[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[L. Disposition of Contests; Resolutions]
[Â§ 42. Generally]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1084-1090]
 
                               CHAPTER 9
 
                           Election Contests
 
                L. DISPOSITION OF CONTESTS; RESOLUTIONS
 
Sec. 42. Generally


Disposal By House Resolution

Sec. 42.1 Election contests, if not resolved on motion or other prior 
    proceedings, are generally disposed of by House resolution 
    following debate on the floor of the House.

    The disposition of election contests by resolution, after debate 
thereon, is a procedure that has been uniformly followed in nearly all 
contests that have been brought before the House since the 1930's. See 
Sec. 46.2, infra.

Resolution Disposing of Contest as Privileged

Sec. 42.2 A privileged resolution is the procedure to declare contestee 
    to have been elected and entitled to a seat.

    In Gormley v Goss (Sec. 47.9, infra), a 1934 Connecticut contest, a 
House resolution was called up as privileged; it was agreed to by voice 
vote and without debate. It provided:

        Resolved, that Edward W. Goss was elected a Representative in 
    the Seventy-third Congress from the Fifth Congressional District in 
    the State of Connecticut and is entitled to a seat as such.

Sec. 42.3 A resolution disposing of an election contest is privileged 
    and may be called up at any time.

    In McAndrews v Britten (Sec. 47.12, infra), a 1934 Illinois 
contest, a resolution disposing of an election contest was offered for 
the immediate consideration of the House. When a Member sought time to 
debate the resolution, it was withdrawn, and unanimous consent was 
sought that it be considered the following day after disposition of 
business on the Speaker's table. The Speaker, Henry T. Rainey, of 
Illinois, observed that such a request was not necessary, as the 
resolution was privileged and could be called up at any time.

Sec. 42.4 A resolution disposing of an election contest is privileged, 
    though offered in the House from the floor and not reported by an 
    elections committee.

    In Miller v Kirwan (Sec. 51.1, infra), a 1941 Ohio contest, a 
resolution declaring a contestant incompetent to institute a contest, 
and dismissing the contest, was called up from the floor as a question 
of the privilege of the House, although it was not reported by

[[Page 1085]]

an elections committee. [See also Frankenberry v Ottinger, Sec. 61.1, 
infra.]

Sec. 42.5 A House resolution, accompanied by a committee report on an 
    election contest, may be called up as privileged and agreed to by 
    voice vote and without debate.

    In the 1934 California election contest of Chandler v Burnham 
(Sec. 47.4, infra), the election committee report contradicting the 
contestant's contentions was submitted to the House by a committee 
member on Apr. 19, 1934, and this same Member called up as privileged 
on May 15, 1934, a resolution, which was agreed to by voice vote and 
without debate, specifying that the contestee was elected and entitled 
to the seat.

Participation of Parties; Debate on Resolution Disposing of Contest

Sec. 42.6 The parties to an election contest are sometimes permitted to 
    be present at, or participate in, the debate in the House on the 
    merits of the contest.

    In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest, 
the contestee, the seated Member, took the floor to plead his case 
during debate in the House on a resolution to seat the contestant, and 
a Member who called the attention of the House to the presence of the 
contestant in the gallery was ruled out of order. [Under Rule XXXII, 
House Rules and Manual Sec. 919 (1973), contestants have the privilege 
of the floor, but not of debate.] (15)
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15. In the Five Mississippi Cases of 1965 (Sec. 61.2, infra), it was 
        pointed out to the contestees that, if they were to enter into 
        debate, the contestants might also seek recognition 
        [contestants have floor privileges under Rule XXXII of the 
        House]. Therefore, the Mississippi Members did not enter into 
        debate although they did insert their remarks in the Record in 
        explanation of their position. 111 Cong. Rec. 24285, 24286, 
        89th Cong. 1st Sess., Sept. 17, 1965.
---------------------------------------------------------------------------

Sec. 42.7 A contestee, as sitting Member, may be permitted to 
    participate in the debate on the resolution disposing of the 
    contest.

    In the 1932 Illinois election contest of Kunz v Granata (Sec. 46.2, 
infra), during debate on the committee report, the spokesman for the 
minority view yielded for debate to the contestee, the sitting Member, 
who argued in his own behalf. Ultimately the House adopted a resolution 
that the contestant, not the sitting Member, was entitled to the seat 
and he thereafter appeared at the bar of

[[Page 1086]]

the House and took the oath of office.

