[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[J. Evidence]
[Â§ 36. Presumptions]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1061-1065]
 
                               CHAPTER 9
 
                           Election Contests
 
                              J. EVIDENCE
 
Sec. 36. Presumptions

Official Returns as Presumptively Correct

Sec. 36.1 A contestant in an election contest must overcome the prima 
    facie evidence of the correctness of the election as established by 
    the official returns.

    In the 1934 Illinois election contest of Weber v Simpson 
(Sec. 47.16, infra), after the contestant examined the tally sheets in 
all of the 516 precincts of the district and found discrepancies in 128 
of the precincts, he requested that the elections committee order a 
recount based on the discrepancies shown. The committee denied this 
request, finding no evidence of irregularities, intimidation, or fraud 
in the casting of ballots, concluding that ``contestant has failed to 
overcome the prima facie case made by the election returns upon which a 
certificate of election was given to the contestee.''

Sec. 36.2 The burden is on the contestant to present sufficient 
    evidence to rebut the presumption that official returns are proof 
    of the result of an election.

    In the 1951 Pennsylvania contested election of Osser v Scott 
(Sec. 56.5, infra), the committee granted the contestant full 
opportunity for presenting testimony and hearing arguments of counsel 
supporting his claim, but still concluded that the contestant had not 
sustained his contention, stating:

        The returns of the election . . . and the certificate issued to 
    [the contestee] are presumptive proof of the result of that 
    election which will prevail unless rebutted by proper evidence.

    The House then agreed to a resolution that the contestee was duly 
elected and entitled to his seat.
    Similarly, in O'Connor v Disney (Sec. 46.3, infra), the Committee 
on Elections applied the principle that the burden of coming forward 
with evidence to meet or resist the presumption of irregularity rests 
with the contestant, and found that contestant had failed to overcome 
the presumption of correctness of official returns.

Sec. 36.3 Election returns prepared by election officials regularly 
    appointed under the laws of the state where the election was held 
    are presumed to be correct until

[[Page 1062]]

    they are impeached by proof of irregularity or fraud.

    In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, an 
election contest involving alleged irregularities relating to precinct 
registration books, the Committee on Elections cited the presumption as 
to the correctness of election returns, and indicated that neither the 
House nor its committees were constituted as mere boards of recount.

Sec. 36.4 A contestant must overcome the presumptions that official 
    returns are prima facie evidence of the regularity and correctness 
    of an election and that election officials have legally performed 
    their duties.

    In Chandler v Burnham (Sec. 47.4, infra), a 1934 California 
contest, contestant alleged that in 14 precincts there had been 
instances of illegal ballot counting, improperly constituted election 
boards, unsworn officials, and unattested tally sheets as well as 
irregular ballots and envelopes, all of which warranted the rejection 
of the returns in total. The Committee on Elections determined that 
contestant failed to establish fraud or connivance on the part of the 
contestee or any election official. The committee noted that (1) the 
official returns are prima facie evidence of the legality and 
correctness of official action, (2) that election officials are 
presumed to have legally performed their duties, and (3) that the 
burden of coming forward with evidence to meet or resist these 
presumptions rests with the contestant.

Sec. 36.5 A contestant must overcome the presumptions that the official 
    returns are prima facie evidence of the regularity and correctness 
    of an election, and that election officials have performed their 
    duties honestly. An elections committee will not determine certain 
    irregular actions by precinct officers at an election supervised by 
    a nonpartisan board to be fraudulent or the result of a conspiracy 
    with contestee, absent a ``fair preponderance of evidence'' adduced 
    by contestant to the contrary.

    In Gormley v Goss (Sec. 47.9, infra), a 1934 Connecticut contest, 
according to the official returns, contestee received 42,132 votes to 
42,054 votes for contestant--a majority of 78. Contestant alleged that 
a precinct official, acting fraudulently and in conspiracy with 
contestee, entered the voting booth and spoke to voters who

[[Page 1063]]

were casting ballots. The committee found that confusion existed among 
voters with regard to voting on a certain proposition and as to its 
placement on the voting machine. The committee further found that many 
voters were seeking information in this respect and that they were 
merely given assistance by the official in question. The committee also 
determined that the intent of the voter was not vitiated by any 
interference with the keys on the voting machine. The committee 
concluded that the contestant had failed to establish the allegations 
contained in the notice of contest, and had failed by a fair 
preponderance of the evidence to establish any fraud or conspiracy.

