[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 58. Eighty-sixth Congress, 1959-60]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1218-1226]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 58. Eighty-sixth Congress, 1959-60

Sec. 58.1 Investigation of right of Dale Alford to a seat.

    During the organization of the House of Representatives of the 86th 
Congress on Jan. 7, 1959, a single objection having been made to the 
oath being administered to the Member-elect, Dale Alford from the Fifth 
Congressional District of Arkansas, Mr. Alford was asked by the 
Speaker, under the precedents, to stand aside while the other Members 
and Delegates-elect were sworn. Thereupon the House agreed to House 
Resolution 1.(7) House Resolution 1 provided as follows:
---------------------------------------------------------------------------
 7. 105 Cong. Rec. 14, 86th Cong. 1st Sess.
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        Resolved, That the Speaker is hereby authorized and directed to 
    administer the oath of office to the gentleman from Arkansas, Mr. 
    Dale Alford.

        Resolved, That the question of the final right of Dale Alford 
    to a seat in the 86th Congress be referred to the Committee on 
    House Administration, when elected, and said committee shall have 
    the power to send for persons and papers and examine witnesses on 
    oath in relation to the subject matter of this resolution.

    The previous question was immediately ordered on the resolution, at 
which time Mr. Thomas P. O'Neill, Jr., of Massachusetts, propounded a 
parliamentary inquiry as to whether 40 minutes of debate would be 
permitted on the resolution, there having been no debate prior to the 
adoption of the previous question. Speaker Sam Rayburn, of Texas, 
replied that ``under the precedents, the 40-minute rule does not app]y 
before the adoption of the rules.'' The resolution was thereupon agreed 
to by voice vote and without further debate which authorized the 
Speaker to administer the oath to Mr. Alford, and which referred to the 
Committee on House Administration the question of the final right of 
Dale Alford to the seat. The committee was authorized to send for 
persons and papers and to examine witnesses under oath.
    On Apr. 15, 1959, the committee adopted a motion making it 
mandatory for the committee to investigate the election, and requesting 
the federal authorities in possession of the ballots and other 
documents to release them to the committee. To facilitate the 
investigation, the Subcommittee on Elections traveled to Little Rock, 
Arkansas, to take physical cus-

[[Page 1219]]

tody of the ballots and other materials.
    The subcommittee examined all ballots cast in the election, as a 
result of which 3,409 ballots were isolated as ``questionable'' and 
were sent to Washington, D.C., for examination by the full committee. 
Prior to consideration of the questionable ballots, the subcommittee 
considered the issue of the validity of write-in votes and determined 
that all ballots would be considered as valid where the name of the 
write-in candidate had been properly written in or placed on the ballot 
by sticker. (Mr. Alford had been elected as a ``Democratic write-in 
candidate'' over Brooks Hays, the nominee of the Democratic Party.) The 
subcommittee disregarded an uncertainty which existed in state law with 
respect to write-in votes in general elections, and decided that the 
will of the voters should not be invalidated by an uncertainty in state 
law. The committee noted that it had been the custom in Arkansas to 
accept write-in votes, that spaces had been provided on the ballots for 
write-in votes, and that the House of Representatives had always 
recognized the right of a voter to write in the name of his choice.
    Regarding the use of stickers bearing Dale Alford's name in lieu of 
the write-in vote, the subcommittee determined that an opinion of the 
state attorney general, issued on Oct. 30, 1958, to the effect that 
stickers are legal, was binding on the clerks and judges and that they 
were required to count the sticker votes. Neither Mr. Hays nor any 
voter had appealed from the opinion of the attorney general. The 
subcommittee further determined that it should not void ballots in 
those precincts where stickers were distributed at the polls, since the 
state did not have a law prohibiting such distribution and in view of 
the fact that the Arkansas Supreme Court had ruled in 1932 that ballots 
bearing stickers distributed at the polls were legal. The report cited 
the Massachusetts contest in the 66th Congress of Tague v Fitzgerald (6 
Cannon's Precedents Sec. 96), in support of the proposition that the 
use of stickers in balloting should not void the ballots involved. The 
subcommittee unanimously recommended, however, that the Arkansas 
legislature should clarify the use of stickers and write-in voting in 
general.
    The subcommittee investigation was conducted as a result of charges 
made by a single voter from the district, many of the charges made on 
the basis of 

