[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 61. Eighty-ninth Congress, 1965-66]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1241-1255]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 61. Eighty-ninth Congress, 1965-66

Sec. 61.1 Frankenberry v Ottinger

    On the organization of the House of Representatives of the 89th 
Congress on Jan. 4, 1965, Mr. James C. Cleveland, of New Hampshire, 
objected to the oath being administered to the Member-elect, Richard L. 
Ottinger, from the 25th Congressional District of New York, who was 
then asked by the Chair not to rise while other Members-elect and the 
Resident Commissioner-elect were sworn. Carl Albert, of Oklahoma, the 
Majority Leader, thereupon offered the following resolution (H. Res. 
2): (20)
---------------------------------------------------------------------------
20. 111 Cong. Rec. 20, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

        Resolved, That the Speaker is hereby authorized and directed to 
    administer 

[[Page 1242]]

    the oath of office to the gentleman from New York, Mr. 
    Richard L. Ottinger.
    The rules of the 89th Congress not having been adopted, Mr. Albert 
was recognized for debate on his resolution under general parliamentary 
rules. Mr. Albert yielded to Mr. Cleveland for a parliamentary inquiry 
as to whether it would be in order for Mr. Cleveland to offer a 
substitute resolution or an amendment, particularly should the previous 
question be ordered. The Speaker replied that Mr. Albert controlled all 
time and would have to yield for that purpose, which Mr. Albert refused 
to do. Mr. Albert then refused to yield for further parliamentary 
inquiries and moved the previous question, which was ordered by voice 
vote. The resolution was then agreed to by voice vote. Mr. Ottinger 
thereupon appeared at the bar of the House and took the oath of office.
    On Jan. 4, 1965, Mr. Cleveland explained the reasons for his 
objection to Mr. Ottinger being administered the oath of office; in an 
extension of remarks in the Congressional Record,(1) Mr. 
Cleveland alleged that at least $187,000 had been spent in the Ottinger 
campaign, of which $167,000 had been contributed by the Member's 
family, in violation of 18 USC Sec. 608, which limits to $5,000 the 
amount any one person may contribute either directly or indirectly to 
any candidate for federal office. Mr. Cleveland also stated that Mr. 
Ottinger established at least 34 committees, and that two members of 
his family made $3,000 contributions to each of 22 committees, in order 
to avoid gift tax payments and to avoid making the contributions 
directly to the candidate.
---------------------------------------------------------------------------
 1. Id. at pp. 41-45.
---------------------------------------------------------------------------

    On Jan. 18, 1965, Mr. Albert informed the House that on the 
following day he would call up a privileged resolution to dismiss the 
Frankenberry v Ottinger contest, which had been initiated by notice of 
contest delivered by contestant on Dec. 19, 1964, as required by 2 USC 
Sec. 201. Mr. Albert obtained unanimous consent to insert in the 
Congressional Record a letter from H. Newlin Megill, assistant clerk of 
the House, addressed to the Speaker and advising him that persons 
permitted to bring contests under 2 USC Sec. Sec. 201-226 ``should be a 
party to the election and have the expectation that as a `contestant' 
he would be able to establish `his right to the seat'.'' The full text 
of the letter was as follows:

                                                 January 14, 1965.
    The Honorable the Speaker,
    House of Representatives.

        Dear Mr. Speaker: Following the suggestion made by you in our 
    tele-

[[Page 1243]]

