[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 62. Ninetieth Congress, 1967-68]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1255-1259]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 62. Ninetieth Congress, 1967-68

Sec. 62.1 Lowe v. Thompson

    The report (No. 365, submitted June 14,1967) of the committee on 
elections in the case of Lowe v Thompson showed that Fletcher Thompson, 
the Republican nominee, was elected to the office of Representative 
from the Fifth Congressional District of Georgia in the general 
election held on November 8, 1966. The only names on the ballot were 
those of Mr. Thompson and his Democratic opponent, Archie Lindsey. His 
credentials having been presented to the Clerk of the House, Mr. 
Thompson appeared, took the oath of office, and was seated on January 
10, 1967.
    The contest of Mr. Thompson's election was initiated by Mr. Wyman 
C. Lowe by service upon the then Member-elect on December 12, 1966, of 
a notice of contest pursuant to the Federal contested election law, 
Revised Statutes, title II, chapter 8, section 105; title 2, United 
States Code, section 201, claiming that contestee's

[[Page 1256]]

election was null and void and that his seat should be declared vacant 
because the manner in which the Democratic candidate, Archie Lindsey, 
had been nominated was contrary to the Georgia Election Code. 
Contestant charged that the Fulton County Democratic Executive 
Committee, which had substituted Lindsey for the primary election 
winner, Charles L. Weltner, upon Weltner's withdrawal, was without 
lawful authority to make such substitution since the Georgia Election 
Code and the state Democratic Party rules authorized a county committee 
to fill a vacancy in a party nomination only when the vacancy occurred 
after the nomination had been made by the state Democratic Party 
convention. Contestant argued that if the vacancy arose prior to the 
convention, it had to be filled by special primary election. Mr. 
Weltner's withdrawal had preceded the convention. It was contestant's 
conclusion that the general election was voided by the defective 
nomination of the Democratic candidate.
    The committee on elections concluded that Mr. Lowe had no standing 
to bring an election contest under the federal contested election law, 
because contestant was not a candidate in the general election. The 
committee noted that recent precedents involving contests brought 
against Members-elect by persons who were not candidates in the general 
election were to the effect that such persons lacked standing to bring 
such a contest.
    The committee, however, agreed to consider the petition Mr. Lowe 
presented to the House of Representatives, praying for an investigation 
of the right of Representative Thompson to his seat. The committee 
noted the constitutional derivation of the power of the House to judge 
the election and qualifications of its Members, and stated that the 
House is not confined to deciding election contests brought under the 
statute:

        [The House] may adjudicate the question of the right to a seat 
    in any of the following cases:
        (1) In the case of a contest between the contestee and the 
    returned Member of the House instituted in accordance with the 
    provisions of Law.
        (2) In the case of a protest or memorial filed by an elector of 
    the district concerned.
        (3) In the case of the protest or memorial filed by any other 
    person.
        (4) On motion of a Member of the House (Contested election case 
    of Richard S. Whaley, 63d, Cong., Cannon's Precedents of the House 
    of Representatives, vol. 6, sec. 78, p. 111.)

    After considering Mr. Lowe's petition, however, the committee

[[Page 1257]]

concluded that the petition should be denied:

        The committee is unaware of any precedent for depriving a 
    Member of his seat solely on the basis of the irregularity of the 
    nomination of his opponent in the general election and, indeed, no 
    such precedent is cited by petitioner either in his petition or in 
    his brief filed in the contested election case. It should be borne 
    in mind that this is not a case where fraud or irregularity in the 
    returned Member's nomination is charged.

    The committee report also stated:

        Nor is the committee inclined in this case to ignore the State 
    court's ruling against petitioner who filed suit against Archie 
    Lindsey and certain election officials seeking to enjoin Lindsey's 
    candidacy and to require the call of a special Democratic primary 
    election. According to petitioner, the grounds of his lawsuit were 
    those asserted here. The suit was dismissed by the trial court on 
    demurrer on November 1, 1966. Where, as here, petitioner's case is 
    built on technicalities of State law and party rules respecting the 
    method of nominating party candidates, there being no charge of 
    fraud or corrupt practices on the part of the party officials or 
    the party's nominee, the committee believes that disposition of the 
    case by a State court should be left undisturbed.