[[Page 1220]]

hearsay. The losing candidate, Brooks Hays, offered to 
assist in an investigation, although he did not file a contest under 
the statute governing contested elections (2 USC Sec. Sec. 201 et seq 
). The committee report (8~) expressed its strong preference for 
contesting congressional elections by following the procedures outlined 
in the statute cited above.
---------------------------------------------------------------------------
 8. H. Rept. No. 1172 submitted Sept. 8, 1959, 105 Cong. Rec. 18610, 
        18611, 86th Cong. 1st Sess.
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    As the result of the subcommittee investigation conducted in 
Arkansas, the subcommittee determined that the questionable ballots 
presented 16 distinct categories. The subcommittee considered 
separately the issues raised by each of the 16 categories.
    (1) The subcommittee ruled that each of the 48 ballots which did 
not have stubs detached were invalid. Citing the Arkansas statute which 
required the voter to detach the stub from the ballot and to deposit it 
separately, the subcommittee cited a Kentucky case [State Board of 
Election, Commissioners v Coleman (1930), 235 Ky. 24, 295 S.W.2d 619] 
in which the court ruled that the ``depositing of the ballot without 
first detaching the stub would destroy the constitutional requirement 
for secrecy of the ballot if such ballot is counted, and such 
requirement is mandatory.''
    (2) The subcommittee ruled that the 415 ballots which had the name 
of a write-in candidate written in, or placed on the ballot by sticker, 
but which did not contain any mark in the box opposite the name, were 
valid. The report cited the contest of Tague v Fitzgerald (6 Cannon's 
Precedents Sec. 96) as the only case in which the Committee on House 
Elections had ever ruled on disputed ballots of this type. In that case 
the committee had ruled that a cross was not necessary to the validity 
of the ballots, stating (as quoted by the subcommittee in the instant 
case):

        No other candidate for Congress was voted for on such ballots. 
    In the absence of a provision expressly rendering such a ballot 
    void in the (state) and in the absence of a reported state case on 
    that point, the committee held that the intention of the voter to 
    vote for (Tague) was manifest by affixing a sticker or writing a 
    name, notwithstanding that the act had not been completed by the 
    making of a cross thereafter.

    The subcommittee cited several subsequent cases from courts of 
other states [Rollyson v Summers County Court (1932), 113 W. Va. 167, 
167 S.E. 83; Sawyer v Hart (1916), 194 Mich. 399, 160 N.W. 572; Burns v 
Rodman (1955), 342 

[[Page 1221]]

Mich. 410, 70 N.W.2d 793] to substantiate the 
``general rule'' that the intent of the voter can be ascertained and a 
vote is valid even though the voter fails to mark a cross in the square 
provided.

