[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[A. In General]
[Â§ 2. Contested Election Laws]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 974-983]
 
                               CHAPTER 9
 
                           Election Contests
 
                             A. IN GENERAL
 
Sec. 2. Contested Election Laws

    Contests for seats in the House of Representatives are governed by 
the Federal Contested Elections Act. This statute (2 USC Sec. Sec. 381-
396) sets forth the procedure by which a defeated candidate may have 
his claim to a seat adjudicated by the House. The act provides for the 
filing of notice of contest and other proceedings (Sec. Sec. 20-26, 
infra), for the taking of testimony of witnesses (Sec. Sec. 27-31, 
infra), and for a hearing on the depositions and other papers 
(Sec. Sec. 32, 33, infra) that have been filed with the Clerk (Sec. 6, 
infra). The contest is heard by the Committee on House Administration 
(Sec. 5, infra). Acting upon committee reports, the House, by 
privileged resolution, then disposes of the case by declaring one of 
the parties to be entitled to the seat (Sec. 44, infra).
    The act (Public Law 91-138) provides as follows:

[[Page 975]]

                                short title

        Section 1. This Act may be cited as the ``Federal Contested 
    Election Act''.

                                definitions

        Sec. 2. For purposes of this Act--
        (a) The term ``election'' means an official general or special 
    election to chose a Representative in or Resident Commissioner to 
    the Congress of the United States, but does not include a primary 
    election, or a caucus or convention of a political party.
        (b) The term ``candidate'' means an individual (1) whose name 
    is printed on the official ballot for election to the House of 
    Representatives of the United States, or (2) notwithstanding his 
    name is not printed on such ballot, who seeks election to the House 
    of Representatives by write-in votes, provided that he is qualified 
    for such office and that, under the law of the State in which the 
    congressional district is located, write-in voting for such office 
    is permitted and he is eligible to receive write-in votes in such 
    election.
        (c) The term ``contestant'' means an individual who contests 
    the election of a Member of the House of Representatives of the 
    United States under this Act.
        (d) The term ``contestee'' means a Member of the House of 
    Representatives of the United States whose election is contested 
    under this Act.
        (e) The term ``Member'' means an incumbent Representative in or 
    Resident Commissioner to the Congress of the United States, or an 
    individual who has been elected to either of such offices but has 
    not taken the oath of office.
        (f) The term ``Clerk'' means the Clerk of the House of 
    Representatives of the United States.
        (g) The term ``committee'' means the Committee on House 
    Administration of the House of Representatives of the United 
    States.
        (h) The term ``State'' includes territory and possession of the 
    United States.
        (i) The term ``write-in vote'' means a vote cast for a person 
    whose name does not appear on the official ballot by writing in the 
    name of such person on such ballot or by any other method 
    prescribed by the law of the State in which the election is held.

                             notice of contest

        Sec. 3. (a) Whoever, having been a candidate for election to 
    the House of Representatives in the last preceding election and 
    claiming a right to such office, intends to contest the election of 
    a Member of the House of Representatives, shall, within thirty days 
    after the result of such election shall have been declared by the 
    officer or Board of Canvassers authorized by law to declare such 
    result, file with the Clerk and serve upon the contestee written 
    notice of his intention to contest such election.
        (b) Such notice shall state with particularity the grounds upon 
    which contestant contests the election and shall state that an 
    answer thereto must be served upon contestant under section 4 of 
    this Act within thirty days after service of such notice. Such 
    notice shall be signed by contestant and verified by his oath or 
    affirmation.
        (c) Service of the notice of contest upon contestee shall be 
    made as follows:
        (1) by delivering a copy to him personally;

[[Page 976]]

        (2) by leaving a copy at his dwelling house or usual place of 
    abode with a person of discretion not less than sixteen years of 
    age then residing therein;
        (3) by leaving a copy at his principal office or place of 
    business with some person then in charge thereof;
        (4) by delivering a copy to an agent authorized by appointment 
    to receive service of such notice; or
        (5) by mailing a copy by registered or certified mail addressed 
    to contestee at his residence or principal office or place of 
    business. Service by mail is complete upon mailing;
        (6) the verified return by the person so serving such notice, 
    setting forth the time and manner of such service shall be proof of 
    same, and the return post office receipt shall be proof of the 
    service of said notice mailed by registered or certified mail as 
    aforesaid. Proof of service shall be made to the Clerk promptly and 
    in any event within the time during which the contestee must answer 
    the notice of contest. Failure to make proof of service does not 
    affect the validity of the service.

