[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[Index to Precedents]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 963-972]
 
                               CHAPTER 9
 
                           Election Contests


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    Commentary and editing by John Theodore Fee, J.D.
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A. In General

    Sec. 1. Constitutional Provisions; Historical Background
    Sec. 2. Contested Election Laws
    Sec. 3. State or Local Election Boards

B. Jurisdiction and Powers

    Sec. 4. The House
    Sec. 5. Election Committees
    Sec. 6. The Clerk; Transmittal of Papers
    Sec. 7. The Courts

C. Grounds of Contest

    Sec. 8. Generally
    Sec. 9. Faulty Credentials; Citizenship
   Sec. 10. Violation of Federal or State Election Laws
   Sec. 11. Improper Attempts to Influence or Confuse Voters
   Sec. 12. Voting Booth and Balloting Irregularities

D. Defenses

   Sec. 13. Generally
   Sec. 14. Contestant's Credentials and Qualifications
   Sec. 15. Abatement
   Sec. 16. Limitations and Laches

E. Practice and Procedure

   Sec. 17. Alternatives to Statutory Election Contests
   Sec. 18. Commencing the Contest

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   Sec. 19. Parties

F. Notice of Contest

   Sec. 20. Generally; Time
   Sec. 21. Service of Notice
   Sec. 22. Form and Contents of Notice

G. Pleading

   Sec. 23. Generally
   Sec. 24. Answer
   Sec. 25. Motion to Dismiss
   Sec. 26. Motion for More Definite Statement

H. Taking of Testimony; Depositions

   Sec. 27. Generally; Time
   Sec. 28. Examination of Parties and Witnesses
   Sec. 29. Scope of Examination; Objections
   Sec. 30. Subpenas
   Sec. 31. Affidavits

I. Committee Hearing and Review; Dismissal and Withdrawal

   Sec. 32. Generally; Preparation of Briefs
   Sec. 33. Dismissal and Withdrawal of Contest

J. Evidence

   Sec. 34. Generally
   Sec. 35. Burden of Proof
   Sec. 36. Presumptions
   Sec. 37. Ballots
   Sec. 38. Determination of Voter Intention

K. Inspection and Recount of Ballots

   Sec. 39. Generally
   Sec. 40. Grounds

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   Sec. 41. Procedure

L. Disposition of Contests; Resolutions

   Sec. 42. Generally
   Sec. 43. Committee Reports
   Sec. 44. Form of Resolutions
   Sec. 45. Costs and Expenses; Compensation and Allowances

M. Summaries of Election Contests, 1931-72

   Sec. 46. Seventy-second Congress, 1931-32
   Sec. 47. Seventy-third Congress, 1933-34
   Sec. 48. Seventy-fourth Congress, 1935-36
   Sec. 49. Seventy-fifth Congress, 1937-38
   Sec. 50. Seventy-sixth Congress, 1939-40
   Sec. 51. Seventy-seventh Congress, 1941-42
   Sec. 52. Seventy-eighth Congress, 1943-44
   Sec. 53. Seventy-ninth Congress, 1945-46
   Sec. 54. Eightieth Congress, 1947-48
   Sec. 55. Eighty-first Congress, 1949-50
   Sec. 56. Eighty-second Congress, 1951-52
   Sec. 57. Eighty-fifth Congress, 1957-58
   Sec. 58. Eighty-sixth Congress, 1959-60
   Sec. 59. Eighty-seventh Congress, 1961-62
   Sec. 60. Eighty-eighth Congress, 1963-64
   Sec. 61. Eighty-ninth Congress, 1965-66
   Sec. 62. Ninetieth Congress, 1967-68
   Sec. 63. Ninety-first Congress, 1969-70
   Sec. 64. Ninety-second Congress, 1971-72

Appendix

   Election Contests, 1917-31

  
                         DESCHLER'S PRECEDENTS

deschler's precedents

Ch. 9

Ch. 9

[[Page 966]]

