[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 55. Eighty-first Congress, 1949-50]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1189-1199]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 55. Eighty-first Congress, 1949-50

Sec. 55.1 Browner v Cunningham

    Mr. Thomas B. Stanley, of Virginia, submitted the unanimous report 
(5) of the Committee on House Administration on Aug. 11, 
1949, in the contested election case of Browner v Cunningham from the 
Fifth Congressional District of Iowa. (The report also contained 
committee recommendations in the contested election cases of Fuller v 
Davies, 35th Congressional District of New York, and of Thierry v 
Feighan, 
---------------------------------------------------------------------------
 5. H. Rept. No. 1252, 95 Cong. Rec. 11316, 81st Cong. 1st Sess.; H. 
        Jour. 831.
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[[Page 1190]]

20th Congressional District of Ohio.) The case had come to the 
House (along with the other two cases above mentioned) on July 26, 
1949, when the Speaker had laid before the House a letter from the 
Clerk (6) transmitting a copy of contestee's answer (filed 
for information only) and relating that no testimony had been received, 
the time for such having long since expired. The letter, containing 
as well the Clerk's opinion that the contest had abated, was referred 
by the Speaker on July 26 to the committee, and ordered printed with 
accompanying papers as a House document.
---------------------------------------------------------------------------
 6. H. Doc. No. 277, 95 Cong. Rec. 10248, 10249, 81st Cong. 1st Sess.; 
        H. Jour. 751.
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    Contestee's answer filed with the Clerk alleged among other things 
that contestant had not filed notice of intention to contest the 
election within 30 days after determination of the result thereof as 
required by statute, and that the 30-day state law requirement for 
impounding election machines had expired, thus rendering the machines 
themselves incompetent as evidence.
    The summary and unanimous report from the Committee on House 
Administration stated that:

        Under the laws and committee rules governing contested-election 
    cases in the House of Representatives, more than 90 days elapsed 
    since the filing of notice to contest the elections of the 
    respective contestees in the above-entitled contested-election 
    cases, and no testimony of any character, kind, or nature of the 
    parties in the said contests having been received by the Clerk of 
    the House of Representatives in behalf of the contestants in 
    support of the allegations set forth in their notice of intention 
    to contest said election.
        It is hereby respectfully submitted that notice of intention to 
    contest the election in the afore-mentioned cases be dismissed by 
    reason of failure to comply with the laws and committee rules 
    governing contested-election cases in the House of Representatives.

Accordingly, House Resolution 324 (7) was called up as 
privileged by Mr. Stanley and agreed to without debate and by voice 
vote on Aug. 11, 1949. House Resolution 324 provided:
---------------------------------------------------------------------------
 7. 95 Cong. Rec. 11294, 81st Cong. 1st Sess.; H. Jour. 830.
---------------------------------------------------------------------------

        Resolved, That the election contest of Vincent L. Browner, 
    contestant, against Paul Cunningham, contestee, Fifth Congressional 
    District of the State of Iowa, be dismissed, and that the said Paul 
    Cunningham is entitled to his seat as a Representative of said 
    district and State; be it further
        Resolved, That the election contest of Hadwen C. Fuller, 
    contestant, against John C. Davies, contestee, Thirty-fifth 
    Congressional District of the State of New York, be dismissed and 
    that the said John C. Davies is entitled to his seat as a 
    Representative of said district and State; and be it further

[[Page 1191]]

        Resolved, That the election contest of James F. Thierry, 
    contestant, against Michael A. Feighan, contestee, Twentieth 
    Congressional District of the State of Ohio, be dismissed and that 
    the said Michael A. Feighan is entitled to his seat as a 
    Representative of said district and State.

    Note: Syllabi for Browner v Cunningham may be found herein at 
Sec. 6.8 (items transmitted by Clerk); Sec. 24.2 (answer filed for in- 
formation only); Sec. 27.1 (dismissal for failure to take testimony 
within statutory period).

