[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[K. Inspection and Recount of Ballots]
[Â§ 41. Procedure]
[From the U.S. Government Publishing Office, www.gpo.gov]


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                               CHAPTER 9
 
                           Election Contests
 
                  K. INSPECTION AND RECOUNT OF BALLOTS
 
Sec. 41. Procedure

Exhaustion of State Remedies

Sec. 41.1 To obtain an order from the House for a recount of votes in 
    an election contest, contestant should show that he has exhausted 
    state court remedies to obtain a recount under state law.

    In Swanson v Harrington (Sec. 50.4, infra), a 1940 Iowa contest, 
contestant claimed that certain votes had been cast by persons only 
temporarily within the district, and therefore unqualified, and sought 
an order from the

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House that would require a recount of the total vote. The Committee on 
Elections found that contestant had not exhausted his remedy of 
obtaining a recount through the state courts, as permitted by the Iowa 
code, prior to appealing to the committee to order a recount. The 
committee rejected contestant's argument that he had been precluded 
from invoking state court aid as the courts had not construed the 
relevant state election contest laws as they applied to House seats. 
Although the committee claimed the power to order a recount, in its 
discretion, without reference to state proceedings, it indicated it 
would not order a recount until contestant had exhausted state court 
remedies. [Compare Carter v LeCompte (Sec. 57.1, infra), a 1957 Iowa 
contest in which the committee expressly rejected Swanson v 
Harrington.]

Recounts Permitted by State Law

Sec. 41.2 A recount of votes may be sought pursuant to a statute 
    requiring the secretary of state to conduct a recount at the 
    request of either candidate.

    In the 1938 New Hampshire election contest of Roy v Jenks 
(Sec. 49.1, infra), the original official returns from the Nov. 3, 
1936, election gave Alphonse Roy 51,370 votes and Arthur B. Jenks 
51,920 votes, a plurality of 550 votes for Mr. Jenks. On Nov. 9, Mr. 
Roy applied to the secretary of state of New Hampshire for a recount, 
pursuant to state law making it mandatory upon that official to conduct 
a recount upon request of either candidate.

Production of Evidence Justifying a Recount as Prerequisite

Sec. 41.3 The Subcommittee on Elections informed a contestant that the 
    House would not order a recount without evidence and before 
    testimony had been taken.

    In the 1949 Michigan contested election case of Stevens v Blackney 
(Sec. 55.3, infra), the Subcommittee on Elections responded on Feb. 15, 
1949, to a letter from a contestant, informing him that the House 
could, ``on recommendation from the committee, order a recount after 
all testimony had been taken, in precincts where the official returns 
were impugned by such evidence.'' [Emphasis supplied.]

Joint Applications for Recount

Sec. 41.4 Joint applications for a recount received by the

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    Clerk of the House are communicated by him to the Speaker together 
    with accompanying papers, and are then referred to a committee.

    In the 1943 Missouri election contest of Sullivan v Miller 
(Sec. 52.5, infra), the two parties to an election contest filed a 
joint application proposing that the House order the Missouri Board of 
Election Commissioners to conduct a recount. The Clerk received this 
application and communicated it to the Speaker in a letter with 
accompanying papers from the parties. The Speaker then referred the 
materials to an elections committee.

Use of Auditors

Sec. 41.5 The actual counting and auditing of returns, on a recount of 
    ballots by the Subcommittee on Elections of the Committee on House 
    Administration, may be conducted by auditors from the General 
    Accounting Office assigned to the committee.

    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 House 
Administration passed a motion directing the Subcommittee on Elections 
to conduct a recount of the ballots. The Subcommittee on Elections then 
proceeded to Indiana where the actual recount was performed by 13 
auditors assigned to the committee from the General Accounting Office. 
The elections subcommittee prescribed the procedures that the auditors 
followed in conducting the recount.

Reconsideration of Action Ordering a Recount

Sec. 41.6 An elections committee may reconsider its action in ordering 
    a recount of ballots and determine that such recount is not 
    justified.

    In McAndrews v Britten (Sec. 47.12, infra), a 1934 Illinois 
contest, an elections committee voted to order a recount of ballots, 
and funds were sought to defray the expense thereof. Subsequently, 
however, the committee reconsidered and decided against such a recount 
based on a rehearing at which contestee's objections to the recount 
were presented.

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