independent judgment (see for example Sec. Sec. 8.1-8.4, 
        infra, and the cases cited therein). For an occasion where a 
        state court ruled to the contrary, see Sec. 5.2, infra.
---------------------------------------------------------------------------

Sec. 5.2 A Member who had been defeated in a primary election inserted 
    in the Record a state court opinion that the court lacked 
    jurisdiction to pass upon that Member's allegations of election 
    irregularities since the House had exclusive jurisdiction to decide 
    such questions and to declare the rightful nominee.

    On Sept. 23, 1970,(19) Mr. Byron G. Rogers, of Colorado, 
addressed the House in order to insert in the Record a recent opinion 
of the supreme court of Colorado, holding that the court had no 
jurisdiction to consider Mr. Rogers' allegations of election 
irregularities in a primary election where he had been defeated, and 
that the House had

[[Page 863]]

exclusive jurisdiction to decide such questions.
---------------------------------------------------------------------------
19. 116 Cong. Rec. 33320, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: The matter was later investigated by the 
Committee on House Administration, which did not report to the House 
thereon. The latter committee found that while there were 
irregularities in the election, there was no practical way of 
ascertaining whether they would have changed the result of the primary 
election.(20)
---------------------------------------------------------------------------
20. The opinion inserted by Mr. Rogers was later officially reported as 
        Rogers v Barnes, 172 Colo. 550, 474 P.2d 610 (1970). Compare 
        Roudebush v Hartke, 405 U.S. 15 (1972), cited at Sec.  5.1, 
        supra.
---------------------------------------------------------------------------

Sec. 5.3 To a bill vesting in federal courts jurisdiction over certain 
    voting rights actions, amendments prohibiting preemption of 
    jurisdiction of the state courts over elections in general were 
    held to be germane.

    On June 17, 1957, the House was considering H.R. 6127, a civil 
rights measure. The bill provided that jurisdiction should be vested in 
federal district courts over certain civil actions for protection of 
voting rights. An amendment was offered to prohibit preemption of 
jurisdiction of the state courts over elections. Chairman Aime J. 
Forand, of Rhode Island, held that the amendment was germane, since it 
was offered to sections of the bill that have to do with voting, and 
therefore with elections.(1)
---------------------------------------------------------------------------
 1. 103 Cong. Rec. 9394, 9395, 85th Cong. 1st Sess.
---------------------------------------------------------------------------

House Construction of State Election Statutes

Sec. 5.4 In judging the elections of its Members, the House may 
    construe the language of the applicable state election laws and 
    determine the effect of any violations thereof on such an 
    election.(2)
---------------------------------------------------------------------------
 2. See 78 Cong. Rec. 8921, 73d Cong. 2d Sess., May 25, 1934. For 
        detailed analysis, see Sec. 7.1, infra, and the precedents 
        referred to therein.
---------------------------------------------------------------------------

Sec. 5.5 Where a territorial act passed by Congress required the 
    Governor of the territory to deliver the certificate of election to 
    the Delegate but allowed the territorial legislature power over 
    election laws, a statute of the territory requiring the secretary 
    thereof to declare and certify election results was found 
    controlling in an election contest.(3)
---------------------------------------------------------------------------
 3. Unlike the states, which have power under U.S. Const. art. I, 
        Sec. 4, clause 1 to regulate elections by law, any power of 
        territories and of the seat of government over elections must 
        be delegated by congressional enactment.

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

[[Page 864]]

    On May 21, 1936, the Committee on Elections No. 2 submitted House 
Resolution 521 in the contested election case of McCandless v King for 
the seat of the Delegate from the territory of Hawaii.(4) 
The proposed resolution declared Mr. Samuel Wilder King to be duly 
elected as Delegate. The report analyzed the Hawaiian Organic Act, 
passed by Congress, to determine whether the contest had been filed 
within the proper time. The act required the territorial Governor 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 its legislature to amend the election laws.
---------------------------------------------------------------------------
 4. 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.
---------------------------------------------------------------------------

    The committee found 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 of 
whether the contestant had filed notice of contest within the time 
required by law.(5)
---------------------------------------------------------------------------
 5. H. Rept. No. 2736, Committee on Elections No. 2, 74th Cong. 2d 
        Sess.
---------------------------------------------------------------------------

State Action Denying Voting Rights

Sec. 5.6 Where the right of an entire state delegation to take the oath 
    was challenged by a citizens group which claimed systematic denial 
    of voting rights and which held citizen elections, the House 
    affirmed the right of the original delegation to the seats in 
    question.

    On Jan. 4, 1965, objection was made to the administration of the 
oath to the entire delegation of Members-elect from Mississippi. The 
House then adopted a resolution (H. Res. 1) authorizing those Members-
elect to be sworn in.(6)
---------------------------------------------------------------------------
 6. 111 Cong. Rec. 18-20, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

    The challenge to the administration of the oath to the Members from 
Mississippi was based on the constitutional argument that systematic 
denial of Negro voting rights throughout the state invalidated the 
entire election. The citizens group challenging the election had held 
its own election to choose five representatives.
    A formal election contest was instituted but was dismissed by the 
House on Sept. 17, 1965.(7)
---------------------------------------------------------------------------
 7. 111 Cong. Rec. 24291, 89th Cong. 1st Sess. For other materials on 
        the challenge, see pp. 18691 (July 29, 1965), 22364 (Aug. 31, 
        1965), 24263-92 (Sept. 17, 1965).

[[Page 865]]



Sec. 5.7 The House refused to overturn an election in a state with a 
    ``county unit'' primary election system, under which less populous 
    counties were entitled to a disproportionately larger electoral 
    vote than other counties in the same state.

    On Apr. 27, 1948, the House adopted without debate House Resolution 
553, dismissing the Georgia election contest of Lowe v 
Davis.(8)
---------------------------------------------------------------------------
 8. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: The House thereby refused to invalidate the 
Georgia ``county unit'' system for primaries, requiring use of county 
electoral votes rather than popular votes for choosing nominees. Under 
that system each candidate was required to receive a majority of county 
unit votes for nomination, and unit votes were allotted to less 
populous counties rather than strictly on the basis of 
population.(9)
---------------------------------------------------------------------------
 9. See the elections committee report in the case, H. Rept. No. 1823, 
        80th Cong. 2d Sess. The Supreme Court later invalidated the use 
        of the ``county unit'' system. Gray v Sanders, 372 U.S. 368 
        (1963).
---------------------------------------------------------------------------



 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
              B. TIME, PLACE, AND REGULATION OF ELECTIONS
 
Sec. 6. Elector Qualifications; Registration

    The original Constitution and Bill of Rights left the determination 
of qualifications required of electors to vote for Members of the House 
entirely up to the states.(10) At the time of the adoption 
of the Constitution, qualifications based on status, such as property 
ownership, were a widespread prerequisite to the exercise of voting 
rights. Since that time, the power of the states to prescribe the 
qualifications of electors for Representatives and for Senators 
(11) has been severely proscribed by constitutional 
amendments extending the franchise to U.S. citizens without regard to 
such matters as race, color, or sex,(12) and by federal 
legislation protecting the integrity of the congressional electoral 
process.(13)
---------------------------------------------------------------------------
10. U.S. Const. art. I, Sec. 2, clause 1. See also House Rules and 
        Manual Sec. Sec. 6, 7 (1973).
11. The 17th amendment altered the Constitution in directing the 
        election of Senators by the people of the state, rather than by 
        the state legislatures.
12. See the 15th amendment (race, color, previous condition of 
        servitude); the 19th amendment (sex); the 24th amendment (poll 
        tax); the 26th amendment (age).
13. For a summary of such legislation, see Constitution of the United 
        States of America: Analysis and Interpretation, S. Doc. No. 92-
        82, 108-111, 92d Cong. 2d Sess. (comments to U.S. Const. art. 
        I, Sec. 4, clause 1).

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

[[Page 866]]

    The first step in the voting process for electors is voting 
registration. Although registration is primarily regulated by the 
states, congressional authority to preempt state regulation extends to 
the registration process.(14) Civil rights legislation 
enacted by Congress has provided for federal registrars and other 
procedures to insure that citizens qualified under the Constitution are 
not denied voting participation by rejection of registration 
applications on an arbitrary or discriminatory basis.(15) In 
judging election contests, the House or Senate may have occasion to 
construe state laws regulating registration and the effect of 
violations thereof.(16)
---------------------------------------------------------------------------
14. See United States v Louisiana, 225 F Supp 353 (D. La. 1963), aff'd, 
        380 U.S. 145; Katzenbach v Original Knights of Ku Klux Klan, 
        250 F Supp 330 (D. La. 1965).
15. See, for example, 42 USC Sec. 1971 (a) (2), (e). See also South 
        Carolina v Katzenbach, 383 U.S. 301 (1966), construing 
        registration provisions of the Voting Rights Act of 1965. For 
        early federal court approval of federal registrars, see In re 
        Sundry Citizens, 23 F Cas. 13 (Ohio 1878).
16. See Sec. Sec. 6.1, 6.2, infra.
---------------------------------------------------------------------------

    The states may prescribe reasonable qualifications for voting in 
congressional elections as long as the requirements do not contravene 
constitutional provisions or conflict with preemptive federal 
legislation enacted pursuant to law.(17) Residency 
requirements, absence of a previous criminal record, and an objective 
requirement of good citizenship are examples of allowable voter 
qualifications.(18)
---------------------------------------------------------------------------
17. See Harman v Forssenius, 380 U.S. 528 (1965); Davis v Schnell, 81 F 
        Supp 872 (D. Ala. 1949), aff'd, 336 U.S. 933.
            Although the Constitution itself does not confer federal 
        voting rights on any person or class of persons, Kuffman v 
        Osser, 321 F Supp 327 (D. Pa. 1971), the electors do not owe 
        their right to vote to a state law prescribing qualifications 
        for the most numerous branch of their own legislature in any 
        sense which makes the exercise of the right depend exclusively 
        on the state law. Ex parte Yarbrough, 110 U.S. 663 (1884); 
        United States v Mosley, 238 U.S. 883 (1915).
18. Lassiter v Northampton County Board of Elections, 360 U.S. 45 
        (1959).
            In relation to Presidential elections, Congress abolished 
        state durational residency requirements and provided for 
        absentee balloting. See United States v Arizona, 400 U.S. 112 
        (1970).
---------------------------------------------------------------------------

    The first voter qualification which was prohibited from 
consideration by the states was race,

[[Page 867]]

color, or previous condition of servitude; the 15th amendment provided 
not only that the right of citizens to vote should not be denied on 
those grounds but also granted Congress the power to enforce the 
amendment by appropriate legislation. Race as a substantive 
qualification in elections and primaries,(19) as well as 
procedural requirements which effectively handicap the exercise of the 
franchise on account of race, were barred.(20)
---------------------------------------------------------------------------
19. The same test to determine discrimination or abridgement of right 
        to vote as applied in a general election should be applied to a 
        primary election, and a resolution of a political party 
        limiting membership to white citizens where membership in a 
        political party was an essential qualification was an 
        unconstitutional provision. Smith v Allwright, 321 U.S. 649 
        (1944), rehearing denied, 322 U.S. 769. For Congress' authority 
        over primaries, see Sec. 7, infra.
20. See Wayne v Wilson, 307 U.S. 268 (1939).
---------------------------------------------------------------------------

    Under the 15th amendment, Congress may legislate to protect the 
suffrage in all elections, both state and federal, against state 
interference based on race, color, or previous condition of 
servitude,(1) and under the 14th amendment Congress may act 
to prevent state interference with any citizen's voting 
rights.(2) Under article I, section 4, clause 1 of the 
Constitution, Congress can legislate against private as well as state 
interference but only in relation to federal elections.(3)
---------------------------------------------------------------------------
 1. See James v Bowman, 190 U.S. 127 (1903); United States v Reese, 92 
        U.S. 214 (1876); Larche v Hannah, 177 F Supp 816 (D. La. 1959), 
        reversed on other grounds, 263 U.S. 420, rehearing denied, 364 
        U.S. 855; South Carolina v Katzenbach, 383 U.S. 301 (1939).
 2. Katzenbach v Morgan, 384 U.S. 641 (1966); Oregon v Mitchell, 400 
        U.S. 112 (1970).
 3. See Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Yarbrough, 110 
        U.S. 651 (1884); United States v Classic, 313 U.S. 299 (1941).
---------------------------------------------------------------------------

    Congress has enacted a number of statutes, dating from 1870 to the 
present, providing a variety of remedies against interference with 
voting rights.(4) Some of those statutes have provided for 
federal officials to actively supervise congressional elections in the

[[Page 868]]

states and directed suspension of otherwise permissible voting tests, 
such as literacy requirements,(5) which are designed and 
administered so as to deny voting rights in a discriminatory 
way.(6)
---------------------------------------------------------------------------
 4. For early legislation, see Carr, Federal Protection of Civil 
        Rights: Quest for a Sword (Ithaca, 1947). Later acts were the 
        Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634; 
        Voting Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 86; 
        Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241; 
        Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437; 
        Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 73; 
        Civil Rights Act of 1970, Pub. L. No. 91-285, 84 Stat. 314.
 5. For permissible literacy requirements, see Lassiter v Northampton 
        County Board of Elections, 360 U.S. 45 (1959); Trudeau v 
        Barnes, 65 F2d 563 (5th Cir. 1933), cert. denied, 290 U.S. 659.
 6. For construction of federal legislation suspending literacy tests, 
        see Katzenbach v Morgan, 384 U.S. 641 (1966); South Carolina v 
        Katzenbach, 383 U.S. 301 (1966); Gaston County v United States, 
        395 U.S. 285 (1969). See also Davis v Schnell, 81 F Supp 872 
        (D. Ala. 1949), aff'd, 336 U.S. 933; Louisiana v United States, 
        380 U.S. 145 (1965).
            A ``grandfather clause'' exemption from an educational 
        qualification prescribed by a state constitution is 
        unconstitutional. Guinn v United States, 238 U.S. 347 (1915); 
        Myers v Anderson, 238 U.S. 368 (1915).
---------------------------------------------------------------------------

    On occasion, titles to seats in the House have been challenged for 
reason of denial of voting rights, either through a systematic state 
pattern (7) or through private action by either the 
candidate or party officials.(8) On many such occasions, 
challenges and contests have been dismissed or denied due to the 
difficulty in obtaining substantial evidence of actual abridgment of 
voting rights or of a connection between the challenged Member and the 
alleged abridgment.
---------------------------------------------------------------------------
 7. See Sec. Sec. 5.6, 5.7, supra.
 8. See Sec. Sec. 6.3, 6.5. infra.
---------------------------------------------------------------------------

    Other state-ordered voter qualifications have been removed by way 
of amendment of the federal Constitution. The right to vote regardless 
of sex was established in 1919 with the adoption of the 19th amendment. 
The right of all citizens to vote without paying a poll tax was 
affirmed through the adoption of the 24th amendment, following the 
passage by the House but not by the Senate of a bill in the 80th 
Congress to make unlawful a poll tax in any federal 
election.(9)
---------------------------------------------------------------------------
 9. See Sec. 6.7, infra.
---------------------------------------------------------------------------

    The right of citizens to vote has been set by the 26th amendment of 
the Constitution at 18 years of age or older. Prior to the adoption of 
this amendment, Congress had amended the Voting Rights Act in 1970 to 
authorize 18-year-olds to vote in all elections, both state and 
federal.(10) The Supreme Court held that although Congress 
did have authority under the Constitution to fix the age of voters in 
federal elections,(11) Con

[[Page 869]]

gress had no power to fix an age requirement for voting in state 
elections.(12)
---------------------------------------------------------------------------
10. See Pub. L. No. 91-285, 84 Stat. 314.
11. One Justice was of the opinion that power was conferred on Congress 
        by U.S. Const. art. I, Sec. 4, clause 1, and four Justices were 
        of the opinion that power was conferred on Congress by the 
        enforcement clause of the 14th amendment, Sec. 5. United States 
        v Arizona, 400 U.S. 112 (1970), rehearing denied, 401 U.S. 903.
12. The Court held that the 10th amendment to the Constitution reserved 
        to the states the power to establish voter age qualifications 
        in state and local elections. Oregon v Mitchell, 400 U.S. 112 
        (1970).                          -------------------
---------------------------------------------------------------------------

Voter Registration

Sec. 6.1 Violations of a state's registration and election laws 
    prohibiting transportation of voters to places of registration, 
    providing qualifications for registrars, confining registration to 
    certain hours, and requiring detailed registration lists were held 
    not to affect the results of an election, and therefore did not 
    nullify the election.

    On June 19, 1948, the House adopted without debate House Resolution 
692, dismissing an election contest:

        Resolved, That the election contest of David J. Wilson, 
    contestant, against Walter K. Granger, contestee, First 
    Congressional District of Utah, be dismissed and that the said 
    Walter K. Granger is entitled to his seat as a Representative of 
    said district and State.(13)
---------------------------------------------------------------------------
13. 94 Cong. Rec. 9184, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
The resolution was adopted pursuant to a report of the Committee on 
House Administration recommending the contest be dismissed; the 
committee had determined that violations of Utah's registration laws 
applicable to congressional elections did not affect the election 
results and did not require the voiding of the election.(14) 
The registration laws in issue prohibited transportation of voters to 
places of registration, required qualifications of registrars, confined 
registration to particular hours, and mandated detailed registration 
lists.
---------------------------------------------------------------------------
14. H. Rept. No. 2418, submitted June 17, 1948, 94 Cong. Rec. 8964, 
        80th Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 6.2 To provide a basis for the rejection of votes allegedly given 
    by illegal registrants, challenge must have been made at the time 
    of registration.

    On Mar. 19, 1952, the House adopted without debate House Resolution 
580, affirming the right of a Member-elect to his seat:

        Resolved, That Ernest Greenwood was duly elected as 
    Representative

[[Page 870]]

    from the First Congressional District of New York to the Eighty-
    second Congress and is entitled to his seat.(15)
---------------------------------------------------------------------------
15. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.

The resolution was adopted pursuant to a report of the Committee on 
House Administration submitted on the same day. The committee had ruled 
that votes claimed to have been given by illegal and fictitious 
registrants in congressional elections must have been challenged at the 
time of registration. Where the contestant files petitions to annul the 
votes of such registrants, he must show that he took testimony from 
those registrants and that they voted for his opponent.(16)
---------------------------------------------------------------------------
16. H. Rept. No. 1599, 98 Cong. Rec. 2545, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

Challenges to Seats for Denial of Voting Rights

Sec. 6.3 Where the House by resolution has authorized the Committee on 
    House Administration to investigate the question of the final right 
    of a Member to his seat, the committee will not consider charges 
    against party officials that they conspired to nullify the will of 
    the voters, where there is no evidence to connect the Member to 
    such conspiracy.

    On Sept. 8, 1959, the Committee on House Administration submitted a 
report of an investigation of the final right of a Member to his 
seat.(17) The report stated in part that the committee had 
refused to consider charges against Arkansas party officials that they 
had conspired to nullify the will of the voters, where no evidence was 
tendered to connect the challenged Member, Mr. Dale Alford, with any 
such conspiracy.
---------------------------------------------------------------------------
17. H. Rept. No. 1172, 105 Cong. Rec. 18610, 86th Cong. 1st Sess. The 
        House adopted H. Res. 380, affirming the right to a seat of Mr. 
        Alford (Ark.), id. at p. 18611.
---------------------------------------------------------------------------

Sec. 6.4 Where the right of an entire state delegation to take the oath 
    was challenged by reason of systematic denial of voting rights, the 
    challenge was treated as a contested election case and later 
    dismissed by the House.

