[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 46. Seventy-second Congress, 1931-32]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1099-1110]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 46. Seventy-Second Congress, 1931-32


Sec. 46.1 Kent  Coyle

    In the general election held on Nov. 4, 1930, Everett Kent was a 
candidate on the Democratic ticket and William R. Coyle was a candidate 
on the Republican ticket for election as Representative in Congress 
from the 30th Congressional District of Pennsylvania. The election 
officials certified in the regular manner that in the election William 
R. Coyle received 28,503 votes and Everett Kent 27,621 votes. Thereupon 
the Governor of Pennsylvania, on Dec. 2, 1930, declared William R. 
Coyle elected, and on the same day issued his certificate of such 
election.
    Citizens and residents of several election districts filed 
petitions with a state court alleging, upon information, that fraud was 
committed in the computation of the votes cast in said districts, and 
asking that a recount of the ballots therein be ordered and held 
pursuant to an act of the legislature which stated it to be the duty of 
the court, upon proper petition, to appoint a recount board and to sit 
with the same and supervise a recount of the ballots.
    On Dec. 11, 1930, Mr. Kent caused notice of an election contest to 
be served upon Mr. Coyle, and answer thereto was served upon Mr. Kent 
on Jan. 9, 1931.
    On Mar. 28, 1931, that being next to the last of the 40 days al

[[Page 1100]]

lowed contestee to offer proof, and after notice, contestee came in and 
offered as proof in the contest the entire court proceedings had in the 
recount in the election districts mentioned above, including 
stenographers' notes of testimony, petitions, and orders. To this offer 
of proof contestant objected, and the objection was renewed and 
insisted upon in his brief and the argument before the elections 
committee.
    On Apr. 4 and again on Apr. 8, 1931, which was within the 10 days 
allowed contestant for offering proof in rebuttal only, contestant, 
after notice, offered evidence as in rebuttal of that offered by 
contestee on Mar. 28, 1931, based upon the contention (1) that the 
court in broadening and prosecuting the inquiry as it did, exceeded its 
statutory authority, and (2) that the testimony was not taken before a 
person and in the manner prescribed by Congress.
    The report (No. 1264) of the elections committee, submitted May 7, 
1932, stated in part:

        The petitions asking for a recount of the vote in the districts 
    in question contained a general allegation of fraud in the 
    computation of the vote, and did not specify the congressional 
    vote. As the names of all candidates for office in the State were 
    printed on one ballot, the recount necessarily involved the vote 
    for State and local officers as well as representative in Congress. 
    How far a judge of the State court did or did not have a right to 
    go in an investigation of the election of State and local officers 
    is a matter with which this committee is not concerned. The 
    committee does not approve the manner in which the congressional 
    vote was investigated. . . . But neither the committee nor Congress 
    is bound in a matter of this kind by any act of a judge of a State 
    court, whether within or beyond statutory authority.
        The committee does not concede any right of a party to an 
    election contest to take proof in any manner other than that fixed 
    by Congress, but feels that contestant is not in a position to 
    raise that point in this contest, for the following reasons:
        In the first place the petitions were undoubtedly filed with 
    contestant's consent and approval, by his supporters and in the 
    interest of his cause. Having filed notice of contest and taken 
    testimony, he elected to go into the State court for a recount of 
    ballots at a time when Congress was in session and this committee 
    functioning.
        In the second place contestant seeks to benefit by the result 
    of the recount. The testimony taken by him on the 4th and the 8th 
    of April relates mostly to the result of the recount, upon which is 
    based his chief contention. . . .
        As to the remarkable difference between the count and the 
    recount of the ballots in the six districts in question, contestant 
    contends that he was deprived in the count and return of many votes 
    either by gross error or fraud of someone or more of the election 
    officials in each of the districts. Contestee contends that the 
    count and return

[[Page 1101]]

    was bona fide and correct from each of said districts, but after 
    the election and prior to the recount someone secured access to the 
    ballots and changed the pencil markings on many of them.