    (3) The subcommittee ruled that 28 ballots which had the name of a 
write-in candidate written in, or placed on the ballot by sticker, and 
which had the box opposite the name of the other candidate marked were 
invalid, as such a ballot denoted in effect that the voter had voted 
twice for the same office.
    (4) The subcommittee determined that 236 ballots which had the name 
of the write-in candidate written in and the box opposite checked 
rather than ``Xed'' were valid, as the intention of the voter was 
clear.
    (5) The subcommittee ruled that 52 ballots upon which the wrong end 
of the sticker had been placed were invalid as if not voted at all for 
either candidate.
    (6) The subcommittee considered 88 ballots on which the name of the 
write-in candidate was either written or placed by sticker in some 
place on the ballot other than on the write-in line. The subcommittee 
first determined that 37 ballots, on which the name of the write-in 
candidate had been written or placed by sticker either in or partially 
in the congressional box, were valid, but that four ballots which had 
been voted by scratching or marking a line through the name of Brooks 
Hays and writing Alford's name on the Hays line were invalid. Of the 47 
ballots upon which the write-in name or sticker appeared outside the 
congressional box, 46 ballots were considered invalid.
    (7) There were 1,097 ballots on which the name of the write-in 
candidate was misspelled or only the last name used. The subcommittee 
validated all ballots on which the surname had been properly spelled or 
nearly correctly spelled (1,035) but invalidated those on which the 
wrong given name was written or the surname too incorrectly spelled to 
show definite intent of the voter (62).
    (8) There were 190 ballots apparently intended for the write-in 
candidate, but containing erasures or other markings. The subcommittee 
(a) validated 28 ballots apparently voted for the write-in candidate 
but with Hays' name stricken through (such practice being in accordance 
with a prior law); (b) invalidated 73 ballots containing write-in votes 
but also marks in the Hays box which had then been scratched through or 


[[Page 1222]]

erased; and (c) validated 89 votes where the ballots had additional 
information such as ``5th District'' written after the name or sticker.
    (9) The subcommittee invalidated 357 ballots on which the box 
opposite the write-in line was marked by an ``X'' or check but contained 
nothing written in or placed 
on the write-in line. The National Bureau of Standards had reported to 
the subcommittee that there was ``no evidence of any adhesive particles 
or torn fibers,'' thus no evidence of fraud.
    (10) The subcommittee invalidated seven ballots upon which stickers 
had been placed over or partially over marks for the other candidate.
    (11) The subcommittee validated two ballots on which the voter had 
written in the name of Brooks Hays, but had not marked an ``X'' in the 
box opposite his name. The subcommittee cited a Pennsylvania Supreme 
Court case (no Arkansas case being in point), which validated ballots 
similarly cast, the name of the person written in being identical to 
the name printed on the ballot. In that case, the court had 
distinguished between such ballots and ballots containing marks beside 
the printed name as well as write-in votes for the same candidate, 
which the court considered invalid as a double vote. James' Appeal 
(1954), 377 Pa. 405, 105 A.2d 64.
    (12) There were 584 ballots on which the voter had placed a 
checkmark rather than the ``X'' prescribed by law, opposite the name of 
Brooks Hays. As the subcommittee had done in category (4) above, 
regarding votes cast for the write-in candidate, it ruled these ballots 
valid, as the intention of the voter was clear.
    (13) The subcommittee validated 42 of the 43 ballots on which the 
voters had placed some mark other than an ``X'' or check in the square 
opposite Brooks Hays' name, as the intention of the voter was clear.
    (14) 175 ballots contained erasures or other markings which 
apparently had been counted for Brooks Hays. The subcommittee found 
that all of these ballots should be invalidated, either on the grounds 
of potential fraud (erasures of the write-in name and ``X''s marked for 
Brooks Hays, or ``X''s for Hays in different form from the other ``X''s 
on the ballot), or due to irregular markings on ballots and failure of 
voters to avail themselves of new ballots under the ``spoiled ballot'' 
provisions of state law.
    (15) 74 ballots either were not marked for either candidate, or 
contained names of persons other 

[[Page 1223]]