    On Jan. 4, 1965, the convening day of the 89th Congress, a 
challenge was made to the administration of the oath to all the 
Members-elect from Mississippi. Those Members-elect stepped aside as 
the oath was administered to the other Members.(18) The 
House then authorized the Members-elect from Mississippi to be sworn in 
after Mr. Carl Albert, of Okla

[[Page 871]]

homa, stated that ``Any question involving the validity of the 
regularity of the election of the Members in question is one which 
should be dealt with under the laws governing contested elections.'' 
(19)
---------------------------------------------------------------------------
18. 111 Cong. Rec. 18, 19, 89th Cong.
19. Id. at pp. 19, 20.
---------------------------------------------------------------------------

    Election contest proceedings were then instituted,(20) 
and the House later dismissed the contest.(1)
---------------------------------------------------------------------------
20. See 111 Cong. Rec. 24263-92, 89th Cong. 1st Sess., Sept. 17, 1965; 
        111 Cong. Rec. 22364, 89th Cong. 1st Sess., Aug. 31, 1965; and 
        111 Cong. Rec. 18691, 89th Cong. 1st Sess., July 29, 1965.
 1. One of the sitting Members whose seat was being contested voted on 
        the resolution dismissing the contest and then withdrew his 
        vote and was recorded as present. He stated that he felt he had 
        the privilege of voting on the resolution since in hearings 
        before the elections committee it was agreed that the election 
        contest was an attack upon the seats of the State of 
        Mississippi rather than against the individual Members-elect. 
        111 Cong. Rec. 24292, 89th Cong. 1st Sess., Sept. 17, 1965.
---------------------------------------------------------------------------

Sec. 6.5 Exclusion proceedings were sought in the 80th Congress against 
    a Senator-elect charged with conspiracy to prevent voters from 
    participating in sensational elections.(2)
---------------------------------------------------------------------------
 2. See Sec. 7.8, infra, for Senate expulsion proceedings in relation 
        to a candidate's illegal control of election machinery and 
        destruction of opposing ballots.
---------------------------------------------------------------------------

    On Jan. 4, 1947, at the convening of the 80th Congress, the right 
of Senator-elect Theodore G. Bilbo, of Mississippi, to be sworn in and 
to take a seat in the Senate was challenged by the presentation of 
Senate Resolution 1, which read:

        Whereas the Special Committee To Investigate Senatorial 
    Campaign Expenditures, 1946, has conducted an investigation into 
    the senatorial election in Mississippi in 1946, which investigation 
    indicates that Theodore G. Bilbo may be guilty of violating the 
    Constitution of the United States, the statutes of the United 
    States, and his oath of office as a Senator of the United States in 
    that he is alleged to have conspired to prevent citizens of the 
    United States from exercising their constitutional rights to 
    participate in the said election; and that he is alleged to have 
    committed violations of Public Law 252, Seventy-sixth Congress, 
    commonly known as the Hatch Act; and
        Whereas the Special Committee To Investigate the National 
    Defense Program has completed an inquiry into certain transactions 
    between Theodore G. Bilbo and various war contractors and has found 
    officially that the said Bilbo, ``in return for the aid he had 
    given certain war contractors and others before Federal 
    departments, solicited and received political contributions, 
    accepted personal compensation, gifts, and services, and solicited 
    and accepted substantial amounts of money

[[Page 872]]

    for a personal charity administered solely by him'' . . . and 
    ``that by these transactions Senator Bilbo misused his high office 
    and violated certain Federal statutes''; and
        Whereas the evidence adduced before the said committees 
    indicates that the credentials for a seat in the Senate presented 
    by the said Theodore G. Bilbo are tainted with fraud and 
    corruption; and that the seating of the said Bilbo would be 
    contrary to sound public policy, harmful to the dignity and honor 
    of the Senate, dangerous to the perpetuation of free Government and 
    the preservation of our constitutional liberties; Now, therefore, 
    be it
        Resolved, That the claim of the said Theodore G. Bilbo to a 
    seat in the United States Senate is hereby referred to the 
    Committee on Rules and Administration with instructions to grant 
    such further hearing to the said Theodore G. Bilbo on the matters 
    adduced before the Special Committee To Investigate Senatorial 
    Campaign Expenditures, 1946, and the Special Committee To 
    Investigate the National Defense Program and to take such further 
    evidence as shall be proper in the premises, and to report to the 
    Senate at the earliest possible date; that until the coming in of 
    the report of said committee, and until the final action of the 
    Senate thereon, the said Theodore G. Bilbo be, and he is hereby, 
    denied a seat in the United States Senate.(3)
---------------------------------------------------------------------------
 3. 93 Cong. Rec. 7, 8, 80th Cong. 1st Sess., Jan. 3, 1947.
---------------------------------------------------------------------------

    After debate, the Senate laid on the table the resolution and the 
question as to whether the Senator-elect was to be sworn in, without 
prejudice to his rights, since he had recently undergone an operation 
and required further medical care. Senator-elect Bilbo later died in 
the first session of the 80th Congress, before any further 
consideration of his right to be sworn in.(4)
---------------------------------------------------------------------------
 4. 93 Cong. Rec. 109, 80th Cong. 1st Sess., Jan. 4, 1947. For the 
        announcement of Nov. 17, 1947, concerning Theodore G. Bilbo's 
        death, see 93 Cong. Rec. 10569, 80th Cong. 1st Sess.
---------------------------------------------------------------------------

Poll Tax Requirements

Sec. 6.6 Members of the House were advised that an individual who 
    threatened to contest the elections of Members from states having 
    poll taxes had no legal standing to contest such elections.

    On Feb. 14, 1945, Hatton W. Sumners, of Texas, Chairman of the 
Committee on the Judiciary, addressed the House in relation to the 
claim of a private citizen that he could contest the elections of 71 
Members of the House of Representatives: Mr. Sumners inserted in the 
Record a letter he had written to one such Member, advising him that 
the citizen referred to had no standing to bring such election contests 
Mr. Sumners advised Members to ignore the claim of the 
citizen.(5)
---------------------------------------------------------------------------
 5. 91 Cong. Rec. 1083, 1084, 79th Cong. 1st Sess.
            For election contests initiated by petition of citizens, 
        see Ch. 9, infra.

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

[[Page 873]]

Sec. 6.7 The House under suspension of the rules passed a bill making 
    unlawful a requirement for the payment of a poll tax as a 
    prerequisite to voting in a primary or other election for national 
    officers, despite objections to its constitutionality.

    On July 21, 1947, the House passed H.R. 29, rendering unlawful a 
state poll tax as a prerequisite to voting in a primary or other 
election for national officers.(6) The bill was passed by 
the House under suspension of the rules despite a point of order that 
the bill violated the U.S. Constitution, especially article I, section 
2, which authorizes the states, not Congress, to set the qualifications 
of electors for Representatives. Speaker Joseph W. Martin, of 
Massachusetts, overruled the point of order on the grounds that the 
Chair does not pass on the constitutionality of proposed legislation.
---------------------------------------------------------------------------
 6. 93 Cong. Rec. 9552, 80th Cong. 1st Sess. For debate on the bill, 
        see pp. 9522-52.
---------------------------------------------------------------------------

    The Senate rejected the bill, but a constitutional amendment with 
the same purpose was later ratified (see Sec. 6.8, infra).

Sec. 6.8 While the Committee on House Administration has jurisdiction 
    over legislation relating to poll tax requirements for federal 
    elections, the Committee on the Judiciary has jurisdiction over 
    proposals to amend the Constitution relative to federal election 
    requirements.

    On July 26, 1949,(7) Speaker Sam Rayburn, of Texas, 
submitted to the House the question as to the engrossment and third 
reading of H.R. 3199, the anti-poll tax bill. Mr. Robert Hale, of 
Maine, arose to offer a motion to recommit the bill to the Committee on 
House Administration with directions that it report the legislation 
back to the House in the form of a joint resolution amending the 
Constitution to make payment of poll taxes--as a qualification for 
voting--illegal. The Speaker ruled that the language carried in the 
motion to recommit was not germane to the bill since a constitutional 
amendment would lie within the jurisdiction of the Committee on the 
Judiciary and not the Committee on House Administration.
---------------------------------------------------------------------------
 7. 95 Cong. Rec. 10247, 81st Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 6.9 In the 87th Congress, a Senate joint resolution proposing a 
    national monument was amended in the Senate

[[Page 874]]

    by striking all after the resolving clause and inserting provisions 
    of a constitutional amendment abolishing the poll 
    tax.(8)
---------------------------------------------------------------------------
 8. The Anti-Poll Tax Amendment was ratified by 38 states and became 
        effective Jan. 23, 1964. 110 Cong. Rec. 1077, 88th Cong. 2d 
        Sess. (see U.S. Const., 24th amendment).
---------------------------------------------------------------------------

    On Mar. 27, 1962, the Senate was considering Senate Joint 
Resolution 29, providing for the establishment of a national monument. 
An amendment was offered to strike out all after the resolving clause 
of the resolution and to insert the provisions of a constitutional 
amendment abolishing the poll tax in the states. The Vice President 
ruled that the joint resolution could be so amended; he also ruled that 
only a majority vote was required for the adoption of a substitute, 
although a two-thirds vote was required on the adoption of the 
resolution as amended.(9)
---------------------------------------------------------------------------
 9. 108 Cong. Rec. 5086, 87th Cong. 2d Sess. (Vice President Johnson 
        [Tex.]). The Senate proceeded to pass the amended resolution by 
        a two-thirds vote.
            For the entire Senate debate on the amendment and the 
        method by which it was being offered, see pp. 5072-105.
---------------------------------------------------------------------------

    The House passed the measure under a motion to suspend the rules on 
Aug. 27, 1962.(10)
---------------------------------------------------------------------------
10. 108 Cong. Rec. 17670, 87th Cong. 2d Sess.
---------------------------------------------------------------------------

Residency Requirements

Sec. 6.10 An elections committee invalidated votes cast by workers who 
    were only temporarily in an election district, but found that those 
    votes, though disregarded, would not affect the outcome of the 
    election.

    On Mar. 11, 1940, Elections Committee No. 3 submitted Report No. 
1722 in an elections case, recommending that the seated Member, Mr. 
Harrington, be declared entitled to his seat:

        Resolved, That Albert F. Swanson is not entitled to a seat in 
    the House of Representatives in the Seventy-sixth Congress from the 
    Ninth Congressional District of Iowa.
        Resolved, That Vincent F. Harrington is entitled to a seat in 
    the House of Representatives in the Seventy-sixth Congress from the 
    Ninth Congressional District of Iowa.(11)
---------------------------------------------------------------------------
11. 86 Cong. Rec. 2662, 76th Cong. 3d Sess. (H. Res. 419).

The resolution was agreed to, the committee having determined that, 
although certain votes cast by workers temporarily present in the 
election district were invalid, the rejection of those votes would not 
change the result of the election.

Sec. 6.11 A contestant who alleges that certain voters in an

[[Page 875]]

    election did not reside in the precincts where registered must 
    present evidence of the claimed irregularities sufficient to 
    overcome the presumption that the election officials properly 
    performed their duties.

    On Mar. 19, 1952, the House adopted without debate House Resolution 
580, affirming the right of a Member-elect to a seat:

        Resolved, That Ernest Greenwood was duly elected as 
    Representative from the First Congressional District of New York to 
    the Eighty-second Congress and is entitled to his 
    seat.(12)
---------------------------------------------------------------------------
12. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

    The resolution was adopted pursuant to a report of the Committee on 
House Administration submitted on the same day. The committee found 
that votes claimed to have been given by illegal registrants, not 
residing in the precincts where registered, must have been challenged 
at the time they registered or voted. The committee also invoked the 
general rule that the contestant must produce evidence in such cases, 
through testimony and documents, proving the fact of nonresidence in 
the county for the statutory period of time, to overcome the 
presumption that election officials properly perform their 
duties.(13)
---------------------------------------------------------------------------
13. H. Rept. No. 1599 (98 Cong. Rec. 2545, 82d Cong. 2d Sess.). The 
        committee had also found that a local court opinion was 
        controlling as to when residence commenced to run, in the 
        absence of challenge to a registrant at the time of 
        registration or voting.
---------------------------------------------------------------------------

Federal Protection of Voting Rights

Sec. 6.12 In the 89th Congress, the President delivered a special 
    message on voting rights to a joint session and submitted to 
    Congress proposed legislation which was enacted into law as the 
    Voting Rights Act of 1965.

    On Mar. 15, 1965, the House and Senate met in joint session, 
pursuant to House Concurrent Resolution 117, to hear an address by the 
President of the United States.(14) The President's message 
was directed to denial of voting rights on racial grounds and urged the 
passage of federal civil rights legislation to protect those 
rights.(15)
---------------------------------------------------------------------------
14. 111 Cong. Rec. 5058, 89th Cong. 1st Sess.
15. Id. at pp. 5058-63. The President submitted a legislative proposal 
        for voting rights legislation which became H.R. 6400.
---------------------------------------------------------------------------

    The legislation suggested by the President led to the passage by 
Congress of the Voting Rights Act of 1965, the bill being signed by the 
President at the Capitol on

[[Page 876]]

Aug. 6, 1965.(16) In 1966, the act was upheld as 
constitutional by the U.S. Supreme Court.(17)
---------------------------------------------------------------------------
16. On Aug. 6, 1965, the Senate stood in recess in order to receive the 
        President of the United States. When the Senate reassembled, 
        there was ordered to be printed in the Congressional Record the 
        proceedings conducted at noon on the same day, when the 
        President had delivered a message in the Rotunda of the Capitol 
        and then retired to the President's Room in the Capitol in 
        order to sign into law the Voting Rights Act of 1965. 111 Cong. 
        Rec. 19649, 19650, 89th Cong. 1st Sess. For the Voting Rights 
        Act of 1965, see Pub. L. No. 89-110, 79 Stat. 437. For 
        codification see 42 USC Sec. Sec. 1971 et seq.
17. In upholding the validity of the 1965 Voting Rights Act in 
        Katzenbach v Morgan, 384 U.S. 641 (1966), the Supreme Court 
        cited congressional materials in finding a rational basis for 
        the act. See 111 Cong. Rec. 10676, 10680 (May 20, 1965), 15671 
        (July 9, 1965), 89th Cong. 1st Sess.
---------------------------------------------------------------------------



                               CHAPTER 8
 
                    Elections and Election Campaigns
 
              B. TIME, PLACE, AND REGULATION OF ELECTIONS
 
Sec. 7. Time and Place; Procedure

    Article I, section 4, clause 1 of the Constitution vests in the 
states the power to prescribe the times, places, and manner of holding 
elections for Senators and Representatives but allows Congress 
preemptive authority to supersede or change any such state 
regulation.(18) Although Congress has enacted extensive 
legislation to protect the right to vote and to secure the process 
against fraud, bribery and illegal conduct,(19) the actual 
mechanism for conducting congressional elections has been left largely 
to the states. And in judging the elections of their Members, the House 
and the Senate defer in great part to state law regarding elections and 
to state court opinions construing such election laws.(20)
---------------------------------------------------------------------------
18. See United States v Mumford, 16 F 223 (Cir. Ct. Va. 1883). For a 
        general discussion of the delineation of power over the 
        regulation of elections, see Sec. 5, supra.
19. For legislation protecting the right to vote, see Sec. 6, supra. 
        See Sec. Sec. 10-14, infra, as to federal regulation of 
        campaign practices.
20. See Sec. 7.1, infra.
---------------------------------------------------------------------------

    The place where elections shall be held is for the states to 
determine, qualified only by the requirement that Representatives must 
be chosen in congressional districts which comply with statutory and 
constitutional requirements.(1)
---------------------------------------------------------------------------
 1. For districting requirements, see Sec. Sec. 3, 4, supra.
---------------------------------------------------------------------------

    Poll facilities and functions of state officials at polling places 
are a matter of state regulation, but the House and Senate must often

[[Page 877]]

examine such state laws in order to determine the validity of the 
elections of their respective Members.(2) Unintentional 
maladministration of elections and erroneous conduct by state election 
officials at the polls do not usually invalidate elections; 
(3) but where the conduct of election officials or of 
candidates and their agents constitutes fraud or illegal control of 
election machinery, the House or Senate may void an election and 
exclude a Member-elect, or expel a Member charged with such 
conduct.(4) And Congress has the power not only to enact 
laws providing for the enforcement of state provisions ensuring 
election regularity,(5) but also to establish federal 
systems for the supervision of voting and election registration 
procedures.(6)
---------------------------------------------------------------------------
 2. See U.S. Const. art. I, Sec. 5, clause 1, vesting in the House and 
        the Senate the exclusive authority to judge the elections and 
        returns of their Members.
 3. See Sec. Sec. 7.6, 7.7, infra.
            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).
 4. See Sec. 7.8, infra.
 5. See In re Coy, 127 U.S. 731 (1888); United States v Gale, 109 U.S. 
        65 (1883); Ex parte Clarke, 100 U.S. 399 (1880); Ex parte 
        Siebold, 100 U.S. 371 (1880).
 6. See Ex parte Yarbrough, 110 U.S. 651 (1884); Ex parte Siebold, 100 
        U.S. 371 (1880).
            For a summary of recent federal voting rights legislation 
        establishing supervisory federal election officials. see 
        Sec. 6, supra.
---------------------------------------------------------------------------

    The states may set general requirements for the placing of a 
candidate's name on the ballot where such requirements do not amount to 
qualifications in addition to those prescribed by the Constitution for 
Senators and Representatives.(7)
---------------------------------------------------------------------------
 7. A state may, for example, require a filing fee for a candidate. 
        Fowler v Adams, 315 F Supp 592 (D. Fla. 1970), appeal 
        dismissed, 400 U.S. 986. For the qualifications of Members-
        elect to the House and Senate, and the lack of state power to 
        add to those requirements, see Ch. 7, supra.
---------------------------------------------------------------------------

    Primaries to nominate candidates for congressional election are 
regulated by state law, and both the House and Senate construe 
individual state statutes to determine whether a Member-elect is 
entitled to his seat where allegedly not nominated in compliance with 
state law.(8)
---------------------------------------------------------------------------
 8. See Sec. Sec. 7.3-7.5, infra.
---------------------------------------------------------------------------

    The authority of Congress to supersede state election laws ex

[[Page 878]]

tends to primaries, since they are an integral part of the election 
process.(9)
---------------------------------------------------------------------------
 9. See United States v Classic, 313 U.S. 299 (1941); United States v 
        Wurzbach, 280 U.S. 396 (1930). Authority to the contrary, 
        Newberry v United States, 256 U.S. 232 (1921), was overruled by 
        the decisions 
        above.                          -------------------
---------------------------------------------------------------------------

State Authority to Prescribe Election Regulations

Sec. 7.1 Congress, in judging the elections of its Members, will follow 
    state law as to the time, place and manner of holding elections, in 
    the absence of a controlling federal law.(10)
---------------------------------------------------------------------------
10. For state authority generally, see U.S. Const. art. I, Sec. 4, 
        clause 1, discussed in Sec. 5, supra.
---------------------------------------------------------------------------

    On Jan. 20, 1934, a committee on elections submitted House 
Resolution 231 and Report 334, declaring null and void an election and 
denying the seat to either of two contestants, one with a certificate 
of election from the governor and one with a certificate of election 
from a citizens' committee.
    The resolution read as follows:

        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 
    the State in the Sixth Congressional District 
    thereof.(11)
---------------------------------------------------------------------------
11. 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.
---------------------------------------------------------------------------

    The committee had determined (see Report 334), 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 preliminary time period required by state law; 
although the election was invalid, a party committee could not itself 
nominate a candidate and hold an election to choose him as a 
Representative to Congress.
    After debate,(12) the House adopted the resolution 
declaring the election null and void.(13)
---------------------------------------------------------------------------
12. 78 Cong. Rec. 1108-11, 73d Cong. 2d Sess., Jan. 22, 1934; 78 Cong. 
        Rec. 1510-21, 73d Cong. 2d Sess., Jan. 29 1934.
13. 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934.
---------------------------------------------------------------------------

Primary Nominations

Sec. 7.2 On the recommendation of a committee, the House re

[[Page 879]]

    fused to deprive a properly nominated Member of his seat for 
    irregularity in the nomination of his opponent.