    phone conversation, just prior to the 
    convening of this session of the Congress, I received the Honorable 
    Richard L. Ottinger, and discussed with him the matter of the 
    attempt by James R. Frankenberry to challenge his right to a seat 
    in the 89th Congress, under the provisions of Revised Statutes 105-
    130, as amended (2 U.S.C. 201-226).
        An examination of the questions raised by Representative 
    Ottinger and his counsel led me to the following conclusions which 
    were conveyed to him orally, together with the copy of a draft of a 
    resolution, which you may possibly hold to be privileged, for 
    action by the House:
        1. James R. Frankenberry is not a competent person to bring 
    such action under this statute.
        2. The said James R. Frankenberry was not a party to the 
    election held November 3, 1964, in the 25th Congressional District 
    of the State of New York, at which the Honorable Richard L. 
    Ottinger was elected. It would appear that Frankenberry is merely 
    the campaign manager of former Representative Robert R. Barry, who 
    was, in fact, the defeated candidate in this district. (See records 
    of the secretary of state, State of New York, and the Clerk of the 
    U.S. House of Representatives.)
        3. A reading of the fact of the statute which has been provided 
    by the House of Representatives as ``a good and sufficient rule to 
    be followed and not to be departed from except for cause'' merely 
    leads to the conclusion that a person availing himself of the 
    provisions of this act should be a party to the election and have 
    the expectation that as a ``contestant'' he would be able to 
    establish ``his right to the seat.'' Among the clear expressions in 
    this act, as amended, there appears this language, ``No contestee 
    and contestant for a seat in the House of Representatives. . . .'' 
    (2 U.S.C. 226.)
        4. An examination of the various digests of all contest 
    election cases in the House of Representatives fails to show that a 
    single person has been permitted to use the statute in the manner 
    proposed by Mr. Frankenberry in the matter at point.
        5. The House of Representatives has decided that such an 
    attempted action is not proper and that such a person is not 
    competent to avail himself of the provisions of this act. (See H. 
    Res. 54, agreed to January 10, 1941, In re Locke Miller v. Michael 
    J. Kirwan, 19th Congressional District of Ohio.)
        The House of Representatives may adjudicate the questions of 
    the right to a seat in either of the following cases:
        First. In the case of a contest between the ``contestant'' and 
    the ``returned member'' of the House instituted in accordance with 
    the provisions of the act of 1851, as amended.
        Second. In the case of a ``protest'' or ``memorial'' filed by 
    an elector of the district concerned.
        Third. In the case of the ``protest'' or ``memorial'' filed by 
    any other person.
        Fourth. On motion of a Member of the House.
        Every avenue of approach, cited above, is available to Mr. 
    Frankenberry in his attempt to question the right of the Member to 
    a seat, but the first case.
        For the reasons heretofore cited, supported by other actions of 
    the House in 

[[Page 1244]]

    such matters, I have supplied a draft 
    of the following language for the possible consideration, and such 
    action as the House in its wisdom may take:

        ``Whereas James R. Frankenberry, a resident of the city of 
    Bronxville, N.Y., in the Twenty-fifth Congressional District 
    thereof, has served notice of contest upon Richard L. Ottinger, the 
    returned Member of the House from said district, of his purpose to 
    contest the election of said Richard L. Ottinger; and
        ``Whereas it does not appear that said James R. Frankenberry 
    was a candidate for election to the House of Representatives from 
    the Twenty-fifth Congressional District of the State of New York, 
    at the election held November 3, 1964; nor was he a candidate for 
    the nomination from said district at the primary election held in 
    said district, at which Richard L. Ottinger was chosen the 
    Democratic nominee: Therefore be it
        ``Resolved, That the House of Representatives does not regard 
    the said James R. Frankenberry as a person competent to bring a 
    contest for a seat in the House and his notice of contest, served 
    upon the sitting Member, Richard L. Ottinger, is hereby dismissed; 
    and no petition or other paper relating to the subject matter 
    contained in this resolution shall be received by the House, or 
    entertained in any way whatever.''
        It would appear that the House should desire to take this 
    action since:
        (a) Mr. Frankenberry is attempting to misuse the statute 
    provided by the House of Representatives.
        (b) The House of Representatives has the responsibility of 
    relieving the sitting Member from the burden of defending himself 
    in this improper action, under the cumbersome statute, for a period 
    of more than 10 months, so that he may participate fully in his 
    constitutional duties of representing his congressional district.
        (c) The courts held that questions as to the application of the 
    statute are justifiable by the House and by the House alone. (See 
    In re Voorhis (S.D. N.Y. 1923), 291 F. 673).
        (d) Mr. Frankenberry has at least three other ways, which are 
    proper, to proceed in this matter.
        Such an action by the House of Representatives would put the 
    question in proper perspective and preserve the rights of all 
    parties.
        Your interest prompted me to make this written report to you.
        I am, Mr. Speaker,

                                   Respectfully yours,

                                                 H. Newlin Megill.

    On Jan. 19, 1965, Mr. Albert called up the following privileged 
resolution: (2)
---------------------------------------------------------------------------
 2. 111 Cong. Rec. 810, 811, 951, 89th Cong. 1st Sess. [H. Res. 126].
---------------------------------------------------------------------------