than the write-in candidate. The subcommittee invalidated each of these 
ballots, as the persons written 
in had not declared themselves to be write-in candidates within 48 
hours before opening of the polls, as required by state law.
    (16) The subcommittee invalidated seven ballots which had 
previously been voided.
    (17) Finally, the subcommittee invalidated three ballots where a 
voter had placed a mark across the entire congressional box, or had 
torn the top off a ballot, or had torn Mr. Hays' name from the marked 
ballot.
    The subcommittee investigated certain other phases of the campaign 
and election. It found nothing irregular regarding expenditures by the 
write-in candidate. It condemned the use of an unsigned pre-election 
circular by an individual who had distributed information in Mr. 
A1ford's behalf, apparently without the candidate's knowledge. The 
subcommittee ruled, however, that the mere existence of an irregularity 
in any campaign should not be attributed to a particular candidate 
where he did not participate therein.
    The subcommittee refused to consider charges against officials of 
the Democratic party that they conspired to nullify the will of voters 
in the Democratic primary, there being no evidence to substantiate the 
involvement of Mr. Alford in a conspiracy. By the terms of House 
Resolution 1, the committee was limited in the scope of its 
investigation to the question of the final right of Dale Alford to his 
seat in Congress.
    The subcommittee disregarded charges that the write-in candidate 
had represented himself to be a ``Democratic'' candidate in order to 
deceive voters. The ballot itself showed that Mr. Hays was the 
nominated party candidate and that Mr. Alford was a Democrat running as 
a write-in candidate, his name not being printed thereon.
    The subcommittee finally considered and recapitulated alleged 
errors in tally sheets of various precincts. Thereupon, the final count 
showed that of the 3,408 questionable ballots, 937 were invalid and not 
counted. Of the remaining validated ballots, Mr. Alford was credited 
with 1,843 and Mr. Hays with 628. Dale Alford's final plurality, 
therefore, was 1,498, having received 30,247 votes to 28,749 for Brooks 
Hays.

    On Sept. 8, 1959, Mr. Ashmore called up as privileged House 
Resolution 380.(9) Following remarks by the Chairman of the 
---------------------------------------------------------------------------
 9. 105 Cong. Rec. 18610, 18611, 86th Cong. 1st Sess.
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[[Page 1224]]

Committee on House Administration and by its ranking minority member, 
the resolution was agreed to on a division vote--ayes 245, noes 5. 
Thereby, Dale Alford was held entitled to his seat in the 86th 
Congress. House Resolution 380 provided as follows:

        Whereas the Committee on House Administration has concluded its 
    investigation of the election of November 4, 1958, in the Fifth 
    Congressional District of Arkansas pursuant to House Resolution 1; 
    and
        Whereas such investigation reveals no cause to question the 
    right of Dale Alford to his seat in the Eighty-sixth Congress; 
    Therefore be it
        Resolved, That Dale Alford was duly elected a Representative to 
    the Eighty-sixth Congress from the Fifth Congressional District of 
    Arkansas, and is entitled to a seat therein.

    Note: Syllabi for the proceedings involving Mr. Alford may be found 
herein at Sec. 5.9 (actions by election committee to preserve 
evidence); Sec. 13.2 (candidate's participation in irregularities); 
Sec. Sec. 17.1, 17.4 (alternatives to filing election contests); 
Sec. Sec. 37.9-37.17 (validity of ballots); Sec. 38.5 (state law as 
related to voter intention).

Sec. 58.2 Mahoney v Smith

    Mr. Robert T. Ashmore, of South Carolina, submitted the unanimous 
report of the Committee on House Administration in the contested 
election case of Mahoney v Smith, Sixth Congressional District of 
Kansas, on Mar. 21, 1960.(10) The contest had come to the 
House on June 30, 1959, on which date the Speaker had referred to the 
committee a communication from the Clerk transmitting the required 
papers and testimony.(11) Prior to June 30, 1959, the Clerk 
had transmitted on May 6, 1959, contestee's motion to dismiss the 
contest,(12) accompanied by contestant's objection thereto 
and on June 2, 1959, contestant's motion that the House direct the 
impounding and preservation of all ballots.(13) These 
communications had been referred by the Speaker on those dates to the 
Committee on House Administration, and had been ordered printed to 
include the motions of the parties.
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10. H. Rept. No. 1409, 106 Cong. Rec. 6195, 86th Cong. 2d Sess.
11. H. Doc. No. 190, 105 Cong. Rec. 12330, 12331, 86th Cong. 1st Sess.
12. H. Doc. No. 129, 105 Cong. Rec. 7530, 86th Cong. 1st Sess.
13. H. Doc. No. 167, 105 Cong. Rec. 9571, 86th Cong. 1st Sess.
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    The official abstract showed that contestee had received a 
plurality of 233 votes, 43,782 to 43,549 for contestant in the election 
held Nov. 4, 1958. Contestant alleged voting irregularities in four 
election precincts and irregular casting of within-state absen-