Sec. 42.8 A Member supporting the recommendation of the committee 
    majority in an election contest is entitled to close debate.

    In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois contest, the 
Speaker, John N. Garner, of Texas, ruled that the side supporting the 
seating of the contestant--the committee majority--rather than the 
Member intending to offer a motion to recommit, was entitled to close 
debate.

Extension of Time for Debate on Resolution Disposing of Contest

Sec. 42.9 The time for debate on a privileged resolution disposing of 
    an election contest may, by unanimous consent, be extended for 
    additional time, with such time to be equally divided between a 
    majority and a minority member of the Committee on Elections, with 
    the previous question to be considered as ordered at the conclusion 
    thereof.

    In the 1938 New Hampshire election contest of Roy v Jenks 
(Sec. 49.1, infra), a spokesman for the majority report on the election 
contest obtained unanimous consent for an extension of time to two and 
one-half hours for debate. The additional time was divided equally 
between the spokesman for the majority view and the spokesman for the 
minority view. The previous question was considered as ordered at the 
conclusion of debate. A motion to recommit the resolution was agreed to 
by the House.

Disposal by Stipulation of Parties

Sec. 42.10 An election contest may be disposed of by way of dismissal 
    pursuant to a stipulation of the parties to that effect.

    In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest, 
the parties conducted their own recount of votes, which affirmed that 
contestee had received a majority of the votes cast. The parties then 
stipulated to the dismissal of the contest, which stipulation was 
communicated to the committee and set forth in its report recommending 
dismissal. The House agreed to the committee report.

Disposal by Resolution Declaring Seat Vacant

Sec. 42.11 Declaring a vacancy in a seat is one of the options

[[Page 1087]]

    available to the House of Representatives and is generally 
    exercised when the House decides that the contestant, while he has 
    failed to justify his claim to the seat, has succeeded in so 
    impeaching the returns that the House believes that the only 
    alternative available to determine the will of the electorate is to 
    hold a new election.

    In the 1971 California election contest of Tunno v Veysey 
(Sec. 64.1, infra), the elections committee, construing the Federal 
Contested Elections Act [2 USC Sec. Sec. 381 et seq.], stated that the 
relief sought by the contestant, that the seat be declared vacant, was 
not proper under the circumstances. The contestant was limited to 
claiming the seat in question and offering proof to substantiate that 
claim.

Sec. 42.12 The House may, by resolution, declare two elections held to 
    fill a vacancy in the House to be invalid, declare neither 
    contestant entitled to a seat, and require the Speaker to inform 
    the Governor of the existing vacancy.

    In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra), 
arising from a Louisiana special election, the Speaker upheld the 
propriety of that clause in the resolution which required the Speaker 
to notify the Governor of Louisiana of the action taken by the House in 
declaring the seat vacant.

Demand for Division on Resolution Disposing of Contest

Sec. 42.13 The defeat of a substitute resolution declaring contestee to 
    have been elected does not preclude a demand for a division of the 
    question on a resolution declaring contestant entitled to a seat 
    and declaring contestee not so entitled.

    In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois contest, a 
demand was made for a division of the question for purposes of the vote 
on a resolution, the first part of which declared the contestee to have 
been defeated and the second part of which declared the contestant to 
have been elected. This demand followed the defeat of a substitute 
resolution that declared the contestee to have been elected. A point of 
order was raised against the request for a division on the ground that 
the House had just voted on the ``reverse of this proposition.'' The 
Speaker overruled the point of order and the question was divided.

[[Page 1088]]

Sec. 42.14 A Member may demand a division of two propositions in a 
    resolution disposing of an election contest, the first declaring 
    contestee not entitled to a seat and the second declaring 
    contestant so entitled.

    In the 1938 New Hampshire election contest of Roy v Jenks 
(Sec. 49.1, infra), following three hours of debate on the election 
committee report in which the contestee, a sitting Member, 
participated, the previous question was ordered and a Member demanded a 
division of two propositions in the resolution. Accordingly, on the 
first proposition the House voted that the contestee, the sitting 
Member, was not entitled to the seat and, on the second proposition, 
that the contestant was entitled to the seat.