    On June 14, 1967, the Committee on House Administration submitted 
Report No. 365 to accompany House Resolution 541, denying the petition 
of a citizen that the seat of Mr. Fletcher Thompson, of Georgia, be 
vacated, based upon the nomination of his opponent in alleged 
contradiction of state law.(14)
---------------------------------------------------------------------------
14. 113 Cong. Rec. 15848, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    The House considered the resolution on July 11, 1967. Mr. Robert T. 
Ashmore, of South Carolina, summarized the background of the election 
contest and urged the adoption of the resolution, since no precedent 
existed for depriving a seated Member of his seat for the irregular or 
illegal nomination of his opponent. Mr. Charles E. Goodell, of New 
York, stated that a Georgia court had dismissed a petition urging that 
Mr. Thompson's opponent be enjoined from entering the race because of 
his allegedly illegal nomination.(15)
---------------------------------------------------------------------------
15. 113 Cong. Rec. 18290, 18291, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    The House then agreed to the resolution dismissing the election 
contest and denying the petition.(16)
---------------------------------------------------------------------------
16. Id. at p. 18291.
---------------------------------------------------------------------------

Sec. 7.3 Where state law requires the nomination of candidates by 
    direct primary elections called by party committees, but permits 
    such committees to themselves nominate candidates where the party 
    has no nominee for any position named in the call of the committee, 
    the nomination of a candidate by a committee which had not first 
    called a primary election is invalid.

    On Jan. 20, 1934, a committee on elections submitted a report and 
resolution recommending that the House declare an election null and 
void, because the regular election had been held at an improper time 
and because the contestant had been elected and certified by a party 
committee in contravention of Louisiana law.(17) The House 
adopted the resolution on Jan. 29, 1934, thereby determining that the 
nomination of a candidate by a party committee which had not first 
called a primary election was invalid, state law requiring nomination 
of party candidates in direct primary elections, but allowing 
committees to themselves nominate candidates where the party ``shall 
have no nominee . . . for any position

[[Page 880]]

named in the call of the committee.''
---------------------------------------------------------------------------
17. 78 Cong. Rec. 1035, 73d Cong. 2d Sess. (H. Res. 231 and H. Rept. 
        No. 334).
---------------------------------------------------------------------------

    The resolution read as follows:

        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.(18)
---------------------------------------------------------------------------
18. 78 Cong. Rec. 1521, 73d Cong. 2d Sess. For debate on the 
        resolution, see 78 Cong. Rec. 1108-11, Jan. 22, 1934; 78 Cong. 
        Rec. 1510-21, Jan. 29, 1934.
---------------------------------------------------------------------------

Sec. 7.4 The House refused to overturn an election in a state with a 
    ``county unit'' primary election system, where less populous 
    counties were entitled to a disproportionately large electoral vote 
    for nominees.

    On Apr. 27, 1948, the House adopted without debate House Resolution 
553, dismissing the Georgia election contest of Lowe v Davis:

        Resolved, That the election contest of Wyman C. Lowe, 
    contestee, against James C. Davis, contestee, Fifth Congressional 
    District of Georgia, be dismissed and that the said James C. Davis 
    is entitled to his seat as a Representative of said District and 
    State.(19)
---------------------------------------------------------------------------
19. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: The House thereby refused to invalidate the 
Georgia ``county unit'' system for primaries, requiring use of county 
electoral votes rather than popular votes for choosing nominees. Under 
the system each candidate was required to receive a majority of county 
unit votes for nomination, and unit votes were allotted in favor of 
less populous counties rather than strictly by 
population.(20)
---------------------------------------------------------------------------
20. See the elections committee report in the case, H. Rept. No. 1823, 
        80th Cong. 2d Sess. The Supreme Court later invalidated the use 
        of the ``county unit'' system. Gray v Sanders, 372 U.S. 368 
        (1963).
---------------------------------------------------------------------------

Sec. 7.5 Where a Senator was elected to a full six-year term by a 
    ``write-in'' vote, following the death of his predecessor at a time 
    too late for a new nominating primary, he announced his resignation 
    to permit nomination of a candidate in a regular primary election 
    in which he would be a candidate.

    On Mar. 6, 1956,(1) Senator James Strom Thurmond, of 
South

[[Page 881]]

Carolina, inserted in the Record an announcement he had made in his 
home state on the subject of his resignation from the Senate. He had 
been elected by a ``write-in'' vote at a general election held two 
months after the death of his predecessor in the Senate. He had pledged 
to the people of his state that he would resign after election to the 
Senate by a write-in vote to permit the nomination of a Senator in a 
regular primary election. Mr. Thurmond announced his candidacy for the 
unexpired term created by the vacancy.
---------------------------------------------------------------------------
 1. 102 Cong. Rec. 3991, 84th Cong. 2d Sess.
---------------------------------------------------------------------------

Conduct of Poll Officials

Sec. 7.6 Statutory functions of election and poll officials are 
    directory in nature, and errors in election administration at the 
    polls, absent fraud, do not normally invalidate ballots or 
    elections.

    In ruling on election contests, House election committees have 
followed the general rule that violations by state poll and election 
officials of their functions under state statutes do not vitiate 
ballots or void elections, in the absence of fraud, since laws 
prescribing the duties of the officials are directory in 
nature.(2) Committees have determined that failure to 
provide at the polls proper instruments to mark ballots do not 
invalidate ballots;(3) that failure of precinct or poll 
clerks to initial ballots is not a crucial error;(\4\) that 
distribution of stickers at polling places to be used on ballots is 
allowable, where state law is uncertain as to sticker votes but the 
state executive and judiciary permit their use;(5) and that 
violation of state laws regarding poll procedure and disposition of 
absentee ballots, envelopes and applications is not fatal to the 
validity of the absentee ballots.(6)
---------------------------------------------------------------------------
 2. Laws directing the manner in which ballots are to be marked are 
        mandatory and noncompliance therewith may invalidate ballots 
        (see Sec. 8.11, infra).
 3. Report No. 513, submitted June 13, 1961, 87th Cong. 1st Sess.; see 
        107 Cong. Rec. 10186.
 4. Id.
 5. Report No. 1172, submitted Sept. 8, 1959, 86th Cong. 1st Sess.; see 
        105 Cong. Rec. 18610.
 6. Report No. 2482, submitted Aug. 6, 1958, 85th Cong. 2d Sess.; see 
        104 Cong. Rec. 16481.
---------------------------------------------------------------------------

Voting Facilities

Sec. 7.7 The Senate refused to void an election where in various 
    counties no voting booths were provided, where there were no 
    officials present to aid incapacitated voters, and where question

[[Page 882]]

    able ballots were destroyed by court order.(7)

    On Mar. 23, 1954, the Senate rejected the following resolution, 
reported from the Subcommittee on Privileges and Elections of the 
Committee on Rules and Administration:
---------------------------------------------------------------------------
 7. For House decisions on the validity of ballots, see Sec. 8.11, 
        infra.
---------------------------------------------------------------------------

        Resolved, That it is the judgment of the Senate in the November 
    4, 1952, general election, in and for the State of New Mexico, no 
    person was elected as a Member of the Senate from that state, and 
    that a vacancy exists in the representation of that state in the 
    Senate.
        The Secretary of the Senate is directed to submit a copy of 
    this resolution to the Governor of the State of New 
    Mexico.(8)
---------------------------------------------------------------------------
 8. 100 Cong. Rec. 3732, 3733, 83d Cong. 2d Sess.

The resolution was predicated on the failure of New Mexico election 
authorities to provide voting secrecy by providing booths in all 
counties, the absence of officials to help blind and incapacitated 
persons in voting, and the destruction of ballots by court 
order.(9)
---------------------------------------------------------------------------
 9. For debate on the resolution and remarks describing the errors and 
        irregularities in the New Mexico election, see 100 Cong. Rec. 
        3696-732, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

    In urging the rejection of the resolution, Senator Walter F. 
George, of Georgia, cited the rule laid down by the Senate in judging 
past elections of its Members:

        It will be noted that, according to this statement of the rule, 
    the irregularity or error does not of itself create a situation 
    where it must be shown that the result was not affected. In order 
    to set aside an election there must be not only proof of 
    irregularities and errors, but, in addition thereto, it must be 
    shown that such irregularities or errors did affect the 
    result.(10)
---------------------------------------------------------------------------
10. Id. at p. 3731.
---------------------------------------------------------------------------

Illegal Control of Election Machinery

Sec. 7.8 In the 77th Congress, the Senate failed to expel, by the 
    necessary two-thirds vote, a Senator whose election had been 
    challenged on various grounds, including his alleged illegal 
    control of election procedure.

    On Jan. 3, 1941, at the convening of the 77th Congress, Mr. William 
Langer, of North Dakota, took the oath of office, despite charges from 
the citizens of the state recommending that he be denied a 
congressional seat because of campaign fraud and of conduct involving 
moral turpitude.(11)
---------------------------------------------------------------------------
11. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.
---------------------------------------------------------------------------

    The petition against Mr. Langer alleged, among other charges, con

[[Page 883]]

trol of election machinery, casting of illegal election ballots, and 
destruction of legal election ballots.(12)
---------------------------------------------------------------------------
12. 88 Cong. Rec. 2077-81, 77th Cong. 2d Sess., Mar. 9, 1942.
---------------------------------------------------------------------------

    After determining that a two-thirds vote was necessary for 
expulsion,(13) the Senate voted not to expel Senator 
Langer.(14)
---------------------------------------------------------------------------
13. Id. at p. 3064.
14. Id. at p. 3065. See Sec. Sec. 6.3-6.5, supra, for instances in 
        which election results were challenged for control of election 
        machinery so as to deny voting rights.
---------------------------------------------------------------------------



 
                               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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
17. See Sec. Sec. 8.9, 8.10 for impoundment of ballot boxes and their 
        contents.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
18. See Sec. 8.11, infra.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 1. See Sec. 8.5, infra.
 2. See Sec. 8.7, infra.
 3. See Sec. 8.8, infra.
---------------------------------------------------------------------------

                          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)
---------------------------------------------------------------------------
 4. 117 Cong. Rec. 6, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 6. 81 Cong. Rec. 12, 13, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------
 7. Id.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 9. 113 Cong. Rec. 14, 27, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
10. H. Rept. No. 1626, 104 Cong. Rec. 6939, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
12. 107 Cong. Rec. 23, 24, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
13. See H. Res. 339, 107 Cong. Rec. 10160, 87th Cong. 1st Sess., June 
        13, 1961.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
14. See H. Res. 340, 107 Cong. Rec. 10160 (June 13, 1961) and 10391 
        (June 14, 1961), 87th Cong. 1st Sess.
---------------------------------------------------------------------------

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.''
---------------------------------------------------------------------------
15. 89 Cong. Rec. 1324, 78th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
16. H. Rept. No. 180, 89 Cong. Rec. 1353, 78th Cong. 1st Sess. For the 
        text of the resolution, see Sec. 8.6, supra.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------
17. 104 Cong. Rec. 17119, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

        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:
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.)
---------------------------------------------------------------------------



 
                               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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
16. See Sec. 9.1, infra.
17. See Sec. 9.2, infra.
18. See Sec. 9.3, infra.
19. Id.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
20. See Sec. 9.2, infra (Speaker notifies state of vacancy) and 
        Sec. 9.5, infra (presumed death, House declaration of vacancy).
---------------------------------------------------------------------------

    Once the vacancy is declared, the state Governor has a mandatory 
and not merely a directory duty to call for a special 
election.(1)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.

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

[[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:
---------------------------------------------------------------------------
 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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
11. 109 Cong. Rec. 18583, 88th Cong. 1st Sess.
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------
12. 90 Cong. Rec. 8689, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

[[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.
---------------------------------------------------------------------------
13. 103 Cong. Rec. 3, 85th Cong. 1st Sess., Jan. 3, 1957 (letter of 
        resignation laid before the Senate at convening of 85th 
        Congress).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
14. 111 Cong. Rec. 805, 806, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
17. 119 Cong. Rec. 15, 16, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
18. Id.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
19. 111 Cong. Rec. 27171, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
20. See U.S. Const. art. I, Sec. 4, clause 1 and 2 USC Sec. 8.

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

[[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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
 3. 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------
 4. H. Res. 986, 118 Cong. Rec. 18654, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
 5. See, e.g., 106 Cong. Rec. 1715, 1747, 1748, 86th Cong. 2d Sess., 
        Feb. 2, 1960 (S.J. Res. 39).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
 6. 90 Cong. Rec. 8201, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------
 7. 113 Cong. Rec. 11298, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.

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

[[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:
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------
13. 72 Cong. Rec. 9891, 9892, 71st Cong. 2d Sess.
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------
14. 102 Cong. Rec. 10769, 84th Cong. 2d Sess.
---------------------------------------------------------------------------

        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.
---------------------------------------------------------------------------
15. 107 Cong. Rec. 6, 7, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
16. 116 Cong. Rec. 44516, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

    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.



 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                         C. CAMPAIGN PRACTICES
 
Sec. 10. Regulation and Enforcement


    The U.S. Constitution grants each House of Congress the power, 
under article I, section 5, to judge the elections and returns of its 
own Members. It also grants to Congress, under article I, section 4, 
the power to make or alter regulations for the time, place, and manner 
of holding elections.(17)
---------------------------------------------------------------------------
17. For the constitutional provisions and comments thereon, see House 
        Rules and Manual Sec. Sec. 42-44, 46-51 (1973).
---------------------------------------------------------------------------

    The Supreme Court has affirmed that the power of Congress to make 
regulations for holding elections extends to every phase of the 
election process, including campaign practices:

[[Page 905]]

        It cannot be doubted that these comprehensive words [U.S. 
    Const. art. I, Sec. 4, clause 1] embraces authority to provide a 
    complete code for congressional elections, not only as to times and 
    places, but in relation to notices, registration, supervision of 
    voting, protection of voters, prevention of fraud and corrupt 
    practices, counting of votes, duties of inspectors and candidates, 
    and making a publication of election returns; in short, to enact 
    numerous requiements as to procedure and safeguards which 
    experience shows are necessary in order to enforce the fundamental 
    right involved.(18)
---------------------------------------------------------------------------
18. Smiley v Holme, 285 U.S. 355, 366 (1932).
            Congressional authority over election regulation and 
        practices extends to the primary process. See United States v 
        Classic, 313 U.S. 299 (1941), United States v Wurzbach, 280 
        U.S. 396 (1930).
---------------------------------------------------------------------------

    Until 1972, campaign practices in congressional elections were 
governed by the Corrupt Practices Act of 1925, as amended; the Federal 
Election Campaign Act of 1971 repealed the Corrupt Practices Act and 
established a new and comprehensive code for campaign practices and 
expenditures with provisions for investigations and 
enforcement.(19) The act required reports on campaign 
contributions and expenditures to be filed with the Clerk by candidates 
for election to the House and designated the Clerk as ``supervisory 
officer'' of the act in relation to House elections with duties as to 
investigations, enforcement, and referral to prosecutors of violations 
of the act. Because of the Clerk's role under the election statutes, a 
variety of civil actions have been brought against him in his official 
capacity, and the Clerk has been authorized to obtain counsel when 
necessary in relation to his statutory functions. The Federal Election 
Campaign Act Amendments of 1974 imposed new limitations on campaign 
contributions and expenditures, modified reporting requirements under 
the act, provided for public financing of Presidential nominating 
conventions and primary elections, and created a new Federal Election 
Commission to investigate and enforce compliance with the act, to 
render advisory opinions and to promulgate rules and regulations under 
the act. Under the 1974 amendments, the commission was composed of the 
Clerk of the House and Secretary of the Senate, as ex officio members 
without voting rights, and six members, two to be appointed by the 
Speaker upon the recommendations of the Majority and Minority Leaders 
of the House,

[[Page 906]]

two to be appointed by the President pro tempore upon the 
recommendations of the Majority and Minority Leaders of the Senate, and 
two to be appointed by the President; all nominees were subject to 
confirmation by both Houses of Congress.(20)
---------------------------------------------------------------------------
19. Pub. L. No. 92-225, 86 Stat. 3, Feb. 7, 1972. See Sec. Sec. 10.6-
        10.8, infra, for instances of civil actions brought against the 
        Clerk.
20. Pub. L. No. 93-443, 88 Stat. 1263, Oct. 15, 1974. See Sec. 10.11, 
        infra, for the procedure of the House in receiving and 
        confirming the nominations to the commission in 1975.
---------------------------------------------------------------------------

    On Jan. 30, 1976, the U.S. Supreme Court handed down a decision in 
the case of Buckley v Valeo,(21) in which the 
constitutionality of the Federal Election Campaign Act Amendments was 
challenged on several grounds. The Court ruled that certain of the 
spending limitations imposed by the act violated the first amendment to 
the Constitution; the Court also found that the Federal Election 
Commission was prohibited from exercising all of the administrative and 
enforcement powers granted to it by the act, since the authority of the 
Speaker and the President pro tempore to appoint two members each to 
the commission violated U.S. Constitution, article II, section 2, 
clause 2, vesting in the President the power to nominate and to 
appoint, with the advice and consent of the Senate, officers of the 
United States. To remedy the constitutional infirmities of the 1974 act 
and to effect further modifications in the Election Campaign Act, the 
Congress passed and the President signed into law the Federal Election 
Campaign Act Amendments of 1976; that act provided that all six members 
of the Federal Election Commission be appointed by the President with 
the advice and consent of the Senate.(22) The 1976 
amendments also provided a new procedure, not contained in the 1974 
act, for the House to consider as a privileged matter a report of the 
appropriate House committee on a resolution disapproving certain 
regulations proposed by the commission on reporting requirements for 
candidates for election to the House; the 1974 act had made such 
regulations subject to a single-House veto but did not specify any 
procedure for House consideration of disapproval 
resolutions.(23)
---------------------------------------------------------------------------
21. 424 U.S. 1 (1976); as indicated in the note to Sec. 10.11, infra, 
        the decision of the Court as to the powers of the commission 
        was stayed for a time certain to allow Congress to consider and 
        act on the matter.
22. Pub. L. No. 94-283, 90 Stat. 475, May 11. 1976.
23. See Sec. 10.12, infra, for a discussion of congressional 
        disapproval of commission regulations under the Election 
        Campaign Act, as amended.

