[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 57. Eighty-fifth Congress, 1957-58]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1208-1218]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 57. Eighty-fifth Congress, 1957-58

Sec. 57.1 Carter v LeCompte

    Mr. Karl LeCompte was reelected as Representative from the Fourth 
Congressional District of Iowa at the election held Nov. 6, 1956, 
having received, according to the official state canvass, 58,024 votes 
to 56,406 votes for Steven V. Carter, a plurality of 1,618 votes. This 
result was officially ``determined'' on Dec. 10, 1956. Contestant 
personally served contestee with notice of contest on Dec. 17, though 
he had on Nov. 24 served contestee by ``substituted service'' prior to 
``determination'' of the result. The committee in its majority report 
decided that the subsequent personal service ``rendered moot any 
question as to sufficiency of the service contemplated by 2 USC 
Sec. 201,'' and that it was served on 

[[Page 1209]]

contestee on the 10th day following the official declaration of the 
results of the election. Contestee filed timely answer on Dec. 20, 
1956.
    On Jan. 24, 1957, the contestant petitioned the House requesting an 
additional 20 days in which to take testimony. The petition was 
transmitted in a letter from the Clerk which the Speaker laid before 
the House, ordered printed as a House document to include contestant's 
petition, and which the Speaker referred to the Committee on House 
Administration on Jan. 29,(16) and was considered by its 
Subcommittee on Elections on Feb. 5, 1957. The subcommittee considered 
several House precedents (cited in the final report of the full 
committee) in which an extension of time had been granted after a 
showing of reasonable diligence, and no laches, by either the 
contestant or the contestee. The subcommittee also noted, however, that 
for insufficient reasons shown, a party to a contest had been denied a 
requested extension of time. The subcommittee recommended denial in 
this instance. The unanimous subcommittee opinion was unanimously 
adopted by the full committee on Feb. 6, 1957, and, being negative, no 
formal report was made to the House.
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16. H. Doc. No. 84, 103 Cong. Rec. 1217, 85th Cong. 1st Sess.
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    On Apr. 17, 1957, contestant filed three motions which were 
included in a letter from the Clerk which the Speaker ]aid before the 
House, ordered printed, and referred to the Committee on House 
Administration.(17) The Subcommittee on Elections 
recommended that they be denied on May 7, and approval by the full 
committee of the subcommittee action followed on May 8.
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17. H. Doc. No. 153, 103 Cong. Rec. 5941, 85th Cong. 1st Sess.
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    (1) The committee determined that contestant's motion to ``amend 
the pleadings to make them conform to the proof'' was premature, as the 
testimony had not yet been printed and referred to the committee.

    (2) The committee ruled that contestant's motion for a ``directed 
verdict'' was also premature, as a contrary ruling would be in 
violation of the rules of the House [Rule XI clause 9(k), House Rules 
and Manual (1973)] which requires contested elections to be referred to 
the Committee on House Administration, and in violation of 2 USC 
Sec. Sec. 201 et seq., which requires testimony to be collected by the 
Clerk, printed, and laid before the House for reference.
    (3) Contestant's motion asking the Committee on House 
Adminis-

[[Page 1210]]

tration to assume custody of the ballots was also denied. The 
subcommittee felt that the responsibility for the preservation of 
ballots, in congressional contests as 
well as in state or local elections, was with the state. However, the 
laws of Iowa afforded no mode of preserving ballots cast, as county 
auditors were required to destroy congressional ballots six months 
after the election. Thus the committee, while recognizing contestant's 
right under 2 USC Sec. Sec. 206, 219 to use the subpena duces tecum 
``acting through a Federal District Judge or even a notary to require 
the production and preservation of ballots and other pertinent 
paraphernalia,'' directed its chairman to telegraph all county auditors 
requesting them to preserve all ballots and other papers for possible 
use by the committee. The request was honored in each county.
    The contest was not presented to the House until Aug. 26, 1957, 
four days prior to adjournment of the first session of the 85th 
Congress. On that date the letter from the Clerk transmitting the 
testimony and required papers was referred by the Speaker to the 
committee, having been laid before the House and ordered printed by the 
Speaker.(18)
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18. H. Doc. No. 235, 103 Cong. Rec. 15968, 85th Cong. 1st Sess.
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    Mr. Robert T. Ashmore, of South Carolina, submitted the report of 
the majority of the Committee on House Administration on Apr. 22, 
1958.(19) The committee first determined that contestant had 
properly invoked the jurisdiction of the committee, as there was no 
remedy available to him for either a recount or a contest under state 
law. Contestee had served copies of his notice of contest on state 
officials to challenge the applicability of state laws to a 
congressional contested election. In a written opinion dated Dec. 3, 
1956, the Attorney General of Iowa had advised the Governor and 
Secretary of State that the laws of Iowa contained no provision for 
contesting a House seat.
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19. H. Rept. No. 1626, 104 Cong. Rec. 6939, 85th Cong. 2d Sess.
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    The committee, therefore, agreed with the contestant that there was 
not available to him any forum or tribunal in his state to hear this 
contest and that he had appropriately presented his case to this 
committee, through its elections subcommittee, pursuant to Rule XI of 
the House of Representatives and sections 101-130 of the Revised 
Statutes of the United States. The committee, in adopting this view, 
expressly rejected the view of the committee 