                          INDEX TO PRECEDENTS
                                     

Abernethy et al. v Wheadon et al., Mississippi 1965, Sec. 61.2
Advisory opinions as to state law, Sec. Sec. 5.13, 5.14
Alford, investigation of right to seat, Arkansas 1959, Sec. 58.1
Alternatives to statutory election contests, Sec. Sec. 17.1-17.4
Answer, failure to make timely, Sec. 24.1
Ayres v Huber, Ohio 1951, Sec. 56.1
Ballot boxes, magistrate's authority to open, Sec. 7.7
Balloting irregularities, Sec. Sec. 12.2-12.8
Ballots
    ambiguous, interpretation of voter intention, Sec. 37.1
    best evidence for determining voter intention, Sec. 37.2
    committee power to examine and recount, Sec. Sec. 5.10, 5.11
    integrity of, preserving, Sec. Sec. 5.7, 5.8, 35.10, 37.19, 37.20
    interpretation of voter intention, Sec. Sec. 38.1-38.3
    marked for both candidates, Sec. 37.15
    marked in wrong place, Sec. 37.16
    marked with improper instrument, Sec. 37.18
    marked with other than specified mark, Sec. Sec. 37.10, 37.11
    ``papers'' required to be produced, Sec. Sec. 29.2, 29.3
    preservation of, Sec. Sec. 5.7, 5.8, 35.10, 37.19, 37.20
    recount by stipulation of parties, Sec. Sec. 39.1, 39.2
    recount conducted by federal auditors, Sec. 41.5
    recount justified only if election result affected. Sec. Sec. 40.5-
        40.7
    recount of, burden of proof to show fraud or mistake before, 
        Sec. Sec. 40.3, 40.4
    recount supervised by House, Sec. 39.4
    recount, unsupervised, Sec. 39.3
    stickers used in lieu of writing in name, Sec. Sec. 37.13, 37.14
    stub attached to, Sec. 37.17
    tallies, Sec. 37.21
    ``write in,'' misspelling name on, Sec. 37.12
    writing in name of already listed candidate, effect of, Sec. 37.9
Beck v Shanahan, Pennsylvania 1934, Sec. 47.15
Blackburn v Mackay, Georgia 1967, Sec. 62.2
Blackney v Stevens, Michigan 1949, Sec. 55.3
Booth, see Voting booth
Bowles v Dingell, Michigan 1934, Sec. 47.1
Brewster v Utterback, Maine 1933, Sec. 47.2
Britten v McAndrews, Illinois 1934, Sec. 47.12
Browner v Cunningham, Iowa 1949, Sec. 55.1
Burden of proof (see also Presumptions)
    claim to seat, establishing, Sec. 35.8
    expenditures, allegations of improper, Sec. 35.9
    recount of ballots, fraud or mistake shown before, Sec. Sec. 40.3, 
        40.8
    results of election would be changed, Sec. Sec. 35.3-35.7, 40.5-
        40.7
Burnham v Chandler, California 1934, Sec. 47.4
Campaign workers, prizes to, as grounds for contest, Sec. 11.4
Candidate's participation in irregularities, Sec. 13.2
Carter v LeCompte, Iowa 1957, Sec. 57.1

[[Page 967]]