    Subsequently, Mr. Robert T. Ashmore, of South Carolina, by 
direction of the Committee on House Administration, called up the 
following resolution as privileged on July 11, 1967:

        Resolved, That the election contest of Wyman C. Lowe, 
    contestant, against Fletcher Thompson, contestee, Fifth 
    Congressional District of the State of Georgia, be dismissed, and 
    that the petition (numbered 75) of Wyman C. Lowe relative to the 
    general election on November 8, 1966, in the Fifth Congressional 
    District of the State of Georgia be denied.

    The reported privileged resolution, House Resolution 541, was 
agreed to by voice vote after debate.(7)
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17. 113 Cong. Rec. 18290, 18291, 90th Cong. 1st Sess., July 11, 1967.
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    Note: Syllabi for Lowe v Thompson may be found herein at Sec. 7.6 
(adoption of state court's views); Sec. 10.21 (illegal nominating 
procedure); and Sec. 17.5 (investigation initiated by petition). See 
also Sec. 19.1 (parties to contest).

Sec. 62.2 Mackay  Blackburn

    On July 11, 1967, Mr. Robert T. Ashmore, of South Carolina, at the 
direction of the Committee on House Administration, called up House 
Resolution 542,(18) which had been recommended by the 
committee in its report, House Report No. 366, on the contested 
election of James A. Mackay against Benjamin B. Blackburn in the Fourth 
Congressional District of the State of Georgia in the 90th

[[Page 1258]]

Congress. At the swearing in of Members-elect to the 90th Congress on 
Jan. 10, 1967, the contestee had been asked to step aside. The House 
then proceeded to adopt a resolution authorizing the oath to be 
administered to the contestee and providing that the question of the 
final right of the contestee to the seat be referred to the Committee 
on House Administration.(19)
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18. 113 Cong. Rec. 18291, 90th Cong. 1st Sess.
19. 113 Cong. Rec. 27, 90th Cong. let Sess. [H. Res. 2].
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    The issue involved the counting of so-called ``overvotes'' on punch 
card voting machines during the November 1966 election. Contestant 
alleged that the computers that tallied the votes erroneously failed to 
count about 7,000 votes, and that the procedures for duplicating 
defective ballots were improper. Election officials, acting in 
accordance with what they construed to be Georgia law, had programed 
the computing machines that counted the ballots to reject those cards 
where a voter had punched a straight party ticket and then also punched 
out the scored block for the congressional candidate of the opposing 
party. While the contested election case was under consideration, a 
lawsuit was instituted in the Georgia courts concerning the 
interpretation of the Georgia statutes relating to the canvassing of 
punch card votes. The litigation was terminated on Mar. 30, 1967, by 
the Georgia Supreme Court's denial of a writ of certiorari to the 
Georgia Court of Appeals which, on Jan. 25, 1967, had held in favor of 
the interpretation by the election officials [Blackburn v Hall (1967), 
115 Ga. App. 235, 154 S.E.2d 392].

    On Apr. 13, 1967, contestant notified the House of the withdrawal 
of his notice of contest.
    The Committee on House Administration issued a report on June 14, 
1967 (H. Rept. No. 366), which provided that the contestee was the duly 
elected Representative from the Fourth Congressional District of 
Georgia and was entitled to his seat.
    During debate, the fact was brought out that some difficulties had 
occurred in counting and handling the punch card ballots, and in the 
voters' use of them in the ``automatic'' voting machines. This was not, 
however, a crucial matter in the determination of the case. The 
contestee himself participated in the debate, although it was only to 
express gratitude to his colleagues for their consideration during the 
time of the election contest.
    The House agreed on July 11, 1967, to House Resolution 542, which 
provided: (1)
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 1. 113 Cong. Rec. 18291, 90th Cong. 1st Sess.

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[[Page 1259]]

        Resolved, That Benjamin B. Blackburn was duly elected as 
    Representative from the Fourth Congressional District of the State 
    of Georgia to the Ninetieth Congress and is entitled to his seat.

    A motion to reconsider was laid on the table.(2)
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 2. Id. at p. 18292.
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