[[Page 1211]]

in the contest of Swanson v Harrington in the 76th Congress, 
which had required the contestant there to show that the Iowa election 
laws did not permit him a recount when he had not sought recourse to 
the highest state court regarding the application of state laws to a 
House contest.
    The committee took ``judicial notice of the complaints filed by the 
contestant with the Special House Committee to Investigate Campaign 
Expenditures, 84th Congress, and the failure of that committee to draw 
any conclusions whatever as to the allegations of his complaint or to 
otherwise grant him any relief.''
    Contestant's major complaints concerned irregularities in the 
casting of absentee ballots and the use of certain designated voting 
machines. Contestant alleged widespread miscounting and incorrect 
tallying of absentee ballots, several fraudulent practices regarding 
the casting and preservation and delivery of absentee ballots by 
voters, party workers, and election officials alike throughout the 
Fourth Congressional District. The majority of the committee found, 
with respect to the disputed absentee ballots, that violations of the 
state laws governing absentee voting had been committed by election 
officials throughout the district, but that contestee had not 
fraudulently participated in those violations. The majority found that 
contestant had not shown that he had exhausted his state remedies to 
prevent improper absentee ballots from being cast or to punish those 
responsible. As contestant had not proven fraud by contestee and had 
not challenged absentee ballots under state law, he had not sustained 
his burden of proving that the election results would have been 
different. Citing the contest of Huber v Ayres (Sec. 56.1, supra) in 
the 82d Congress, the majority determined that contestant had not 
properly entered objections to errors in the form of the absentee 
ballots prior to the election, as permitted by Iowa law, and that 
therefore the results of the election could not be ``overturned because 
of some preelection irregularity.''
    The minority report of the Committee on House Administration was 
signed by Mr. George S. Long, of Louisiana, and Mr. John Lesinski, of 
Michigan. They cited several provisions of the election laws which 
imposed mandatory duties and criminal sanctions on the election 
officials, violations of which they contended should void certain 
absentee ballots or all ballots in counties where ballots had 

[[Page 1212]]

been commingled and were inseparable. The minority cited the contest 
of Steel v Scott, 6 Cannon's Precedents Sec. 146, for the 
proposition that total disregard of election laws by election 
officials, though absent fraud, was the basis for a recount, which in 
this contest would show contestant (Mr. Carter) the winner by 1,260 
votes.
    Contestant alleged that the voting machines in a certain county 
were not set up to permit voting a straight party ticket by a party 
lever. The committee could not determine, however, whether any votes 
had been lost by the contestant because straight party voting was not 
permitted. The committee decided that contestant had not properly filed 
his objections to errors as provided by state law, and that the voting 
machines in question had been used in the fourth congressional district 
for many years. Contestant had challenged neither the machines nor the 
tickets used therein.
    Finally, the committee pointed out that contestant had not sought a 
legal opinion from the state attorney general regarding administration 
of the election laws, which opinion would have been binding on the 
local election officers. Thus the committee recommended the adoption of 
House Resolution 533, which declared contestee entitled to his seat.
    Mr. Lesinski in his additional dissenting views proposed that the 
House should consider declaring the seat vacant, which would require 
the Iowa Governor to call a special election. He cited several 
precedents of the House to support the proposition that where 
irregularities make it impossible to determine who has been elected, 
the seat is declared vacant.
    Mr. Ashmore called up as privileged House Resolution 533 on June 
17, 1958. Mr. Lesinski took the floor to recommend the minority report 
to the House and to call attention to the fact that Iowa, as well as 
Missouri, Maine, and Minnesota, had no legal apparatus for determining 
the prima facie right of a Member-elect to his seat. Subsequently, 
House Resolution 533 was agreed to without further debate, and thereby 
the contestee was held entitled to his seat. House Resolution 533 
Provided: (20)
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20. 104 Cong. Rec. 11512, 85th Cong. 2d Sess.
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        Resolved, That Karl M. LeCompte was duly elected as 
    Representative from the 4th Congressional District of the state of 
    Iowa in the 85th Congress and is entitled to his seat.