Casey v Turpin, Pennsylvania 1934, Sec. 47.3
Certificates of election, Sec. Sec. 9.1-9.3
Chambers or Roush, Indiana 1961, Sec. 59.1
Chandler v Burnham, California 1934, Sec. 47.4
Citizenship, Member's qualifications as to, Sec. 9.4
Clark v Nichols, Oklahoma 1943, Sec. 52.1
Clerk
    items transmitted to Speaker, Sec. Sec. 6.1-6.5
    notice of contest to, forwarding in prescribed manner of, Sec. 25.1
    powers of, Sec. Sec. 6.6-6.13
    subpena, refusal to respond to party's, Sec. Sec. 6.13, 30.1
    testimony, failure to forward to Clerk, Sec. 27.6
Coad v Dolliver, Iowa 1957, Sec. 57.2
Colmer v Gray, Mississippi 1965, Sec. 61.2
Contestant
    failure to specify grounds relied upon, Sec. 13.8
    standing to bring contest, Sec. Sec. 14.1, 19.1-19.6
Contingent fund, reimbursement of contest expenses from, 
    Sec. Sec. 45.1, 45.2
Cooper v Miller, Ohio 1936, Sec. 48.3
Corrupt Practices Act, Sec. Sec. 10.1-10.5
Cosey et al. v Williams, Mississippi 1965, Sec. 61.2
Coyle v Kent, Pennsylvania 1932, Sec. 46.1
Cunningham v Browner, Iowa 1949, Sec. 55.1
Curtis v Karst, Missouri 1951, Sec. 56.2
Davies v Fuller, New York 1949, Sec. 55.2
Davis v Lowe, Georgia 1948, Sec. 54.1
Davis v Lowe, Georgia 1951, Sec. 56.3
Davis v Mankin, Georgia 1947, Sec. 54.2
Debate on resolution disposing of contest
    extension of time for, Sec. 42.9
    participation by parties, Sec. Sec. 42.6, 42.7
Default judgment, motion for, Sec. 23.2
Deposition unsigned by witness, Sec. 28.1
Devine v Walker. Mississippi 1965, Sec. 61.2
Dingell v Bowles, Michigan 1934, Sec. 47.1
Directed verdict, motion for, Sec. 23.1
Directory laws distinguished from mandatory laws, Sec. Sec. 10.6-10.12
Dismiss, premature motion to, Sec. 25.6
Dismissal, cause for, Sec. 33.1
Disney v O'Connor, Oklahoma 1932, Sec. 46.3
Disposal of contest
    parties' stipulation as to, Sec. 42.10
    privileged resolutions, Sec. Sec. 42.2-42.5
    resolution declaring seat vacant, Sec. Sec. 42.11, 42.12
Dolliver v Coad, Iowa 1957, Sec. 57.2
Dondero v Hicks, Michigan 1945, Sec. 53.1
Douglas v Roberts, California 1947, Sec. 54.4
Eaton v Scott, California 1940, Sec. 50.2
Election official
    directory laws, violations of, Sec. Sec. 10.8, 10.10
    mandatory laws, violations of, Sec. 10.7
    violations and errors by, Sec. Sec. 10.13-10.15
    voter confusion as excuse for entering booth, Sec. 12.1
Elections
    conducted improperly, Sec. Sec. 10.17-10.19
    illegal, as grounds for contest, Sec. Sec. 10.18, 14.2
    unauthorized, Sec. 14.2
Ellenbogen, In re, Pennsylvania 1933, Sec. 47.5

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Ellis v Thurston, Iowa 1934, Sec. 47.6
Ellzey v Reese, Mississippi 1934, Sec. 47.13
Evidence (see also Burden of proof; Presumptions)
    ballots as best evidence, Sec. 37.2
    ex parte proceedings, Sec. 34.3
    future use, collecting for, Sec. 34.1
    preservation of, by committee, Sec. Sec. 5.7-5.9
    production of contestant's, Sec. 34.2
    standard of ``air preponderance,'' Sec. 35.2
    testimony from prior state inquiry, Sec. 34.4
    withdrawal of, Sec. 32.1
Expenses of election contests, see Reimbursement of contest expenses
``Fair preponderance'' of evidence standard, Sec. 35.2
Feighan v Thierry, Ohio 1949, Sec. 55.4
Felix v Muldowney, Pennsylvania 1934, Sec. 47.7
Financing extra editions of magazine as grounds for contest, Sec. 11.2
Fox v Higgins, Connecticut 1934, Sec. 47.8
Frankenberry v Ottinger, New York 1965, Sec. 61.1
Fuller v Davies, New York 1949, Sec. 55.2
Funds, illegal use of, Sec. 10.20
Gormley v Goss, Connecticut 1934, Sec. 47.9
Goss v Gormley, Connecticut 1934, Sec. 47.9
Granata v Kunz, Illinois 1932, Sec. 46.2
Granger v Wilson, Utah 1948, Sec. 54.5
Gray v Colmer, Mississippi 1965, Sec. 61.2
Greenwood v Macy, New York 1951, Sec. 56.4
Gross v Peterson, Iowa 1965, Sec. 61.3
Hale v Oliver, Maine 1958, Sec. 57.3
Hamer v Whitten, Mississippi 1965, Sec. 61.2
Harrington v Swanson, Iowa 1940, Sec. 50.4
Hicks v Dondero, Michigan 1945, Sec. 53.1
Higgins v Fox, Connecticut 1934, Sec. 47.8
House resolution disposing of contest, see Resolutions disposing of 
    contest
Huber v Ayres, Ohio 1951, Sec. 56.1
Illegal elections, Sec. Sec. 10.17-10.19, 14.2
Illegal use of funds, Sec. 10.20
Invalid elections, see Elections
Investigations continuing after adjournment
    authority for, Sec. 5.12
    funding for, Sec. 45.1
Investigations of right to seat, see Alternatives to statutory election 
    contest
Jenks v Roy, New Hampshire 1938, Sec. 49.1
Joint resolution
    reimbursement of contest expenses authorized by, Sec. 45.3
Jurisdiction, notice of contest as basis for House, Sec. 4.1
Karst v Curtis, Missouri 1951, Sec. 56.2
Kefauver v Neal, Tennessee 1940,  Sec. 50.1
Kemp, Sanders investigation, Louisiana 1934, Sec. 47.14
Kent v Coyle, Pennsylvania 1932, Sec. 46.1
King v McCandless, Hawaii 1936, Sec. 48.2
Kirwan v Miller, Ohio 1941, Sec. 51.1
Kunz v Granata, Illinois 1932, Sec. 46.2
Laches, defense to contest, Sec. 16.1
LaGuardia v Lanzetta, New York 1934, Sec. 47.10
Lanzetta v LaGuardia, New York 1934, Sec. 47.10

