[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[J. Evidence]
[Â§ 35. Burden of Proof]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1056-1061]
 
                               CHAPTER 9
 
                           Election Contests
 
                              J. EVIDENCE
 
Sec. 35. Burden of Proof

    Under the Federal Contested Elections Act, the burden is on 
contestant to prove that the election results entitled him to 
contestee's seat, even where the contestee fails to answer the notice 
of contest or otherwise defend as provided by such act,(6)~ 
and even in opposition to a motion to dismiss submitted by contestee in 
advance of submission of formal evidence.(7)~
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 6. 2 USC Sec. 385.
 7. See Tunno v Veysey, discussed in Sec. 35.7, 
        infra.                          -------------------
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Administration of Oath as Prima Facie Evidence of Right to Seat

Sec. 35.1 The administration of the oath to the contestee may establish 
    his prima facie right to the seat.

    In the 1965 Mississippi election contest of Wheadon et al. v

[[Page 1057]]

Abernethy et al. [The Five Mississippi Cases] (Sec. 61.2, infra), the 
committee report and comments by members of the committee, during 
debate on the resolution dismissing the contest, suggested that the 
Committee on Elections regarded the administration of the oath to the 
contestees as establishing their prima facie right to the 
seats.(8)~
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 8. See also the debate on H. Rept. No. 89-602 disposing of the 
        election contest of Peterson v Gross (Sec. 61.3, infra), for 
        more authority that the administration of the oath establishes 
        a prima facie right to the seat, with resulting evidentiary 
        burdens imposed on the contestant. 111 Cong. Rec. 26499, 89th 
        Cong. 1st Sess., Oct. 11, 1965.
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Standard of ``Fair Preponderance of Evidence''

Sec. 35.2 In an election contest, contestant has the burden of proof to 
    establish his case, on the issues raised by the pleadings, by a 
    fair preponderance of the evidence.

    In Scott v Eaton (Sec. 50.2, infra), a 1940 California contest, an 
elections committee summarily ruled that a contestant had not 
established by a fair preponderance of the evidence that contestee had 
violated a California statute or the Federal Corrupt Practices Act, or 
that any such violation directly or indirectly prevented contestant 
from receiving a majority of votes cast.(9)
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 9. As to the ``fair preponderance'' standard, see also Gormley v Goss, 
        a 1934 Connecticut contest (Sec. 47.9, infra).
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Burden of Showing Results of Election Would Be Changed

Sec. 35.3 In the absence of a showing that the results of the election 
    would be changed, lack of knowledge of registration laws and 
    improper enforcement by officials charged with their administration 
    are not such irregularities as will void the results of an 
    election.

    In Wilson v Granger (Sec. 54.5, infra), a 1948 Utah contest, the 
majority report of the Committee on House Administration acknowledged 
``widespread and numerous errors and irregularities in many parts of 
the district,'' but nevertheless upheld the 104 vote lead of the 
contestee because the correct result of the election was not affected 
by the irregularities shown. The House agreed to a resolution 
dismissing the contest.

Sec. 35.4 Where the contestant alleges that procedural requirements in 
    an election have not been complied with,

[[Page 1058]]

    he has the burden of showing that, due to fraud and irregularity, 
    the result of the election was contrary to the clearly defined wish 
    of the constituency involved.

    In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the 
Committee on Elections determined that contestant had proven certain 
irregularities relating to the failure of local officials in certain 
precincts to keep registration books and to comply with various 
administrative requirements imposed by state law, but dismissed the 
contest for failure of the contestant to bear the burden of showing 
fraud and irregularity by any election official whereby contestant was 
deprived of votes.

Sec. 35.5 A contestant who alleges that voters had been registered who 
    did not reside in the precincts where registered must present such 
    evidence of these irregularities as to leave no doubt of their 
    existence.

    In the 1951 Pennsylvania contested election case of Osser v Scott 
(Sec. 56.5, infra), the contestant's testimony enumerated instances 
where registrants had given fictitious residence addresses, and 
indicated that as to such registrants contestant had filed some 2,000 
``strike-off petitions.'' The committee, however, found that no 
evidence had been presented to show that any of the illegal registrants 
had voted for the contestee. Thus, the committee concluded that the 
contestant had not presented sufficient evidence to impeach the 
returns.

Sec. 35.6 An elections committee will recommend dismissal of a contest 
    where there is no evidence that the election was so tainted with 
    the misconduct of election officers that the true result cannot be 
    determined.

