[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[Â§ 50. Seventy-sixth Congress, 1939-40]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1156-1161]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 50. Seventy-sixth Congress, 1939-40

Sec. 50.1 Neal v Kefauver

    On Mar. 1, 1940, the Clerk of the House transmitted to the Speaker 
a communication (7) explaining that his office had 
unofficial knowledge of a contested election having been initiated as a 
result of the special election held Sept. 13, 1939, to fill the vacancy 
in the Third Congressional District of Tennessee. On Oct. 19, 1939, 
John R. Neal had served notice on the returned Member of his purpose to 
contest the election of Estes Kefauver (returned Member). Mr. Kefauver 
sent a communication to the Clerk on Feb. 23, 1940, asking that the 
contest be dismissed and setting forth the reasons therefor. The 
Clerk's communication related that no testimony in behalf of either 
party had been filed with his office, and that the time prescribed by 
the law governing contested election cases for submitting such 
testimony had expired.
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 7. H. Doc. No. 645, 85 Cong. Rec. 2202, 76th Cong. 2d Sess.; H. Jour. 
        207.
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    The communication from the Clerk and Mr. Kefauver's motion to 
dismiss the contest, contained therein, were received by the Speaker 
and laid before the House on Mar. 1, 1940, and referred on that date to 
the Committee on Elections No. 1, and ordered printed as a House 
document.
    Mr. Charles J. Bell, of Missouri, submitted the unanimous report 
(8) from the Committee on Elections No. 1 to accompany House 
Resolution 534,(9) which--
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 8. H. Rept. No. 2609, 85 Cong. Rec. 8535, 8563, 76th Cong. 2d Sess.; 
        H. Jour. 684.
 9. H. Jour. 684.
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        Resolved, That John R. Neal is not entitled to a seat in the 
    House of Representatives of the Seventy-sixth Congress from the 
    Third Congressional District of Tennessee.
        Resolved, That Estes Kefauver is entitled to a seat in the 
    House of Rep

[[Page 1157]]

    resentatives of the Seventy-sixth Congress from the Third 
    Congressional District of the State of Tennessee.

    The report stated that the committee had dismissed the contest and 
noted that:

        [T]he contestant had failed to take the evidence, as he was 
    required to do by law; and there was no evidence before the 
    committee of the matters charged in his notice of contest, and no 
    briefs filed, as provided by law. The contestant was notified to 
    appear in person but did not do so. For these laches the committee 
    dismissed the contest and recommended the adoption of House 
    Resolution 534.

    House Resolution 534 was referred to the House Calendar on June 
18,1940, the same day that the above report (H. Rept. No. 2609) was 
submitted. The House did not take any action on the resolution during 
the 76th Congress.
    Note: Syllabi for Neal v Kefauver may be found herein at Sec. 5.5 
(committee power to dismiss contest); Sec. 16.1 (laches); Sec. 25.3 
(failure to produce evidence); Sec. 42.19 (failure to take action on 
reported resolutions).

Sec. 50.2 Scott v Eaton

    On Mar. 14, 1940, Mr. Joseph A. Gavagan, of New York, submitted the 
unanimous report (10) of the Committee on Elections No. 2 in 
the contested election case brought by Byron N. Scott against Thomas M. 
Eaton in the 18th Congressional District of California. On Jan. 3, 
1940, the first day of the third session of the 76th Congress, the 
Clerk of the House transmitted to the Speaker the papers and original 
testimony to accompany his letter,(11) which were laid 
before the House and referred by the Speaker on that day to the 
Committee on Elections No. 2, and the Clerk's letter ordered printed as 
a House document. The official tabulation of votes showed that 
contestee Eaton had received 52,216 votes to 51,874 votes for 
contestant, a majority of 342 votes. Contestant filed notice of contest 
on Dec. 24, 1938 (contesting the Nov. 8, 1938, election), with timely 
answer by contestee.
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10. H. Rept. No. 1783, 86 Cong. Rec. 2915, 2916, 76th Cong. 3d Sess.; 
        H. Jour. 246.
11. H. Doc. No. 539, 86 Cong. Rec. 6, 76th Cong. 3d Sess.; H. Jour. 51.
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    The committee considered only three issues raised by the pleadings:
    (1) Whether contestee violated the California Corrupt Practices 
Act;
    (2) Whether contestee violated the Federal Corrupt Practices Act;
    (3) Whether any such violation directly or indirectly prevented 
contestant from receiving a majority of the votes cast.

