[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[M. Summaries of Election Contests, 1931-72]
[§ 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)
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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).