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

[[Page 907]]

    The functions of the Clerk under the 1974 and 1976 amendments to 
the Federal Election Campaign Act of 1971 differ from his functions 
both under the original act and under the Federal Corrupt Practices 
Act.
    Under the Federal Corrupt Practices Act, candidates for the House 
were required to report to the Clerk, as were political committees 
which fell within the terms of the act, even if such committees existed 
to support senatorial or Presidential candidates.(24) 
Similarly, any person making expenditures greater than $50, other than 
by contribution to a political committee, had to file a statement 
disclosing the particulars with the Clerk, if such expenditures 
influenced the election of candidates in two or more 
states.(25)
---------------------------------------------------------------------------
24. Pub. L. No. 506, Ch. 368, title III Sec. 305, Feb. 28, 1925.
25. Id., Sec. 306.
---------------------------------------------------------------------------

    Under the Federal Election Campaign Act of 1971, which designated 
the Clerk a ``supervisory officer'' with respect to House elections, 
the definition of committees supporting candidates was broadened, with 
the result that most of the intrastate and district committees 
previously reporting at the state level under the Federal Corrupt 
Practices Act had to file timely reports with the Clerk.(26) 
Moreover, all committees falling within the definition had to file a 
statement of organization and register with the Clerk.(27) 
The Clerk had jurisdiction over amendments to or withdrawals of 
registrations. Finally, the definition of an election was expanded to 
include primaries and runoff elections.(28)
---------------------------------------------------------------------------
26. Pub. L. No. 92-225, 86 Stat. 3, Sec. 304(a), Feb. 7, 1972.
27. Id., Sec. 303(a).
28. Id., Sec. 301(a).
---------------------------------------------------------------------------

    In addition to the reports which committees and candidates were 
required to file at specified time intervals, the Clerk received 
reports of independent expenditures. Among other duties and functions 
of the Clerk were the following: to prescribe reporting and 
registration forms together with separate schedules, particularly for 
the reporting of committee debts and obligations; to make reports and 
registrations available for public inspection; to preserve all 
documents for a five-year period from the date of receipt; to conduct 
audits and field investigations; to receive complaints and to report 
any apparent violations of the act to the appropriate law enforcement 
authorities; and to prescribe rules and regulations for the performance 
of these duties.(1)
---------------------------------------------------------------------------
 1. Id., Sec. 308.
---------------------------------------------------------------------------

    Under the 1974 amendments, signed Oct. 15, 1974, many functions of 
the Clerk were trans

[[Page 908]]

ferred to the newly established Federal Election Commission. Although 
reports of House candidates and committees were still to be filed 
initially with the Clerk, independent expenditure reports were now 
required to be filed with the commission. The Clerk was required to 
cooperate with the commission in carrying out its duties under the act 
and to furnish such services and facilities as might be required. Any 
complaints filed with, or apparent violations found by, the Clerk were 
to be referred to the Federal Election Commission,(2) which 
had primary jurisdiction with respect to civil enforcement of the law. 
The Clerk continued to review registrations and reports filed so as to 
determine their completeness and accuracy, although responsibility for 
audits and field investigations was shifted to the staff of the Federal 
Election Commission.
---------------------------------------------------------------------------
 2. Pub. L. No. 93-443, 88 Stat. 1263, Sec. 314(a)(1)(B), Oct. 15, 
        1974.
---------------------------------------------------------------------------

    Under the 1976 amendments, all complaints of possible violations 
are to be submitted directly to the Federal Election Commission, rather 
than the former practice whereby the Clerk referred apparent violations 
of the act to the commission.(3)
---------------------------------------------------------------------------
 3. Pub. L. No. 94-283, 90 Stat. 475 at 483, Sec. 313, May 11, 1976.
---------------------------------------------------------------------------

    Other public laws bear on campaign practices, such as those 
prohibiting bribery and other unlawful acts.(4)
---------------------------------------------------------------------------
 4. See, for example, the following criminal statutes: 18 USC Sec. 599 
        (prohibits candidate from promising employment); 18 USC 
        Sec. 602 (solicitation or receipt of political contributions 
        from federal employees); 18 USC Sec. 603 (solicitation of 
        political contributions in federal building); 18 USC Sec. 611 
        (solicitation of contributions from federal contractors); 18 
        USC Sec. 608 (limitation on expenditure of personal funds); 18 
        USC Sec. 610 (no contributions from corporations or labor 
        unions); Pub. L. No. 92-225, Sec. Sec. 301-311 (failing to file 
        campaign fund reports).
---------------------------------------------------------------------------

    The use by an incumbent Member of his statutory allowances, in 
relation to campaigns, has been the subject of much discussion and 
litigation.(5) In the 93d Congress, a public law was enacted 
to clarify the use of the congressional frank, to prohibit the franking 
of campaign mail, and to limit the jurisdiction of courts to the review 
of decisions of a Special

[[Page 909]]

Commission on Mailing Standards, which commission has power to 
investigate the use of the frank, whether related to campaign mail or 
to other types of mail.(6)
---------------------------------------------------------------------------
 5. For the allowances of a Member and their use, see Ch. 7, supra. For 
        a compilation of court cases on the alleged use of the frank 
        for campaign purposes, see Report of the Joint Committee on 
        Congressional Operations Identifying Court Proceedings and 
        Actions of Vital Interest to the Congress, Final Report for the 
        92d Congress, Dec. 1972.
 6. Pub. L. No. 93-191, 87 Stat. 737, Dec. 18, 1973.
            The act provides that the computed cost of franking shall 
        not be considered as a campaign expenditure or contribution for 
        the purpose of statutory limitations thereon. 87 Stat. 741.
---------------------------------------------------------------------------

    The Committee on House Administration has general jurisdiction over 
election practices and their regulation and obtained jurisdiction over 
campaign contributions in the 94th Congress.(7) The 
committee investigates contested elections and practices occurring in 
specific campaigns.(8)
---------------------------------------------------------------------------
 7. House Rules and Manual Sec. 693 (1973). The committee was created 
        by the Legislative Reorganization Act of 1947 and absorbed the 
        former Committee on Election of President, Vice President, and 
        Representatives in Congress.
 8. For select committees on campaign expenditures, see Sec. 14, infra.
---------------------------------------------------------------------------

    The Committee on Standards of Official Conduct, created in the 90th 
Congress, has jurisdiction over financial disclosure requirements and, 
until the 94th Congress, over the regulation of campaign 
contributions.(9)
---------------------------------------------------------------------------
 9. See Sec. 10.5, infra.
---------------------------------------------------------------------------

    The states may also enact corrupt practices acts, and the Federal 
Election Campaign Act provides for reports to be filed with proper 
state officials, for each congressional candidate.(10)
---------------------------------------------------------------------------
10. Pub. L. No. 92-225, Sec. 309.
            The House or its committee has taken state corrupt 
        practices acts into account in judging election contests; see 
        Sec. 11, infra.                          -------------------
---------------------------------------------------------------------------

Campaign Funding

Sec. 10.1 In the 90th Congress, the rules of the House were amended to 
    provide regulations governing the use and expenditure of campaign 
    funds.

    On Apr. 3, 1968,(11) the House agreed to House 
Resolution 1099, amending the rules of the House to establish, as new 
Rule XLIII, a Code of Conduct for Members, and for other purposes. 
Clauses 6 and 7 of the new rule related to campaign funds and 
contributions:
---------------------------------------------------------------------------
11. 114 Cong. Rec. 8802, 90th Cong. 2d Sess.
---------------------------------------------------------------------------

        6. A Member of the House of Representatives shall keep his 
    campaign funds separate from his personal funds. He shall convert 
    no campaign funds to personal use in excess of reimbursement for 
    legitimate and verifiable prior campaign expenditures. He shall 
    expend no funds from his campaign account not attributable to bona 
    fide campaign purposes.
        7. A Member of the House of Representatives shall treat as 
    campaign

[[Page 910]]

    contributions all proceeds from testimonial dinners or other fund 
    raising events if the sponsors of such affairs do not give clear 
    notice in advance to the donors or participants that the proceeds 
    are intended for other purposes.(12)
---------------------------------------------------------------------------
12. The resolution also provided for a financial disclosure 
        requirement, in Rule XLIV, not applicable to campaign receipts. 
        See House Rules and Manual Sec. 940 (1973). Disclosure of 
        campaign receipts and expenses are required under the Federal 
        Election Campaign Act.
---------------------------------------------------------------------------

Committee Jurisdiction

Sec. 10.2 Where a Presidential legislative proposal amending the 
    federal election laws included a title on income tax deductions for 
    political contributions, that title was deleted in order that the 
    Committee on House Administration could consider the bulk of the 
    proposal and the Committee on Ways and Means could consider the tax 
    proposal as a separate proposition.

    On May 26, 1966,(13) a Presidential communication, 
executive communication 2433, proposing a comprehensive amendment of 
the federal election laws, was referred to the Committee on House 
Administration. The proposal included amendments not only to the 
Federal Corrupt Practices Act but also to the Internal Revenue Code.
---------------------------------------------------------------------------
13. 112 Cong. Rec. 11686, 11687, 89th Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: It was agreed by House leaders that while 
most of the proposal fell within the jurisdiction of the Committee on 
House Administration, title VII of the bill, pertaining to income tax 
deductions for political contributions, was clearly within the 
jurisdiction of the Committee on Ways and Means. It was agreed that the 
latter committee would consider title VII as a separate proposition and 
that the Committee on House Administration would delete that title from 
the proposal before introducing the bill on the floor of the House.

Sec. 10.3 In the 74th Congress, bills relating to election offenses and 
    providing penalties therefor came within the jurisdiction of the 
    Committee on the Judiciary and not the (former) Committee on 
    Election of President, Vice President, and Representatives in 
    Congress.

    On Feb. 19, 1936,(14) Mr. Thomas Fletcher Brooks, of 
Ohio, addressed the House in order to ask

[[Page 911]]

unanimous consent that a bill relating to offenses in elections and 
providing penalties therefore, which was formerly referred to the 
Committee on Election of President, Vice President, and Representatives 
in Congress, be rereferred to the Committee on the Judiciary. Mr. 
Fletcher stated that he had talked with the chairmen of both 
committees. There was no objection to the request.(15)
---------------------------------------------------------------------------
14. 80 Cong. Rec. 2360, 74th Cong. 2d Sess.
15. The former Committee on Election of President, Vice President, and 
        Representatives in Congress was absorbed by the Committee on 
        House Administration, created by the Legislative Reorganization 
        Act of 1947. See House Rules and Manual Sec. 694 (1973).
---------------------------------------------------------------------------

Sec. 10.4 The Committee on the Judiciary and not the Committee on 
    Military Affairs had jurisdiction of bills to repeal the provisions 
    of the War Disputes Act relating to political contributions by 
    labor organizations.

    On May 11, 1944,(16) Mr. Andrew J. May, of Kentucky, who 
had introduced a bill to repeal provisions of the War Disputes Act 
relating to political contributions by labor organizations, addressed 
the House in relation to the committee jurisdiction of the bill. The 
bill had originally been referred to the House Committee on Military 
Affairs, but Mr. May obtained unanimous consent that the bill be 
rereferred to the Committee on the Judiciary.
---------------------------------------------------------------------------
16. 90 Cong. Rec. 4323, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 10.5 In the 91st Congress, the House rules were amended to confer 
    on the Committee on Standards of Official Conduct jurisdiction over 
    the raising, reporting, and use of campaign contributions for House 
    candidates.

    On July 8, 1970,(17) the Committee on Rules reported 
House Resolution 1031, amending the rules of the House in relation to 
the jurisdiction of the Committee on Standards of Official Conduct over 
campaign contributions. The resolution, as passed by the House, 
conferred on that committee jurisdiction over the raising, reporting, 
and use of campaign contributions for candidates for the House. The 
committee was also given jurisdiction to investigate such matters and 
to report findings to the House.
---------------------------------------------------------------------------
17. 116 Cong. Rec. 23136-41, 91st Cong. 2d Sess.
            This jurisdiction was transferred to the Committee on House 
        Administration in the 94th Congress (H. Res. 5, Jan. 14, 1975).

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

[[Page 912]]

Clerk's Role Under Election Campaign Act

Sec. 10.6 A class action was brought against the Clerk claiming that he 
    had failed to comply with the Federal Election Campaign Act of 1971 
    and challenging the price of copies of reports filed thereunder.

    On May 2, 1972, Speaker Carl Albert, of Oklahoma, laid before the 
House a communication from the Clerk, advising the House that he had 
been named as defendant in a court action instituted by Common Cause, 
seeking: (1) a declaratory judgment that the Clerk had failed to comply 
with the provisions of the Federal Election Campaign Act of 1971; and 
(2) a restraining order to prohibit the Clerk from continuing a price 
increase for copies of reports filed under the act and from prohibiting 
the plaintiff from using its own duplicating equipment.(18)
---------------------------------------------------------------------------
18. 118 Cong. Rec. 15311, 92d Cong. 2d Sess.
            For the court opinion in the suit against the Clerk, see 
        Common Cause v Jennings, Civil Action 842-72 (D.C. Cir. 1972). 
        The U.S. District Court entered a restraining order precluding 
        any increase in the copying cost of 10 cents per page. (The 
        Committee on House Administration had ordered the Clerk to 
        raise the price to $1 per page.) The District Court action was 
        affirmed by the U.S. Court of Appeals for the District of 
        Columbia without opinion on Dec. 21, 1973.
---------------------------------------------------------------------------

Sec. 10.7 An action was brought in which the plaintiff alleged that the 
    Clerk of the House and the Secretary of the Senate had failed to 
    take action against the practice known as ``earmarking'' political 
    campaign contributions in violation of the Federal Election 
    Campaign Act of 1971.

    In an action brought by Common Cause against the Clerk of the House 
and the Secretary of the Senate,(19) the plaintiffs alleged 
that the defendants ``unlawfully'' refused ``to take action against 
certain practices that insulate candidates from associating with their 
actual contributors.'' The plaintiffs characterized the practice of 
``earmarking'' as one in which, instead of giving directly to the 
candidate, the contributor gives his money to an intermediary political 
committee which supports a number of candidates, with the informal but 
clearcut agreement that the intermediary committee will pass the gift 
on to the candidate named by the original donor.
---------------------------------------------------------------------------
19. See Common Cause v Jennngs, (D.D.C. No. 2379-72).
---------------------------------------------------------------------------

    The plaintiffs asserted that this practice violated the Federal 
Elec

[[Page 913]]

tion Campaign Act, section 310, which stated ``No person shall make a 
contribution in the name of another person, and no person shall 
knowingly accept a contribution made by one person in the name of 
another person.''
    The District Court denied the defendant's motion to dismiss on Mar. 
20, 1973. The parties, on May 13, 1974, stipulated that the case be 
dismissed without prejudice and that all designated, earmarked 
contributions should be reported as such under section 304 together 
with the details of the earmarking.

Clerk Authorized to Obtain Counsel

Sec. 10.8 The Speaker laid before the House a communication from the 
    Clerk, informing the House of the receipt of replies from the 
    Department of Justice and the United States Attorney for the 
    District of Columbia in which they agreed to furnish representation 
    for the Clerk in a civil action relating to the enforcement of 
    certain election campaign statutes unless a ``divergence of 
    interest'' should develop between the positions of the Clerk and 
    the Justice Department.

    On Mar. 15, 1972,(20) Speaker Carl Albert, of Oklahoma, 
laid before the House various communications from the Clerk of the 
House relative to a case later to become known as Nader v Kleindienst. 
This case was a class action based on the Federal Corrupt Practices 
Act. The plaintiffs sought enforcement of the act, or the appointment 
of special prosecutors, and the termination of the alleged Justice 
Department policy to only prosecute under the act if so requested by 
the Clerk of the House or Secretary of the Senate.
---------------------------------------------------------------------------
20. 118 Cong. Rec. 8470, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: On May 3, 1972, the Clerk received a letter 
from the Justice Department stating that a ``divergence of interest'' 
had developed between the positions of the Clerk and the Justice 
Department and requesting the Clerk to obtain other counsel. On May 3, 
the House adopted House Resolution 955, authorizing the Clerk to obtain 
other counsel in cases brought against him relating to the Corrupt 
Practices Act and the Federal Election Campaign Act.(21) (A 
similar resolution

[[Page 914]]

adopted in the 93d Congress, House Resolution 92, Jan. 6, 1973, was 
later made permanent law by Public Law No. 93-145, 87 Stat. 527.)
---------------------------------------------------------------------------
21. For the communication from the Clerk advising the House of the 
        original summons, see 118 Cong. Rec. 5024, 92d Cong. 2d Sess., 
        Feb. 22, 1972.
---------------------------------------------------------------------------

    The United States District Court for the District of Columbia 
dismissed the complaint as to the Clerk of the House and Secretary of 
the Senate.(22)
---------------------------------------------------------------------------
22. See Nader v Kleindienst, 375 F Supp 1138 (D.D.C. 1972), aff'd, 497 
        F2d 676.
---------------------------------------------------------------------------

Suit Testing Applicability of Campaign Act

Sec. 10.9 The Speaker laid before the House a communication from the 
    Clerk, advising that he had been served with a summons and 
    complaint in a civil action pending in a federal court relating to 
    the applicability of the Federal Election Campaign Act of 1971 to a 
    political advertisement prepared by the American Civil Liberties 
    Union.

    On Oct. 5, 1972,(23) Speaker Carl Albert, of Oklahoma, 
laid before the House a communication from the Clerk of the House 
relative to American Civil Liberties Union v Jennings.
---------------------------------------------------------------------------
23. 118 Cong. Rec. 34040, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

    In the case, the Clerk, among others, was named in a challenge to 
the constitutionality of the Federal Election Campaign Act of 1971. The 
case arose from the refusal of a newspaper to print an allegedly 
``political'' advertisement prepared by the ACLU, where the 
advertisement contained the name of a Congressman. The U.S. District 
Court ruled that the statutory language in question did apply to the 
activities of the ACLU, but ``only to committees soliciting 
contributions or making expenditures'' for candidates.(1)
---------------------------------------------------------------------------
 1. See 366 F Supp 1041 (D.D.C. 1972j. See also United States v The 
        National Committee for Impeachment, 469 F2d 1135 (2d Cir. Oct. 
        30, 1972), wherein it was held that an organization printing an 
        advertisement was not a ``political committee'' required to 
        file statements and reports under the Federal Election Campaign 
        Act of 1971.
---------------------------------------------------------------------------

Clerk Authorized to Investigate Violations

Sec. 10.10 The House agreed to a privileged resolution, reported from 
    the Committee on Rules, establishing a special committee to 
    investigate and report on campaign expenditures and practices by 
    candidates for the House, and authorizing the special committee and 
    the Clerk of the House to jointly investigate alleged violations of

[[Page 915]]

    the Federal Election Campaign Act of 1971.