    Note: Syllabi for Carter v LeCompte may be found herein at 

[[Page 1213]]

Sec. 5.7 (actions by election committee to preserve evidence); 
Sec. 5.13 (advisory opinions on state law); Sec. 7.2 (appeal to state 
court regarding preelection irregularities); Sec. 10.15 (violations and 
errors by officials as grounds for contest); Sec. 13.5 (failure to 
exhaust state remedy); Sec. Sec. 13.6, 13.7 (preelection 
irregularities); Sec. 18.3 (compliance with statutory requisites for 
commencing the contest); Sec. 21.1 (substituted service of notice of 
contest); Sec. 23.1 (motion for directed verdict); Sec. 27.13 
(extension of time to take testimony for good cause).

Sec. 57.2 Dolliver v Coad

    On Jan. 16, 1957, the Speaker referred to the Committee on House 
Administration a letter from the Clerk relating to an election contest 
and transmitting a communication from the contestee, Merwin Coad. The 
communication related that Mr. Coad had been certified as 
Representative from the Sixth Congressional District of Iowa as a 
result of the election held Nov. 6, 1956, and had been sworn in as a 
Member of the 85th Congress, and that Mr. Coad had not received written 
notice of his opponent's intention to contest the election within 30 
days after the result had been officially determined. The Clerk's 
letter was ordered printed to include contestee's 
communication.(1)
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 1. H. Doc. No. 53, 103 Cong. Rec. 604, 85th Cong. 1st Sess.
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    Mr. Robert T. Ashmore, of South Carolina, submitted the unanimous 
committee report (2) on Apr. 11, 1957, to accompany House 
Resolution 230. The report stated that the Subcommittee on Elections 
had met in executive session on Feb. 5, 1957, to consider the 
sufficiency of both the service of the notice and of the notice itself. 
No decision being then made, public hearings were held on Feb. 11. 
Counsel for Mr. Dolliver contended that 2 USC Sec. 201 governing the 
notice of contest was complied with by leaving a copy of the notice 
with the wife of the contestee at his home. Counsel argued that Rules 
4(d)1 and 56(a) of the Federal Rules of Civil Procedure, which permit 
such substituted service, should control the question of proper service 
under 2 USC Sec. 201. The subcommittee, however, did not decide this 
issue, as they agreed that if the notice were found defective for the 
reason that it was not signed by contestant, then the question of the 
sufficiency of the service would become moot.
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 2. H. Rept. No. 343, 103 Cong. Rec. 5549, 85th Cong. 1st Sess.
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    On Mar. 11, 1957, the Subcommittee on Elections unani-

[[Page 1214]]

mously decided that notice of contest was not sufficient, as it did 
not bear the original signature of 
the contestant. Therefore the subcommittee did not determine whether 
personal service was required under 2 USC Sec. 201.
    Mr. Ashmore called up House Resolution 230 as privileged on Apr. 
11, 1957. By agreeing to the resolution without debate,(3) 
the House (1) resolved that it should not recognize an unsigned paper 
as valid notice of contest; and (2) resolved that in this case the 
unsigned notice of contest was not in the form required by 2 USC 
Sec. 201. House Resolution 230 provided as follows:
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 3. 103 Cong. Rec. 5501, 5502, 85th Cong. 1st Sess.
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        Resolved, That it would be unwise and dangerous for the House 
    of Representatives to recognize an unsigned paper as being a valid 
    and proper instrument with which notice may be given to contest the 
    seat of a returned Member. . . . That the unsigned paper by which 
    attempt was made to give notice to contest the election of the 
    returned Member from the Sixth Congressional District of the State 
    of Iowa to the 85th Congress is not the notice required by the 
    Revised Statutes of the United States, title II, chapter 8, section 
    105.

