[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 63. Ninety-first Congress, 1969-70]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1259-1261]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 63. Ninety-first Congress, 1969-70

Sec. 63.1 Lowe v Thompson

    On Apr. 23, 1969, Mr. Watkins M. Abbitt, of Virginia, submitted the 
unanimous report of the Commmittee on House Administration (H. Rept. 
No. 91-157) on House Resolution 364, dismissing the contested election 
case of Wyman C. Lowe v Fletcher Thompson from the Fifth Congressional 
District of Georgia. Mr. Thompson, the Republican nominee, was re-
elected to the office of Representative from the district in the 
general election held on Nov. 5, 1968. His Democratic opponent was 
Charles L. Weltner. The result of the election was officially certified 
in accordance with the laws of Georgia. His credentials having been 
presented to the Clerk of the House, Mr. Thompson appeared, took the 
oath of office, and was seated on Jan. 3, 1969.(3) Regarding 
the election contest, the committee report states:
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 3. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
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        The contest of Mr. Thompson's election was initiated by Mr. 
    Lowe, an unsuccessful candidate in the Democratic primary, by 
    service upon the Member on December 18, 1968, of a notice of 
    contest pursuant to the Federal contested election law, Revised 
    Statute, title I, chapter 8, section 105; title 2, United States 
    Code, section 201, claiming that contestee's election was null and 
    void and that his seat should be declared vacant. The ground of the 
    contest asserted in the notice of contest are then that the general 
    election was invalid because the Democratic candidate, Mr. Weltner, 
    had not been lawfully nominated or that there are such grounds as 
    to raise grave doubts that he had been lawfully nominated. Mr. 
    Weltner won the nomination from Mr. Lowe, his only opponent, in the 
    Democratic primary election on September 11, 1968. Contestant 
    claims that Mr. Weltner's victory in the primary election was the 
    result of certain specified ``malconduct, fraud, and/or 
    irregularity'' on the part of poll officers in 40 of the 155 
    precincts of the Fifth District. There is no allegation of wrongful 
    conduct on Mr. Weltner's part or any attribution to him of the 
    alleged misconduct of the poll officers. Nor is it contended that 
    contestee engaged in any wrongful conduct in the general election. 
    The sole basis for attacking contestee's election is the alleged 
    invalidity of his Democratic opponent's nomination.

    In submitting the committee report, Mr. Abbitt made the following 
remarks,(4) which further summarize the election contest:
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 4. 115 Cong. Rec. 10040, 10041, 91st Cong. 1st Sess., Apr. 23, 1969.

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[[Page 1260]]

        Mr. Abbitt: Mr. Speaker, only one election contest evolved from 
    the 1968 general election and that was in the Fifth Congressional 
    District of the State of Georgia. For the third time in recent 
    years Wyman C. Lowe has initiated a contest.(5) In 1951 
    and again in 1967 the House dismissed contests brought by Mr. Lowe 
    on the basis that he lacked standing to bring a contest under the 
    contested-election statute. That is the basis for recommending 
    dismissal of the current contest. In none of the contests was Mr. 
    Lowe a candidate in the general election for the congressional 
    seat.
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 5. See Lowe v Davis, 1948 (Sec. 54.1, supra); Lowe v Davis, 1951 
        (Sec. 56.3, supra); and Lowe v Thompson, 1967 (Sec. 62.1, 
        supra).
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        Fletcher Thompson, the Republican nominee, was reelected to the 
    office of Representative from the Fifth Congressional District of 
    Georgia in the general election held on November 5, 1968. His 
    Democratic opponent was Charles L. Weltner. The result of the 
    election was officially certified in accordance with the laws of 
    Georgia. His credentials having been presented to the Clerk of the 
    House, Mr. Thompson appeared, took the oath of office, and was 
    seated on January 3, 1969.
        The contest of Mr. Thompson's election was initiated by Mr. 
    Lowe, an unsuccessful candidate in the Democratic primary, by 
    service upon the Member on December 18, 1968, of a notice of 
    contest pursuant to the Federal contested election law claiming 
    that the contestee's election was null and void and that his seat 
    should be declared vacant. The grounds of the contest asserted in 
    the notice of contest are that the general election was invalid 
    because the Democratic candidate Mr. Weltner had not been lawfully 
    nominated or that there are such grounds as to raise grave doubts 
    that he had been lawfully nominated. Mr. Weltner won the nomination 
    from Mr. Lowe, his only opponent, in the Democratic primary 
    election on September 11, 1968. Contestant claims that Mr. 
    Weltner's victory in the primary election was the result of certain 
    specified ``malconduct, fraud and/or irregularity'' on the part of 
    poll officers in 40 of the 155 precincts of the fifth district. 
    There is no allegation of wrongful conduct on Mr. Weltner's part or 
    any attribution to him of the alleged misconduct of the poll 
    officers. Nor is it contended that contestee engaged in any 
    wrongful conduct in the general election. The sole basis for 
    attacking contestee's election is the alleged invalidity of his 
    Democratic opponent's nomination.
        The record before the committee reveals that contestant brought 
    an action against Mr. Weltner in the superior court of Fulton 
    County, Ga., to set aside his nomination under the Georgia Election 
    Code. This suit was dismissed on September 20, 1968. On appeal to 
    the Georgia Court of Appeals, the lower court's ruling was affirmed 
    and a subsequent petition for certiorari filed with the Supreme 
    Court of Georgia was denied.
        The contest came before the Subcommittee on Elections on 
    contestee's request that the notice of contest be dismissed for 
    failure to state a cause of action. Having considered the oral 
    arguments of the parties and the brief filed by contestant, the 
    committee concludes that contestant has no standing to bring the 
    contest and that the notice

[[Page 1261]]

    of contest does not state grounds sufficient to change the result 
    of the general election. Contestant, an unsuccessful candidate in 
    the Democratic primary, was not a candidate for the Fifth 
    Congressional District seat in the general election and does not 
    claim any right to the seat. There are a number of recent 
    precedents from 1941 to 1967 involving contests brought by persons 
    who were not candidates in the general election indicating that the 
    House of Representatives regards such persons as lacking standing 
    to bring an election contest under the statute. [Citing Miller v 
    Kirwan (Sec. 51, supra); McEvoy v Peterson (Sec. 52.2, supra); 
    Woodward v O'Brien (Sec. 54.6, supra); Lowe v Davis (Sec. 56.3); 
    Frankenberry v Ottinger (Sec. 61.1, supra); and Five Mississippi 
    Cases of 1965 (Sec. 61.2, supra).]

    The committee ultimately concluded:

        The committee, after careful consideration of the notice of 
    contest, the oral arguments, and the brief filed by contestant, 
    concludes that contestant Wyman C. Lowe, not being a candidate in 
    the general election, has no standing to bring a contest under the 
    contested election law and that he has failed to state sufficient 
    grounds to change the result of said election. It is recommended 
    that House Resolution 364 be adopted dismissing the contested 
    election case.

    The House agreed to House Resolution 364,(6) which 
provided: (7)
---------------------------------------------------------------------------
 6. 115 Cong. Rec. 10041, 91st Cong. 1st Sess., Apr. 23, 1969.
 7. Id. at p. 10040.
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        Resolved, That the election contest of Wyman C. Lowe, 
    contestant against Fletcher Thompson, contestee, Fifth 
    Congressional District of the State of Georgia, be dismissed.

    A motion to reconsider was laid on the table.
    Note: Syllabi for Lowe v Thompson may be found herein at Sec. 19.1 
(contestants as candidates in general election).