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Lanzetta v Marcantonio, New York 1936, Sec. 48.1
LeCompte v Carter, Iowa 1957, Sec. 57.1
Lovette v Reece, Tennessee 1934, Sec. 47.11
Lowe v Davis, Georgia 1948, Sec. 54.1
Lowe v Davis, Georgia 1951, Sec. 56.3
Lowe v Thompson, Georgia 1967, Sec. 62.1; 1969, Sec. 63.1
Maas v Williams, Minnesota 1937, Sec. 49.3
Mackay v Blackburn, Georgia 1967, Sec. 62.2
Macy v Greenwood, New York 1951, Sec. 56.4
Mahoney v Smith, Kansas 1959, Sec. 58.2
Mandatory laws distinguished from directory laws, Sec. Sec. 10.6-10.12
Mankin v Davis, Georgia 1947, Sec. 54.2
Marcantonio v Lanzetta, New York 1936, Sec. 48.1
McAndrews v Britten, Illinois 1934, Sec. 47.12
McCandless v King, Hawaii 1936, Sec. 48.2
McEvoy v Peterson, Georgia 1944,  Sec. 52.2
McMurray v Thill, Wisconsin 1944, Sec. 52.6
Members on subcommittee on elections, qualifications of, Sec. 5.4
Memorial, see Alternatives to statutory election contest
Michael v Smith, Virginia 1947, Sec. 54.3
Miller v Cooper, Ohio 1936, Sec. 48.3
Miller v Kirwan, Ohio 1941, Sec. 51.1
Miller v Sullivan, Missouri 1943, Sec. 52.5
Minority reports, Sec. Sec. 43.7-43.9
Mississippi, The Five Cases of, 1965, Sec. 61.2
Moreland v Schuetz, Illinois 1943, Sec. 52.3
Motion for directed verdict, Sec. 23.1
Motion for default judgment, Sec. 23.2
Motion to dismiss, premature, Sec. 25.6
Muldowney v Felix, Pennsylvania 1934, Sec. 47.7
Myers v Springer, Illinois 1959, Sec. 58.3
Neal v Kefauver, Tennessee 1940, Sec. 50.1
Nichols v Clark, Oklahoma 1943, Sec. 52.1
Notice of contest
    commencement of 30-day period for filing, Sec. 20.5
    good-faith requirement in filing for reimbursement of expenses, 
        Sec. 45.7
    signature, necessity of, Sec. 22.4
Oath, administration of, as evidence of right to seat, Sec. 35.1
Oath, administration of candidate's, Sec. Sec. 4.2, 4.3
O'Brien v Woodward, Illinois 1947, Sec. 54.6
O'Connor v Disney, Oklahoma 1932, Sec. 46.3
Odegard v Olson, Minnesota 1963, Sec. 60.1
Oliver v Hale, Maine 1958, Sec. 57.3
Olson v Odegard, Minnesota 1963, Sec. 60.1
Osser v Scott, Pennsylvania 1951, Sec. 56.5
Ottinger v Frankenberry, New York 1965, Sec. 61.1
Petition of right to seat, see Alternatives to statutory election 
    contest
Peterson v Gross, Iowa 1965, Sec. 61.3
Peterson v McEvoy, Georgia 1944, Sec. 52.2
Plunkett, In re, 1945, Sec. 53.2
Polk v Smith, Ohio 1939, Sec. 50.3
Pre-election irregularities
    courts, appeal to state, Sec. 7.1