        [Election officials in the districts in question] were sworn 
    and examined, as well as the custodians of the ballot boxes, 
    handwriting experts, and all other persons who seemed likely to be 
    able to throw any light upon the subject. The ballot boxes, the 
    ballots themselves, and all other documentary evidence was 
    examined. A recital of much of this evidence in this report, or a 
    reference in detail to it, would accomplish no good purpose. The 
    committee has carefully considered the record, as well as the 
    briefs filed and the arguments made, and while it is unable to 
    point out therefrom exactly what did take place, it is of opinion 
    and holds that contestant has failed to sustain any of the 
    allegations of his notice of contest.
        The committee therefore recommends to the House the adoption of 
    the following resolution:

            Resolved, That Everett Kent was not elected a 
        Representative to the Seventy-second Congress from the 
        thirtieth congressional district of the State of Pennsylvania, 
        and is not entitled to a seat therein.
            Resolved, That William R. Coyle was a duly elected 
        Representative to the Seventy-second Congress from the 
        thirtieth district of the State of Pennsylvania, and is 
        entitled to retain his seat therein.

    The above privileged resolution (H. Res. 234) was agreed to by 
voice vote and without debate.(4)~
---------------------------------------------------------------------------
 4. 75 Cong. Rec. 11055, 72d Cong. 1st Sess., May 24, 1932.
---------------------------------------------------------------------------

    On July 16, 1932, Speaker John N. Garner, of Texas, laid before the 
House the following request:

        Mr. Coyle asks leave to withdraw from the files of the House 
    the original records of the court of Carbon County, Pa., which are 
    adduced in evidence and made a part of the printed testimony in the 
    contested election case of Kent v. Coyle, Seventy-second Congress, 
    said case having been decided by the House of Representatives, the 
    return of said official court records having been requested by said 
    court of Carbon County, Pa.

    There was no objection to the request, upon assurances from the 
Speaker that ``this will not in any way affect the ordinary rules 
concerning the withdrawal of papers.''
    Note: A syllabus for Kent v Coyle may be found herein at Sec. 34.4 
(evidence). See also Sec. 7 (jurisdiction and powers of courts) and 
Sec. 39 (inspection and recount of ballots).

Sec. 46.2 Kunz v Granata(5)~
---------------------------------------------------------------------------
 5. Also reported in 6 Cannon's Precedents Sec. 186.
---------------------------------------------------------------------------

    On Mar. 11, 1932, Mr. John H. Kerr, of North Carolina, submitted 
the report (6)~ of the majority from the Committee on 
Elections No. 3 in the election contest brought by Democrat Stanley H.

[[Page 1102]]

Kunz against Republican Peter C. Granata from the Eighth Congressional 
District of Illinois. The majority report was also signed by Mr. Butler 
B. Hare, of South Carolina, Mr. John McDuffie, of Alabama, Mr. Guinn 
Williams, of Texas, Mr. John E. Miller, of Arkansas, and Mr. Howard W. 
Smith, of Virginia. Thereupon, Mr. Carl R. Chindblom, of Illinois, 
obtained unanimous-consent permission (7)~ that the minority 
of that committee have until midnight, Mar. 14, 1932, to file their 
views. On Mar. 12, 1932, Mr. Charles L. Gifford, of Massachusetts, was 
granted unanimous-consent permission (8)~ to file the 
minority views, signed by himself and by Mr. Harry A. Estep, of 
Pennsylvania, with the majority report.
---------------------------------------------------------------------------
 6. H. Rept. No. 778, 75 Cong. Rec. 5848, 5849, 72d Cong. 1st Sess.; H. 
        Jour. 537, 538.
 7. 75 Cong. Rec. 5848, 72d Cong. 1st Sess.; H. Jour. 537.
 8. 75 Cong. Rec. 5885, 72d Cong. 1st Sess.; H. Jour. 541.
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    On Dec. 16, 1931, the Speaker (9)~ had laid before the 
House a communication (10) from the Clerk transmitting the 
contest. The communication and accompanying papers were referred to the 
Committee on Elections No. 3 and ordered printed (though not as House 
documents).
---------------------------------------------------------------------------
 9. John N. Garner (Tex.).
10. 75 Cong. Rec. 652, 72d Cong. 1st Sess.; H. Jour. 157.
---------------------------------------------------------------------------

    The certified returns of the election held Nov. 4, 1930, had given 
contestee 16,565 votes to 15,394 votes for contestant, a majority of 
1,171 votes for contestee.
    Contestant Kunz, having filed timely notice of contest, applied for 
appointment of a notary public within the Eighth Congressional 
District, pursuant to 2 USC Sec. 206 (now 2 USC Sec. Sec. 386-388), to 
obtain testimony in his behalf. The notary public ``commissioner'' 
thereupon served a subpena duces tecum upon election officials, 
requiring them to produce ballots and other materials pertinent to the 
election. This action necessitated the subsequent modification of two 
court orders by the court which had impounded the ballots for recount 
in certain municipal elections. A complete recount of all congressional 
ballots was then conducted by the board of election commissioners under 
supervision of contestant's notary public and in the presence of a 
notary appointed by contestee. Their return, submitted by contestant's 
notary public, gave contestant 16,345 votes to 15,057 votes for 
contestee, a majority of 1,288 votes for contestant.
    The revised returns as reported by the contestant's appointed 
notary public were analyzed by the committee report as follows:

        The contestant was entitled to every ``straight ticket'' cast . 
    . . [provided] his

[[Page 1103]]

    name was thereon unmolested along with the other Democratic 
    candidates. The fact that the contestant did not receive the 
    straight-ticket vote in many of the precincts is conclusive 
    evidence of fraud or gross irregularity and mistakes. [T]his could 
    only be corrected by resort to the ballot boxes and a recount of 
    the vote; when this was done and the straight-ticket vote given 
    contestant which he had received, he overcame the contestee's 
    apparent majority of 1,171 votes, and defeated the contestee by a 
    majority of 1,288 votes.

    The minority views took exception to this conclusion, and 
questioned the correctness of the ``pretended recount,'' noting that 
``a number of these so-called straight Democratic ballots were also 
marked for Granata, which, under the Illinois law, should have been 
counted for Mr. Granata.'' Decisions by the notary public with respect 
to spoiled and defective ballots were challenged by the minority, as 
was the absence of conclusive evidence regarding 6,458 votes counted 
for contestant and claimed to be fraudulent by contestee. The minority 
claimed that ``the record will show that some disputed ballots were put 
in envelopes with the thought that they would be brought for the 
decision of the committee or the House. They were not brought to the 
committee or the House.''
    The committee majority found that ``the ballots in this contest 
were preserved as provided by law and were kept under the supervision 
and control of . . . the clerk of the board of election commissioners, 
and that the ballot boxes were all opened under his supervision or the 
supervision of his deputies, and that after the same were counted they 
were placed back in the boxes as the law required and again put in the 
proper depository.'' The minority claimed that ``the integrity of the 
ballots had not been preserved,'' as, rather than being forwarded to 
the House committee, ballot boxes were opened several at a time, 
improperly commingled and counted simultaneously at separate tables in 
such unruly manner as to prevent thorough supervision by the notary 
public.
    The committee majority further found that contestee's counsel, who 
had also been retained as counsel for contestants in certain municipal 
elections, had procured the ballot impounding order [referred to above] 
and writ which prohibited contestant from proceeding with taking 
testimony during the statutory period (see 2 USC Sec. 386). The 
committee concluded that the time during which the ballots were ``in 
custodia legis'' should not be considered within the statutory period 
in which the contestant was allowed to take

[[Page 1104]]

testimony. The majority also cited an agreement between counsel for 
both parties to this effect.

    The minority, while admitting the existence of informal agreements 
between the parties regarding extension of time, cited Parillo v Kunz 
(6 Cannon's Precedents Sec. 116) and Gartenstein v Sabath (6 Cannon's 
Precedents Sec. 115) to support their contention that ``evidence not 
having been taken in the time as required by statute, could not be 
considered, even though there were stipulations of the parties to the 
contrary.''
    The committee majority concluded that the notary public 
commissioner, designated by contestant to take testimony in his behalf, 
``was an officer and the representative of the Congress to take 
evidence in this contest'' (citing In re Lorley (1890), 134 U.S. 372), 
and that in such capacity, and pursuant to statute, he could require 
the production of ballots as ``papers'' pertaining to an election 
(``the best evidence of the intention of the electors'') and could 
recount such ballots in the presence of contestee's appointed notary 
public commissioner.
    The minority contended that ``there was no authority for the 
alleged recount,'' and that, under an opinion of the Illinois attorney 
general in Rinaker v Downing (2 Hinds' Precedents Sec. 1070), the 
production of ballots could not be compelled under the statute. The 
minority noted that, in Rinaker, the House had rejected the majority 
committee report which had asserted the right of a notary public to 
conduct a recount of ballots. The minority also contended that no 
contested election case existed which held that ``a notary public can 
conduct a recount where objection has been urged to such proceeding.''
    The minority conceded that a federal court, while considering 
contestee's motion for writ of prohibition, had held that ballots were 
``papers'' within the meaning of the statute. They claimed, however, 
that the court did not hold that the notary public, having obtained the 
ballots, could conduct his own recount. Rather, the court had left that 
issue for the House to decide. To establish the invalidity of such 
recount by a notary public, the minority quoted the Committee on 
Elections report in Gartenstein v Sabath (6 Cannon's Precedents 
Sec. 115):

        Your committee is of the opinion that the primary evidence of 
    the votes cast for the candidates for Representative in the 
    Congress of the United States in this district was the poll books 
    and ballots themselves, and that the official count by the election 
    officers should not be set aside by the tes

[[Page 1105]]

    timony of a witness who merely looked at the ballots and testified 
    to the results.