    On Mar. 15, 1973,(2) Mr. Richard Bolling, of Missouri, 
called up, by direction of the Committee on Rules, House Resolution 279 
as privileged. The resolution created a special or select committee to 
investigate campaign expenditures.
---------------------------------------------------------------------------
 2. 119 Cong. Rec. 7957, 7958, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

    The resolution authorized joint investigations by the select 
committee and by the Clerk of the House, in order to permit the Clerk 
to take advantage of the select committee's subpena power in carrying 
out his duties under the Federal Election Campaign Act of 1971:

        . . . (8) The Clerk of the House of Representatives is 
    authorized and directed when carrying out assigned responsibilities 
    under the Federal Election Campaign Act of 1971 that prior to 
    taking enforcement action thereunder, to initiate a request for 
    consultation with and advice from the committee, whenever, at his 
    discretion, election campaign matters arise that are included 
    within sections (1) through (6) above and may affect the interests 
    of the House of Representatives.
        (9) The committee is authorized and directed to consult with, 
    advise, and act in a timely manner upon specific requests of the 
    Clerk of the House of Representatives either when he is so acting 
    on his own motion or upon a written complaint made to the Clerk of 
    the House under oath setting forth allegations of fact under the 
    Federal Campaign Act of 1971. The committee, or a duly authorized 
    subcommittee thereof, when acting upon the requests of the Clerk 
    shall consult with him, shall act jointly with him, and shall 
    jointly investigate such charges as though it were acting on its 
    own motion, unless, after a hearing upon such complaint, the 
    committee, or a duly authorized subcommittee thereof, may be either 
    in executive or in public sessions, but hearings before the 
    committee when acting jointly shall be public and all order and 
    decisions and advice given to the Clerk of the House of 
    Representatives by the committee or a duly authorized subcommittee 
    thereof shall be public.
        For the purpose of this resolution, the committee, or any duly 
    authorized subcommittee thereof, is authorized to hold such public 
    hearings, to sit and act at such times and places during the 
    sessions, recesses, and adjourned periods during the period from 
    March 1, 1973 through June 6, 1973, of the Ninety-third Congress, 
    to employ such attorneys, experts, clerical, and other assistants, 
    to require by subpena or otherwise the attendance of such witnesses 
    and the production of such correspondence, books, papers, and 
    documents, to administer such oaths, and to take such testimony as 
    it deems advisable. Subpenas may be issued under the signature of 
    the chairman of the committee or any subcommittee, or by any member 
    designated by such chairman, and may be served by any person 
    designated by any such chairman or member.
        (10) The committee is authorized and directed, when acting on 
    its own

[[Page 916]]

    motion or upon a complaint made to the committee, to report 
    promptly any and all violations of any Federal or State statutes in 
    connection with the matters and things mentioned herein to the 
    Attorney General of the United States in order that he may take 
    such official action as may be proper. The committee or a duly 
    authorized subcommittee thereof is authorized and directed when 
    acting upon the specific request of the Clerk of the House to 
    render advice promptly in order to give the Clerk of the House of 
    Representatives the prior benefits of its advice and in order that 
    he may then take such official action under the Federal Election 
    Campaign Act of 1971 as the Clerk of the House ofRepresentatives 
    deems to be proper.(3)
---------------------------------------------------------------------------
 3. See also H. Res. 131, 93d Cong. 1st Sess., extending the Special 
        Committee to Investigate Campaign Expenditures created in the 
        92d Congress, to enable it to assist the Clerk of the House in 
        investigating new allegations of violations of federal election 
        laws.
---------------------------------------------------------------------------

    Parliamentarian's Note: This was the ]ast occasion on which a 
select committee to investigate campaign expenditures was established. 
The Committee on House Administration, with jurisdiction over campaign 
practices, also was given jurisdiction over campaign contributions in 
the 94th Congress (H. Res. 5, 94th Congress). And in the 94th Congress, 
all standing committees, including the Committee on House 
Administration, were given the power to issue subpenas whether or not 
the House was in session (H. Res. 988, 93d Congress, effective Jan. 3, 
1975).

Federal Election Commission, Composition

Sec. 10.11 Under the Federal Election Campaign Act Amendments of 1974, 
    establishing a Federal Election Commission, both the House and 
    Senate were required to confirm the nominations of six members of 
    the commission, two to be appointed by the Speaker on the 
    recommendations of the Majority and Minority Leaders of the House, 
    two to be appointed by the President pro tempore of the Senate on 
    the recommendations of the Majority and Minority Leaders of the 
    Senate, and two to be appointed by the President.

    On Jan. 29, 1975,(4) Speaker Carl Albert, of Oklahoma, 
laid before the House a communication from the Majority Leader Thomas 
P. O'Neill, Jr., of Massachusetts, and a communication from Minority 
Leader John J. Rhodes, of Arizona, each recommending a nominee for 
appointment by the Speak

[[Page 917]]

er to serve as members of the Federal Election Commission; the 
recommendations were submitted pursuant to section 301(B) of Public Law 
No. 93-433, Federal Election Campaign Act Amendments of 1974, creating 
the commission and providing for two appointments by the Speaker upon 
recommendations of the Majority and Minority Leaders of the House, two 
appointments by the President pro tempore upon recommendations of the 
Majority and Minority Leaders of the Senate, and two appointments by 
the President. The Speaker referred the communications to the Committee 
on House Administration, which had considered and reported the public 
law in question. On Mar. 6, 1975,(5) the Speaker laid before 
the House a communication from the Secretary of the Senate transmitting 
the recommendations of the Majority Leader of the Senate, Mike 
Mansfield, of Montana, and the Minority Leader of the Senate, Hugh 
Scott, of Pennsylvania, for appointments to the Federal Election 
Commission by the President pro tempore of the Senate. The 
communication was referred to the Committee on House Administration. 
And on Mar. 10, 1975,(6) the Speaker laid before the House 
two messages from President Gerald R. Ford nominating two persons for 
his appointments to the commission; the messages were referred to the 
Committee on House Administration.
---------------------------------------------------------------------------
 4. 121 Cong. Rec. 1680, 94th Cong. 1st Sess.
 5. 121 Cong. Rec. 5537, 5538, 94th Cong. 1st Sess.
 6. 121 Cong. Rec. 5870, 94th Cong. 1st Sess.
---------------------------------------------------------------------------

    On Mar. 19, 1975,(7) Mr. Wayne L. Hays, of Ohio, called 
up by direction of the Committee on House Administration House 
Resolution 314, confirming the six nominations for appointment to the 
commission, and asked unanimous consent for the immediate consideration 
of the resolution (the resolution had no privileged status under the 
rules of the House). The House agreed to consider the resolution and 
after debate agreed thereto, voting separately on each nominee since a 
demand had been made for a division of the question. The Senate later 
confirmed all six nominees and the Speaker, the President pro tempore 
of the Senate, and the President made their various appointments.
---------------------------------------------------------------------------
 7. 121 Cong. Rec. 7344-54, 94th Cong. 1st Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: The Federal Election Campaign Act 
Amendments of 1976, enacted May 11, 1976, as Public Law No. 94-283, 
deleted from the Federal Election Campaign Act the provisions for 
appointments to the com

[[Page 918]]

mission by the Speaker and President pro tempore and joint House-Senate 
confirmation of all nominees, and provided instead for six members to 
be appointed by the President with the advice and consent of the Senate 
(with the Clerk of the House and Secretary of the Senate to serve ex 
officio without voting rights, as in the 1974 amendments). The United 
States Supreme Court had held, in the case of Buckley v Valeo, 424 U.S. 
1 (1976) (decided Jan. 30, 1976), that the Federal Election Commission 
could not exercise the full range of administrative and enforcement 
powers granted to it in the 1976 amendments, since the method of 
selecting members of the commission provided in the 1976 act violated 
the ``Appointment Clause'' of the Constitution, vesting in the 
President the sole power to appoint, with the advice and consent of the 
Senate, officers of the United States (U.S. Const. art. II, Sec. 2, 
clause 2). The Supreme Court had stayed that portion of its ruling for 
50 days in order to avoid interrupting enforcement of the Election 
Campaign Act while the Congress considered whether remedial legislation 
was necessary (see H. Rept. No. 94-917, Mar. 17, 1976, 94th Cong. 2d 
Sess., a report by the Committee on House Administration on H.R. 12406, 
the House counterpart to S. 3065 which was enacted as the Federal 
Election Campaign Act Amendments of 1976).

Federal Election Commission, Congressional Disapproval of Regulations

Sec. 10.12 The Federal Election Campaign Act, as amended, allows the 
    House or the Senate, whichever is appropriate, to disapprove 
    certain regulations proposed by the Federal Election Commission 
    dealing with campaign reports and statements required of candidates 
    for the House or Senate, and allows both Houses to disapprove 
    reports and statements required of Presidential candidates.

    The Federal Election Campaign Act Amendments of 1974, Public Law 
No. 93-443, section 209, amended the act to require the Federal 
Election Commission to transmit to the House or Senate, whichever is 
appropriate, proposed regulations dealing with reporting requirements 
for candidates for the House in question. Such regulations may be 
promulgated by the commission if the House or Senate, as the case may 
be, does not disapprove such regulations within 30 legislative days.

[[Page 919]]

In the case of proposed regulations dealing with reporting requirements 
for Presidential candidates, both the House and the Senate may 
disapprove.
    On Oct. 22, 1975,(8) Mr. John Young, of Texas, called up 
by direction of the Committee on Rules House Resolution 800, providing 
for the consideration in the House of House Resolution 780, reported 
from the Committee on House Administration and disapproving a 
regulation proposed by the Federal Election Commission; a special order 
from the Committee on Rules was necessary since the Federal Election 
Campaign Act Amendments of 1974 did not provide a privileged procedure 
for considering such disapproval resolutions in the House. The House 
adopted the special order and then adopted the disapproval resolution. 
(The disapproval resolution had previously failed of passage under 
suspension of the rules on Oct. 20.)
---------------------------------------------------------------------------
 8. 121 Cong. Rec. 33662, 33663, 94th Cong. 1st Sess.
---------------------------------------------------------------------------

    The Federal Election Campaign Act Amendments of 1976, Public Law 
No. 94-283, section 110(b), amended the act to provide that whenever a 
committee of the House reports a disapproval resolution provided for by 
the act, ``it is at any time thereafter in order (even though a 
previous motion to the same effect has been disagreed to) to move to 
proceed to the consideration of the resolution. The motion is highly 
privileged and is not debatable. An amendment to the motion is not in 
order, and it is not in order to move to reconsider the vote by which 
the motion is agreed to or disagreed to.'' The 1976 law a]so redefined 
a ``rule or regulation'' which could be disapproved as a ``provision or 
series of interrelated provisions stating a single separable rule of 
law.''



 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                         C. CAMPAIGN PRACTICES
 
Sec. 11. Campaign Practices and Contested Elections

    [Note: For specific election contests, see chapter 9, infra.]
    In judging contested elections, the Committee on House 
Administration or its subcommittee on elections, and then the House, 
take into account alleged violations of federal or state election 
campaign laws and the effect of such violations on the outcome of the 
election. Such statutes are not binding on the House in exercising its 
function of judging the elections of its Members, since the 
Constitution gives the House the sole power to so judge.(9)
---------------------------------------------------------------------------
 9. See House Rules and Manual Sec. Sec. 47-50 (comments to U.S. Const. 
        art. I, Sec. 5, clause 1) (1973).

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

[[Page 920]]

    The House generally does not unseat a Member for alleged campaign 
irregularities if he possesses a proper certificate of election and 
where it has been found in an election contest that any violations of 
the applicable statute were unintentional and not 
fraudulent.(10) Thus, failure to file timely and accurate 
expenditure reports with the Clerk of the House does not necessarily 
deprive a contestee of his seat, and the Committee on House 
Administration will consider evidence of mitigating circumstances and 
of negligence as opposed to fraud.(11)
---------------------------------------------------------------------------
10. See Sec. 11.1, infra.
11. See Sec. 11.5, infra.
---------------------------------------------------------------------------

    The House has generally considered the election contest as the 
proper procedure by which a losing candidate can challenge the election 
of the nominee for alleged campaign improprieties.(12) 
However, violations of the Corrupt Practices Act could also be 
litigated in civil court proceedings in a proper case.(13)
---------------------------------------------------------------------------
12. See Ch. 9, infra. See Sec. 12, infra, for expulsion, exclusion and 
        censure in relation to campaign practices.
            Congressional committees have investigated allegations of 
        improper orillegal campaign activities (see Sec. Sec. 13, 14, 
        infra).
13. See Pub. L. No. 92-225, Sec. 308(d)(1).
---------------------------------------------------------------------------

    In presenting an election contest based on campaign irregularities 
before a House committee, the contestant has the burden of proof to 
establish by a fair preponderance of the evidence that (1) the 
contestee had violated a state or federal campaign practices statute, 
and (2) that any such alleged violations directly or indirectly 
prevented the contestant from receiving a majority of the votes 
cast.(14)
---------------------------------------------------------------------------
14. H. Rept. No. 1783, to accompany H. Res. 427, reported Mar. 14, 
        1940, 86 Cong. Rec. 2915, 2916, 76th Cong. 3d Sess., in the 
        Scott v Eaton contest for the 18th Congressional District of 
        California.                          -------------------
---------------------------------------------------------------------------

Negligence in Reporting Campaign Expenditures

Sec. 11.1 An elections committee has found that negligence on the part 
    of a candidate in preparing expenditure accounts to be filed with 
    the Clerk should not deprive him of his seat in the House, absent 
    fraud, where he received a substantial majority of the votes cast.

    For example, on Jan. 31, 1944,(15) an elections 
committee

[[Page 921]]

reported (H. Rept. No. 1032) in the contested election case of Thill v 
McMurray, for the Fifth Congressional District of Wisconsin. The 
committee recommended that the contestee be declared entitled to the 
seat despite irregularities in reporting expenditures to the Clerk. The 
committee found that the contestee had received a substantial majority 
of the votes for his seat and should not be deprived of his seat for 
negligent and not fraudulent preparation of expenditure accounts by 
himself and his attorney. The committee did admonish the contestee in 
its report for signing under oath an expenditure statement without 
being familiar with its contents and irregularities.(16)
---------------------------------------------------------------------------
15. 90 Cong. Rec. 962, 78th Cong. 2d Sess. See also 90 Cong. Rec. 3252, 
        3253, 78th Cong. 2d Sess., Mar. 29, 1944, where the Committee 
        on Elections No. 1 recommended that an election contest be 
        dismissed where the contestee had failed to correctly file 
        reports under the Corrupt Practices Act, but where such 
        reporting was merely negligent and not purposeful. The House 
        adopted H. Res. 490, dismissing the contest.
16. See also the report of an elections committee in the case of 
        Schafer v Wasielewski, Fourth Congressional District of 
        Wisconsin, where expenditure accounts were negligently 
        prepared. The report stated that the ``committee does not 
        condone such negligence.'' 90 Cong. Rec. 3252, 3253, 78th Cong. 
        2d Sess., Mar. 29, 1944 (report printed in the Record).
---------------------------------------------------------------------------

    The House agreed without debate to a resolution (H. Res. 426) 
dismissing the contest.(17)
---------------------------------------------------------------------------
17. 90 Cong. Rec. 933, 78th Cong. 2d Sess., Jan. 31, 1944.
---------------------------------------------------------------------------

Distribution of Campaign Literature

Sec. 11.2 A pre-election irregularity, such as unauthorized 
    distribution of campaign literature, will not be attributed to a 
    particular candidate where he did not participate therein.

    On Sept. 8, 1959,(18) the House agreed to House 
Resolution 380, reported by the Committee on House Administration and 
called up by Mr. Robert T. Ashmore, of South Carolina; the resolution 
declared Mr. T. Dale Alford entitled to a seat from the Fifth 
Congressional District of Arkansas following an investigation by the 
committee (H. Rept. No. 1172). The committee found that although 
campaign literature had been improperly distributed during the 
election, such distribution was not authorized by or participated in by 
Mr. Alford.(19)
---------------------------------------------------------------------------
18. 105 Cong. Rec. 18610, 18611, 86th Cong. 1st Sess.
19. For a description of the pre-election irregularities investigated 
        by the Committee on House Administration, pursuant to the 
        recommendation of the Select Committee on Campaign Expenditures 
        of the 85th Congress, see the remarks of Mr. Thomas P. O'Neill, 
        Jr. (Mass.) at 105 Cong. Rec. 3432-34, 86th Cong. 1st Sess., 
        Mar. 5, 1959.

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

[[Page 922]]

Sec. 11.3 An elections committee found no evidence that contestee 
    financed extra editions of a magazine which supported his 
    candidacy.

    On Mar. 19, 1952,(20) an elections committee reported 
(H. Rept. No. 1599) in the contested election case of Macy v Greenwood 
for the First Congressional District of New York. The committee found 
no evidence that the contestee financed extra editions of a magazine 
which had supported his candidacy, and recommended that the contestee 
be declared entitled to the seat.
---------------------------------------------------------------------------
20. 98 Cong. Rec. 2545, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

    The House adopted House Resolution 580 declaring the contestee 
entitled to his seat.(1)
---------------------------------------------------------------------------
 1. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

Expenditures by Political Committees and Volunteers

Sec. 11.4 An elections committee may consider evidence to determine 
    whether certain expenditures were made by a ``voluntary'' committee 
    or ``personal'' campaign committee, as defined by state law.

    On Mar. 29, 1944,(2) the House agreed to House 
Resolution 490, dismissing the contested election case of Schafer v 
Wasielewski for the Fourth Congressional District of Wisconsin, 
pursuant to the report of the Committee on Elections No. 1. The report 
recommended such dismissal on the ground that although the contestee's 
expense reports disclosed expenditures in excess of amounts permitted 
by law, certain of those expenses were not campaign expenses 
attributable to the candidate himself under Wisconsin state law. The 
report, which was printed in the Record, stated in part as follows:
---------------------------------------------------------------------------
 2. 90 Cong. Rec. 3252, 3253, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Wisconsin statutes limit to $875 the amount of money that 
    can be spent by a candidate for Congress in the general election. 
    The Wisconsin statutes, however, place no limitation upon receipts 
    and expenditures of individuals or groups that might voluntarily 
    interest themselves in behalf of a candidate.
        Thaddeus F. Wasielewski filed with the Clerk of the House of 
    Representatives on November 5, 1942, a statement, as required by 
    Federal law, showing receipts of $1,689 and total expenditures of 
    $1,172.
        On December 17, 1942, contestant filed notice of contest of the 
    election of Thaddeus F. Wasielewski in which he pointed out that 
    the sum set forth in the statement filed by Thaddeus F. Wasielewski 
    with the Clerk of the House of Representatives was in excess of 
    expenditures permitted under Wisconsin law and the Federal Corrupt 
    Practices Act, and that Thaddeus F.

[[Page 923]]

    Wasielewski was, therefore, in violation of the statutes of the 
    State of Wisconsin and of the Federal statutes.
        On its face, the statement of receipts and expenditures filed 
    by contestee with the Clerk of the House of Representatives 
    violates the laws of Wisconsin and the Federal Corrupt Practices 
    Act. The direct evidence, however, indicates that the contributions 
    listed were paid to the Wasielewski for Congress Club and the 
    expenditures made by that organization, which was shown to be a 
    voluntary committee rather than a personal campaign committee as 
    defined by the laws of Wisconsin. . . .
        Under all the circumstances, the committee is of the opinion 
    that Mr. Wasielewski, who received a substantial plurality of 
    votes, approximately 17,000, in the general election of November 3, 
    1942, over Mr. Schafer, his nearest opponent, should not be denied 
    his seat in the House of Representatives on account of the errors 
    made in the statement filed by Mr. Wasielewski with the Clerk of 
    the House of Representatives.

Effect of Mitigating Circumstances

Sec. 11.5 Mitigating circumstances may be taken into account by a 
    committee on elections in determining whether to recommend to the 
    House that a seated Member or Delegate be unseated for failure to 
    comply with the Corrupt Practices Act which requires filing with 
    the Clerk complete and itemized accounts of expenditures.