Sec. 55.2 Fuller v Davies

    On Aug. 11, 1949, Mr. Thomas B. Stanley, of Virginia, submitted the 
unanimous report (8) of the Committee on House 
Administration in the contested election case of Fuller v Davies from 
the 35th Congressional District of New York. The report also contained 
committee recommendations in the contested election cases of Thierry v 
Feighan, 20th Congressional District of Ohio, and Browner v Cunningham, 
Fifth Congressional District of Iowa. The case had been presented to 
the House (with the two other cases above mentioned) on July 26, 1949, 
at which time the Speaker had laid before the House a letter from the 
Clerk (9~) transmitting copies of contestant's notice and of 
contestee's answer thereto, and containing the Clerk's statement that 
the contest had abated, as no testimony had been received within the 
time required by law. The Clerk's letter was referred to the Committee 
on House Administration and ordered printed with accompanying papers.
---------------------------------------------------------------------------
 8. H. Rept. No. 1252, 95 Cong. Rec. 11316, 81st Cong. 1st Sess.; H. 
        Jour. 831.
 9. H. Doc. No. 278, 95 Cong. Rec. 10249, 81st Cong. 1st Sess.; H. 
        Jour. 751.
---------------------------------------------------------------------------

    Contestant's notice contained 11 forms of fraud, irregularity, and 
discrepancy alleged to have occurred in certain wards within the 
district, sufficient to annul the 138-vote majority received by 
contestee. Contestee's answer denied these allegations severally.
    The summary and unanimous report from the Committee on House 
Administration stated that:

        Under the laws and committee rules governing contested-election 
    cases in the House of Representatives, more than 90 days elapsed 
    since the filing of notice to contest the elections of the 
    respective contestees in the above-entitled contested-election 
    cases, and no testimony of any character, kind, or nature of the 
    parties in the said contests having been received by the Clerk of 
    the House of Representatives in behalf of the contestants in 
    support of the allegations set forth in their notice of intention 
    to contest said election.

[[Page 1192]]

        It is hereby respectfully submitted that notice of intention to 
    contest the election in the afore-mentioned cases be dismissed by 
    reason of failure to comply with the laws and committee rules 
    governing contested-election cases in the House of Representatives.

    Accordingly, House Resolution 324 (10) was called up as 
privileged by Mr. Stanley and agreed to without debate and by voice vote 
on Aug. 11, 1949. House Resolution 324 declared:
---------------------------------------------------------------------------
10. 95 Cong. Rec. 11294, 81st Cong. 1st Sess.; H. Jour. 830.
---------------------------------------------------------------------------

        Resolved, That the election contest of Vincent L. Browner, 
    contestant, against Paul Cunningham, contestee, Fifth Congressional 
    District of the State of Iowa, be dismissed, and that the said Paul 
    Cunningham is entitled to his seat as a Representative of said 
    district and State; be it further
        Resolved, That the election contest of Hadwen C. Fuller, 
    contestant, against John C. Davies, contestee, Thirty-fifth 
    Congressional District of the State of New York, be dismissed and 
    that the said John C. Davies is entitled to his seat as a 
    Representative of said district and State; and be it further
        Resolved, That the election contest of James F. Thierry, 
    contestant, against Michael A. Feighan, contestee, Twentieth 
    Congressional District of the State of Ohio, be dismissed and that 
    the said Michael A. Feighan is entitled to his seat as a 
    Representative of said district and State.

Sec. 55.3 Stevens v Blackney

    The contested election case of Stevens v Blackney, from the Sixth 
Congressional District of Michigan, was presented to the House on Sept. 
22, 1949, at which time the Speaker laid before the House and referred 
to the Committee on House Administration a letter from the 
Clerk.(11) The Clerk's letter, which was ordered printed by 
the Speaker as a House document, recited that, agreed upon or proper 
testimony had been ordered printed by the Clerk, and, together with 
notice of contest and answer, and briefs, had been sealed and was ready 
for referral to the Committee on House Administration.
---------------------------------------------------------------------------
11. H. Doc. No. 336, 95 Cong. Rec. 13177, 81st Cong. 1st Sess.; H. 
        Jour. 917.
---------------------------------------------------------------------------

    On Mar. 6, 1950, Mr. Burr P. Harrison, of Virginia, submitted the 
committee report (12) to accompany the recommended committee 
resolution declaring contestee entitled to his seat. Part II of the 
report contained the views of Mr. Wayne L. Hays, of Ohio, and of Mr. 
Anthony Cavalcante, of Pennsylvania.
---------------------------------------------------------------------------
12. H. Rept. No. 1735, 96 Cong. Rec. 2898, 81st Cong. 2d Sess.; H. 
        Jour. 186.
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    The majority report set forth three issues in the contest as 
follows:
    (1) Whether contestant without evidence is entitled to a recount 