Resolutions Admitting Neither Contestant to a Seat

Sec. 42.15 A resolution may take the form of a declaration that the 
    prima facie as well as the final rights of the contestants be 
    referred to a committee on elections, and, until such committee 
    shall have reported and the House decided such questions, that 
    neither contestant be admitted to a seat.

    In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra), both 
parties presented certificates of election at the date of convening of 
the second session of the 73d (Congress. A Member from Louisiana 
thereupon offered a resolution from the floor that neither of the 
contestants be admitted to a seat until the elections committee 
reported and the House decided on the question. Ultimately, neither 
party was found to have been validly elected, and the House authorized 
the Speaker to notify the Governor of the vacancy.

Sec. 42.16 A privileged resolution declaring contestant entitled to a 
    seat in the House may be recommitted to the Committee on Elections 
    with instructions that the committee obtain further testimony from 
    voters who cast certain disputed ballots.

    In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest, 
the House adopted a motion to recommit with instructions a privileged 
resolution declaring a contestant entitled to a seat in the House. The 
instructions provided for the taking of additional evidence, and that 
either the whole committee or a subcommittee could investigate, 
administer oaths, and issue subpoenas.

[[Page 1089]]

Substitute Resolutions

Sec. 42.17 A resolution disposing of an election contest is privileged, 
    and a Member may not offer a substitute therefore unless the Member 
    controlling the time for debate yields for that purpose or unless 
    the previous question is voted down.

    In the 1934 Illinois election contest of McAndrews v Britten 
(Sec. 47.12, infra), a Member, Homer C. Parker, of Georgia, sought 
unanimous consent that a resolution disposing of the election contest 
be considered after the close of business on the Speaker's table. The 
Speaker informed the Member that such a request was not necessary, as 
the resolution was privileged and could be called up at any time.
    When the resolution was offered by Mr. Parker, another Member, 
Adolph J. Sabath, of Illinois, immediately sought recognition to offer 
a ``substitute'' for the resolution, but the Member refused to yield 
for that purpose and was recognized by the Speaker pro tempore for one 
hour. Mr. Sabath then asked for unanimous consent that his 
``substitute'' be read for the information of the House, to which 
request Mr. Ralph R. Eltse, of California, objected. Mr. Parker then 
yielded a few minutes of his time to Mr. Sabath, who read the 
''substitute'' resolution. The previous question was then ordered, and 
no further action was taken on Mr. Sabath's resolution.

Sec. 42.18 The House has rejected a substitute resolution providing 
    that the contest be recommitted to the Committee on House 
    Administration with instructions (1) to allow contestant to inspect 
    all ballots and other pertinent papers; and (2) to permit 
    contestant to take additional testimony after such inspection.

    In the 1949 Michigan contested election of Stevens v Blackney 
(Sec. 55.3, infra), after the House had refused to allow a contestant a 
recount because contestant had failed to produce evidence overcoming 
the presumption that there had been a fair election, although a recount 
of only seven of the 207 precincts had reduced contestee's plurality 
from 1,217 votes to 784 votes. The House had under consideration a 
resolution seating the contestee, when the Member handling the 
resolution yielded for an amendment which would have sent the case back 
to the Committee on House Administration. The substitute resolution was 
rejected by voice vote and the

[[Page 1090]]

original resolution was then agreed to without debate and by voice 
vote, thus seating the contestee.

Failure to Take Action on Reported Resolutions

Sec. 42.19 There have been instances in which the House has failed to 
    take action on resolutions reported from an elections committee 
    declaring contestee entitled to his seat.

    In the 1940 Tennessee election contest of Neal v Kefauver 
(Sec. 50.1, infra), the election committee report disclosed that it had 
dismissed the contest because of the contestant's failure to take 
evidence, file briefs, and appear in person. At the same time the 
committee submitted the committee report it also reported a resolution 
to the House declaring the contestee to be entitled to the seat. The 
House did not take any action on the resolution during the 76th 
(Congress, however. The contestee was a returned Member of Congress, 
already sworn and in office.

Sec. 42.20 There have been instances in which the House has not called 
    up a resolution disposing of an election contest.

    In the 1934 Illinois election contest of Weber v Simpson 
(Sec. 47.16, infra), the committee report concluded that the contestant 
had failed to ``overcome the prima facie case made by the election 
returns upon which a certificate of election was given to the 
contestee.'' The committee submitted a resolution that the contestee 
was entitled to his seat, but the resolution was not called up.