[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 56. Eighty-second Congress, 1951-52]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1199-1208]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 56. Eighty-second Congress, 1951-52

Sec. 56.1 Huber v Ayres

    Mr. Omar T. Burleson, of Texas, submitted the majority report 
(18) on Aug. 21, 1951, in the contested election case of 
Huber v Ayres, from the 14th Congressional District of Ohio. The case 
had been presented to the House on July 11, 1951, on which date the 
Speaker had referred to the Committee on House Administration and 
ordered printed a letter from the Clerk (19) transmitting 
the required papers and testimony pursuant to 2 USC Sec. Sec. 201 et 
seq. The record showed that there had been three candidates in the 
election held Nov. 7, 1950, and that contestee (Mr. Ayres) had received 
a plurality of 1,921 votes over the contestant (102,868 to 100,947, the 
independent candidate having received 7,246 votes).
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18. H. Rept. No. 906, 97 Cong. Rec. 10494, 82d Cong. 1st Sess.; H. 
        Jour. 645.
19. H. Doc. No. 189, 97 Cong. Rec. 8015, 82d Cong. 1st Sess.; H. Jour. 
        479.
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    The contestant ``alleged a failure on the part of the county boards 
of elections to rotate properly the names of the three candidates on 
the general election ballot as required by section 2 (a) of article V 
of the Ohio Constitution.'' As a result of this failure contestant 
requested that the election be declared void or that he be seated as 
the elected member. The committee ruled that ``the matter of rotating 
the names on the ballot is a procedural requirement of the State 
election process and a matter which Congress has consistently left for 
the States to determine.'' Under section 4 of article I of the United 
States Constitution, state legislatures are left free to determine 
times, places, and manner of elections for Congress, subject to 
alteration by congressional regulation. As Congress had only seen fit 
to regulate the date on which congressional elections were to be held, 
and to regulate the form of the ballots to be used (2 USC Sec. Sec. 7, 
9), the majority proceeded to apply state law, namely the 
constitutional provision which:

         . . . [R]equires that the names of all candidates shall be so 
    alternated that each name shall appear (insofar as may be 
    reasonably possible) substantially an equal number of times at the 
    beginning, at the end, and in each intermediate place, if any, of 
    the group in which such name belongs (Ohio Constitution, art. V, 
    Sec. 2a, adopted Nov. 8, 1949).

[[Page 1200]]

    The committee majority then ruled that the contestant had not 
exhausted the remedies available 
to him under state law, as he had not requested remedial action by 
protesting the form of the ballots to the board of elections. The 
majority report cited state law requirements which provided for the 
publication and display of ballots for a 24-hour period before the 
election, with notice to committees representing each party on the 
ballot to permit them to inspect the ballots for irregularities. The 
report then stated:

        Apparently, if objections were entertained by the contestant to 
    errors in the form of the ballots or ballot labels, he had adequate 
    recourse under Ohio law to request remedial action by protesting to 
    the board of elections. In event he failed to secure satisfaction 
    from the boards, he had recourse to the State courts. Failing to 
    exhaust the remedies available to him under State law, the final 
    election having been held, with no allegations or evidence of 
    fraud, and the results proclaimed, the committee is of the opinion 
    that the results of that election cannot be overturned because of 
    some preelection irregularity.

    Thus, the majority noted that there had been discrimination against 
contestant in the rotation method employed, but that contestant had not 
exhausted his state remedies, and that the discrimination may have been 
due to the failure of the Ohio legislature to implement the 
constitutional provision.

    The dissenting views were signed by Mr. Wayne L. Hays, of Ohio, Mr. 
Charles R. Howell, of New Jersey, Mr. Edward A. Garmatz, of Maryland, 
Mr. Reva Beck Bosone, of Utah, and Mr. Victor L. Anfuso, of New York. 
These members of the committee first pointed out that the 
constitutional provision needed no new implementing legislation to be 
fully effective, nor had its adoption effected the repeal of a state 
law which required voting machine rotation of ballots. These dissenting 
members then argued that contestant had not been granted a fair chance 
by state law to discover the mistake of the election officials in time 
to assure correction by the officials or by state courts. The minority 
took particular exception to the adequacies of state remedial 
procedures as they were interpreted by the majority. The majority, in 
taking the position that the Ohio law requirements, as to the 
alternation of names on ballots and as to publication of ballots and 
display for 24 hours, were mandatory before the election but only 
directory afterward, was unsound, contended the minority, as it was 
impossible for the contestant to ascertain the unequal method of 
ro-