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Presumptions (see also Burden of proof)
    absence of witnesses and challengers for contestant, Sec. 36.8
    closeness of election result, Sec. 36.11
    official returns as prima facie evidence, Sec. Sec. 36.1-36.7
    tally sheets, correctness of, Sec. 36.9
Primary election, improperly conducted, Sec. 10.19
Privileged resolutions, disposing of contests, Sec. Sec. 42.2-42.5
Prizes to campaign workers as grounds for contest, Sec. 11.4
Racial discrimination as grounds for contesting election, Sec. 11.3
Recount of ballots
    burden on contestant to produce evidence justifying, Sec. 41.3
    burden on contestant to show fraud or mistake before, Sec. 40.3
    conducted by auditors from General Accounting Office, Sec. 41.5
    court, state, recount supervised by, Sec. 39.6
    exhaustion of state remedies before, Sec. 41.1
    House supervision, held pursuant to state law, Sec. 39.4
    joint applications for, Sec. 41.4
    reconsideration of actions ordering, Sec. 41.6
    result of election be affected in order to justify, Sec. 39.5
    stipulation of parties to, Sec. Sec. 39.1, 39.2
    unsupervised, Sec. 39.3
Reece v Lovette, Tennessee 1934, Sec. 47.11
Reese v Ellzey, Mississippi 1934, Sec. 47.13
Reimbursement of expenses or allowances
    abatement of contest, request made after, Sec. 45.6
    alternatives to statutory election contests, reimbursement to 
        parties in, Sec. 45.4
    good-faith filing, conditioned upon, Sec. 45.7
    House contingent fund, payments from, Sec. 45.1, 45.2
    joint resolution authorizing, Sec. 45.3
    parties' expenses, Sec. 45.4
    retroactive to convening of Congress for Member-elect, Sec. 45.5
Reports on contest by committee
    failure to submit to House, Sec. Sec. 43.13, 43.14
    minority, Sec. Sec. 43.7-43.9
    resolutions accompanying, Sec. 43.4
    timeliness of, Sec. Sec. 43.5, 43.6
    withdrawal of contest by contestant, reciting, Sec. Sec. 43.10, 
        43.12
Representatives on subcommittee on elections, qualifications of, 
    Sec. 5.4
Residency, commencement, determined by state court, Sec. 7.4
Resolutions disposing of contest
    admitting neither candidate to seat, Sec. 42.15
    debate upon, extensions of, Sec. 42.9
    debate upon, participation of parties in, Sec. Sec. 42.6-42.8
    declaring seat vacant, Sec. Sec. 42. 11, 42.12
    form of resolution, Sec. Sec. 44.1-44.3
    language in, appropriateness of, Sec. 44.1
    privileged, Sec. 42.2-42.5
    several contests treated in same resolution, Sec. 44.3
    substitutes to, offering of, Sec. 42.17, 42.18
Roberts v Douglas, California 1947, Sec. 54.4
Roush or Chambers. Indiana 1961.  59.1
Roy v Jenks, New Hampshire 1938, Sec. 49.1
Rutherford v Taylor, Tennessee 1937, Sec. 49.2