    Mr. Kerr called up as privileged House Resolution 186 
(11) on Apr. 5, 1932. By unanimous consent,(12~) 
pursuant to the request of Mr. Kerr, debate on the resolution was 
extended to four hours, to be equally divided and controlled by himself 
and Mr. Gifford. In stating the question, the Speaker included as part 
of the request the ordering of the previous question at the conclusion 
of debate. Then, Mr. Kerr asked unanimous consent that Mr. Edward H. 
Campbell, of Iowa, be permitted to offer a substitute resolution at the 
conclusion of debate. Mr. Campbell explained that his ``substitute'' 
would embody a motion to recommit to the Committee on Elections for the 
purpose of conducting a recount of ballots. Reserving his right to 
object, Mr. Gifford stated that the minority would offer as a 
substitute their recommendation that contestee be declared entitled to 
his seat. He thought that Mr. Campbell's motion might preclude such 
motion. Then, in response to a parliamentary inquiry, the Speaker 
stated that the House, having agreed to order the previous question at 
the conclusion of debate, had precluded the offering of either proposed 
motion. Therefore, the Chair restated the unanimous-consent request to 
include the ordering of the previous question on the motion to recommit 
and on the majority and minority resolutions.(13)
---------------------------------------------------------------------------
11. 75 Cong. Rec. 7491, 72d Cong. 1st Sess.; H. Jour. 641, 642.
12. 75 Cong. Rec. 7491, 72d Cong. 1st Sess.
13. Id. at p. 7492.
---------------------------------------------------------------------------

    In debate, Mr. Kerr emphasized that the recount of ballots had been 
made in the presence of contestee and a notary public appointed by him. 
While denying that in every contest a recount would be justified by an 
allegation that a contestant ``ran behind his ticket,'' Mr. Kerr 
contended that a recount was justifiable where, as here, contestant 
received ``1,284 votes less than the other Democratic candidates in 11 
precincts.''
    Mr. Gifford centered his contentions in debate upon the question of 
the integrity of the ballots, claiming that ballots are not the ``best 
evidence . . . when any opportunity has been given to let them be 
tampered with.'' Mr. John C. Schafer, of Wisconsin, upon being informed 
that the notary public for contestant had not transmitted the ballots 
to the Committee on Elections, questioned the efficacy of the majority 
finding that ballots were ``papers''

[[Page 1106]]

which in an election contest are required by the statute to be 
transmitted to the House.
    Mr. Kerr, in response to Mr. Frederick W. Dallinger, of 
Massachusetts, distinguished Gartenstein as, in that case, the House 
had decided that a similar recount conducted by contestant's notary 
public was irregular because ``only half of the votes had been 
recounted and therefore they could not tell who was elected.'' Mr. 
Dallinger replied that, in the present contest as well, contestee's 
counsel had repeatedly objected to the recount because ``from 100 to 
600 ballots were found to be missing out of various ballot boxes.'' Mr. 
Gifford yielded for debate to the contestee (Mr. Granata), the sitting 
Member, who contended that under state law, the many ballots which had 
been marked ``straight Democratic'' and had also been marked for him 
should have been considered votes for him.
    The Speaker pro tempore ruled that the side supporting seating of 
the contestant, rather than the Member intending to offer a motion to 
recommit, was entitled to close debate.
    After all time had expired, Mr. Campbell, of Iowa, offered the 
following resolution: (14)
---------------------------------------------------------------------------
14. 75 Cong. Rec. 7514, 72d Cong. 1st Sess.; H. Jour. 641.
---------------------------------------------------------------------------

        Resolved, That the contested-election case of Stanley H. Kunz 
    v. Peter C. Granata be recommitted to the Committee on Elections 
    No. 3 with instructions either to recount such part of the vote for 
    Representative in the Seventy-second Congress from the eighth 
    congressional district of Illinois as they shall deem fairly in 
    dispute, or to permit the parties to this contest, under such rules 
    as the committee may prescribe, to recount such vote, and to take 
    any action in the premises, by way of resolution or resolutions, to 
    be reported to the House or otherwise, as they may deem necessary 
    and proper.

