[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[J. Evidence]
[Â§ 38. Determination of Voter Intention]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1074-1076]
 
                               CHAPTER 9
 
                           Election Contests
 
                              J. EVIDENCE
 
Sec. 38. Determination of Voter Intention

Voter Intention as Paramount Concern

Sec. 38.1 In the absence of proof of fraud, the intent of the voter 
    rather than a showing of irregular official conduct should govern 
    the decision whether to disenfranchise those voters.

    In the 1933 Maine contested election of Brewster v Utterback 
(Sec. 47.2, infra), after the contestant had apparently abandoned his 
allegations of fraud and relied upon proof of negligence and 
irregularities by officials to support his contest, the committee 
accepted the recommendations of an advisory opinion of the Supreme 
Court of Maine rendered to the Governor and his executive council. 
Accordingly, the committee refused to ``disenfranchise the voters in 
the 16 precincts . . . because of some alleged breach of official duty 
of the election of officers.''

Sec. 38.2 An elections committee has applied state laws that required 
    ballots not be counted if the voter's choice could not be 
    ascertained for any reason.

    In the 1958 Maine contested election case of Oliver v Hale 
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, the 
Committee on House Administration considered 142 disputed regular 
ballots and applied the state law which required that a ballot could 
not be counted ``if for any reason it is impossible to determine the 
voter's choice.'' The application of the law made little difference, 
however, as the committee determined that 57 votes had been cast for 
each candidate and that 28 votes could not be ascertained.

Sec. 38.3 In determining voter intention, an elections committee should 
    distinguish between ambiguous ballots, which permit examination of 
    circumstantial evidence to determine voter intent, and ballots 
    mistakenly marked for two parties, as to which voter intention 
    becomes a matter of conjecture.

    In Fox v Higgins (Sec. 47.8, infra), a 1934 Connecticut election 
con

[[Page 1075]]

test, several witnesses testified that, in addition to their regular 
party affiliation, they had intended to vote for repeal of the 18th 
amendment, and had mistakenly voted for the ``Wet Party.'' The 
committee noted that such ballots were not of the ambiguous or doubtful 
type, so as to permit consideration of the circumstances surrounding 
the election and explaining the ballot. The committee found the 
question of intention of the voters of such ballots to be a matter of 
conjecture. It concluded that the ballots were unreliable and properly 
rejected.

Effect of State Law

Sec. 38.4 Although the House of Representatives generally follows state 
    law and the rulings of state courts in resolving election contests, 
    this is not necessarily so with respect to the validity of ballots 
    where the intention of the voter is clear and there is no evidence 
    of fraud.

    In the 1961 Indiana investigation of the right of Roush or Chambers 
to a seat in the House (Sec. 59.1, infra), the Committee on Elections 
report posed, as the central issue to be decided, the question of 
whether the ``House will necessarily follow State Court decisions in 
ruling on validity of questionable ballots, particularly when those 
decisions seem to be contrary to the intention of the voter in honestly 
trying to indicate a choice between candidates.'' The report then cited 
several ``instances in which the House, through its Committee on 
Elections, has held that decisions of a state court are not binding on 
the House in the examination of ballots to correct deliberate or 
inadvertent mistakes and errors,'' specifically citing Brown v Hicks (6 
Cannon's Precedents Sec. 143), and Carney v Smith (6 Cannon's 
Precedents Sec. 146).

Sec. 38.5 Where uncertainty existed in state law with respect to the 
    validity of write-in votes in general elections, an elections 
    committee decided that the will of the voters should not be 
    invalidated by the uncertainty in the state law.

    In the 1959 Arkansas investigation of the right of Dale Alford 
(Sec. 58.1, infra), to a seat in Congress, following his election 
victory as a write-in candidate, the elections committee disregarded an 
uncertainty which existed in state law with respect to write-in votes 
in general elections, and decided that the will of the voters should 
not be invalidated by an

[[Page 1076]]

uncertainty in state law. The committee noted that it had been the 
custom in Arkansas to accept write-in votes, that spaces had been 
provided on the ballots for write-in votes, and the House had always 
recognized the right of a voter to write in the name of his choice.