    Note: Syllabi for Dolliver v Coad may be found herein at Sec. 22.4 
(necessity of signature on notice of contest).

Sec. 57.3 Oliver v Hale

    On Aug. 6, 1958, Mr. Robert T. Ashmore, of South Carolina, 
submitted the unanimous committee report (4) from the 
Committee on House Administration in the contested election case of 
Oliver v Hale, from the First Congressional District of Maine. The 
contest had come to the House on Aug. 29, 1957, when the letter from 
the Clerk of the House (5) transmitting the required papers 
was laid before the House, referred by the Speaker to the committee, 
and ordered printed.
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 4. H. Rept. No. 2482, 104 Cong. Rec. 16481, 85th Cong. 2d Sess.; H. 
        Jour. 838.
 5. H. Doc. No. 237, 103 Cong. Rec. 16516, 85th Cong. 1st Sess.; H. 
        Jour. 872.
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    The record showed that the original canvass of votes disclosed a 
29-vote plurality for Robert Hale, the contestee, in the election held 
Sept. 10, 1956. As permitted by state law, the contestant asked for an 
inspection and recount of all votes cast, which was conducted under the 
supervision of five two-man teams (with each party represented on each 
team) and with representatives of the ``Special Committee to 
Investigate Campaign Expenditures of the House of Representatives'' 
present at the recount. At the conclusion 

[[Page 1215]]

of the recount, contestee requested that a certificate of election 
be issued to him, to which request the contestant objected. The 
Governor declined to issue such certificate pending an advisory 
opinion from the Supreme Court of Maine as to the authority of the 
Governor to determine the validity of the disputed ballots, and, 
lacking such authority, whether a certificate should be issued to 
the apparent winner as determined by the canvass. 
The Supreme Court advised the Governor that he had no authority to 
determine validity of disputed ballots, but that he should issue a 
certificate based on the canvass. Accordingly, the Governor issued the 
certificate of election to contestee on Dec. 5, 1956.
    In contestee's answer to contestant's notice of contest, which 
notice had been filed on Jan. 2, 1957, contestee claimed that the 
service of such notice was not timely, i.e., not ``within thirty days 
after the result of such election shall have been determined . . .'' as 
required by 2 USC Sec. 201. In deciding against contestee's claim that 
the determination date should have been considered as Sept. 26, 1956, 
the date of the official canvass, the committee ruled that there was no 
determination under the federal statute above cited until the actual 
issuance of the certificate to contestee on Dec. 5, 1956.

    The report of the ``Special Committee to Investigate Campaign 
Expenditures,'' referred to above, was submitted Dec. 22, 1956. The 
majority of that committee recommended that the Committee on House 
Administration of the 85th Congress immediately investigate the 
disputed ballots (about 4,000) and report to the House by Mar. 15, 
1957. The minority contended that a committee of the 85th Congress 
should not ``purport to dictate to the Committee on House 
Administration of the 85th Congress how it shall conduct its operations 
or when it shall file its report.''
    The Committee on House Administration, on Apr. 30, 1958, adopted a 
motion to conduct an examination and recount of the disputed ballots, 
as well as a motion to request counsel for both parties to reduce 
further, if possible, the number of ballots in dispute. Accordingly, 
counsel reduced the number to 142 regular ballots and 3,626 absentee 
ballots in dispute, thus giving contestee a stipulated plurality of 174 
votes. The committee first considered the disputed 142 regular ballots. 
By examining each ballot, and by applying state law which required that 
a ballot not be counted ``if for any 