        Whereas James R. Frankenberry, a resident of the city of 
    Bronxville, New York, in the Twenty-Fifth Congressional District 
    thereof, has served notice of contest upon Richard L. Ottinger, the 
    returned Member of the House from said district, of his purpose to 
    contest the election of said Richard L. Ottinger; and
        Whereas it does not appear that said James R. Frankenberry was 
    a candidate for election to the House of Representatives from the 
    Twenty-Fifth 

[[Page 1245]]

    Congressional District of the State of 
    New York, at the election held November 3, 1964; Therefore be it
        Resolved, That the House of Representatives does not regard the 
    said James R. Frankenberry as a person competent to bring a contest 
    for a seat in the House and his notice of contest, served upon the 
    sitting Member Richard L. Ottinger, is hereby dismissed.

    Mr. Albert was recognized for one hour under the rules of the 
House, and he proceeded to cite the case of In re Voorhis (S.D.N.Y. 
1923), 291 F 673, which held that the application of the statutes in 
question is justifiable by the House and by the House alone. Mr. Albert 
then cited the contest of Miller v Kirwan (77th Cong. 1st Sess.), in 
which the House had agreed to a resolution dismissing the contest, as 
contestant there had not been a proper party within the applicable 
statute because he could not, if he were successful, establish his 
right to a seat in the House. Contestant in that case had been 
candidate for the disputed office in the primary, but was not a 
candidate in the general election. In that case the resolution 
dismissing the contest had been called up on the floor for direct 
action by the House, without having been referred to or reported from 
the Committee on House Elections. Mr. Albert then stated that ``there 
is no case on record that we have been able to find to the contrary, 
that a person not a party to an election contest is eligible to 
challenge an election under these statutes.''
    Mr. Charles E. Goodell, of New York, claimed that House Resolution 
126 had been called up on that day (Jan. 16, 1965) in order to obviate 
the proceedings which had been instituted by contestant under 2 USC 
Sec. 206 in the New York State Supreme Court for the taking of 
depositions and testimony on that date, which the contestee had not 
attended, in disregard of a court subpena. Claiming that there were 
many precedents of the House which denied a Member a seat due to 
excessive contributions and expenditures, Mr. Goodell asked that the 
matter be referred to the Committee on House Administration under the 
contested election statutes for full investigation.
    Mr. Cleveland then cited the language of 2 USC Sec. 201, as 
follows:

        Whenever any person intends to contest an election of any 
    Member of the House of Representatives of the United States he 
    shall--(``It does not say a candidate only.'')

    Mr. Cleveland then cited the final report of the Special Committee 
to Investigate Campaign Expenditures of the 88th Congress (H. Rept. No. 
1946) as ``the policy

[[Page 1246]]

established by the House Committee on Administration'':

        In order to avoid the useless expenditures of funds and the 
    loss of time by the committee and the staff, it has been decided by 
    the committee to conduct investigations of particular campaigns 
    only upon receipt of a complaint in writing and under oath by any 
    person, candidate, or political committee, containing sufficient 
    and definite allegations of fact to establish a prima facie case 
    requiring investigation by the committee. (Emphasis added.)

    This statement represented the policy of the special committee, and 
not the construction of the statute by the Committee on House 
Administration. The special committee report was transmitted by its 
chairman to the Clerk of the House for the 89th Congress, with the 
request that it be referred by the House to the Committee on House 
Administration. The Clerk did not transmit this report to the House for 
referral.
    Mr. Goodell proceeded to cite the 89th Congress investigation of 
the question of the final right of Dale Alford to his seat as ``a 
precedent in which noncandidates have contested House seats, in which 
full investigations have been had by the House Committee on 
Administration.'' Mr. Eugene J. Keogh, of New York, questioned Mr. 
Goodell as to whether ``that was an investigation that was under a 
special resolution of the House Committee on Administration and not 
under the general law regarding the matter of elections.'' Mr. 
Cleveland refused to yield for an answer, but proceeded to insert in 
the Record two briefs prepared by the American Law Division of the 
Library of Congress on the question of ``whether a noncandidate must 
proceed under 2 USC Sec. 201,'' in support of his opposition to the 
adoption of House Resolution 126.(3)
---------------------------------------------------------------------------
 3. Id. at pp. 953, 954.
---------------------------------------------------------------------------

    Mr. Cleveland then stated:

        [U]nder the contested election law the contestant bears the 
    expense of the whole matter of taking depositions and gathering 
    testimony. This is the reasoning behind it. That reasoning clearly 
    specifies the fact that this law not only can be used by a 
    noncontestant but it indeed must be used.