    On demand of Mr. Campbell, the yeas and nays were ordered, and the 
motion was rejected by 178 yeas to 186 nays, with 4 ``present.'' 
Thereupon, Mr. Gifford offered the following substitute 
(~15) for the resolution:
---------------------------------------------------------------------------
15. 75 Cong. Rec. 7515, 72d Cong. 1st Sess.; H. Jour. 642.
---------------------------------------------------------------------------

        Resolved, That Peter C. Granata was elected a Representative to 
    the Seventy-second Congress of the eighth congressional district of 
    the State of Illinois.

    On demand of Mr. Gifford, the yeas and nays were ordered and the 
substitute was rejected by 170 yeas to 189 nays, with 5 ``present.''
    Mr. Estep demanded a division of the question for a vote on the 
resolution (H. Res. 186), the first part of which stated:

        Resolved, That Peter C. Granata was not elected as 
    Representative in the

[[Page 1107]]

    Seventy-second Congress from the eighth congressional district in 
    the State of Illinois and is not entitled to the seat as such 
    Representative.

Mr. Thomas L. Blanton, of Texas, made a point of order against the 
request for a division, claiming that the House had just voted on the 
``reverse of this proposition.'' The Speaker overruled the point of 
order under the precedents of the House. On a division vote, the first 
part of the resolution was agreed to, 190 ayes to 168 noes.

    The second part of the resolution stated:

        Resolved, That Stanley H. Kunz was elected a Representative in 
    the Seventy-second Congress from the eighth congressional district 
    in the State of Illinois and is entitled to his seat as such 
    Representative.

    Such portion of the resolution was agreed to by voice vote.
    Thereupon, Mr. Kunz appeared at the bar of the House and took the 
oath of office.
    Note: Syllabi for Kunz v Granata may be found herein at Sec. 27.8 
(extension of time for taking testimony); Sec. 29.2 (ballots as 
``papers'' required to be produced); Sec. 37.7 (interpretations of 
``straight ticket'' votes); Sec. 37.19 (integrity of ballots); 
Sec. 42.1 (disposal of contest by House resolution); Sec. Sec. 42.7, 
42.8 (participation by parties and debate on resolution disposing of 
contests); Sec. 42.13 (demand for division on resolution disposing of 
contest); Sec. 43.8 (minority reports).

Sec. 46.3 O'Connor v Disney

    In the contested election case of O'Connor v Disney, the 
contestant, Charles O'Connor, was the Republican candidate and the 
contestee, Wesley E. Disney, was the Democratic candidate for 
Representative in Congress from the First Congressional District of 
Oklahoma at an election held Nov. 4, 1930. In accordance with the 
official count and canvass of the election returns by the county 
election boards certified to the state election board in accordance 
with law, and in turn canvassed by such board, the state election board 
found and certified that the contestant O'Connor received 41,642 votes 
and the contestee Disney received 41,902 votes, and certified that the 
contestee was elected Representative by a majority of 260 votes. 
Accordingly, a certificate of election was duly issued by the said 
board to the contestee on Nov. 15, 1930.
    The contestant alleged that in two of the ten counties in the 
district there had been fraudulent or irregular miscounts of ballots 
which had deprived him of 862 votes. The contestee in his answer denied 
such allegations and con

[[Page 1108]]

tended that ballot boxes in those counties had been left unprotected 
and had afforded such opportunity for tampering that any change 
indicated by a recount would be the result of such tampering.
    The report in favor of contestee was submitted by Mr. Joseph A. 
Gavagan of New York, for the Committee on Elections No. 2 on May 11, 
1932 (Rept. No. 1288). The report stated that the committee, in 
considering the evidence in the case, had been guided by the following 
principles:

        I. The official returns are prima facie evidence of the 
    regularity and correctness of official action.
        II. The burden of coming forward with evidence to meet or 
    resist the presumption of regularity rests with the contestant.
        III. That to entitle a contestant in an election case to an 
    examination of the ballots, he must establish (a) that some fraud, 
    mistake, or error has been practiced or committed whereby the 
    result of the election was incorrect, and a recount would produce a 
    result contrary to the official returns; (b) that the ballots since 
    the election have been so rigorously preserved that there has been 
    no reasonable opportunity for tampering with them.