[[Page 1225]]

tee ballots in a certain county which he contended should void the total 
votes in those precincts, resulting in a 56-vote plurality for 
contestant. Specifically contestant alleged that an election official 
had incorrectly marked and counted ballots and that in certain pre- 
cincts the number of votes cast was greater than the number of voters 
listed as having voted.
    The committee first considered the actions taken by its 
Subcommittee on Elections regarding contestee's motion to dismiss. The 
committee concurred in the subcommittee's denial of the motion ``for 
the reason that it was impossible at that early date to evaluate the 
merits of the case or rule on the testimony. There was no evidence 
actually then before the committee because the testimony adduced under 
the contest statute had not yet been printed or transmitted by the 
Clerk to the committee.'' The subcommittee did, however, act upon 
contestant's motion for preservation of the ballots by notifying state 
officials to preserve ballots despite state law which required their 
destruction six months after the election. The committee found, 
however, that certain county clerks had not been officially notified of 
the pending contest and had destroyed ballots prior to filing of 
contestant's motion.
    The committee ruled that contestant had not proven fraud or 
irregularities on the part of any election official from the evidence 
produced nor had he proven that the votes in the election were greater 
than the number of listed voters. Finally, the committee ruled, with 
respect to the ``within-state absentee ballots,'' that the witnesses 
adduced in contestant's behalf were prohibited by state law from being 
present at the counting of the votes and had no standing to contest the 
ballot counting.
    On Mar. 24, 1960, Mr. Ashmore called up as privileged House 
Resolution 482 which was agreed to by the House without debate and by 
voice vote.(14) Thereby the contestee was held entitled to 
his seat. House Resolution 482 provided as follows:
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14. 106 Cong. Rec. 6523, 86th Cong. 2d Sess.
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        Resolved, That Wint Smith was duly elected as Representative 
    from the Sixth Congressional District of the State of Kansas in the 
    Eighty-Sixth Congress and is entitled to his seat.

    Note: Syllabi for Mahoney v Smith may be found herein at Sec. 5.8 
(actions by election committee to preserve evidence); Sec. 25.6 (motion 
to dismiss as premature).

Sec. 58.3 Myers v Springer

    On Apr. 30, 1959, the Speaker laid before the House and referred 

[[Page 1226]]

to the Committee on House Administration a letter from the Clerk 
transmitting a communication from Carlton H. Myers which 
complained about the conduct of the election held Nov. 4, 1958, for 
Representative from the 22d Congressional District of Illinois. In that 
communication, Mr. Myers, the defeated Democratic candidate, claimed 
that his opponent had appointed the editor and owner of a local paper, 
which paper later supported his opponent and refused Mr. Myers 
coverage, to a position as acting postmaster, in violation of the 
Federal Corrupt Practices Act. Mr. Myers also alleged attempts of 
bribery and coercion against him by representatives of the opposing 
political party. The Clerk's letter was ordered printed to include the 
notice of contest copy, which had been filed with that 
office.(15)
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15. H. Doc. No. 123, 105 Cong. Rec. 7242, 7265, 86th Cong. 1st Sess.
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    There was no record in the proceedings of the 86th Congress to 
indicate that contestant complied with the requirements of the laws 
regulating contested election cases (2 USC Sec. Sec. 201 et seq.), and 
no record that the Committee on House Administration had taken action 
in this contest.
    Note: Syllabi for Myers v Springer may be found herein at Sec. 18.1 
(compliance with statutory requisites).