    In the 1951 Pennsylvania contested election case of Osser v Scott 
(Sec. 56.5, infra), the contestant contended, as stated in the report, 
that he was unable to have ``honest-to-goodness Democrats file for 
minority inspector [poll watchers]'' and that the Republican Party 
``will register persons as Democrats in order to file them for minority 
inspector and to complete the election board.'' However, the committee 
recommended dismissal, which the House subsequently agreed to, because 
no evidence was presented to show ``that the election was so tainted 
with fraud, or with the misconduct of the election officers, that the 
true result cannot be determined.''

[[Page 1059]]

Sec. 35.7 The requirement that the contestant in a contested election 
    case make a claim to the seat carries with it the implication that 
    the contestant will offer proof of such nature that the House of 
    Representatives acting on his allegations alone, could seat the 
    contestant.

    Under the new contested election statute, contestant has the burden 
of resisting contestee's motion to dismiss, prior to the submission of 
evidence and testimony, by presenting sufficient evidence that the 
election result would be different or that contestant is entitled to 
the seat. Thus, in the 1971 California election contest of Tunno v 
Veysey (Sec. 64.1, infra), the committee report recommended dismissal 
of the contest where the contestant merely alleged that election 
officials had wrongfully and illegally canceled the votes of 10,000 
potential voters, without any evidence as to how these potential voters 
would have voted.
    The committee report noted the following burden of presenting 
evidence:

        Under the new law then the present contestant, and any future 
    contestant, when challenged by motion to dismiss, must have 
    presented, in the first instance, sufficient allegations and 
    evidence to justify his claim to the seat in order to overcome the 
    motion to dismiss.

    The report continued:

        The major flaw in the contestant's case is that he fails to 
    carry forward with his claim to the seat as required by the 
    precedents of the House of Representatives and the Federal 
    Contested Elections Act. A bare claim to the seat as the contestant 
    makes in his notice of contest without substantiating evidence 
    ignores the impact of this requirement and any contest based on 
    this coupled with a request for the seat to be declared vacant must 
    under the precedents fail. The requirement that the contestant make 
    a claim to the seat is not a hollow one. It is rather the very 
    substance of any contest. Such a requirement carries with it the 
    implication that the contestant will offer proof of such nature 
    that the House of Representatives acting on his allegations alone 
    could seat the contestant.
        That the contestant in the present case fails to do this is 
    quite clear. If all of his allegations were found to be correct he 
    would still not be entitled to the seat. It is perhaps stating the 
    obvious but a contest for a seat in the House of Representatives is 
    a matter of most serious import and not something to be undertaken 
    lightly. It involves the possibility of rejecting the certified 
    returns of a state and calling into doubt the entire electoral 
    process. Thus the burden of proof placed on the contestant is 
    necessarily substantial.

    The House agreed to a resolution dismissing the 
contest.(10)
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10. This was the first election contest arising under the present 
        Federal Contested Elections Act, 2 USC Sec. Sec. 381 et seq.

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[[Page 1060]]

Burden of Establishing Claim to Seat

Sec. 35.8 Merely showing that some voters have been precluded from 
    voting through errors of the election officials does not satisfy 
    the contestant's burden of establishing his claim for the seat.

    In the 1971 California election contest of Tunno v Veysey 
(Sec. 64.1, infra), the contestant alleged that the election officials 
had wrongfully and illegally canceled the registration of approximately 
10,000 voters. However, the contestant did not show how these potential 
voters would have voted, and the election committee, after expressing a 
hesitancy to invalidate an election under these circumstances, held 
that the contestant had not carried through on his burden of 
establishing his claim to the seat under the Federal Contested 
Elections Act [specifically, 2 USC Sec. Sec. 382, 383] and the 
precedents of the House.

Allegations of Improper Expenditures

Sec. 35.9 A contestant has the burden of proof with respect to his 
    allegations of improper campaign expenditures by contestee.

    In Lovette v Reece (Sec. 47.11, infra), a 1934 Tennessee contest, 
the committee found that contestant's allegations of improper campaign 
expenditures by contestee were based on hearsay evidence related to 
other elections, and that the contestant had failed to sustain his 
burden of proof.

Evidence Not Compelling Examination of Ballots

Sec. 35.10 To entitle a contestant in an election case to an 
    examination of the ballots, he must establish (a) that some fraud, 
    mistake or error has been practiced or committed whereby the result 
    of the election was incorrect, and a recount would produce a result 
    contrary to the official returns; and (b) that the ballots since 
    the election have been so rigorously preserved that there has been 
    no reasonable opportunity for tampering with them.

    In O'Connor v Disney (Sec. 46.3, infra), a 1932 Oklahoma contest, a 
committee on elections refused to conduct a partial recount where 
contestant had failed to sustain the burden of proving fraud or 
irregularities sufficient to change

[[Page 1061]]

the result of the election, and of proving such proper custody of 
ballots as to reasonably prevent tampering with them.