[[Page 1201]]

tation in advance of the election in time to invoke state law 
remedies. The minority then cited the 
Ohio Supreme Court decision of Otworth v Bays (1951), 155 Ohio 366, 98 
N.E.2d 812, for the proposition that the irregularities in the instant 
case would render the election invalid because such irregularities 
``affect the result of the election or render it uncertain.'' The 
minority also cited the Kentucky Supreme Court case of Lakes v Estridge 
(1943), 294 Kentucky 655, 172 S.W.2d 454, which invalidated an election 
for failure, among other reasons, to rotate the names of candidates on 
the ballots as required by state law. Thus, the minority claimed that 
evidence had been produced which gave contestant a substantial 
plurality, assuming a correct rotation of names on ballots.
    Nevertheless, Mr. Burleson called up as privileged House Resolution 
400 (20) on Aug. 21, 1951, which the House agreed to without 
debate by voice vote. House Resolution 400 provided as follows:
---------------------------------------------------------------------------
20. 97 Cong. Rec. 10479, 82d Cong. 1st Sess.; H. Jour. 644.
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        Resolved, That William H. Ayres was duly elected as 
    Representative from the Fourteenth Congressional District of the 
    State of Ohio to the Eighty-second Congress and is entitled to his 
    seat.

    Note: Syllabi for Huber v Ayres may be found herein at Sec. 7.1 
(appeal to state court regarding preelection irregularities); Sec. 10.9 
(distinction between mandatory and directory laws); Sec. 12.8 
(balloting irregularities) .

Sec. 56.2 Karst v Curtis

    On Aug. 21, 1951, the unanimous report (1) from the 
Committee on House Administration in the contested election case of 
Karst v Curtis, from the 12th Congressional District of Missouri, was 
submitted by Mr. Omar T. Burleson, of Texas. The contest had been 
presented to the House on Apr. 12, 1951, when the Speaker laid before 
the House a letter from the Clerk (2) of the House 
transmitting communications relative to the contest. The Clerk's letter 
related that time for taking testimony appeared expired and that no 
testimony had been received by his office. The Speaker referred the 
communication to the Committee on House Administration and ordered it 
printed as a House document to include the following material: (1) 
contestant's notice of contest filed with the 

[[Page 1202]]

Clerk for information only; (2) contestee's answer to said notice filed 
for information only; (3) contestee's motion to dismiss for 
failure of contestant to take testimony within 40 days after service of 
answer; (4) a memorandum from contestant explaining his failure to take 
testimony within the 40 days; and (5) contestee's renewed motion to 
dismiss for failure of contestant to take testimony during the 90-day 
statutory period.
---------------------------------------------------------------------------
 1. H. Rept. No. 905, 97 Cong. Rec. 10494, 82d Cong. 1st Sess.; H. 
        Jour. 645.
 2. H. Doc. No. 111, 97 Cong. Rec. 3800, 3801, 82d Cong. 1st Sess.; H. 
        Jour. 256.
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    On June 7, 1951, the Speaker laid before the House a further 
communication (3) from the contestant, which related that he 
had been requested by a unanimous vote of the County Democratic 
Committee of St. Louis County, based on charges of improper tallying of 
ballots in a local election, to file his notice of recount of votes 
cast for a Member of Congress in the same election. Based upon the 
recount of votes in the local election which failed to disclose the 
irregularities suggested by the county committee, contestant informed 
the House of his decision to discontinue any further action in the 
contest for the seat from the 12th Congressional District. The alleged 
discrepancy had represented 15 percent of the total votes cast in the 
congressional election, of which contestee had received 110,992 votes 
to 106,935 for contestant. The Speaker referred this communication to 
the Committee on House Administration and ordered it printed.
---------------------------------------------------------------------------
 3. H. Doc. No. 160, 97 Cong. Rec. 6241, 82d Cong. 1st Sess.; H. Jour. 
        388.
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    The committee report related that ``no testimony was taken or 
forwarded to the Clerk of the House in this case as required by 
sections 203, 223, of title 2, United States Code.''
    Accordingly, the committee recommended the adoption of House 
Resolution 399,(4) which was called up as privileged by Mr. 
Burleson and agreed to without debate and by voice vote on Aug. 21, 
1951. House Resolution 399 stated:
---------------------------------------------------------------------------
 4. 97 Cong. Rec. 10479, 82d Cong. 1st Sess.; H. Jour. 644.
---------------------------------------------------------------------------

        Resolved, That the election contest of Raymond W. Karst, 
    contestant, against Thomas B. Curtis, contestee, Twelfth 
    Congressional District of the State of Missouri, be dismissed.