[[Page 1193]]

under the supervision of the House committee?
    The report indicated that the contestant had, on Feb. 10, 1949, 
applied to the Committee on House Administration to send its agents to 
conduct a recount, prior to contestant's taking of any testimony during 
the time prescribed by statute. On Feb. 15, 1949, the 
Subcommittee on Elections informed contestant 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'' (citing House precedents). The committee 
rationale in support of this unanimous subcommittee recommendation was 
that the probability of error should first be shown, that a Member 
whose election has been certified should not be subjected to ``fishing 
expeditions,'' that the committee would be overburdened with 
``frivolous contests,'' that an unwise precedent would be set, and that 
there is no proof that a House-conducted recount would be more 
accurate. The minority report did not contest this conclusion, but did 
point out in connection with another communication that on the date of 
the communication (Mar. 2, 1949) ``there was nothing before the 
subcommittee or the House except contestant's notice and contestee's 
answer thereto.'' These papers and all testimony were in the custody of 
the Clerk until Sept. 22, 1949, on which date the contest was presented 
to the House.
    (2) Whether contestant, of his own accord and without evidence, is 
entitled to conduct a recount without any supervision?
    The facts as presented in the ``chronological chart of events'' 
contained in the minority report, indicate that contestant did on two 
separate occasions cause a subpena duces tecum to be issued directing 
the election officials to deliver up the original ballots and voting 
machines to a notary public of contestant's own selection. On Feb. 3, 
1949, the contestant had caused such subpena duces tecum to be issued, 
and on Feb. 10, contestee had obtained a restraining order against such 
subpena from a local chancery court. On Feb. 14, a local election 
official appeared before the notary public but refused to bring with 
him the ballots, etc., on the basis of the restraining order, which the 
chancery court had issued based on contestee's argument that such a 
recount had not been ordered by the House or by its committee. On Feb. 
25, on removal to the United States district court, the contest-

[[Page 1194]]

ant succeeded in obtaining an order dissolving the chancery court 
restraining order.
    On Mar. 2, 1949, contestant again caused to be served a subpena 
duces tecum on the local election official, who, on Mar. 8, again 
refused to produce the requested ballots, tally sheets, and statements. 
The election official based this second refusal on a 
communication, dated Mar. 2, which he had received from the 
Subcommittee on Elections of the Committee on House Administration. 
Signed by Burr P. Harrison, of Virginia, its Chairman, the 
communication read as follows:

        The Subcommittee on Elections has ruled that a recount of the 
    ballots at this time is premature and irrelevant. There is no 
    process under Federal law whereby a notary public can be directed 
    to take possession of ballots in an election contest.
        I do not know whether under the law of your State a notary 
    public has the power to issue a subpoena duces tecum and as to 
    this, and as to whether the subpoena has been issued in accordance 
    with the law of the State, you are referred to your own attorney.
        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.

    On Mar. 15, 1949, the Subcommittee on Elections ``sustained the 
action of the election official who had refused to comply with such 
subpena duces tecum.'' To this decision and to the communication above, 
the minority report took strong exception. The minority contended that 
the notary public was an ``officer'' of the House by virtue of 2 USC 
Sec. 206 and the Supreme Court case of In re Loney (1890), 134 U.S. 
372, which stated that ``any one of the officers designated by Congress 
to take the depositions of such witnesses (whether he is appointed by 
the United States . . . Or by a State, such as a . . . notary public) 
performs this function, not under any authority derived from the State, 
but solely under the authority conferred upon him by Congress. . . .''
    The minority again pointed out that at the time of the 
communication from the chairman of the subcommittee, the election 
contest had not been presented to the House. The minority cited several 

[[Page 1195]]

House election cases wherein it had been held that a notary public was 
a proper official of the House before whom testimony could be taken, 
and before whom ballots may be examined and a report submitted to the 
House. Taking further exception to Mr. Harrison's communication, the 
minority contended that a notary public acting in such capacity derived 
his authority from the federal election laws and the rules of the House, 
and that a notary public so appointed need not inspect the ballots in 
strict conformity with state law, as the power to examine ballots 
vested in the House is infinite.