    Mr. Albert replied that, if the House were to follow the 
recommendations of the gentleman from New Hampshire (Mr. Cleveland)--

        [W]e would be opening up to anybody or to any number of 
    individuals, for valid or for spurious reasons, the right to 
    proceed under these statutes, to contest the election of any Member 
    of the House. These statutes place burdensome obligations on any 
    contestee and should not be construed to open up the opportunity 
    for just anyone to harass a Member of Congress or to impede the 
    operations of the House.

[[Page 1247]]

        Other remedies are available to the public generally and to 
    Members of the House. Any individual or any group of individuals 
    has a right to introduce a resolution at any time, calling for the 
    investigation of any election. In the ordinary course of events, 
    such a resolution would be referred to the Committee on House 
    Administration, and thereafter to the Subcommittee on Elections, 
    for investigation or hearings, as that committee or as the House 
    might deem necessary under the circumstances.
        If the contention of the gentleman is correct, there is no 
    limit to the number of individuals who could contest any seat in 
    this House, if the contest were brought in due time.

    Mr. Albert then proceeded to cite other sections of 2 USC 
Sec. Sec. 201-226, the statutes governing contested election cases, in 
order to show that Congress intended to limit the language ``any 
person'' in section 201 to a contestant for a seat in the House. He 
cited section 226 as follows:

        No contestee or contestant for a seat in the House of 
    Representatives shall be paid exceeding $2,000 for expenses in 
    election contests.

    Mr. Cleveland replied, in further opposition to the adoption of 
House Resolution 126, that:

        [T]he intent of that is clearly that any reimbursement will be 
    confined either to a seated or to a defeated Member. It simply 
    limits the amount of reimbursement of expenses to these two 
    classes. It does not govern the first section that specifically 
    says any person can contest an election. . . .
        The purpose of this law is to safeguard the people of the 
    United States against a situation where the defeated candidate 
    might not either have the heart or the will or the desire to 
    contest an election which clearly should be contested for the 
    common good and for the cause of good government.

    Omar T. Burleson, Chairman of the Committee on House Administration 
and a Member from Texas, reminded the House that ``he who seeks equity 
must do so with clean hands. This is a unilateral action. How could 
this House in its collective judgment determine whether or not equity 
is being done when the other party to the election is not a party to 
this attempt at contest?''
    Mr. Albert moved the previous question, which was ordered by voice 
vote. Mr. Goodell demanded the yeas and nays on the resolution and the 
yeas and nays were ordered. By a vote of 245 yeas to 102 nays with 3 
``present,'' the House agreed to House Resolution 126, thereby holding 
contestant not competent to bring a contest under 2 USC Sec. 201, and 
dismissing the notice of contest served upon the sitting Member.
    Note: Syllabi for Frankenberry v Ottinger may be found herein at 
Sec. 19.2 (contestants as candidates in general election).

[[Page 1248]]

Sec. 61.2 Wheadon et al. v Abernethy et al.

    On Sept. 17, 1965, Mr. Omar T. Burleson, of Texas, by direction of 
the Committee on House Administration, called up House Resolution 
585,(4) dismissing the five Mississippi election contests 
arising from the November 1964, congressional elections. The cases were 
the election contests of Augusta Wheadon against Thomas G. Abernethy in 
the First Congressional District; Fannie Lou Hamer against Jamie L. 
Whitten in the Second; Mildred Cosey, Evelyn Nelson, and Allen Johnson 
against John Bell Williams in the Third; Annie DeVine against Prentiss 
Walker in the Fourth; and Victoria Jackson Gray against William M. 
Colmer in the Fifth Congressional District in the State of Mississippi.
---------------------------------------------------------------------------
 4. 111 Cong. Rec. 24263, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