    Note: Syllabi for Karst v Curtis may be found herein at Sec. 6.4 
(items transmitted by Clerk); Sec. 25.4 failure to produce evidence); 
Sec. 33.3 (withdrawal of contests).

Sec. 56.3 Lowe v Davis

    Mr. Omar T. Burleson, of Texas, submitted the unanimous re-

[[Page 1203]]

port (5) of the Committee on House Administration on Aug. 
21, 1951, in the contested election case of Lowe v Davis, from the Fifth 
Congressional District of Georgia. The report 
indicated that contestant had been defeated by contestee in the primary 
election, and had not been a candidate and had not received any votes 
in the general election. The report stated that:
---------------------------------------------------------------------------
 5. H. Rept. No. 904, 97 Cong. Rec. 10494, 82d Cong. 1st Sess.; H. 
        Jour. 645.
---------------------------------------------------------------------------

        Nothing in the record indicates that the contestee was guilty 
    of any acts in connection with that primary which would disqualify 
    him for office of United States Representative in Congress. [Citing 
    the contest of Miller v. Kirwan, 77th Congress (H. Res. 54).]

    The report indicated that contestant had filed a record in the 
contest with the Clerk, but that contestant had not taken testimony 
within the time prescribed by 2 USC Sec. 203.
    There was no record of referral of a letter from the Clerk 
transmitting the contest to the committee, nor did the House adopt a 
resolution referring the contest to the committee. As well, there is no 
record that the contestant petitioned the Congress to take action in 
this matter.
    House Resolution 398 (6) was called up as privileged by 
Mr. Burleson and agreed to without debate and by voice vote on Aug. 21, 
1951. House Resolution 398 stated:
---------------------------------------------------------------------------
 6. 97 Cong. Rec. 10479, 82d Cong. 1st Sess.; H. Jour. 644.
---------------------------------------------------------------------------

        Resolved, That the election contest of Wyman C. Lowe, 
    contestant, against James C. Davis, contestee, Fifth Congressional 
    District of the State of Georgia, be dismissed.

    Note: Syllabi for Lowe v Davis may be found herein at Sec. 19.5 
(contestants as candidates in general election); Sec. 27.3 (dismissal 
for failure to take testimony within statutory period); Sec. 43.3 (form 
of report).

Sec. 56.4 Macy v Greenwood

    On Apr. 2, 1951, the Speaker laid before the House, ordered 
printed, and referred to the Committee on House Administration a letter 
from the Clerk of the House (7) transmitting a stipulation 
signed by attorneys for the contestant and the contestee in the contest 
of Macy v Greenwood, from the First Congressional District of New York. 
The stipulation related that the contestant had, at the contestee's 
request, adjourned the calling of two witnesses for six days during the 
40-day period allotted contestant for the taking of testimony under 2 
USC Sec. 201 et 

[[Page 1204]]

seq. Both parties had thus agreed to a compensatory extension of six 
days subsequent to the 40-day period, subject to approval of the House. 
That approval was granted by the House, when, on Apr. 12, 1951, Mr. 
Thomas B. Stanley, of Virginia, submitted the committee report 
(8) and called up House Resolution 184 (9) as 
privileged. The resolution was agreed to upon assurance by Mr. Stanley 
that there would be no further extensions of time. House Resolution 
184, having been agreed to by voice vote, provided as follows:
---------------------------------------------------------------------------
 7. H. Doc. No. 104, 97 Cong. Rec. 3123, 82d Cong. 1st Sess.; H. Jour. 
        227.
 8. H. Rept. No. 315, 97 Cong. Rec. 3807, 82d Cong. 1st Sess.; H. Jour. 
        254.
 9. 97 Cong. Rec. 3751, 82d Cong. 1st Sess.; H. Jour. 254.
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        Resolved, That the time allowed for taking testimony in the 
    election contest, W. Kingsland Macy, contestant, against Ernest 
    Greenwood, contestee, First Congressional District of the State of 
    New York, shall be extended for a period of 6 days.
        That the time allowed for taking of testimony by the contestant 
    shall be extended for a period of 6 days beginning April 16, 1951, 
    and ending April 21, 1951.