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Sanders, Kemp investigation, Louisiana 1934, Sec. 47.14
Schafer v Wasielewski, Wisconsin 1944, Sec. 52.4
Schuetz v Moreland, Illinois 1943, Sec. 52.3
Scott v Eaton, California 1940, Sec. 50.2
Scott v Osser, Pennsylvania 1951, Sec. 56.5
Service, substituted, Sec. 21.1
Shanahan v Beck, Pennsylvania 1934, Sec. 47.15
Signature necessary on notice of contest, Sec. 22.4
Simpson v Weber, Illinois 1934, Sec. 47.16
Smith v Mahoney, Kansas 1959, Sec. 58.2
Smith v Michael, Virginia 1947, Sec. 54.3
Smith v Polk, Ohio 1939, Sec. 50.3
Springer v Myers, Illinois 1959, Sec. 58.3
Standing
    contestant's, to bring contest, Sec. Sec. 14.1, 19.1-19.6
    third party's, to bring contest, Sec. Sec. 19.1-19.3
State law
    advisory opinions by state courts on, Sec. 7.3
    advisory opinions by state officials on, Sec. 5.13
    court, local, adoption or rejection of opinion of, Sec. Sec. 7.4-
        7.6, 38.4
    nominating procedure, illegal, Sec. 10.21
    voter intention as paramount consideration, Sec. 38.4, 38.5
State or local elections, intervention in, Sec. 3.2
State remedy, effect of failure to exhaust, Sec. Sec. 13.4, 13.5
Stevens v Blackney, Michigan 1949, Sec. 55.3
Stickers, see Ballots
Stipulation of parties
    disposal of contest by, Sec. 42.10
    jurisdiction on Congress, as to conferring, Sec. 4.1
    recount of ballots, joint applications for, Sec. 41.4
    time, extensions of, Sec. 27.15
``Straight ticket'' votes, interpretation of, Sec. 37.6-37.8
Stubs, see Ballots
Subpena
    Clerk's refusal to respond to, Sec. 30.1
    noncompliance with, Sec. 30.2
Substituted service, see Service
Sullivan v Miller, Missouri 1943, Sec. 52.5
Swanson v Harrington, Iowa 1940, Sec. 50.4
Tally sheets, presumption of correctness of, Sec. 36.9
Taylor v Rutherford, Tennessee 1937, Sec. 49.2
Testimony (see also Evidence)
    Clerk, failure to forward to, Sec. 25.1, 27.6
    failure to produce, Sec. 29.1
    failure to take within statutory period, Sec. Sec. 15.1-15.3, 27.1-
        27.5
    time, extensions of for taking, Sec. Sec. 27.7-27.10
Thierry v Feighan, Ohio 1949, Sec. 55.4
Thill v McMurray, Wisconsin 1944, Sec. 52.6
Thompson v Lowe, Georgia 1967, Sec. 62.1; 1969, Sec. 63.1
Thurston v Ellis, Iowa 1934, Sec. 47.6
Time
    extension by stipulation of parties of, Sec. 27.15
    extension during debate on resolution disposing of contest of, 
        Sec. 42.9
    extension only for good cause of, Sec. Sec. 27.11, 27.12
    extension, subsequent authorization of, Sec. 27.14

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Transmittal of papers, see Clerk
Tunno v Veysey, California 1971, Sec. 64.1
Turpin v Casey, Pennsylvania 1934, Sec. 47.3
Utterback v Brewster, Maine 1933, Sec. 47.2
Vacancy, notification to Governor of, Sec. 4.6
Veysey v Tunno, California 1971, Sec. 64.1
Voter intention, state law as related to interpreting, Sec. Sec. 38.4, 
    38.5
Voters, confusing or misleading as grounds for contest, Sec. 11.1
Votes, see Ballots
Voting booth
    election official entering, voter confusion as excuse for, 
        Sec. 12.1
Walker v Devine, Mississippi 1965, Sec. 61.2
Wasielewski v Schafer, Wisconsin 1944, Sec. 52.4
Weber v Simpson, Illinois 1934, Sec. 47.16
Wheadon et al. v Abernethy et al., Mississippi 1965, Sec. 61.2
Whitten v Hamer, Mississippi 1965, Sec. 61.2
Williams v Cosey et al., Mississippi 1965, Sec. 61.2
Williams v Maas, Minnesota 1937, Sec. 49.3
Wilson v Granger, Utah 1948, Sec. 54.5
Withdrawal of contest, Sec. Sec. 33.3-33.6
Witness, signing of deposition by, Sec. 28.1
Woodward v O'Brien, Illinois 1947, Sec. 54.6
``Write in'' votes, see Ballots

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