    The questions presented in these contests were considered 
simultaneously. The questions involved the failure of the contestants 
to avail themselves of the legal steps to challenge alleged 
discrimination among voters prior to the elections and to challenge the 
issuance of the certificates of election to the contestees after the 
elections were held. The denial of seats to Members-elect because of 
the alleged discriminatory practices involving disenfranchising groups 
of voters, and the standing of the contestants to proceed under the 
contested elections statute, were also at issue.
    The contestees had been elected at the November 1964, general 
election. The contestants had been selected at an unofficial 
``election'' held by persons in Mississippi from Oct. 30 through Nov. 
2, 1964, in which, it was alleged, ``all citizens qualified were 
permitted to vote.'' The latter ``election'' was held without any 
authority of law in the state. The contestants were all citizens, none 
of whom had been candidates in the November elections. They alleged 
that disenfranchisement of Negroes in Mississippi violated the 
Constitution and laws of the United States and that the House had the 
authority to consider the contests and unseat the contestees; that the 
House had a duty to guarantee that the election of its Members be in 
accordance with the requirements of the Constitution, and that where 
large numbers of Negroes had been excluded from the electoral process, 
where intimidation and violence had been utilized to further such 
exclusion, and where the free will of the voters had been prevented 
from being expressed, the House should

[[Page 1249]]

unseat the contestee, vacate the elections and order new elections.
    Hearings were held by the Subcommittee on Elections of the 
Committee on House Administration, on Sept. 13 and 14, 1965. The 
committee issued a report, House Report No. 1008, 89th Congress, first 
session, on Sept. 15, 1965.
    The report noted that the contestees had been sworn in by vote of 
the House 276 to 149 on Jan. 4, 1965,(5) after they had been 
asked to step aside.(6) This established the prima facie 
right of each contestee to his seat.
---------------------------------------------------------------------------
 5. 111 Cong. Rec. 19, 89th Cong. 1st Sess. [H. Res. 1].
 6. Id. at p. 18.
---------------------------------------------------------------------------

    The report noted that the contestants had not availed themselves of 
legal steps to challenge, in the courts, the alleged exclusion of 
Negroes from the ballot or the issuance of the certificates of election 
to the contestees.
    It noted that the contestants had not been candidates at the 
election and thus, under House precedents, had no standing to invoke 
the House contested election statute.
    It noted that there had been an election in Mississippi, in 
November 1964, for Members of the U.S. House of Representatives under 
statutes which had not been set aside by a court of competent 
jurisdiction; that, at the same election, Presidential electors and a 
U.S. Senator had been elected without question.
    It noted, however, that a case challenging the Mississippi 
registration and voter laws was progressing through the United States 
courts and that the question of the constitutionality of the statutes 
was a proper one for the courts. The report noted also that the House 
was the judge of the elections of its Members and it was doubtful that 
any disenfranchisement, even if proven, would have actually affected 
the outcome of the November 1964, Mississippi congressional elections 
in any district.
    The House, in following its rules and procedures should dismiss the 
cases, the report concluded, because the contestants did not qualify to 
utilize the House contested elections statute, and because the 
contestees had been elected under laws that had not been set aside at 
the time of the election.
    The report did state, however, that in arriving at such 
conclusions, the committee did not condone disenfranchisement of voters 
in the 1964 or previous elections, nor was a precedent being 
established to the effect that the House

[[Page 1250]]

would not take action, in the future, to vacate seats of sitting 
Members. It noted that the Federal Voting Rights Act of 1965 had been 
enacted in the interim and that if evidence of its violation were 
presented to the House in the future, appropriate action would be 
taken.
    The report recommended dismissing the cases.
    A minority view recommended consideration of the cases on their 
merits rather than on the grounds of status of the contestants, 
because, under the laws in the state in 1964, the claimants could not 
have become candidates to avail themselves of the contested elections 
act.
    After extensive debate,(7) the House, by a vote of 228 
to 143, agreed to House Resolution 585, which provided: (8)
---------------------------------------------------------------------------
 7. 111 Cong. Rec. 24263-92, 89th Cong. 1st Sess.
 8. Id. at p. 24263.
---------------------------------------------------------------------------