    During the time permitted by statute for contestee to take 
testimony, the contestee transmitted to the Clerk his motion to ``close 
the hearing and print the record.'' The Speaker laid the Clerk's letter 
(10) before the House on May 17, 1951, and had ordered it 
printed to include contestee's motion. The motion was based upon 
contestee's assertion that he would rely on the testimony adduced by 
contestant, thereby obviating the need to take testimony of his own. 
Contestee also desired to have the contest resolved during the first 
session of the 82d Congress, prior to the July 31 adjournment date 
provided in the Legislative Reorganization Act. The Committee on House 
Administration did not, however, act upon this motion of contestee.
---------------------------------------------------------------------------
10. H. Doc. No. 135, 97 Cong. Rec. 5483, 82d Cong. 1st Sess.; H. Jour. 
        341, 343.
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    On Mar. 19, 1952, Mr. Omar T. Burleson, of Texas, submitted the 
unanimous committee report (11) recommending adoption of 
House Resolution 580.(12) Contestee (Mr. Greenwood), had 
received 76,375 votes to 76,240 for the contestant (Mr. Macy), a 
plurality of 135 votes, in the Nov. 7, 1950, election. In addition to 
contestant's notice of contest filed under the laws governing contested 
election cases, contestant had filed a sworn complaint with the 
``Special 

[[Page 1205]]

Committee to Investigate Campaign Expenditures for the House of 
Representatives, 1950,'' which 
committee had been created by the 81st Congress and had been directed 
to report to the House by Jan. 3, 1951, concerning the campaigns. That 
committee (the ``Mansfield Committee'') found that the votes in this 
election had been fairly tabulated. The committee report and files were 
given to the Committee on House Administration in the event that a 
contest was filed.
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11. H. Rept. No. 1599, 98 Cong. Rec. 2545, 82d Cong. 2d Sess.; H. Jour. 
        187.
12. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.; H. Jour. 186.
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    The contestant alleged that 2,790 illegal votes had been cast and 
counted. He claimed that 932 voters were not qualified as to residence, 
for the reason that they had entered the district and had voted 
although they had not been ``for the last four months a resident of the 
county . . . in which he . . . may vote'' (as required by state law). 
Contestant argued that the four-month period for residence began to run 
on the date when the voter actually moved into the district rather than 
on the date of the signing of the contract to purchase the house. The 
committee found that the board of election commissioners had relied on 
a court case handed down by a county court within the election 
district, which had construed the term ``residence'' to begin to run on 
the date of the contract for purchase of the home, rather than on the 
date the voter moved into the premises. The committee report could not 
cite a case:

        . . . [W]herein the House had rejected votes as illegal for the 
    reason that the voter had not resided in the county for the 
    statutory period of time, although votes have been rejected where 
    voters voted in the wrong district. It is apparently the settled 
    law of elections that where persons vote without challenge they are 
    presumed to be entitled to vote and that the election officers 
    receiving the votes did their duty properly and honestly. [Citing 
    the election contest of Finley v. Bisbee (2 Hinds' Precedents 
    Sec. 933).]

    The committee further found that no challenges were made under 
provisions of New York law which permitted challenging of voters at 
time of registration or of voting. Contestant's only efforts to 
ascertain discrepancies involved a recanvass of the vote under the 
supervision of the ``Mansfield Committee'' referred to above, and a 
summary proceeding brought in state court, both of which had failed to 
disclose any irregularities in the official tabulation, but which had 
not passed upon the allegations and issues raised in this contest.

    The committee did state that had it found ``the 932 votes illegally 
cast, the votes presumably would be deducted proportionally 

[[Page 1206]]

from both candidates, according to the entire vote returned for each. 
This is the general rule when it cannot be ascertained for which 
candidate the illegal votes were cast.''
    The contestant further alleged that 841 voters voted when the 
registration books showed only 684 names entered as registered on 
election day; 79 names entered below the red line signifying entry 
after the end of registration; 45 names entered without any date; 13 
voters having higher numbers than the highest number certified for that 
district; 20 voters having subdivided registration numbers. The 
committee found that as for the 79 persons whose names were entered 
under the red line, it is presumed that these persons were properly 
registered on election day (rather than on either of two earlier 
registration days), as permitted by state law. The committee further 
found that ``in the absence of fraud, the remaining charges of 
irregularities as to registration and the failure of election officials 
to assign ballot numbers to electors will not invalidate the votes 
cast.''
    Regarding contestant's allegation that contestee had violated the 
Federal and State Corrupt Practices Acts, the committee found no 
evidence that the extra editions of ``Newsday'' which had been devoted 
exclusively to the defeat of the contestant, had been financed or 
inspired by conduct of contestee.
    On Mar. 19, 1952, Mr. Burleson called up House Resolution 580 as 
privileged. The House agreed to the resolution without debate and by 
voice vote, as follows:

        Resolved, That Ernest Greenwood was duly elected as 
    Representative from the First Congressional District of the State 
    of New York to the Eighty-second Congress and is entitled to his 
    seat.