                      answer; defenses made by motion

        Sec. 4. (a) Any contestee upon whom a notice of contest as 
    described in section 3 shall be served, shall, within thirty days 
    after the service thereof, serve upon contestant a written answer 
    to such notice, admitting or denying the averments upon which 
    contestant relies. If contestee is without knowledge or information 
    sufficient to form a belief as to the truth of an averment, he 
    shall so state and this shall have the effect of a denial. Such 
    answer shall set forth affirmatively any other defenses, in law or 
    fact, on which contestee relies. Contestee shall sign and verify 
    such answer by oath or affirmation.
        (b) At the option of contestee, the following defenses may be 
    made by motion served upon contestant prior to contestee's answer:
        (1) Insufficiency of service of notice of contest.
        (2) Lack of standing of contestant.
        (3) Failure of notice of contest to state grounds sufficient to 
    change result of election.
        (4) Failure of contestant to claim right to contestee's seat.
        (c) If a notice of contest to which an answer is required is so 
    vague or ambiguous that the contestee cannot reasonably be required 
    to frame a responsive answer, he may move for a more definite 
    statement before interposing his answer. The motion shall point out 
    the defects complained of and the details desired. If the motion is 
    granted and the order of the committee is not obeyed within ten 
    days after notice of the order or within such other time as the 
    committee may fix, the committee may dismiss the action, or make 
    such order as it deems just.
        (d) Service of a motion permitted under this section alters the 
    time for serving the answer as follows, unless a different time is 
    fixed by order of the committee: If the committee denies the motion 
    or postpones its disposition until the hearing on the merits, the 
    answer shall be served within ten days after notice of such action. 
    If the committee grants a motion for a more definite statement the 
    answer shall be served within ten days after service of the more 
    definite statement.

      service and filing of papers other than notice of contest; how 
                           made; proof of service

        Sec. 5. (a) Except for the notice of contest, every paper 
    required to be

[[Page 977]]

    served shall be served upon the attorney representing the party, 
    or, if he is not represented by an attorney, upon the party 
    himself. Service upon the attorney or upon a party shall be made:
        (1) by delivering a copy to him personally;
        (2) by leaving it at his principal office with some person then 
    in charge thereof; or if the office is closed or the person to be 
    served has no office, leaving it at his dwelling house or usual 
    place of abode with a person of discretion not less than sixteen 
    years of age then residing therein; or
        (3) by mailing it addressed to the person to be served at his 
    residence or principal office. Service by mail is complete upon 
    mailing.
        (b) All papers subsequent to the notice of contest required to 
    be served upon the opposing party shall be filed with the Clerk 
    either before service or within a reasonable time thereafter.
        (c) Papers filed subsequent to the notice of contest shall be 
    accompanied by proof of service showing the time and manner of 
    service, made by affidavit of the person making service or by 
    certificate of an attorney representing the party in whose behalf 
    service is made. Failure to make proof of service does not affect 
    the validity of such service.

                            default of contestee

        Sec. 6. The failure of contestee to answer the notice of 
    contest or to otherwise defend as provided by this Act shall not be 
    deemed an admission of the truth of the averments in the notice of 
    contest. Notwithstanding such failure, the burden is upon 
    contestant to prove that the election results entitle him to 
    contestee's seat.

                       taking testimony by deposition

        Sec. 7. (a) Either party may take the testimony of any person, 
    including the opposing party, by deposition upon oral examination 
    for the purpose of discovery or for use as evidence in the 
    contested election case, or for both purposes. Depositions shall be 
    taken only within the time for the taking of testimony prescribed 
    in this section.
        (b) Witnesses may be examined regarding any matter, not 
    privileged, which is relevant to the subject matter involved in the 
    pending contested election case, whether it relates to the claim or 
    defense of the examining party or the claim or defense of the 
    opposing party, including the existence, description, nature, 
    custody, condition and location of any books, papers, documents, or 
    other tangible things and the identity and location of persons 
    having knowledge of relevant facts. After the examining party has 
    examined the witness the opposing party may cross examine.
        (c) The order in which the parties may take testimony shall be 
    as follows:
        (1) Contestant may take testimony within thirty days after 
    service of the answer, or, if no answer is served within the time 
    provided in section 4, within thirty days after the time for answer 
    has expired.
        (2) Contestee may take testimony within thirty days after 
    contestant's time for taking testimony has expired.
        (3) If contestee has taken any testimony or has filed 
    testimonial affidavits or stipulations under section 8(c), 
    contestant may take rebuttal testimony within ten days after 
    contestee's time for taking testimony has expired.
        (d) Testimony shall be taken before an officer authorized to 
    administer

[[Page 978]]

    oaths by the laws of the United States or of the place where the 
    examination is held.
        (e) Attendance of witnesses may be compelled by subpena as 
    provided in section 9.
        (f) At the taking of testimony, a party may appear and act in 
    person, or by his agent or attorney.
        (g) The officer before whom testimony is to be taken shall put 
    the witness under oath and shall personally, or by someone acting 
    under his direction and in his presence, record the testimony of 
    the witness. The testimony shall be taken stenographically and 
    transcribed. All objections made at the time of examination to the 
    qualifications of the officer taking the deposition, or to the 
    manner of taking it, or to the evidence presented, or the conduct 
    of any party, and any other objection to the proceedings, shall be 
    noted by the officer upon the deposition. Evidence objected to 
    shall be taken subject to the objections. In lieu of participating 
    in the oral examination, a party served with a notice of deposition 
    may transmit written interrogatories to the officer, who shall 
    propound them to the witness and record the answers verbatim.