        Resolved, That the election contests of Augusta Wheadon, 
    contestant, against Thomas G. Abernethy, contestee, First 
    Congressional District of the State of Mississippi; Fannie Lou 
    Hamer, contestant, against Jamie L. Whitten, contestee, Second 
    Congressional District of the State of Mississippi; Mildred Cosey, 
    Evelyn Nelson, and Allen Johnson, contestants, against John Bell 
    Williams, contestee, Third Congressional District of the State of 
    Mississippi; Annie DeVine, contestant, against Prentiss Walker, 
    contestee, Fourth Congressional District of the State of 
    Mississippi; and Victoria Jackson Gray, contestant, against William 
    M. Colmer, contestee, Fifth Congressional District of the State of 
    Mississippi, be dismissed and that the said Thomas G. Abernethy, 
    Jamie L. Whitten, John Bell Williams, Prentiss Walker, and William 
    M. Colmer are entitled to their seats as Representatives of said 
    districts and State.

    An amendment was adopted striking out the phraseology entitling the 
contestees to their seats, as language inappropriate in a procedural 
matter.(9)
---------------------------------------------------------------------------
 9. Id. at p. 24292.
---------------------------------------------------------------------------

    Note: Syllabi for Wheadon v Abernethy may be found herein at 
Sec. 11.3 (racial discrimination as grounds for bringing contest); 
Sec. 14.2 (invalid elections); Sec. 19.3 (contestants as candidates in 
general election); Sec. 35.1 (administration of oath as prima facie 
evidence of right to seat); Sec. 44.1 (form of resolution disposing of 
contest).

Sec. 61.3 Peterson v Gross

    On Oct. 11, 1965, Mr. Omar T. Burleson, of Texas, at the direction 
of the Committee on House Administration, called up a resolution (H. 
Res. 602) (10) dismissing

[[Page 1251]]

the election contest of Stephen M. Peterson against Harold R. Gross in 
the Third Congressional District in the State of Iowa. The committee 
report, House Report No. 1127, had been issued on Oct. 8, 1965, after 
hearings had been conducted on the case on Sept. 28, 1965.
---------------------------------------------------------------------------
10. 111 Cong. Rec. 26499, 89th Cong. 1st Sess.
---------------------------------------------------------------------------

    The contestee was certified to have received 83,455 votes, and the 
contestant 83,036 votes at the Nov. 3, 1964, election. Contestee took 
the oath on Jan. 4, 1965, without objection and was 
sworn.(11) The contestant filed a notice of contest on Dec. 
31, 1964, and requested a recount. The contestant alleged violations of 
the laws of Iowa, including burning of some ballots the day after the 
election, the casting of more ballots than there were names listed on 
the polls, the recording of absentee ballots in a back room by one 
person, and disappearance of a tally sheet.
---------------------------------------------------------------------------
11. Id. at p. 19.
---------------------------------------------------------------------------

    The committee found that the proof presented did not sustain the 
charges brought and recommended dismissal of the contest.
    The committee found that although there may have been human errors 
committed at the polls on election day, there was no evidence of fraud 
or willful misconduct. It found that the burned ballots were unused 
ballots and the practice of burning such ballots had been a uniform one 
for numerous years. The allegation of more ballots cast than names 
listed on the polls was discharged by the conclusion that some 
inadvertent errors had been made but the errors were insufficient to 
change the result even if all the excess ballots were added to the 
total of the contestant. The charge respecting the counting of absentee 
ballots was found to apply to one polling place and the circumstances 
were such as to make it inadequate as a charge.
    The missing tally sheet was located and the disappearance found to 
be due to factors involving technical operation of a voting machine, 
not the counting of the results.
    It was further disclosed that the request for a recount was in the 
nature of a ``fishing expedition'' and that the contestant knew of no 
fraud by which to substantiate it.
    The committee acknowledged that Iowa had no recount statute 
applicable to a U.S. House election but held that the absence of such a 
statute had no effect on the jurisdiction of the committee; that the 
committee would proceed to a recount if some substantial allega

[[Page 1252]]

tions of irregularity or fraud were alleged and if the likelihood 
existed that the result of the election would be different were it not 
for such irregularity or fraud.
    Under the circumstances of the case, it declared, the evidence did 
not justify a recount since the contestant had not clearly presented 
proof sufficient to overcome the presumption that the returns of the 
returning officers were correct.
    In the debate on Oct. 11, 1965, on House Resolution 602, Robert T. 
Ashmore, of South Carolina, Chairman of the Subcommittee on Elections 
of the Committee on House Administration, spoke in favor of adopting 
the resolution dismissing the contest. Mr. Ashmore observed that the 
contestee had been issued a certificate of election by the Governor of 
Iowa, administered the oath of office by the Speaker, and performed his 
duties as required under his oath of office, ``So, as a result of these 
events, he has established a prima facie right to the office.'' Mr. 
Ashmore recounted some of the alleged errors recited by the contestant 
that the committee had found to be unsubstantiated, and stated:

        Moreover, Mr. Speaker, the evidence in this case shows that 
    such errors were wholly insufficient to change the results of the 
    election, even if the excess ballots about which we speak here in 
    this particular instance should all be added to the total of the 
    contestant. . . . In this case the committee is of the opinion that 
    no alleged misconduct or error on the part of the election judges, 
    nor a combination of all such errors by any and all officials in 
    the entire Third Congressional District of the State of Iowa, would 
    be sufficient to change the results of this 
    election.(l2)
---------------------------------------------------------------------------
12. Id. at p. 26499.

Mr. Ashmore then cited the election case of Eggleston v Strader (2 
Hinds' Precedents Sec. 878) on the point.

    Mr. Ashmore also pointed out that the evidence showed that no one 
protested any of the election proceedings during election day and there 
was ``nobody who testified on election day that the results were 
anything but proper.'' Reminding the House that there is a presumption 
of regularity--that the election officials have done their duty and 
their returns are correct--Mr. Ashmore then stated:

        The burden of proof, my friends, let us not forget, rests upon 
    the contestant. It is squarely on his shoulders to show sufficient 
    grounds to justify a recount or to unseat a Member of this House. 
    He must meet his obligation. It is not the committee's duty to 
    prove his case for him. The contestant must prove not just 
    irregularities--and not just violations of the Iowa election

[[Page 1253]]

    laws, but also that if such irregularities had not existed the 
    results of the election would have been different.(13)
---------------------------------------------------------------------------
13. Id. at p. 26500.
---------------------------------------------------------------------------

    Mr. Willard S. Curtin, of Pennsylvania, also spoke in favor of the 
resolution, remarking that the contestant had sent a letter to many 
Members, in which letter the contestant admitted that he was not 
alleging fraud on the part of anyone. Mr. Curtin repeated that the 
committee investigation had revealed no substance to the contestant's 
allegations of error.

    In opposition to the resolution, Mr. Frank Thompson, Jr., of New 
Jersey, argued that fraud was not necessarily a condition precedent for 
an election contest. The following colloquy took place: 
(14~)
---------------------------------------------------------------------------
14. Id. at p. 26501.
---------------------------------------------------------------------------

        Mr. Thompson of New Jersey: I do not mean to bicker with the 
    distinguished chairman of the subcommittee. I just wanted to 
    emphasize that in his remarks, as in the remarks of our colleague 
    from Pennsylvania, there was some emphasis on the absence of fraud.
        We acknowledged the absence of fraud, but in no circumstances 
    should we establish as a condition precedent to a contest that 
    there be fraud.
        Mr. Ashmore: I mentioned that there was no fraud because of its 
    absence, which I believe is worth noting--the fact that there was 
    no fraud.
        Mr. Thompson of New Jersey: We will concede there was no fraud. 
    Will the gentleman concede that it is not a condition precedent to 
    an election contest for a House seat?
        Mr. Ashmore: Absolutely it is not.
        Mr. Thompson of New Jersey: I thank the gentleman.

Thereafter, Mr. Thompson, Mr. Ashmore, and other Members lamented the 
absence of state procedures in Iowa for contesting elections and 
conducting recounts. After more discussion by Mr. Samuel L. Devine, of 
Ohio, in favor of the resolution, Mr. Neal Smith, of Iowa, made 
reference to the inequities involved in contested elections, and 
commented on the election case, the costs of proceeding under the 
committee rules and the composition of the committee: (15)
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15. Id. at pp. 26502, 26503.
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        Mr. Smith of Iowa: Mr. Speaker, I have not been a direct 
    participant in any way in this contest. I considered it to be a 
    contest between Mr. Peterson and Mr. Gross. I am not a member of 
    the committee. But, after all, I am from Iowa and so I have been 
    interested in following the procedures very carefully in this case.
        I would vote in any election contest to seat whoever I believe 
    actually received the most votes. Unfortunately, we cannot vote on 
    that basis on this resolution today because I do not and other 
    members do not know who received the most votes in the Third 
    Congressional District of Iowa in 1964. . . .