Sec. 36.6 Where the contestant has not clearly presented proof 
    sufficient to overcome the presumption that the returns of the 
    returning officers were correct, the elections committee will not 
    order a recount.

    In the 1965 Iowa election contest of Peterson v Gross (Sec. 61.3, 
infra), there was no procedure available under Iowa law for a recount 
in a contest in which the sitting Member had won by only 419 votes. The 
contestant, who made no allegations of fraud against anyone, sought to 
have the House order a recount, but the elections committee declined to 
do so in the absence of proof overcoming the presumption that the 
returns of the election officers were correct.

Sec. 36.7 The official returns of an election are prima facie evidence 
    of its regularity and correctness.

    In the 1934 Illinois election contest of Weber v Simpson 
(Sec. 47.16, infra), the elections committee recommended adoption of a 
resolution dismissing the contest and declaring the contestee to be 
entitled to the seat after it concluded that the ``contestant has 
failed to overcome the prima facie case made by the election returns 
upon which a certificate of election was given to the contestee.''

Effect of Absence of Witnesses for Contestant

Sec. 36.8 Where a contestant is unable to produce witnesses as to any 
    errors in the counting of ballots in certain precincts, an election 
    committee may presume that there has been a fair and honest count 
    in those precincts.

    In the 1949 Michigan election contest of Stevens v Blackney 
(Sec. 55.3, infra), although the con

[[Page 1064]]

testant produced evidence showing that the counting in four of 207 
precincts had been erroneous, the majority of the committee applied a 
principle of evidence to presume that the contestant's failure to 
produce party election officials and challengers from any of the other 
precincts as witnesses must have been ``because their testimony would 
show an honest and fair count.'' The House agreed to a resolution 
seating the contestee.

Correctness of Tally Sheets

Sec. 36.9 An official return based on tally sheets and check lists is 
    only prima facie evidence of the correctness of the result of the 
    election. This presumption may be overcome by a recount of all 
    ballots where such ballots are preserved as required by law and 
    their integrity is unimpeached.

    In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest, 
one of the parties claimed that he had not received credit, upon 
recount, for ballots from a certain precinct. The committee ruled that 
the presumption as to the correctness of the official return had been 
overcome by a recount of all ballots, including those from the disputed 
precinct; the committee accepted the recount as the best evidence of 
the number of votes cast, and noted that the ballots had been preserved 
as required by law and their integrity unimpeached.

Effect of Failure to Challenge Voter

Sec. 36.10 Persons voting without challenge on election day are 
    presumed to be entitled to vote, and election officials receiving 
    the votes are presumed to do their duty properly.

    In the New York contested election case of Macy v Greenwood 
(Sec. 56.4, infra), arising from a 1950 election which the contestant 
lost by only 135 votes, contestant alleged for the first time that a 
number of the voters were not qualified as to residence because they 
had not been residents for the four months preceding the election, as 
required under state law. The committee observed that the contestant 
had not made any challenges under state law which permitted challenging 
of voters at the time of registration or of voting. Furthermore, the 
committee report could not cite a single instance wherein the House had 
rejected votes as illegal for the reason that the voter had not resided 
in the county for the statutory period of time. The report further

[[Page 1065]]

stated, ``It is apparently the settled law of elections that, where 
persons vote without challenge, they are presumed to be entitled to 
vote and that the election officers receiving the votes did their duty 
properly and honestly.'' (11)
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11. Citing the election contest of Finley v Bisbee, 2 Hinds' Precedents 
        Sec. 933.
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Effect of Closeness of Result

Sec. 36.11 The mere closeness of the result of an election raises no 
    presumption of fraud, irregularity, or dishonesty. Fraud is never 
    presumed but must be proven.

    In Chandler v Burnham, a 1934 California contest (Sec. 47.4, 
infra), the official returns gave to contestee a plurality of 518 votes 
from a total of 87,061 votes cast. The contestant alleged a wide 
variety of procedural irregularities on the part of election officials. 
The committee determined, however, that contestant had failed to 
establish fraud or connivance and cited the general rules that fraud is 
never presumed, and that the mere closeness of the result raises no 
presumption thereof.