    On May 21, 1936,(3) the Committee on Elections 
recommended in its report (H. Rept. No. 2736) on the contested election 
case of McCandless v King (for the seat of Delegate from Hawaii) that 
the contestee, Samuel Wilder King, be declared entitled to the seat, 
notwithstanding a failure to file accounts of expenditures as required 
by law.
---------------------------------------------------------------------------
 3. 80 Cong. Rec. 7765, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    The committee stated in its report that it had found certain 
mitigating circumstances to be present in the case. The report stated 
that such circumstances could include evidence of personal character, 
lack of experience as a candidate for public office, and the nature of 
the expenditures.
    The committee also found that although the contestee had failed to 
comply with the Corrupt Practices Act, which required reporting within 
30 days of the election to the Clerk of the House a complete and 
itemized account of expenditures, there were circumstances in 
mitigation of such failure.
    The committee found that the contestee had, within the 30 days, 
communicated certain itemized

[[Page 924]]

expenditures to the Clerk and indicated his intention once in 
Washington to complete and file the required forms.
    On June 2, 1936, the House declared the contestee entitled to his 
seat.(4)
---------------------------------------------------------------------------
 4. 80 Cong. Rec. 8705, 74th Cong. 2d Sess. (H. Res. 521).
---------------------------------------------------------------------------



 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                         C. CAMPAIGN PRACTICES
 
Sec. 12. Expulsion, Exclusion, and Censure

    [Note: For full discussion of censure and expulsion, see chapter 
12, infra.]
    Under article I, section 5, clause 2 of the United States 
Constitution, the House may punish its Members and may expel a Member 
by a vote of two-thirds.
    In the 90th Congress, the Senate censured a Member in part for 
improper use and conversion of campaign funds.(5) And the 
Committee on House Administration recommended in a report in the 74th 
Congress that a Member or Delegate could be censured for failure to 
comply with the Corrupt Practices Act.(6) However, the House 
and the Senate have generally held that a Member may not be expelled 
for conduct committed prior to his election.(7)
---------------------------------------------------------------------------
 5. See Sec. 12.3, infra.
 6. See Sec. 12.4, infra.
 7. See 2 Hinds' Precedents Sec. Sec. 1284-1289; 6 Cannon's Precedents 
        Sec. Sec. 56, 238.
            For discussion of the House as judge of qualifications for 
        seats, see Ch. 7, supra.
---------------------------------------------------------------------------

    As to exclusion--or denial by the House of the right of a Member-
elect to a seat--by majority vote, the House has the power to judge 
elections and to determine that no one was properly elected to a seat. 
If violations of the election campaign statutes are so extensive or 
election returns so uncertain as to render an election void, the House 
may deny the right to a seat.(8)
---------------------------------------------------------------------------
 8. See Parliamentarian's note in Sec.  12.2, 
        infra.                          -------------------
---------------------------------------------------------------------------

Expulsion

Sec. 12.1 In the 77th Congress, the Senate failed to expel, such 
    expulsion requiring a two-thirds vote, a Senator whose 
    qualifications had been challenged by reason of election fraud and 
    of conduct involving moral turpitude.

    On Jan. 3, 1941, at the convening of the 77th Congress, Mr. William 
Langer, of North Dakota, took the oath of office, despite charges from 
the citizens of his state recommending he be denied a congressional 
seat because of campaign fraud and past conduct involving moral 
turpitude.(9)
---------------------------------------------------------------------------
 9. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.

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

[[Page 925]]

    The petition against Senator Langer charged: control of election 
machinery; casting of illegal election ballots; destruction of legal 
election ballots; fraudulent campaign advertising; conspiracy to avoid 
federal law; perjury; bribery; fraud; promises of political 
favors.(10)
---------------------------------------------------------------------------
10. 88 Cong. Rec. 2077-80, 77th Cong. 2d Sess., Mar. 9, 1942.
---------------------------------------------------------------------------

    After determining that a two-thirds vote was necessary for 
expulsion, the Senate failed to expel Senator Langer.(11)
---------------------------------------------------------------------------
11. 88 Cong. Rec. 3064, 77th Cong. 2d Sess., Mar. 27, 1942.
---------------------------------------------------------------------------

Exclusion

Sec. 12.2 A Senator-elect, whom Members of the Senate sought to exclude 
    from the 80th Congress for corrupt campaign practices and past 
    abuse of congressional office, died while his qualifications for a 
    seat were still undetermined.

    On Jan. 4, 1947, at the convening of the 80th Congress, the 
credentials of Senator-elect Theodore G. Bilbo, of Mississippi, were 
laid on the table and never taken up again due to his intervening 
death.(12)
---------------------------------------------------------------------------
12. 93 Cong. Rec. 109, 80th Cong. 1st Sess. For the announcement of 
        Nov. 17, 1947, concerning Theodore G. Bilbo's death, see 93 
        Cong. Rec. 10569, 80th Cong. 1st Sess.
---------------------------------------------------------------------------

    The right to be sworn of Senator-elect Bilbo had been challenged 
through Senate Resolution 1, which read in part:

        Whereas the Special Committee To Investigate Senatorial 
    Campaign Expenditures, 1946, has conducted an investigation into 
    the senatorial election in Mississippi in 1946, which investigation 
    indicates that Theodore G. Bilbo may be guilty of violating the 
    Constitution of the United States, the statutes of the United 
    States, and his oath of office as a Senator of the United States in 
    that he is alleged to have conspired to prevent citizens of the 
    United States from exercising their constitutional rights to 
    participate in the said election; and that he is alleged to have 
    committed violations of Public Law 252, Seventy-sixth Congress, 
    commonly known as the Hatch Act; and
        Whereas the Special Committee To Investigate the National 
    Defense Program has completed an inquiry into certain transactions 
    between Theodore G. Bilbo and various war contractors and has found 
    officially that the said Bilbo, ``in return for the aid he had 
    given certain war contractors and others before Federal 
    departments, solicited and received political contributions, 
    accepted personal compensation, gifts, and services, and solicited 
    and accepted substantial amounts of money for a personal charity 
    administered solely by him'' . . . and . . . ``that by these 
    transactions Senator Bilbo misused his high office and violated 
    certain Federal statutes''; and
        Whereas the evidence adduced before the said committees 
    indicates that

[[Page 926]]

    the credentials for a seat in the Senate presented by the said 
    Theodore G.Bilbo are tainted with fraud and corruption; and that 
    the seating of the said Bilbo would be contrary to sound public 
    policy, harmful to the dignity and honor of the Senate, dangerous 
    to the perpetuation of free Government and the preservation of our 
    constitutiSnal liberties. . . .(13)
---------------------------------------------------------------------------
13. 93 Cong. Rec. 7, 8, 80th Cong. 1st Sess., Jan. 3, 1947.
---------------------------------------------------------------------------

    Parliamentarian's Note: The Supreme Court has held, in the case of 
Powell v. McCormack, 395 U.S. 486 (1969), that a Member-elect of the 
House could not be excluded, by a majority vote, other than for failure 
to meet the express constitutional qualifications for the office. But 
since the House or Senate is the judge of elections and returns under 
the U.S. Constitution (art. I, Sec. 5, clause 1), and has the power to 
regulate elections (art. I, Sec. 4, clause 1), the House or Senate may 
determine by majority vote that a candidate was not validly elected.

Censure

Sec. 12.3 The Senate Select Committee on Standards and Conduct reported 
    a resolution censuring a Senator, in the 90th Congress, for his 
    personal use of campaign contributions.

    On Apr. 27, 1967, Senator John Stennis, of Mississippi, Chairman of 
the Senate Select Committee on Standards of Official Conduct, reported 
Senate Resolution 112, censuring Senator Thomas J. Dodd, of 
Connecticut, for having engaged in a course of conduct over five years 
of exercising his power and influence as a Senator to obtain and to use 
for personal benefit funds obtained from the public through political 
testimonials and political campaigns.(14)
---------------------------------------------------------------------------
14. 113 Cong. Rec. 10977, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    The resolution, which was laid before the Senate on June 13, 
1967,(15) accompanied by Senate Report No. 193, read as 
follows:
---------------------------------------------------------------------------
15. 113 Cong. Rec. 15663, 90th Cong. 1st Sess. (resolution laid before 
        the Senate). For discussion thereof, see 113 Cong. Rec. 15663, 
        15735, 15773, 15998, 16104, 16269, 16348, 16560, 16976, 16978, 
        17005, 90th Cong. 1st Sess., June 13-23, 1967.
---------------------------------------------------------------------------

        Resolved, That it is the judgment of the Senate that the 
    Senator from Connecticut, Thomas J. Dodd, for having engaged in a 
    course of conduct over a period of five years from 1961 to 1965 of 
    exercising the influence and power of his office as a United States 
    Senator, as shown by the conclusions in the investigations by the 
    Select Committee on Standards and Conduct,

            (a) to obtain, and use for his personal benefit, funds from 
        the public through political testimonials and a political 
        campaign, and
            (b) to request and accept reimbursements for expenses from 
        both

[[Page 927]]

        the Senate and private organizations for the same travel,
    deserves the censure of the Senate; and he is so censured for his 
    conduct, which is contrary to accepted morals, derogates from the 
    public trust expected of a Senator, and tends to bring the Senate 
    into dishonor and disrepute.

    On June 23, 1967, the Senate adopted the first portion of the 
resolution of censure relating to the use of political funds by Senator 
Dodd for private purposes: (16)
---------------------------------------------------------------------------
16. 113 Cong. Rec. 17011, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

        Resolved, (A) That it is the judgment of the Senate that the 
    Senator from Connecticut, Thomas J. Dodd, for having engaged in a 
    course of conduct over a period of five years from 1961 to 1965 of 
    exercising the influence and power of his office as a United States 
    Senator, as shown by the conclusions in the investigation by the 
    Select Committee on Standards and Conduct, to obtain, and use for 
    his personal benefit, funds from the public through political 
    testimonials and a political campaign, deserves the censure of the 
    Senate; and he is so censured for his conduct, which is contrary to 
    accepted morals, derogates from the public trust expected of a 
    Senator, and tends to bring the Senate into dishonor and disrepute.

    The Senate then proceeded to consider and agree to the remainder of 
the resolution, censuring Senator Dodd for improper use and 
solicitation of travel funds.

Sec. 12.4 A committee on elections recommended that a contestee would 
    be subject to censure by the House but not to forfeiture of his 
    seat where there were mitigating circumstances involved in his 
    violation of the Corrupt Practices Act.

    On May 21, 1936,(17) a committee on elections reported 
in the election contest case of McCandless v King, for the seat of 
Delegate from Hawaii. In its report, House Report No. 2736, the 
committee concluded that there were mitigating circumstances in the 
contestee's failure to fully comply with the reporting requirements of 
the Corrupt Practices Act. The committee recommended that Mr. Samuel 
Wilder King be declared entitled to the seat but stated in its report 
that Mr. King could be subject to censure by the House.
---------------------------------------------------------------------------
17. 80 Cong. Rec. 7765, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

    On June 2, 1936, the House adopted House Resolution 521, declaring 
the contestee, Mr. King, entitled to the seat.(18)
---------------------------------------------------------------------------
18. 80 Cong. Rec. 8705, 74th Cong. 2d Sess.
---------------------------------------------------------------------------



 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                         C. CAMPAIGN PRACTICES
 
Sec. 13. Investigations by Standing Committees

    Investigations of specific elections or election practices are usu

[[Page 928]]

ally undertaken by the Committee on House 
Administration.(19) Such investigations have been undertaken 
pursuant to the statutory electioncontest procedures or under the 
general investigatory power conferred by the House.(20)
---------------------------------------------------------------------------
19. See Sec. 13.4, infra. Investigations conducted under the election 
        contest statutes, see generally Ch. 9, infra.
20. See also Sec. 13.2, infra, where the House authorized the committee 
        to investigate elections where contests had not been formally 
        presented.
---------------------------------------------------------------------------

    The House may by resolution authorize the Committee on House 
Administration to investigate the right of a Member-elect to his 
seat,(1)~ where his right is impeached by charges and 
allegations of improper campaign conduct and of election 
irregularities.
---------------------------------------------------------------------------
 1. See Sec. Sec. 13.2-13.4, infra.
            Challenging the right to be sworn and referring the right 
        to a committee for investigation, see Ch. 2, supra.
---------------------------------------------------------------------------

    Investigations have also been undertaken by select committees 
created to review election campaigns and proceedings. In recent 
Congresses, a select committee to investigate campaign expenditures has 
been created at the end of one Congress to investigate pending 
elections and to report findings to the succeeding 
Congress.(2)
---------------------------------------------------------------------------
 2. See Sec. 14, infra.
            A select committee to investigate campaign expenditures has 
        recommended to the succeeding Congress that the right of a 
        Member-elect to his seat be reserved for decision and 
        investigated (see Sec. 13.5, infra).
            Committees, their jurisdiction, powers and procedures, see 
        Ch. 17, infra.
---------------------------------------------------------------------------

    The Committee on Standards of Official Conduct has some 
jurisdiction over the investigation of campaign 
contributions.(3)
---------------------------------------------------------------------------
 3. See Sec.  13.6, infra.                          -------------------
---------------------------------------------------------------------------

Necessary Parties

Sec. 13.1 The House dismissed an election contest because the 
    individual filing the notice was not a candidate for the House, 
    although a Member objected that the House in such a case had power 
    to refer the matter to a standing or a special committee in order 
    to investigate charges.

    On Jan. 19, 1965,(4) a resolution was under 
consideration declaring an individual incompetent to bring a contest 
for a seat in the House, since the individual filing notice was not a 
candidate for the

[[Page 929]]

House and was not a proper party to bring the contest:
---------------------------------------------------------------------------
 4. 111 Cong. Rec. 951-57, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

                                H. Res. 126
        Whereas James R. Frankenberry, a resident of the city of 
    Bronxville, New York, in the Twenty-Fifth Congressional District 
    thereof, has served notice of contest upon Richard L. Ottinger, the 
    returned Member of the House from said district, of his purpose to 
    contest the election of Richard L. Ottinger; and
        Whereas it does not appear that said James R. Frankenberry was 
    a candidate for election to the House of Representatives from the 
    Twenty-Fifth Congressional District of the State of New York, at 
    the election held November 3, 1964: Therefore be it

        Resolved, That the House of Representatives does not regard the 
    said James R. Frankenberry as a person competent to bring a contest 
    for a seat in the House and his notice of contest, served upon the 
    sitting Member, Richard L. Ottinger, is hereby dismissed.

    Mr. Carl Albert, of Oklahoma, spoke in favor of the resolution:

        Mr. Albert: Mr. Speaker, I yield myself such time as I might 
    consume.
        Mr. Speaker, the purpose of this resolution is to dismiss a 
    contest brought against the gentleman from New York [Mr. Ottinger]. 
    The notice of contest was given by letter dated December 19, 1964, 
    by Mr. James R. Frankenberry, of 40 Woodland Avenue, Bronxville, N. 
    Y. Mr. Frankenberry attempts to initiate this contest under the 
    provisions of Revised Statutes 105 to 130, as amended, 2 United 
    States Code 201-226 inclusive.
        Mr. Speaker, the House is the exclusive judge of the election, 
    returns, and qualifications of its Members under article I, section 
    5, of the Constitution of the United States.
        The application of the statutes in question is justifiable by 
    the House and by the House alone--In re Voorhis, 296 Federal Report 
    673.
        Mr. Speaker, under the law and under the precedents, Mr. 
    Frankenberry is not a proper party to contest the election of the 
    gentleman from New York [Mr. Ottinger]. He is not a proper 
    contestant within the applicable statutes, because he would not be 
    able, if he were successful, to establish his right to a seat in 
    the House. The contest involving Locke Miller and the gentleman 
    from Ohio, Mr. Michael Kirwan, in 1941, is directly in point, as 
    reported in the Congressional Record, volume 87, part 1, page 101. 
    . . .
        Mr. Speaker, the issue in the case brought by Locke Miller and 
    the notice filed by Mr. Frankenberry are identical except that in 
    the former case Locke Miller had been a candidate for the disputed 
    office in the primary. The statutes under which this proceeding is 
    initiated do not provide, and there is no case on record that we 
    have been able to find to the contrary, that a person not a party 
    to an election contest is eligible to challenge an election under 
    these statutes.
        Clearly under the precedent to which I have made reference, Mr. 
    Frankenberry is not a contestant for a seat in the House, and his 
    contest should be dismissed.
        Therefore, Mr. Speaker, I urge adoption of the resolution.

    Mr. Charles E. Goodell, of New York, arose to object to the 
resolution, stating:

[[Page 930]]

        . . . [T]he Corrupt Practices Act provides specifically for the 
    taking of depositions and testimony which can be submitted to the 
    House Committee on Administration. . . .
        I would hope, therefore, that the House will defeat this 
    resolution and that the matter will then go to the House 
    Administration Committee for proper and deliberate action where the 
    facts may be presented and where we may consider whether the Member 
    should actually in this case be seated permanently.
        There are many precedents with reference to the campaign 
    contributions and excessive expenditures where the House has denied 
    a Member a seat. Certainly, whatever our party, we must recognize 
    in this kind of a situation that the reputation and dignity of the 
    U.S. House of Representatives is involved. We should see to it that 
    a full and complete hearing is held.

    Mr. James C. Cleveland, of New Hampshire, addressed the House, 
following the conclusion of Mr. Goodell's remarks, citing many 
precedents to the effect that any person could challenge the election 
of a Member and that such challenge should be referred to the Committee 
on House Administration, to consider the facts and to determine whether 
the Member should finally be seated.

    The House adopted the resolution.

House Authorization for Committee Investigations

Sec. 13.2 The Committee on House Administration was authorized by the 
    House to conduct an investigation during adjournments or recesses 
    of election contests which had not been formally presented to the 
    House.

    On July 25, 1947,(5) the Committee on House 
Administration was given investigatory authority in relation to certain 
election-contest cases in the 80th Congress which had not yet been 
formally presented to the House:
---------------------------------------------------------------------------
 5. 93 Cong. Rec. 10210, 80th Cong. 1st Sess.
---------------------------------------------------------------------------

           Committee on House Administration--Contested Elections

        Mr. [Ralph A.] Gamble [of New York]: Mr. Speaker, by direction 
    of the Committee on House Administration, I offer a privileged 
    resolution (H. Res. 337) and ask for its immediate consideration.
        The Clerk read the resolution, as follows:

            Resolved, That notwithstanding any adjournment or recess of 
        the Eightieth Congress, testimony and papers received by the 
        Clerk of the House in any contested-election case shall be 
        transmitted by the Clerk to the Speaker for reference to the 
        Committee on House Administration in the same manner as though 
        such adjournment or recess had not occurred: Provided, That any 
        such testimony and papers referred by the Speaker shall be 
        printed as House documents of the next succeeding session of 
        the Congress.

        The resolution was agreed to. . . .

[[Page 931]]

        Committee on House Administration--Contested-Election Cases

        Mr. Gamble: Mr. Speaker, by direction of the Committee on House 
    Administration, I offer a privileged resolution (H. Res. 338) and 
    ask for its immediate consideration.
        The Clerk read the resolution, as follows:

            Resolved, That notwithstanding any adjournments or recesses 
        of the first session of the Eightieth Congress, the Committee 
        on House Administration is authorized to continue its 
        investigations in the contested-election cases of Mankin 
        against Davis, Lowe against Davis, and Wilson against Granger. 
        For the purpose of making such investigations the committee, or 
        any subcommittee thereof, is authorized to sit and act during 
        the present Congress at such times and places within the United 
        States, whether the House is in session, has recessed, or has 
        adjourned, to hold such hearings, and to require, by subpena or 
        otherwise, the attendance and testimony of such witnesses and 
        the production of such books, records, correspondence, 
        memoranda, papers, and documents, as it deems necessary. 
        Subpenas may be issued under the signature of the chairman of 
        the committee or any member of the committee designated by him, 
        and may be served by any person designated by such chairman or 
        member.