[[Page 1216]]

reason it is impossible to determine the voter's choice,'' the 
committee determined that 57 votes had been cast for each candidate 
and that 28 votes could not be ascertained. Thus contestee's plurality 
remained at 174.
    With respect to the 3,626 absentee and physical incapacity ballots, 
questions arose as to the proper completion of the application and/or 
envelope by the voter prior to the casting of his ballot, or with 
subsequent disposition of such material by the election officials. The 
ballots themselves were in proper form and could be counted for one or 
the other candidate. Thus, the committee divided contestant's 
allegations into two classes: (1) alleged violations by the election 
officials, and (2) alleged violations by the voter.
    (1) Alleged violations by election officials consisted of failures 
of the board of registration to retain the application and/or envelope, 
or failure of various clerks to send in the application and envelopes 
along with the absentee ballots. State law required officials at the 
polls to compare signatures on the envelopes containing the ballots 
with signatures on the applications attached thereto, and, after a 
favorable comparison, to deposit the ballots with the regular ballots, 
and then to preserve the applications and envelopes as the ballots were 
preserved. The committee proceeded to cite state court opinions which 
construed similar violations of Maine election laws. The report quoted 
at length an advisory opinion, Opinion of the Justices (1956), 152 Me. 
219, 130 A.2d 526, as follows:

        We conclude that the provisions of the statute touching the 
    procedure to be employed at the polls and the disposition of 
    applications and envelopes following an election are directory and 
    not mandatory in nature. In other words, violation of the statute 
    by election officials in the situations here under consideration, 
    at least in the absence of fraud, is not a sufficient ground for 
    invalidating ballots.

The committee applied such construction and did not invalidate those 
ballots which had been improperly handled due to actions by election 
officials.

    (2) The contestant alleged nine separate types of violations by 
voters themselves in complying with the state absentee voting laws 
(including unsigned ballots, physical incapacity ballots not certified 
by physicians, envelopes not signed or notarized, jurats not in proper 
form, identical names of voter and official giving oath, variance in 
signatures on application and on envelope, voters either not registered 
or not qualified to vote, and failure of voters to specify 

[[Page 1217]]

reason for absentee voting on envelope).
    Following a discussion of the required procedure for absentee voting 
in Maine, the committee cited state court decisions which 
distinguished between acts of the voter and acts of election officials, 
and which required the voter to substantially comply with the statute 
in order for his vote to be considered as properly cast. [Opinion of 
the Justices (1956), 152 Me. 219, 130 A.2d 526; Miller v Hutchinson 
(1954), 150 Me. 279, 110 A.2d 577.] Thus, the committee determined that 
109 absentee and physical disability ballots should be rejected, but 
that there was no possible way of relating the invalid absentee voting 
material to the particular ballots cast by those voters. The committee, 
therefore, sought an equitable method of deducting 109 absentee ballots 
from the totals of the contestant and contestee.
    The committee applied the test prescribed in the election contest 
of Macy v Greenwood (Sec. 56.4, supra) in the 82d Congress, which 
method presupposes that each candidate received invalid ballots in the 
same proportion that he received his total vote in the election 
precinct. Thus, by dividing the number of absentee votes received by a 
candidate in a precinct by the total number of absentee votes cast in 
that precinct, and by then multiplying the fraction thereby obtained, 
by the number of absentee votes rejected in the precinct, the committee 
determined that 86 votes should be deducted from contestee's total, and 
23 votes from contestant's total. The final result showed a 111-vote 
plurality for the contestee.
    Accordingly, on Aug. 12, 1958, Mr. Ashmore called up as privileged 
House Resolution 676,(6) which the House agreed to without 
debate. Thereby, the contestee, was held entitled to his seat. House 
Resolution 676 provided as follows:
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 6. 104 Cong. Rec. 17119, 85th Cong. 2d Sess.; H. Jour. 858.
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        Resolved, That Robert Hale was duly elected as Representative 
    from the First Congressional District of the State of Maine in the 
    Eighty-fifth Congress and is entitled to his seat.

    Note: Syllabi for Oliver v Hale may be found herein at Sec. 5.3 
(overlapping jurisdiction of committee); Sec. 5.10 (committee power to 
examine and recount disputed ballots); Sec. 7.3 (advisory opinions by 
state courts); Sec. Sec. 10.7, 10.8 (distinction between mandatory and 
directory laws); Sec. 12.7 (balloting irregularities); Sec. 20.5 
(commencement of statutory 30-day period); Sec. 37.4 (method of 
proportionate 

[[Page 1218]]

deduction); Sec. 38.2 (voter intention as paramount concern in 
interpreting ballot); Sec. 39.4 (recount pursuant to state law, 
with House supervision).