[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[M. Summaries of Election Contests, 1931-72]
[§ 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)~
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4. 75 Cong. Rec. 11055, 72d Cong. 1st Sess., May 24, 1932.
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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)~
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5. Also reported in 6 Cannon's Precedents Sec. 186.
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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.
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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).
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9. John N. Garner (Tex.).
10. 75 Cong. Rec. 652, 72d Cong. 1st Sess.; H. Jour. 157.
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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)
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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.
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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)
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14. 75 Cong. Rec. 7514, 72d Cong. 1st Sess.; H. Jour. 641.
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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:
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15. 75 Cong. Rec. 7515, 72d Cong. 1st Sess.; H. Jour. 642.
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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)
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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).