[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[K. Inspection and Recount of Ballots]
[Â§ 39. Generally]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1076-1078]
 
                               CHAPTER 9
 
                           Election Contests
 
                  K. INSPECTION AND RECOUNT OF BALLOTS
 
Sec. 39. Generally


Recount by Stipulation of Parties

Sec. 39.1 By stipulation, the parties may agree to conduct a recount 
    during an extension of time granted by the House for the taking of 
    testimony.

    In Moreland v Schuetz (Sec. 52.3, infra), a 1944 Illinois contest, 
the parties to an election contest agreed to conduct a recount in those 
wards where the vote had been questioned by contestant.

Sec. 39.2 The parties to an election contest may conduct their own 
    recount, showing that one of the parties has received a majority of 
    the votes cast, and this may be made the basis of a stipulation 
    upon which the House may act.

    In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest, 
the parties, having been denied a joint application for recount by the 
House, agreed to conduct their own recount, the results of which showed 
that contestee had received a majority of all votes cast. The House 
agreed to a resolution dismissing the case, based on a stipulation of 
the parties to that effect.

Unsupervised Recount

Sec. 39.3 The contestant may not, of his own accord and without 
    evidence, conduct a recount of ballots without supervision of the 
    House.

    In the 1949 Michigan contested election case of Stevens v Blackney 
(Sec. 55.3, infra), prior to presentation of the contest to the House, 
the contestant, on Feb. 10, 1949, applied to the Committee on House 
Administration to send its agents to a conduct recount. The committee, 
however, declined to do so on the ground that the probability of error 
should first be shown. The contestant then had a notary public of his 
own selection issue a subpena duces tecum to

[[Page 1077]]

the local election officials to obtain possession of the ballots and 
voting machines. The local officials refused to honor the subpena and 
the Subcommittee on Elections ``sustained the action of the election 
official.'' In a letter from subcommittee Chairman Burr P. Harrison, of 
Virginia, to the local officials, it was stated:

        Precedents of the House of Representatives clearly establish 
    that in a contested election case ballots should be inspected and 
    preserved in strict conformity with State law so that their 
    inviolability is unquestioned. No action should be taken by either 
    contestant or contestee with reference to ballots that does not 
    follow the law of the State.
        The official count of the ballots is presumed correct, and I am 
    certain that this presumption will not be brought into question by 
    any unauthorized recount which is made contrary to State law or 
    under circumstances which do not give full protection to both 
    contestant and contestee.

Recount Pursuant to State Law, With House Supervision

Sec. 39.4 Where state law permits, a party to an election may request 
    an inspection and recount of all votes cast, to be conducted by 
    bipartisan teams and to be supervised by representatives of a 
    special House committee to investigate campaign expenditures.

    In the 1958 Maine contested election case of Oliver v Hale 
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, the 
contestant asked for an inspection and recount as permitted by state 
law, of all votes cast, which was conducted under the supervision of 
five teams of two men each (with each party represented on each team) 
and with representatives of the ``Special Committee to Investigate 
Campaign Expenditures of the House of Representatives.'' The report of 
this committee was submitted Dec. 22, 1956. The majority of the 
committee recommended that the Committee on House Administration of the 
85th Congress immediately investigate the approximate 4,000 ballots in 
dispute and report to the House by Mar. 15, 1957. The minority 
contended that a committee of the 84th Congress should not ``purport to 
dictate to the Committee on House Administration of the 85th Congress 
how it shall conduct its operations or when it shall file its report.''

Significance of Number of Disputed Ballots

Sec. 39.5 A committee finding of balloting irregularities in an 
    election contest will not provide a sufficient basis for 
    overturning the election

[[Page 1078]]

    where the disputed ballots are so few in number that, even if 
    disregarded, they would not change the result of the election.

    In Miller v Cooper (Sec. 48.3, infra), involving a 1936 contest in 
the 19th Congressional District of Ohio, the contestant alleged that 
certain irregularities and frauds had occurred in Mahoning County, but 
not in the other two counties of the district. The committee found some 
irregularities with respect to the destruction of ballots, tabulations 
of the votes cast, and the method of conducting the election in 
Mahoning County. The committee further found, however, that even if it 
should disregard entirely the ballots cast in Mahoning County, it would 
not affect enough votes to change the result of the election.

State Court Recount

Sec. 39.6 A committee on elections stated that it was not bound by the 
    actions of a state court in supervising a recount; but the 
    committee denied contestant's motion to suppress testimony obtained 
    at a state inquiry where the contestant had initiated the state 
    recount procedure and would be estopped from offering rebuttal 
    testimony as to the result of the recount.

    In Kent v Coyle (Sec. 46.1, infra), a partial recount was conducted 
by a state court pursuant to state law; but a committee on elections 
held that contestant had failed to sustain the burden of proof of fraud 
where a discrepancy between the official returns and the partial 
recount was inconclusive.