        The resolution was agreed to. . . .

        Committee on House Administration--Contested-Election Cases

        Mr. [Karl M.] LeCompte [of Iowa]: Mr. Speaker, I offer a 
    privileged resolution (H. Res. 339) to implement the resolution 
    just passed and ask for its immediate consideration.
        The Clerk read the resolution, as follows:

            Resolved, That the expenses of the investigations to be 
        conducted pursuant to House Resolution 338, by the Committee on 
        House Administration, acting as a whole or by subcommittee, not 
        to exceed $5,000, including expenditures for the employment of 
        investigators, attorneys, and clerical, stenographic, and other 
        assistants, shall be paid out of the contingent fund of the 
        House on vouchers authorized by such committee or subcommittee, 
        signed by the chairman of such committee, or subcommittee, and 
        approved by the Committee on House Administration.

        The resolution was agreed to.

    Parliamentarian's Note: Under Rule XI, clause 2(m) as amended 
effective Jan. 3, 1975 (H. Res. 988, 93d Cong. 2d Sess.), all standing 
committees of the House now have the power to issue subpoenas whether 
the House is in session, has recessed, or has adjourned.

Sec. 13.3 A resolution providing for the subpena of witnesses and the 
    procurement of ballot boxes and election records, in an 
    investigation of a contested election case, is presented as a 
    matter of privilege.

    On Jan. 7, 1930,(6) House Resolution 113 was offered as 
privi

[[Page 932]]

leged. 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, as follows:
---------------------------------------------------------------------------
 6. 72 Cong. Rec. 1187, 71st Cong. 2d Sess. See also 3 Hinds' 
        Precedents Sec. 2586, where a resolution providing for an 
        investigation of the election of a Member was ruled a question 
        of privilege.
---------------------------------------------------------------------------

        The Speaker: The question is on agreeing to the resolution.
        Mr. [William H.] Stafford [of Wisconsin]: Mr. Speaker, I 
    reserve a point of order on the resolution. I do not think it is 
    privileged.
        Mr. [Willis G.] Sears [of Nebraska]: Mr. Speaker, I move the 
    adoption of the resolution.
        Mr. [Bertrand H.] Snell [of New York]: I would like to ask the 
    gentleman a question about the resolution. Is this the usual form 
    or the usual action that the Committees on Elections take to get 
    people before them? I supposed there was just a general form for 
    subpoenaing witnesses and that was all that was necessary. I have 
    never known of a resolution of just this character.

        The Speaker: As the Chair caught the reading of the resolution, 
    it not only provides for the presence of witnesses, but also 
    provides for bringing before them the ballot boxes, and so forth. 
    The Chair thinks it would be necessary to have such a resolution to 
    bring that about.
        Mr. [Cassius C.] Dowell [of Iowa]: The resolution, Mr. Speaker, 
    is certainly in order.
        The Speaker: The Chair thinks it is a privileged matter.
        Mr. Snell: I suspect it is a privileged matter, coming from a 
    Committee on Elections, but what I had in mind was whether this was 
    the usual form under which we proceed in such cases.
        The Speaker: The Chair can not recall an immediate precedent, 
    but the Chair would think this is the proper way to cover the 
    appearance of witnesses under the circumstances set forth.

Sec. 13.4 Where the Committee on House Administration was authorized to 
    investigate the right of two contestants to a seat and ordered a 
    recount of the ballots under its general investigatory power, final 
    compensation to the contestants was paid out of the contingent 
    fund, since the recount was not undertaken under the election 
    contest statutes.

    On Jan. 3, 1961,(7) the House adopted House Resolution 
1, offered by Mr. Clifford Davis, of Tennessee, providing that the 
question of the right of either of the two contestants for a seat from 
Indiana (J. Edward Roush

[[Page 933]]

and George O. Chambers) be referred to the Committee on House 
Administration, and providing that until that committee had reported, 
neither could take the oath of office.
---------------------------------------------------------------------------
 7. 107 Cong. Rec. 23-25, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

    During its investigation, the Committee on House Administration 
conducted a recount of all the ballots cast in the election, under its 
general power to investigate rather than under the election contest 
statutes.(8)
---------------------------------------------------------------------------
 8. See 107 Cong. Rec. 10160, 87th Cong. 1st Sess., June 13, 1961.
---------------------------------------------------------------------------

    On June 13, 1961, the House confirmed the right of Mr. Roush to the 
seat, pursuant to the report of the committee (H. Res. 339). The House 
adopted a privileged resolution, House Resolution 340, providing for 
expenditures from the contingent fund to pay the salary and certain 
expenses to the duly elected Member and the payment of certain expenses 
incurred by the contestant. They were not reimbursed for expenses 
pursuant to the election contest statutes since the recount had been 
ordered by the Committee on House Administration under its 
investigative power.(9)
---------------------------------------------------------------------------
 9. See H. Res. 340, 107 Cong. Rec. 10160 (June 13, 1961) and 10391 
        (June 14, 1961), 87th Cong. 1st Sess.
---------------------------------------------------------------------------

Election Investigation Resolutions as Privileged

Sec. 13.5 A resolution from the Committee on House Administration 
    affirming the right of a Member to his seat, after investigation of 
    alleged fraud and dishonesty in his election, is reported and 
    considered as privileged.

    On Sept. 8, 1959,(10) Mr. Robert T. Ashmore, of South 
Carolina, reported as privileged House Resolution 380 from the 
Committee on House Administration, relating to the right of a Member to 
his seat. The House adopted the resolution:
---------------------------------------------------------------------------
10. 105 Cong. Rec. 18610, 18611, 86th Cong. 1st Sess.
---------------------------------------------------------------------------

        Whereas the Committee on House Administration has concluded its 
    investigation of the election of November 4, 1958, in the Fifth 
    Congressional District of Arkansas pursuant to House Resolution 1; 
    and
        Whereas such investigation reveals no cause to question the 
    right of Dale Alford to his seat in the Eighty-sixth Congress; 
    Therefore be it
        Resolved, That Dale Alford was duly elected a Representative to 
    the Eighty-sixth Congress from the Fifth Congressional District of 
    Arkansas, and is entitled to a seat therein.

    Parliamentarian's Note: The Select Committee to Investigate 
Campaign Expenditures, of the 85th Congress, had recommended, after 
investigating the elections in the fall of 1958, that Member-elect 
Alford not be seated pending an investigation of election 
irregularities. He was administered

[[Page 934]]

the oath, but his final right to a seat was referred for investigation 
to the Committee on House Administration, which investigated 
allegations of fraud and dishonesty in the conduction of the 
congressional election for the Fifth Congressional District of 
Arkansas.(11)
---------------------------------------------------------------------------
11. See the remarks of Mr. Thomas P. O'Neill, Jr. (Mass.) on the 
        Alford-Hays election at 105 Cong. Rec. 3432-34, 86th Cong. 1st 
        Sess., Mar. 5, 1959.
---------------------------------------------------------------------------

Investigations of Campaign Contributions

Sec. 13.6 In the 91st Congress, the House rules were amended to confer 
    upon the Committee on Standards of Official Conduct jurisdiction 
    over the raising, reporting, and use of campaign contributions for 
    House candidates, and jurisdiction over investigation of such 
    matters.

    On July 8, 1970,(12) William M. Colmer, of Mississippi, 
Chairman of the Committee on Rules called up House Resolution 1031, 
amending the rules of the House in relation to the jurisdiction of the 
Committee on Standards of Official Conduct over campaign contributions. 
The House passed the resolution, to confer upon that committee 
jurisdiction over the raising, reporting, and use of campaign 
contributions for candidates for the House. The committee was also 
given jurisdiction to investigate such matters and to report findings 
to the House.
---------------------------------------------------------------------------
12. 116 Cong. Rec. 23138-41, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

    Parliamentarian's Note: In the 94th Congress, legislative 
jurisdiction over campaign contributions was given to the Committee on 
House Administration (H. Res. 5, Jan. 14, 1975).

Senate Investigation Into Election of House Member

Sec. 13.7 A Senate resolution providing for an investigation into 
    charges of election corruption involving a Member of the House was 
    placed on the Senate Calendar and referred, on motion, to the 
    Committee on Rules and Administration.

    On Mar. 8, 1960,(13) the Clerk of the Senate read Senate 
Resolution 285, offered by Senator John J. Williams, of Delaware. The 
resolution provided in part:
---------------------------------------------------------------------------
13. 106 Cong. Rec. 4899, 4900, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        Resolved, That the Committee on Rules and Administration, or 
    any duly authorized subcommittee thereof, is

[[Page 935]]

    authorized and directed under sections 134(a) and 136 of the 
    Legislative Reorganization Act of 1946, as amended, and in 
    accordance with its jurisdictions specified by rule XXV of the 
    Standing Rules of the Senate, to examine, investigate, and make a 
    complete study of the charges, with a view to determining the truth 
    or falsity thereof, which have recently appeared in the public 
    press that certain persons have sought, through corruptly offering 
    various favors, privileges, and other inducements (including large 
    sums of money), to induce certain individuals to lend their 
    political support to one political party rather than to another, or 
    to become candidates of one political party rather than of another, 
    and that the offers made by such persons have in fact corruptly 
    induced certain of such individuals to change their political 
    affiliations or to lend their political support to one political 
    party rather than to another. . . .

    Remarks were made concerning the unusual course being pursued by 
the Senate in inquiring into the activities of a Member of the House:

        Mr. [Everett M.] Dirksen [of Illinois]: Mr. President, 
    normally, of course, one branch of Congress does not take account 
    of the activities and behavior of a Member of the other branch on 
    the theory that each House, of course, is the judge of the 
    qualifications, behavior and conduct of its own Members. But I 
    think it must be said, in fairness to the resolution proposed by 
    the Senator from Delaware, that it is a fact that these reports 
    which are given wide currency and so freely ventilated in the press 
    in all sections of the country become something of a reflection on 
    the entire Congress as an institution.
        Neither body in that sense escapes culpability in the eyes of 
    the public when these charges are not refuted and when they are not 
    rebutted. I believe that somehow, by some action, we should get to 
    the very bottom of this subject. . . .
        But certainly these reflections should not be permitted to 
    continue without some action, without some answer, somewhere in the 
    whole legislative establishment. Accordingly, recognizing the 
    reluctance of one body to look into the affairs of its own Members, 
    perhaps this is the only remedy which we have in order to sift the 
    truth of these charges.

    The resolution was directed towards an investigation of charges 
made by a columnist concerning alleged bribery and a candidate for 
public office, Mr. Adam C. Powell, of New York, a Member of the House 
of Representatives. Debate ensued on the resolution. Mr. Williams 
stated that he had called up the resolution for immediate consideration 
because he wished the entire Senate to vote upon it and not to have it 
referred to committee. Objection was made to its immediate 
consideration, and the resolution went over until the next day.
    The resolution was again debated on Mar. 11, 1960,(14) 
and on

[[Page 936]]

May 4, 1960, when it was on motion referred to the Senate Committee on 
Rules and Administration.(15)
---------------------------------------------------------------------------
14. 106 Cong. Rec. 5261-63, 86th Cong. 2d Sess.
15. 106 Cong. Rec. 9403-07, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
                         C. CAMPAIGN PRACTICES
 
Sec. 14. Investigations by Select Committees

    In recent Congresses (until the 93d Congress), a select committee 
to investigate campaign expenditures had been created by one Congress 
to study and review certain pending matters and to forward its findings 
to the next Congress for appropriate action and use.(16) 
Such findings have been used by the Committee on House Administration 
in judging and investigating election contests and the validity of 
certain elections.(17) In the 93d Congress, the House 
granted the Committee on House Administration subpena power to conduct 
investigations into election contests and practices, thereby enabling 
the committee to assume the functions and duties of the select 
committee,(18) and effective Jan. 3, 1975, the Committee on 
House Administration as well as all other standing committees was given 
subpena power, under Rule XI, clause 2(m), whether or not the House is 
in session.
---------------------------------------------------------------------------
16. See Sec. Sec. 14.1-14.3, infra, for creation and funding of such 
        select committees.
            Select committees, their creation, powers and procedures, 
        see Ch. 17, infra.
            Investigations and inquiries generally, see Ch. 15, infra.
17. See Sec. Sec. 14.4 et seq., infra. For a discussion of the 
        jurisdictional overlap between the select committee and the 
        Committee on House Administration, see Sec. 14.6, infra.
18. See H. Res. 737, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

    The former Select Committee on Standards of Official Conduct 
hadauthority to investigate improper conduct by Members, including 
campaign activities.(19)
---------------------------------------------------------------------------
19. See Sec. 14.9, infra.
            The Senate Select Committee on Standards of Official 
        Conduct recommended the censure of a Senator, who was then 
        censured by the Senate, for improper use and conversion of 
        campaign funds, in the 90th Congress (see Sec. 12.3, supra).
---------------------------------------------------------------------------

    The Senate has established select committees to investigate 
improper campaign activities.(20)
---------------------------------------------------------------------------
20. 20. See Sec. Sec. 14.10-14.12, 
        infra.                          -------------------
---------------------------------------------------------------------------

Creation of Select Committee to Investigate Campaign Expenditures

Sec. 14.1 In the 91st Congress, the House agreed to a privileged 
    resolution, reported by the Committee on Rules, estab

[[Page 937]]

    lishing a select committee to investigate and report on campaign 
    expenditures and practices by candidates for the House.

    On Aug. 4, 1970,(1) Mr. Thomas P. O'Neill, Jr., of 
Massachusetts, called up and the House adopted the following 
resolution, reported as privileged by the Committee on Rules:
---------------------------------------------------------------------------
 1. 116 Cong. Rec. 27125, 27126, 91st Cong. 2d Sess. As indicated by 
        the note to Sec. 10.10, supra, the creation of such a select 
        committee is no longer necessary.
            For similar select committees created by resolution, see H. 
        Res. 929, 89th Cong. 2d Sess., Aug. 11, 1966, and H. Res. 1239, 
        90th Cong. 2d Sess., Aug. 1, 1968.
            See also H. Res. 131, 93d Cong. 1st Sess., Jan. 15, 1973, 
        continuing and funding a special committee on campaign 
        expenditures. The resolution extended the special committee 
        created in the 92d Congress, in order to enable it to assist 
        the Clerk in investigating new allegations of violations of 
        federal election laws.
            H. Res. 279, 93d Cong. 1st Sess., authorized joint 
        investigations by the select committee and the Clerk, so that 
        the subpena power of the committee could be used by the Clerk 
        in carrying out his functions under the Federal Elections 
        Campaign Act of 1971.
---------------------------------------------------------------------------

                                H. Res. 1062

        Resolved, That a special committee of five Members be appointed 
    by the Speaker of the House of Representatives to investigate and 
    report to the House not later than January 11, 1971, with respect 
    to the following matters:
        (1) The extent and nature of expenditures made by all 
    candidates for the House of Representatives in connection with 
    their campaign for nomination and election to such office.
        (2) The amount subscribed, contributed, or expended, and the 
    value of services rendered, and facilities made available 
    (including personal services, use of advertising space, radio and 
    television time, office space, moving picture films, and automobile 
    and any other transportation facilities) by any individual, 
    individuals, or group of individuals, committee, partnership, 
    corporation, or labor union, to or on behalf of each such candidate 
    in connection with any such campaign or for the purpose of 
    influencing the votes cast or to be cast at any convention or 
    election held in 1970 to which a candidate for the House of 
    Representatives is to be nominated or elected.

        (3) The use of any other means or influence (including the 
    promise or use of patronage) for the purpose of aiding or 
    influencing the nomination or election of any such candidates.
        (4) The amounts, if any, raised, contributed, and expended by 
    any individual, individuals, or group of individuals, committee, 
    partnership, corporation, or labor union, including any political 
    committee thereof, in connection with any such election, and the 
    amounts received by any political committee from any corporation, 
    labor union, individual, individuals, or group of individuals, 
    committee, or partnership.

[[Page 938]]

        (5) The violations, if any, of the following statutes of the 
    United States:
        (a) The Federal Corrupt Practices Act.
        (b) The Act of August 2, 1939, as amended, relating to 
    pernicious political activities, commonly referred to as the Hatch 
    Act.
        (c) The provisions of section 304, chapter 120, Public Law 101, 
    Eightieth Congress, first session, referred to as the Labor-
    Management Relations Act, 1947.
        (d) Any statute or legislative Act of the United States or of 
    the State within which a candidate is seeking nomination or 
    reelection to the House of Representatives, the violation of which 
    Federal or State statute, or statutes, would affect the 
    qualification of a Member of the House of Representatives within 
    the meaning of article I, section 5, of the Constitution of the 
    United States.
        (6) Such other matters relating to the election of Members of 
    the House of Representatives in 1970, and the campaigns of 
    candidates in connection therewith, as the committee deems to be of 
    public interest, and which, in its opinion, will aid the House of 
    Representatives in enacting remedial legislation, or in deciding 
    contests that may be instituted involving the right to a seat in 
    the House of Representatives.
        (7) The committee is authorized to act upon its own motion and 
    upon such information as in its judgment may be reasonable or 
    reliable. Upon complaint being made to the committee under oath, by 
    any person, candidate or political committee, setting forth 
    allegations as to facts which, under this resolution, it would be 
    the duty of said committee to investigate, the committee shall 
    investigate such charges as fully as though it were acting upon its 
    own motion, unless, after a hearing upon such complaint, the 
    committee shall find that the allegations in such complaint are 
    immaterial or untrue. All hearings before the committee, and before 
    any duly authorized subcommittee thereof, shall be public, and all 
    orders and decisions of the committee, and of any such 
    subcommittee, shall be public.
        For the purpose of this resolution, the committee or any duly 
    authorized subcommittee thereof, is authorized to hold such public 
    hearings, to sit and act at such times and places during the 
    sessions, recesses, and adjourned periods of the Ninety-first 
    Congress, to employ such attorneys, experts, clerical, and other 
    assistants, to require by subpena or otherwise the attendance of 
    such witnesses and the production of such correspondence, books, 
    papers, and documents, to administer such oaths, and to take such 
    testimony as it deems advisable. Subpenas may be issued under the 
    signature of the chairman of the committee or any subcommittee, or 
    by any member designated by such chairman, and may be served by any 
    person designated by any such chairman or member.
        (8) The committee is authorized and directed to report promptly 
    any and all violations of any Federal or State statutes in 
    connection with the matters and things mentioned herein to the 
    Attorney General of the United States in order that he may take 
    such official action as may be proper.
        (9) Every person who, having been summoned as a witness by 
    authority of said committee or any subcommittee

[[Page 939]]

    thereof, willfully makes default, or who, having appeared, refuses 
    to answer any question pertinent to the investigation heretofore 
    authorized, shall be held to the penalties prescribed by law.
        That said committee is authorized and directed to file interim 
    reports whenever in the judgment of the majority of the committee, 
    or of the subcommittee conducting portions of said investigation, 
    the public interest will be best served by the filing of said 
    interim reports, and in no event shall the final report of said 
    committee be filed later than January 11, 1971, as hereinabove 
    provided.