    In the view of the committee, the testimony conclusively 
established that the precinct boards were properly instructed as to the 
election law of Oklahoma with respect to the manner and method of 
counting ballots and, in particular, split ballots; and that in 
instances wherein questions arose as to split ballots, a judge of the 
board would consult the law and properly instruct the counters and 
watchers as to the principles governing the counting of the ballots. 
The committee was thereby convinced that all ballots were duly and 
properly counted, and concluded that the contestant had failed to 
sustain the burden of proof of any mistake in the method of counting 
the ballots.
    With respect to the care and preservation of the ballots, the 
committee noted the following circumstances:

        The evidence established that each election precinct board at 
    the close of the election placed the paper ballots in folders 
    together with a tally sheet of the votes cast, which, in turn, were 
    placed in wooden boxes, and sent the boxes to the office of the 
    county election board located in a combination hotel and office 
    building; part of the offices were used as a real estate and 
    insurance office by the witness Lloyd La Motte, then secretary of 
    the county election board. Each ballot box was placed upon a shelf, 
    and in some instances the keys opening the locks thereon were left 
    dangling from the boxes, and in other instances the keys were kept 
    in an unlocked drawer. The testimony of the witness La Motte and 
    the witness Corkins . . . is to the effect that several persons had 
    keys to the outside office of the place where

[[Page 1109]]

    the ballot boxes were kept, and the witness La Motte testified to 
    the fact that rumors of tampering with the ballot boxes were 
    prevalent on the streets for a period of days after the election. 
    This condition of easy access to the ballots continued for a period 
    of nine days after the election, before they were removed to a 
    place of safety and preservation.

    The committee quoted the following language from the opinion in 
People v Livingston: (16)
---------------------------------------------------------------------------
16. 79 N.Y. 279.
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        Everything depends upon keeping the ballot boxes secure. . . . 
    Every consideration of public policy, as well as the ordinary rules 
    of evidence, require that the party offering this evidence should 
    establish the fact that the ballots are genuine. It is not 
    sufficient that a mere possibility of security is proved, but the 
    fact must be shown with reasonable certainty. If the boxes have 
    been rigorously preserved the ballots are the best and highest 
    evidence; but if not, they are not only the weakest, but the most 
    dangerous evidence.

    The majority of the committee concluded as follows:

        In the opinion of the majority of your committee the record in 
    this case is barren of any competent proof tending to show or 
    establish fraud, mistake, or error, in either the counting of the 
    ballots cast or the official returns of the vote in the genera] 
    election held in November, 1930, in Ottawa County of the first 
    congressional district of Oklahoma; that said record is sterile of 
    proof of the safeguarding of the ballots after the said election, 
    but contrarywise, is pregnant with positive evidence that said 
    ballots were, for a 9-day period subsequent to said election, 
    available, accessible, and perhaps subjected to public interference 
    or private tampering; that the proof of such accessibility is so 
    compelling as to give rise to a reasonable presumption that the 
    sanctity of said ballots was indeed violated, the true result of 
    the election falsified, and the will of the electorate defeated, 
    thwarted, or destroyed. Consequently, the majority of your 
    committee believes that a recount of ballots cast in the said 
    election would destroy the will of the electorate, defeat the true 
    result of said election, and visit grave injustice on the duly 
    elected Representative from said district.
        We therefore submit the following resolution. [H. Res. 233]:

            Resolved, That Wesley E. Disney was elected a 
        Representative in the Seventy-second Congress from the first 
        congressional district in the State of Oklahoma, and is 
        entitled to a seat as such Representative.

    In additional views, Mr. John C. Schafer, of Wisconsin, supported 
the seating of contestee but contended that if the House were to be 
guided by Kunz v Granata (see Sec. 46.2, supra), the then most recent 
precedent regarding the validity of a recount, the recount should be 
granted.
    The privileged resolution (H. Res. 233) was agreed to by voice vote 
after extended debate.(17)
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17. 75 Cong. Rec. 11050, 72d Cong. 1st Sess., May 24, 1932.

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[[Page 1110]]

    Note: Syllabi for O'Connor v Disney may be found herein at 
Sec. 35.10 (evidence necessary to compel examination of ballots); 
Sec. 37.20 (preservation of ballots); and Sec. 40.8 (burden of proving 
fraud sufficient to change election result).