    Note: Syllabi for Macy v Greenwood may be found herein at Sec. 7.4 
(state court determinations as controlling); Sec. 10.16 (violations and 
errors by election officials); Sec. 11 2 (financing extra editions of 
magazines); Sec. 27.15 (stipulation by parties for extension of time); 
Sec. 34.1 (collecting evidence for future use); Sec. 36.10 (effect of 
failure to challenge voter); Sec. 37.5 (method of proportionate 
deduction).

Sec. 56.5 Osser v Scott

    In the election for United States Representative from the Third 
Congressional District of Pennsylvania, held on Nov. 7, 1950, the 
contestee, Hardie Scott, received 68,217 votes to 67,286 votes for the 
contestant, Maurice S. Osser, a plurality of 931 votes. Contestant 
filed timely notice of his in-

[[Page 1207]]

tention to contest the election, claiming that ``fraud, and 
irregularities were committed both before the election by permitting 
persons to register or failing to cancel the registration for persons 
not qualified and on election day by permitting unregistered persons 
to vote and through other irregularities.'' Contestant claimed that such 
irregularities were 
caused by failure of a ``Republican dominated Philadelphia County Board 
of Elections'' and a similarly constituted registration commission to 
perform their duties, i.e., to cancel the registrations of persons who 
did not actually reside in the precincts involved. Contestant also 
complained that he was unable to secure watchers and overseers who 
truly represented his party and who resided in the districts wherein 
they acted.
    The contest was presented to the House on Oct. 10, 1951, on which 
date the letter from the Clerk of the House (13) 
transmitting the relevant papers was referred to the committee and 
ordered printed. Contestant's testimony enumerated instances where 
persons had registered, giving fictitious addresses as residences, and 
against which registrants contestant had filed ``strike off petitions'' 
(some 2,000 in number). The committee, in its unanimous report 
(14) submitted by Mr. Omar T. Burleson, of Texas, on Mar. 
19, 1952, found that ``no direct testimony was presented to the 
committee showing that any of the persons claimed to have been 
illegally registered and to have voted had been actually interrogated 
by the contestant or his counsel.'' The committee found that no 
evidence had been presented to show that any of the illegal registrants 
had voted for the contestee. The committee concluded that the 
contestant had not presented sufficient evidence to impeach the 
returns, stating in its report as follows:
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13. H. Doc. No. 253, 97 Cong. Rec. 12908, 82d Cong. 1st Sess.; H. Jour. 
        772.
14. H. Rept. No. 1598, 98 Cong. Rec. 2544, 82d Cong. 2d Sess.; H. Jour. 
        187.
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        [W]here contestant asks the committee to reject votes for the 
    reason that they were illegally cast by persons not residing where 
    they claimed to reside, the committee requires such evidence as to 
    leave no doubt.

    The committee found that contestant had not presented any evidence 
to establish misconduct on the part of the election officials. The 
committee report cited provisions of state law which established 
district election boards con-

[[Page 1208]]

sisting of three elected members, two from the majority party in the 
district, and which established registration commissions of equal party 
affiliation. The report further 
related that contestant did not take advantage of a remedy provided by 
state law in addition to the ``strike-off petition,'' namely, petition 
by five voters in a district to a county court for the appointment of 
``overseers'' to supervise the election officials and to report to the 
court. Such overseers were distinguished from ``watchers'' appointed by 
political parties, who, contestant claimed, were not ``honest-to-
goodness Democratic.''
    As to contestant's claim regarding failure of the Democratic Party 
to appoint suitable watchers and to present suitable candidates for 
election board member, the committee would not decide, ``the general 
maxim (being) that every official is presumed to do his duty.''
    Accordingly, Mr. Burleson called up House Resolution 579 
(15) as privileged on Mar. 19, 1952. Upon adoption of the 
resolution without debate and by voice vote, the contestee, Mr. Scott, 
was held entitled to his seat. House Resolution 579 provided that:
---------------------------------------------------------------------------
15. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.; H. Jour. 186.
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        Resolved, That Hardie Scott was duly elected as Representative 
    from the Third Congressional District of the State of Pennsylvania 
    to the Eighty-second Congress and is entitled to his seat.

    Note: Syllabi for Osser v Scott may be found herein at 
Sec. Sec. 35.5, 35.6 (burden of showing results of election would be 
changed); Sec. 36.2 (official returns as presumptively correct).