[[Page 1254]]

        Because evidence was being hidden and the attitude of election 
    officials in some counties indicated they would destroy more 
    evidence, the contestant went to both the State and Federal courts. 
    In each case the contestee claimed the courts did not have 
    jurisdiction and the courts said the jurisdiction is in the House 
    of Representatives except that the State supreme court did order 
    the voting records held until the 89th Congress had a chance to 
    convene and organize. I do not criticize those court opinions but 
    they do completely undercut the claim of some that the committee 
    should not assume full jurisdiction. . . .
        When the 89th Congress convened and organized, and the contest 
    had been filed, the chairman of the subcommittee [Mr. Ashmore] 
    properly sent a telegram asking election officials to hold election 
    material. Some of them used this telegram as an excuse not to 
    permit inspection of it subsequently at a time when they could be 
    put under oath and examined concerning it.
        When election officials resist producing pertinent documents 
    upon which they should be examined, it would take more time to go 
    through court procedures for each official involved than is allowed 
    under committee rules to complete discovery and anyway court 
    opinions have indicated lack of jurisdiction for supervision. Under 
    these procedures, it costs a contestant from $10,000 to $30,000 to 
    run through the obstacle course. Few, if any Democratic candidates 
    for Congress in Iowa have ever had $10,000 available to spend in a 
    general election campaign, let alone a contest, and to force a 
    contestant to raise that amount of money for a contest while the 
    contestee is drawing his salary and furnished a staff and office is 
    in and of itself a very unfair practice. . . .
        In one county, absentee ballots were burned. The county 
    election official naturally said they were unused ones and that he 
    had done that before. The fact that someone has broken the law 
    before does not make him immune thereafter. The only way anyone 
    could know whether they substituted ballots and burned the ballots 
    that were replaced would be for the committee to have a handwriting 
    expert look at those ballots that were left.
        With the adoption of this report, without pertinent records 
    having been inspected, the officials who committed irregularities 
    will be free to finish destroying evidence without anyone but those 
    election officials knowing whether irregularities were committed 
    for the purpose of stealing votes.

    Following more discussion focusing on the contestant's failure to 
prove his case, Mr. Omar T. Burleson, of Texas, stated that members on 
the committee were chosen because they were lawyers and because of 
their experience and that objectivity was characteristic of the 
committee:

        Mr. Burleson: Mr. Speaker, I am sure that the gentleman from 
    Iowa did not intend to infer that by design the people of, we will 
    say for the lack of a better word, conservative persuasion or from 
    the South, have intentionally been assigned to the Subcommittee on 
    Elections. As a matter of fact, the members of this subcommittee 
    have been chosen because they are lawyers.

[[Page 1255]]

    Or like myself--they were lawyers. I usually speak of myself in 
    that respect in the past tense. But they were put on that committee 
    for that reason. Also they were recognized according to seniority, 
    a consideration which is always given in these things.
        There has never been any attempt to stack the committee and I 
    am sure the gentleman would not intentionally make that as an 
    accusation, but I think he did infer it.
        Mr. Smith of Iowa: I did not intend to reflect upon any one 
    section of the country. I just want to say, if any one section of 
    this country has every member on an election subcommittee, it gives 
    a general image that is not good, no matter what section of the 
    country they are from.
        Mr. Burleson: It may appear that way but the subcommittee and 
    the full committee in handling these matters, during the 19 years 
    that I have served in this capacity, have always tried to be as 
    judicial and as analytical and objective in these matters as it is 
    possible to be and as our capacities permit us to be. I have never 
    seen a partisanship angle which I thought overcame or prejudiced an 
    objective decision in these matters.

    The House, by voice vote, agreed to House Resolution 602 and a 
motion to reconsider was laid on the table.(6~)
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16. Id. at p. 26504.
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    Note: Syllabi for Peterson v Gross may be found herein at Sec. 5.4 
(qualifications of Members on Subcommittee on Elections); Sec. 13.3 
(alleged error insufficient to change result); Sec. 36.6 (official 
returns as presumptively correct); Sec. 40.6 (burden of proving recount 
would change election result).