Sec. 14.2 A resolution creating a special committee to investigate and 
    report on campaign expenditures of all Members is called up as 
    privileged.

    On Aug. 10, 1966, there was reported by the Committee on Rules 
House Resolution 929, authorizing the Speaker to appoint a special 
committee to investigate and report on campaign expenditures of 
candidates for the House of Representatives. The resolution was called 
up as privileged on Aug. 11 and agreed to by the House.(2)
---------------------------------------------------------------------------
 2. 112 Cong. Rec. 18775, 19080, 19081, 89th Cong. 2d Sess.
---------------------------------------------------------------------------

    Similarly, on Aug. 1, 1968,(3) the Committee on Rules 
offered House Resolution 1239 authorizing the Speaker to appoint a 
special committee to investigate and report on campaign expenditures of 
candidates for the House. The resolution was called up as privileged 
and was agreed to. On Aug. 2, 1968, Speaker John W. McCormack, of 
Massachusetts, appointed members to the special committee pursuant to 
the resolution.(4)
---------------------------------------------------------------------------
 3. 114 Cong. Rec. 24770, 24771, 90th Cong. 2d Sess.
 4. 114 Cong. Rec. 25064, 90th Cong. 2d Sess.
            The Committee on Rules reports as privileged a report on a 
        resolution creating a select committee. See, for example, 108 
        Cong. Rec. 16000, 87th Cong. 2d Sess., Aug. 9, 1962. Generally, 
        see Ch. 17. infra.
---------------------------------------------------------------------------

Sec. 14.3 Funds for a special committee to investigate campaign 
    expenditures are authorized by House resolution and paid from the 
    contingent fund.

    On Aug. 2, 1968,(5) the House passed a resolution 
authorizing the payment of expenses for an investigation to be 
conducted by the special committee to investigate campaign 
expenditures, established by House Resolution 1239. The resolution 
provided for payment from the contingent fund for staff members and for 
other expenditures of the committee.
---------------------------------------------------------------------------
 5. 114 Cong. Rec. 25065, 90th Cong. 2d Sess.
---------------------------------------------------------------------------

    Since the resolution was not reported from the Committee on

[[Page 940]]

House Administration, the resolution was not called up as privileged:

        Mr. [Samuel N.] Friedel [of Maryland]: Mr. Speaker, I ask 
    unanimous consent for the immediate consideration of House 
    Resolution 1281.
        The Clerk read the resolution, as follows:

                                  H. Res. 1281

            Resolved, That the expenses of conducting the investigation 
        authorized by H. Res. 1239, Ninetieth Congress, incurred by the 
        Special Committee To Investigate Campaign Expenditures, 1968, 
        acting as a whole or by subcommittee, not to exceed $50,000, 
        including expenditures for employment of experts, special 
        counsel, and clerical, stenographic, and other assistants, 
        shall be paid out of the contingent fund of the House on 
        vouchers authorized by said committee, signed by the chairman 
        of the committee, and approved by the Committee on House 
        Administration.
            Sec. 2. The official stenographers to committees may be 
        used at all hearings held in the District of Columbia if not 
        otherwise engaged.

        The Speaker: (6) Is there objection to the request 
    of the gentleman from Maryland?
---------------------------------------------------------------------------
 6. John W. McCormack (Mass.).
---------------------------------------------------------------------------

        There was no objection.
        The resolution was agreed to.
        A motion to reconsider was laid on the table.

Use of Select Committee Findings to Judge Elections

Sec. 14.4 The findings of a special committee to investigate campaign 
    expenditures, established by the House in the preceding Congress, 
    may be transmitted to the Committee on House Administration and 
    used where applicable by parties to election 
    contests.(7)
---------------------------------------------------------------------------
 7. See H. Rept. No. 1599 and H. Res. 580 in the contested election 
        case of Macy v Greenwood, First Congressional District of New 
        York, reported Mar. 19, 1952. 98 Cong. Rec. 2545, 82d Cong. 2d 
        Sess.
            For a resolution adopted in the 93d Congress granting the 
        Committee on House Administration subpena power in conducting 
        investigations, thereby enabling it to assume the functions of 
        the select committee, see H. Res. 737, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

Sec. 14.5 A special committee to study campaign expenditures of the 
    Members in the preceding Congress has recommended that the 
    Committee on House Administration investigate and report to the 
    House by a certain date.(8)
---------------------------------------------------------------------------
 8. See H. Rept. No. 2482 and H. Res. 676 in the election contest of 
        Oliver v Hale, for the First Congressional District of Maine, 
        reported Aug. 6, 1958, 104 Cong. Rec. 16481, 85th Cong. 2d 
        Sess.
---------------------------------------------------------------------------

Sec. 14.6 Where the Select Committee to Investigate Campaign 
    Expenditures of the

[[Page 941]]

    89th Congress investigated the election of a Member-elect and 
    recommended that his right to his seat be reserved for decision, he 
    was sworn in, but his final right to a seat was referred to the 
    Committee on House Administration.

    On Jan. 10, 1967,(9) the House passed a resolution 
authorizing the administration of the oath to Member-elect Benjamin B. 
Blackburn, of Georgia, but directing that his final right to a seat be 
referred to the Committee on House Administration. The determination of 
his right to a seat was reserved for later decision pursuant to the 
recommendation of the Select Committee to Investigate Campaign 
Expenditures appointed in the 89th Congress.(10)
---------------------------------------------------------------------------
 9. 113 Cong. Rec. 27, 90th Cong. 1st Sess.
10. See H. Rept. No. 2348, 89th Cong. 2d Sess., Jan. 3, 1967.
---------------------------------------------------------------------------

    The right of Mr. Blackburn to his seat was then treated as a 
contested election case, and the Committee on House Administration 
recommended that Mr. Blackburn be declared entitled to his seat after 
the investigation.(11)
---------------------------------------------------------------------------
11. 113 Cong. Rec. 15848, 15849, 90th Cong. 1st Sess., June 14, 1967.
---------------------------------------------------------------------------

    On July 11, 1967,(12) the House adopted House Resolution 
542, reported by the committee, affirming the right of Mr. Blackburn to 
his seat. The resolution was offered by Mr. Robert T. Ashmore, of South 
Carolina. He discussed the basis for the investigation, including the 
dispute concerning the accuracy of computers used to count the ballots.
---------------------------------------------------------------------------
12. 113 Cong. Rec. 18291, 18292, 90th Cong. 1st Sess.
---------------------------------------------------------------------------

    Mr. Charles E. Goodell, of New York, remarked in debate on the 
function of the Select Committee on Campaign Expenditures and the 
conflict in jurisdiction between that committee and the Subcommittee on 
Elections of the Committee on House Administration.

        Mr. Goodell: Mr. Speaker, I also join in the committee decision 
    in this instance to dismiss the contest brought by Mr. Mackay 
    against the incumbent contestee, the gentleman from Georgia [Mr. 
    Blackburn]. It should be emphasized that at this stage Mr. Mackay 
    has requested the withdrawal of his contest, so there is really no 
    issue left to argue about.
        I think there is one point, however, that should be made in 
    this debate which affects all of us in the possibility of election 
    contests in our own districts in the future. We must move to 
    clarify the whole procedure of election contests in the interim 
    between the election date and the opening of a new Congress. In 
    that period the jurisdiction lies to a degree in the Special 
    Committee on Campaign Expenditures. As a practical matter, the 
    ultimate decision for investigating and deter

[[Page 942]]

    mining election contests rests with the new Congress and with the 
    Subcommittee on Elections of the Committee on House Administration. 
    We have had in the past confusion in election contest cases. The 
    contester in some instances has felt he had complied with the law 
    by giving notice of contest to the Special Committee on Campaign 
    Expenditures and failed to give notice under the law to the Clerk 
    of the House and the Subcommittee on Elections of the Committee on 
    House Administration.
        In addition, Mr. Speaker, it seems unnecessary that we have two 
    such subcommittees operating with overlapping jurisdiction.

        We have moved to a degree to provide that the membership of the 
    Special Committee on Campaign Expenditures will be the same as the 
    membership of the House Subcommittee on Elections.
        Perhaps this would be a solution. In any event I believe this 
    Congress should move to try to eliminate the overlapping and 
    confusion that exists in the present law between the jurisdictions 
    of these two committees. It caused some difficulty in this 
    instance. The Special Committee on Campaign Expenditures spent 
    considerable time debating its proper jurisdiction, and the special 
    committee ultimately, by a divided vote, recommended that the 
    gentleman from Georgia [Mr. Blackburn] not be seated on opening 
    day. There was considerable difference of opinion as to the proper 
    jurisdiction of the Elections Subcommittee as distinguished from 
    the Campaign Expenditures Special Committee in this situation.
        Mr. Speaker, I would hope that we could move to eliminate any 
    possibility of this type of confusion in the future.

Sec. 14.7 Both candidates for a congressional seat filed petitions with 
    the special campaign expenditures committee of the preceding 
    Congress, which committee investigated only one petition filed 
    therewith.

    On June 13, 1961,(13) the Committee on House 
Administration reported on the Roush-Chambers election contest for the 
Fifth Congressional District of Indiana. As indicated by the report (H. 
Rept. No. 513) and by the debate in the House on House Resolution 339, 
on June 14, 1961, declaring Mr. J. Edward Roush entitled to the seat, 
both candidates had filed petitions with the special campaign 
expenditures committee created in the 86th Congress. The dispute was 
resolved in favor of Mr. Roush, although the committee had prepared 
findings on and had investigated only one of the petitions filed 
therewith.(14)
---------------------------------------------------------------------------
13. 107 Cong. Rec. 10186, 87th Cong. 1st Sess.
14. For debate on the resolution, see 107 Cong. Rec. 10377-91, 87th 
        Cong. 1st Sess. For minority views criticizing the action of 
        the special committee and the action of the Committee on House 
        Administration, see id. at p. 10381.
---------------------------------------------------------------------------

Sec. 14.8 The Committee on House Administration took

[[Page 943]]

    ``judicial notice'' of complaints filed with a special committee to 
    investigate campaign expenditures of the preceding Congress, 
    although the special committee had failed to make recommendations 
    thereon.

    On Apr. 22, 1958,(15) the Committee on House 
Administration reported on the contested election case of Carter v 
LeCompte for the Fourth Congressional District of Iowa, and recommended 
that the contestee be declared entitled to his seat. In its report, 
House Report No. 1626, the committee took judicial notice of complaints 
filed by the contestant with the special committee to investigate 
campaign expenditures which had been created and appointed in the 84th 
Congress. The special committee had not taken any action on those 
complaints.
---------------------------------------------------------------------------
15. 104 Cong. Rec. 6939, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

    On June 17, 1958, the House debated and adopted House Resolution 
533 declaring the contestee entitled to the seat.(16)
---------------------------------------------------------------------------
16. 104 Cong. Rec. 11512-17, 85th Cong. 2d Sess.
---------------------------------------------------------------------------

Former Select Committee on Standards and Conduct

Sec. 14.9 In the 89th Congress, the House established a Select 
    Committee on Standards and Conduct, with authority to investigate 
    allegations of improper conduct by Members.

    On Oct. 19, 1966,(17) a resolution establishing a Select 
Committee on Standards and Conduct, offered by the Committee on Rules, 
was called up as privileged (H. Res. 1013). The function of the 
proposed committee was to investigate allegations of improper conduct 
by Members, to recommend disciplinary action to the House, and to 
transmit recommendations as to any necessary legislation. The House 
passed the resolution, as amended, on the same day.(18)
---------------------------------------------------------------------------
17. 112 Cong. Rec. 27713-29, 89th Cong. 2d Sess.
18. Expenditures by the Select Committee on Standards and Conduct were 
        authorized to be paid out of the contingent fund of the House. 
        112 Cong. Rec. 27730, 89th Cong. 2d Sess., Oct. 19, 1966. The 
        Speaker [John W. McCormack (Mass.)] announced his appointments 
        to the select committee on Oct. 20, 1966, 112 Cong. Rec. 28112, 
        89th Cong. 2d Sess.
            A standing Committee on Standards of Official Conduct, with 
        jurisdiction over campaign contributions, was established in 
        the 90th Congress (see Ch. 17, infra).
---------------------------------------------------------------------------

Senate Select Committee on Campaign Practices

Sec. 14.10 A special Senate committee established in the 71st

[[Page 944]]

    Congress to investigate campaign practices and violations of the 
    Corrupt Practices Act held extensive hearings and proposed 
    legislation intended to remedy certain defects in the act.

    On Apr. 10, 1930, the Senate passed Senate Resolution 215, 
establishing a special committee to investigate the elections of 1930, 
with respect to campaign expenditures, election primaries, election 
contests, campaign practices, and alleged violations of the Federal 
Corrupt Practices Act of 1925.
    The committee conducted extensive hearings and submitted reports on 
the effectiveness of the act (19) and on alleged violations 
thereof.(20)
---------------------------------------------------------------------------
19. S. Rept. No. 20, 72d Cong. 1st Sess., submitted pursuant to S. Res. 
        215, printed in 75 Cong. Rec. 977-79, 72d Cong. 1st Sess., Dec. 
        21, 1931.
20. S. Rept. No. 24, pursuant to S. Res. 403, 72d Cong. 1st Sess., Dec. 
        21, 1931.
---------------------------------------------------------------------------

Sec. 14.11 The Vice President was authorized to appoint a special 
    committee for an investigation of alleged attempts to improperly 
    influence the Senate through campaign contributions.

    On Feb. 22, 1956,(1) the Senate adopted Senate 
Resolution 219, authorizing an investigation by a special committee of 
lobbying activities. (The Senate had previously authorized an 
investigation into an alleged effort to influence a Senator, by 
contributing to his campaign, in relation to the natural gas bill, S. 
1853.) In his veto message on the gas bill, President Eisenhower stated 
that accumulated evidence of questionable activities in relation to the 
bill indicated a substantial threat to the integrity of the 
governmental process.
---------------------------------------------------------------------------
 1. 102 Cong. Rec. 3116, 84th Cong. 2d Sess.
---------------------------------------------------------------------------

    Senate Resolution 219, as agreed to, provided in part:

        Resolved, That there is hereby established a special committee 
    which is authorized and directed to investigate the subject of 
    attempts to influence improperly or illegally the Senate or any 
    Member thereof, or any candidate therefor, or any officer or 
    employee of the executive branch of the Government, through 
    campaign contributions, political activities, lobbying, or any and 
    all other activities or practices. . . .
        . . . The special committee shall consist of 8 members to be 
    appointed by the Vice President. . . .
        . . . The special committee shall report to the Senate by 
    January 31, 1957, and shall include in its report specific 
    recommendations (1) to improve and modernize the Federal election 
    laws; (2) to improve and strengthen the Federal Corrupt Practices 
    Act, the Hatch Act, and the Federal Regulation of Lobbying Act, and 
    related laws; and (3) to insure appropriate ad

[[Page 945]]

    ministrative action in connection with all persons, organizations, 
    associations, or corporations believed to be guilty of wrongdoing 
    punishable by law.

Sec. 14.12 In the 84th Congress, the Senate by resolution created a 
    select committee to investigate an attempt by a campaign 
    contributor to influence the vote of a Senator.

    On Feb. 7, 1956,(2) there was laid before the Senate a 
resolution (S. Res. 205) establishing a select committee to investigate 
allegedly improper attempts through political contributions to 
influence the vote of a Senator. The Senate adopted the resolution:
---------------------------------------------------------------------------
 2. 102 Cong. Rec. 2167, 84th Cong. 2d Sess.
---------------------------------------------------------------------------

        Resolved, That there is hereby established a select committee 
    to investigate the circumstances involving an alleged improper 
    attempt through political contributions to influence the vote of 
    the junior Senator from South Dakota [Mr. Case] in connection with 
    the Senate's consideration of the bill S. 1853, the natural gas 
    bill.

    Parliamentarian's Note: During the consideration of S. 1853, the 
gas bill, Senator Francis H. Case announced that an attempt had been 
made to influence his vote on the measure by tendering him a campaign 
contribution.



 
                               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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
13. See Sec. Sec. 16.3, 16.4, infra.
14. See Sec.  15.2, infra.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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).                          -------------------
---------------------------------------------------------------------------

Issuance of Certificate by State Executive

Sec. 15.1 A citizens' group has no authority to issue certificates of 
    election.(18)
---------------------------------------------------------------------------
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.

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

[[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.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

Sec. 15.2 A state executive official has issued a certificate of 
    election notwithstanding an injunction against such issuance by the 
    state judiciary.(1)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
 5. 111 Cong. Rec. 27171, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 8. 119 Cong. Rec. 11-15, 93d Cong. 1st Sess., Jan. 3, 1973.

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

[[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)
---------------------------------------------------------------------------
 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.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
10. H. Rept. No. 2736, Committee on Elections No. 2, 74th Cong. 2d 
        Sess.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------
11. 117 Cong. Rec. 3, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
12. 117 Cong. Rec. 3-5, 92d Cong. 1st Sess. 2 USC Sec. Sec. 1a and 1b 
        require a certain form for Senate certificates.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
13. 102 Cong. Rec. 10769, 84th Cong. 2d Sess.
---------------------------------------------------------------------------



 
                               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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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

[[Page 952]]

cate clearly indicates when and where a Member-elect was chosen, and 
for what term and district, he will be seated.(18)
---------------------------------------------------------------------------
16. See Sec. 16.1, infra.
17. See 2 USC Sec. 26.
18. See Sec. 16.1, infra.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
19. See Sec. 16.2, infra.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 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).                          -------------------
---------------------------------------------------------------------------

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.''
---------------------------------------------------------------------------
 2. 72 Cong. Rec. 9891, 9892, 71st Cong. 2d Sess.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
 3. Id. at p. 9892.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
 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).

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

[[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)
---------------------------------------------------------------------------
 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).
---------------------------------------------------------------------------

    On Jan. 3, 1949,(8) at the convening of the 81st 
Congress, the Clerk addressed the House as follows:
---------------------------------------------------------------------------
 8. 95 Cong. Rec. 8, 81st Cong. 1st Sess.
---------------------------------------------------------------------------

        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)
---------------------------------------------------------------------------
 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.''
---------------------------------------------------------------------------

    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:
---------------------------------------------------------------------------
10. 78 Cong. Rec. 11, 12, 73d Cong. 2d Sess.
---------------------------------------------------------------------------

        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

[[Page 956]]

cided that neither contestant should be sworn until the committee had 
made its report.(11)
---------------------------------------------------------------------------
11. Id. at p. 12.
---------------------------------------------------------------------------

    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)
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------

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)
---------------------------------------------------------------------------
13. 110 Cong. Rec. 18107, 88th Cong. 2d Sess.
14. Id. at p. 18120.
---------------------------------------------------------------------------

    The Senate later affirmed by resolution Mr. Salinger's entitlement 
to a seat in the Senate.(15)
---------------------------------------------------------------------------
15. 110 Cong. Rec. 19396, 19422, 88th Cong. 2d Sess., Aug. 13, 1964.
---------------------------------------------------------------------------

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

[[Page 957]]

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.''
---------------------------------------------------------------------------
16. 81 Cong. Rec. 12, 13, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

    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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                               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)
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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.
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    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)
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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.
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    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)
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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).
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    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.
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 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.
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    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.
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    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)
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 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).

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[[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)
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 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).
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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).
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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.
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 9. 107 Cong. Rec. 23, 24, 87th Cong. 1st Sess.
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    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)
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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.
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    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)
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12. Id.
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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.
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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.
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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.
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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.
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