[[Page 1158]]

    Without specifically setting forth the evidence and testimony as to 
any of the above issues, the committee reported that contestant had not 
sustained his burden of proof, which was to establish by ``a fair 
preponderance of evidence the issues raised by the pleadings.''
    The committee report recommended adoption of House Resolution 
427,(12) which was called up as privileged by Mr. Gavagan 
and agreed to by voice vote and without debate on Mar. 29, 1940. The 
resolution--
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12. 86 Cong. Rec. 3696, 76th Cong. 3d Sess., H. Jour. 290.
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        Resolved, That Byron N. Scott was not elected a Member from the 
    Eighteenth Congressional District of the State of California to the 
    House of Representatives at the general election held November 8, 
    1938; and
        Resolved, That Thomas M. Eaton was elected a Member from the 
    Eighteenth Congressional District of the State of California to the 
    House of Representatives at the general election held on November 
    8, 1938.

    Note: Syllabi for Scott v Eaton may be found herein at Sec. 35.2 
(standard of ``fair preponderance of evidence'').

Sec. 50.3 Smith v Polk

    On Mar. 15, 1939, the Speaker laid before the House a communication 
(13) from the Clerk of the House informing the House that he 
had, on Mar. 4, 1939, received a letter from the contestant, Emory F. 
Smith, withdrawing the contest which he had instituted under the 
contested election statutes against the seated Member from the Sixth 
Congressional District of Ohio, James G. Polk. Contestant's letter 
asked that the contest be dismissed by the House. The communication, 
together with the accompanying papers, was referred to the Committee on 
Elections No. 3, and ordered printed as a House document.
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13. H. Doc. No. 207, 84 Cong. Rec. 2761, 2762, 76th Cong. 1st Sess.; H. 
        Jour. 341.
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    Contestant's letter to the Clerk related that contestee had been 
certified as elected by 799 votes, but that contestant had filed a 
petition in the Supreme Court of Ohio under sections 4785-166 to 4785-
174 of the General Code of Ohio alleging that he had received the 
greater number of valid votes in the whole district (fraudulent votes 
having been cast for contestee in a certain county), and asking the 
court to cancel the certificate of election of contestee and to issue a 
certificate to him. Contestee's demurrer to this petition was sustained 
upon the grounds that the provisions of the Ohio code under which the 
petition had been filed were invalid as in contravention of article I, 
section 5 of the Constitution of the

[[Page 1159]]

United States which prescribed that ``Each House shall be the Judge of 
the Elections, Returns and Qualifications of its own Members.'' 
Contestant claimed that depositions in support of his contentions were 
not filed with the House for the reason that he was awaiting the 
decision of the Ohio Supreme Court on the demurrer, which decision was 
made on Feb. 8, 1939. After that date, contestant decided that he would 
withdraw and dismiss his notice of contest due to the expense of 
obtaining evidence and to the difficulty in obtaining a favorable 
determination from an elections committee, the majority of which 
represented members from another political party.
    On Apr. 10, 1939, Mr. Albert Thomas, of Texas, submitted the 
unanimous report (14) from the Committee on Elections No. 3 
which recited that fact that contestant had withdrawn the contest and 
which recommended the following resolution:
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14. H. Rept. No. 392, 84 Cong. Rec. 4040, 76th Cong. 1st Sess.; H. 
        Jour. 437.
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        Resolved, That the Honorable James G. Polk was duly elected as 
    Representative from the Sixth Congressional District of the State 
    of Ohio to the Seventy-sixth Congress and is entitled to his seat.

    On the same day, Mr. Thomas called up House Resolution 156 
(15) which incorporated the language recommended in the 
report. The resolution was agreed to by the House without debate and by 
voice vote. Contestee was thereby held entitled to his seat.
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15. Id.
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    Note: Syllabi for Smith v Polk may be found herein at 
Sec. Sec. 33.5, 33.6 (manner of withdrawal from contests); Sec. 43.10 
(effect of contestant's withdrawal or abandonment of contest).