    The majority report, however, resolved issue (2) by deciding that 
the power of an officer (notary public) to require the production of 
``papers'' (under 2 USC Sec. 219) pertaining to the election did not 
require the production of ``ballots.'' This decision of the majority of 
the committee was contrary to previous precedents of the House, i.e., 
Greevy v Scull (2 Hinds' Precedents Sec. 1044) and Kunz v Granata (6 
Cannon's Precedents Sec. 186) which held that ballots are among the 
``papers'' of which the officer taking testimony in an election case 
may demand the production. The minority also cited Rinaker v Downing (2 
Hinds' Precedents Sec. 1070), in which the majority report coincided 
with the above precedents, but where ``the majority report referred to 
was rejected by the House and the resolution of the minority 
substituted.'' The majority report in Stevens v Blackney stated that 
the accepted procedure was that the House itself should order a 
recount, and provide the subpena power and payment of the expenses 
thereof.
    The majority rationale for their construction of the word 
``papers'' was based upon certain practical considerations, such as the 
difficulty of submitting certified copies of such ``official papers'' 
to the Clerk, payment to officials for making such copies, inclusion of 
voting machines as official papers. Further, the majority cited the 
problem of deciding which count would be accepted by the House, that of 
contestant's notary public or that of the bipartisan officials who 
first conducted the count, should contestant be permitted to conduct a 
recount on his own motion. The alternative that the House could then 
conduct a third count, related the majority, would not overcome the 
dilemma, as the inviolability of the ballots would then have been 
destroyed. The option of authorizing the contestee to name a second 
notary to attend 

[[Page 1196]]

the hearings would not resolve the question of which notary would 
have custody of the ballots overnight.
    Citing early cases, the majority report quoted the ``accepted 
uniform rule'' in holding that a magistrate taking testimony ``was not 
a person or a tribunal authorized to try the merits of the election and 
had no authority under the
law of Pennsylvania or of Congress to order those boxes to be broken 
open. . . . The committee were of the opinion that such an application 
should be founded upon some proof sufficient at least to raise a 
presumption of mistake, irregularity, or fraud in the original count, 
and ought not to be granted upon the mere suggestion of possible error. 
The contestant failed to furnish such proof.''
    (3) Did the evidence in this case justify a recount of the ballots?
    Of the 207 precincts in the congressional district, the evidence 
showed, according to the majority report, that election officials in 
four of those precincts had erroneously counted ballots, which had been 
marked as straight party ballots and also marked for the congressional 
candidate of another party, as votes for both candidates. Those errors 
were corrected by the official canvassers and were not reflected in the 
official returns. The report related that from the statement of one of 
the election officials that the same erroneous method of counting could 
have been followed in other precincts, contestant was urging that a 
total recount be conducted. Contestant accompanied this contention with 
evidence attacking the returns of three precincts. Contestant submitted 
no evidence, however, that the law of Michigan had been violated either 
in the appointment of bipartisan election officials or in allowing 
challengers of contestant's party to be present in any of the remaining 
200 precincts. Thus, the majority of the committee applied a principle 
of evidence to presume that the failure of contestant to produce party 
election officials and challengers from any of the 200 precincts as 
witnesses must have been ``because their testimony would show an honest 
and fair count.''
    On this issue, the minority report contended that, as the recount 
in seven precincts had reduced contestee's plurality from 1,217 votes 
to 784 votes, that it was reasonable to assume that a complete recount 
would overcome contestee's plurality. Citing Galvin v O'Connell (6 
Cannon's Precedents Sec. 126) the minority contended that ``if it is 
reasonable to suppose there was error in 

[[Page 1197]]

judgment in counting ballots cast in a portion of the precincts in 
the district, it is equally reasonable to assume there was error in 
judgment in counting the ballots in the remaining precincts.''
    On May 23, 1950, Mr. Harrison called up as privileged House 
Resolution 503,(13) and immediately
yielded to Mr. Cavalcante, who offered a substitute (14) 
resolution which:
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13. 96 Cong. Rec. 7544, 81st Cong. 2d Sess.; H. Jour. 434, 435.
14. Id.
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        Resolved, That the contested-election case of George D. Stevens 
    v. William W. Blackney from the Sixth Michigan Congressional 
    District (Eighty-first Congress, election of November 2, 1948) be 
    recommitted to the Committee on House Administration with 
    instructions (1) to allow, under the rules of the subcommittee on 
    elections and the precedents established by the House of 
    Representatives, the contestant and his attorney to inspect the 
    poll lists, registration books, ballot boxes, ballots, tally 
    sheets, and statements of returns pertaining to this contested 
    election, and (2) that after said inspection, to direct the parties 
    to this contest, under such rules as the committee may determine, 
    to take testimony and return the same, as required by the rules of 
    the subcommittee on elections and laws (2 U.S. Code 201-226) 
    governing contested-election cases and the precedents established 
    by the House of Representatives (Stolbrand v. Aiken (Hinds' I, 
    719); Goodwyn v. Cobb (Hinds' I, 720); Greevy v. Scull (Hinds' II, 
    1044); Steele v. Scott (Cannon's VI, 126); Galvin v. O'Connell 
    (Cannon's VI, 146); Kunz v. Granata (Cannon's VI, 186)).