Sec. 50.4 Swanson v Harrington

    On Mar. 11, 1940, Mr. Albert Thomas, of Texas, submitted the report 
(16) of the Committee on Elections No. 3 in the contested 
election case of Albert F. Swanson against Vincent F. Harrington in the 
Ninth Congressional District of Iowa. The Clerk of the House had, on 
Jan. 3, 1940, the opening day of the third session, transmitted to the 
Speaker pro tempore the papers, documents, and testimony, which were 
referred to the Committee on Elections No. 3 on that day by the 
Speaker, with the Clerk's letter.(17)
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16. H. Rept. No. 1722, 86 Cong. Rec. 2689, 76th Cong. 3d Sess.; H. 
        Jour. 233.
17. H. Doc. No. 540, 86 Cong. Rec. 6, 76th Cong. 3d Sess.; H. Jour. 51.
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    The official tabulation of returns as certified by the state 
canvassing board showed that the

[[Page 1160]]

contestee, Mr. Harrington, had received 46,705 votes and that 
contestant, Mr. Swanson, had received 46,366 votes, resulting in a 
majority of 339 votes for Mr. Harrington.
    Contestant served notice of contest on Dec. 24, 1938, alleging, in 
52 counts, misconduct, fraud, and illegality. Contestee's answer of 
Jan. 23, 1939, was in the form of a 52-count general denial.
    Contestant's first claim, that 70 of the 528 votes cast in a 
certain precinct were illegal as they were cast by Works Progress 
Administration workers only temporarily in the district, was upheld; 
the committee ruled, however, that such votes if disregarded would not 
affect the outcome of the election in the whole district.
    Contestant also claimed that the House should require a recount of 
the total vote, citing an informal recount he had taken in connection 
with a state recount for a local sheriff's office which allegedly 
indicated that contestant would be shown to have a plurality of five 
votes. The committee found that contestant had not exhausted his remedy 
of obtaining a recount through the state courts, as permitted by the 
Iowa code, prior to appealing to the committee to itself order a 
recount. The committee rejected contestant's argument that he had been 
precluded from invoking state court aid as the state courts had not 
construed the relevant state election contest laws as they applied to 
House seats. Contestant, the committee reasoned, should not be 
permitted to substitute his own construction of state law for that of 
the state courts. The committee found that contestant had not exhausted 
state court remedies while acknowledging, at the same time, the power 
of the House committee to order a recount in its discretion without 
reference to state proceedings.
    In relation to contestant's second claim, the committee determined 
the central issue to be whether the contestant could show, by a 
preponderance of the evidence, that an application for a recount was 
justified due to fraud or irregularity. The committee cited several 
precedents to establish that an application for a recount must be 
founded upon proof sufficient to raise at least a presumption of 
irregularity or fraud, and that a recount will not be ordered upon the 
mere suggestion of possible error.
    The committee report considered the fundamental issue to be 
decided:

        . . . [W]hether or not contestant has borne the burden of 
    showing that, due

[[Page 1161]]

    to fraud and irregularity, the result of the election was contrary 
    to the clearly defined wish of the constituency involved. The 
    committee is of the opinion that contestant has failed to carry 
    this burden.


    The report cited Bailey v Walters (6 Cannon's Precedents Sec. 166) 
in affirmation of the proposition that ``the House will not erect 
itself nor will it erect its committees as mere boards of recount.''
    The committee found that contestant had not shown fraud or 
irregularity sufficient to compel a recount. The committee considered 
and rejected the informal recount taken by contestant in Woodbury 
County in connection with an official local election recount taken 
thereby which the candidates of the opposing political party had 
increased, rather than decreased, their vote totals.
    Mr. Thomas called up House Resolution 419 (18) as 
privileged on Mar. 11, 1940, the same day the committee submitted its 
report. Without debate and by voice vote, the House agreed to the 
resolution recommended in the committee report that--
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18. 86 Cong. Rec. 2662, 76th Cong. 3d Sess.; H. Jour. 230.
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        Resolved, That Albert F. Swanson is not entitled to a seat in 
    the House of Representatives in the Seventy-sixth Congress from the 
    Ninth Congressional District of Iowa.
        Resolved, That Vincent F. Harrington is entitled to a seat in 
    the House of Representatives in the Seventy-sixth Congress from the 
    Ninth Congressional District of Iowa.

    Note: Syllabi for Swanson v Harrington may be found herein at 
Sec. 12.3 (balloting irregularities); Sec. 13.4 (failure to exhaust 
state remedy); Sec. 40.1 (justification for recount of ballots); 
Sec. 41.1 (exhaustion of state remedies).