Mr. Cavalcante thereupon yielded to Mr. Harrison, who immediately moved 
the previous question on the substitute resolution, which was rejected 
by voice vote.

    House Resolution 503 was then agreed to without debate and by voice 
vote. House Resolution 503 declared:

        Resolved, That William W. Blackney was elected a Representative 
    in the Eighty-first Congress from the Sixth Congressional District 
    of the State of Michigan and is entitled to a seat as such 
    Representative.

    Note: Syllabi for Stevens v Blackney may be found herein at 
Sec. 7.7 (magistrates' authority to open ballot boxes); Sec. 29.3 
(ballots as ``papers'' required to be produced); Sec. 34.2 (necessity 
of producing evidence); Sec. 36.8 (effect of absence of witnesses for 
contestant); Sec. 39.3 (unsupervised recount); Sec. 40.2 (justification 
for recount); Sec. 40.4 (burden of showing fraud, irregularity or 
mistake); Sec. 41.3 (production of evidence justifying a recount as 
prerequisite) Sec. 42.18 (substitute resolutions); Sec. 43.9 (minority 
reports).

Sec. 55.4 Thierry v Feighan

    On Aug. 11, 1949, Mr. Thomas B. Stanley, of Virginia, submitted 

[[Page 1198]]

the unanimous report (15) of the Committee on House 
Administration in the contested election case of Thierry v Feighan from 
the 20th Congressional District of Ohio. The report also contained 
committee recommendations in the contested election cases of Browner v 
Cunningham, Fifth Congressional District of Iowa, and of Fuller v 
Davies, 35th Congressional District of New York. Contestee's answer, 
filed with the Clerk for information only, had been contained in the 
Clerk's letter (16) transmitted to the Speaker on July 26, 
1949, and laid before the House on that date. The letter recited that 
no testimony had been received during the period required by statute, 
and that the contest appeared abated. The Clerk's letter, upon being 
referred, was ordered printed with accompanying papers.
---------------------------------------------------------------------------
15. H. Rept. No. 1252, 95 Cong. Rec. 11316, 81st Cong. 1st Sess.; H. 
        Jour. 831.
16. H. Doc. No. 279, 95 Cong. Rec. 10248, 81st Cong. 1st Sess.; H. 
        Jour. 751.
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    The summary and unanimous report from the Committee on House 
Administration stated that:

        Under the laws and committee rules governing contested-election 
    cases in the House of Representatives, more than 90 days elapsed 
    since the filing of notice to contest the elections of the 
    respective contestees in the above-entitled contested-election 
    cases, and no testimony of any character, kind, or nature of the 
    parties in the said contests having been received by the Clerk of 
    the House of Representatives in behalf of the contestants in 
    support of the allegations set forth in their notice of intention 
    to contest said election.
        It is hereby respectfully submitted that notice of intention to 
    contest the election in the afore-mentioned cases be dismissed by 
    reason of failure to comply with the laws and committee rules 
    governing contested-election cases in the House of Representatives.

    Accordingly, House Resolution 324 (17) was called up as 
privileged by Mr. Stanley and agreed to without debate and by voice 
vote on Aug. 11, 1949. House Resolution 324 declared:
---------------------------------------------------------------------------
17. 95 Cong. Rec. 11294, 81st Cong. 1st Sess.; H. Jour. 830.
---------------------------------------------------------------------------

        Resolved, That the election contest of Vincent L. Browner, 
    contestant, against Paul Cunningham, contestee, Fifth Congressional 
    District of the State of Iowa, be dismissed, and that the said Paul 
    Cunningham is entitled to his seat as a Representative of said 
    district and State; be it further
        Resolved, That the election contest of Hadwen C. Fuller, 
    contestant, against John C. Davies, contestee, Thirty-fifth 
    Congressional District of the State of New York, be dismissed and 
    that the said John C. Davies is entitled to his seat as a 
    Representative of said district and State; and be it further
        Resolved, That the election contest of James F. Thierry, 
    contestant, against 
    
[[Page 1199]]

    Michael A. Feighan, contestee, Twentieth 
    Congressional District of the State of Ohio, be dismissed and that 
    the said Michael A. Feighan is entitled to his seat as a 
    Representative of said district and State.

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