        (h) When the testimony is fully transcribed, the deposition 
    shall be submitted to the witness for examination and shall be read 
    to or by him, unless such examination and reading are waived by the 
    witness and the parties. Any changes in the form or substance which 
    the witness desires to make shall be entered upon the deposition by 
    the officer with a statement of the reasons given by the witness 
    for making them. The deposition shall be signed by the witness, 
    unless the parties by stipulation waive the signing or the witness 
    is ill or cannot be found or refuses to sign. If the deposition is 
    not signed by the witness, the officer shall sign it and note on 
    the deposition the fact of the waiver or of the illness or the 
    absence of the witness or the fact of refusal to sign together with 
    the reason, if any, given therefor; and the deposition may then be 
    used as fully as though signed, unless on a motion to suppress, the 
    committee rules that the reasons given for the refusal to sign 
    require rejection of the deposition in whole or in part.

        notice of depositions; testimony by affidavit or stipulation

        Sec. 8. (a) A party desiring to take the deposition of any 
    person upon oral examination shall serve written notice on the 
    opposing party not later than two days before the date of the 
    examination. The notice shall state the time and place for taking 
    the deposition and the name and address of each person to be 
    examined. A copy of such notice, together with proof of such 
    service thereof, shall be attached to the deposition when it is 
    filed with the Clerk.
        (b) By written stipulation of the parties, the deposition of a 
    witness may be taken without notice. A copy of such stipulation 
    shall be attached to the deposition when it is filed with the 
    Clerk.
        (c) By written stipulation of the parties, the testimony of any 
    witness of either party may be filed in the form of an affidavit by 
    such witness or the parties may agree what a particular witness 
    would testify to if his deposition were taken. Such testimonial 
    affidavits

[[Page 979]]

    or stipulations shall be filed within the time limits prescribed 
    for the taking of testimony in section 7.

                     subpenas; production of documents

        Sec. 9. (a) Upon application of any party, a subpena for 
    attendance at a deposition shall be issued by:
        (1) a judge or clerk of the United States district court for 
    the district in which the place of examination is located;
        (2) a judge or clerk of any court of record of the State in 
    which the place of examination is located; or
        (3) a judge or clerk of any court of record of the county in 
    which the place of examination is located.
        (b) Service of the subpena shall be made upon the witness no 
    later than three days before the day on which his attendance is 
    directed. A subpena may be served by any person who is not a party 
    to the contested election case and is not less than eighteen years 
    of age. Service of a subpena upon a person named therein shall be 
    made by delivering a copy thereof to such person and by tendering 
    to him the fee for one day's attendance and the mileage allowed by 
    section 10. Written proof of service shall be made under oath by 
    the person making same and shall be filed with the Clerk.
        (c) A witness may be required to attend an examination only in 
    the county wherein he resides or is employed, or transacts his 
    business in person, or is served with a subpena, or within forty 
    miles of the place of service.
        (d) Every subpena shall state the name and title of the officer 
    issuing same and the title of the contested election case, and 
    shall command each person to whom it is directed to attend and give 
    testimony at a time and place and before an officer specified 
    therein.
        (e) A subpena may also command the person to whom it is 
    directed to produce the books, papers, documents, or other tangible 
    things designated therein, but the committee, upon motion promptly 
    made and in any event at or before the time specified in the 
    subpena for compliance therewith, may (1) quash or modify the 
    subpena if it is unreasonable or oppressive, or (2) condition 
    denial of the motion upon the advancement by the party in whose 
    behalf the subpena is issued of the reasonable cost of producing 
    the books, papers, documents, or tangible things. In the case of 
    public records or documents, copies thereof, certified by the 
    person having official custody thereof, may be produced in lieu of 
    the originals.

                          officer and witness fees

        Sec. 10. (a) Each judge, clerk of court, or other officer who 
    issues any subpena or takes a deposition and each person who serves 
    any subpena or other paper herein authorized shall be entitled to 
    receive from the party at whose instance the service shall have 
    been performed such fees as are allowed for similar services in the 
    district courts of the United States.
        (b) Witnesses whose depositions are taken shall be entitled to 
    receive from the party at whose instance the witness appeared the 
    same fees and travel allowance paid to witnesses subpenaed to 
    appear before the House of Representatives or its committees.

        penalty for failure to appear, testify, or produce documents

        Sec. 11. Every person who, having been subpenaed as a witness 
    under

[[Page 980]]

    this Act to give testimony or to produce documents, willfully makes 
    default, or who, having appeared, refuses to answer any question 
    pertinent to the contested election case, shall be deemed guilty of 
    a misdemeanor punishable by fine of not more than $1,000 nor less 
    than $100 or imprisonment for not less than one month nor more than 
    twelve months, or both.

                  certification and filing of depositions

        Sec. 12. (a) The officer before whom any deposition is taken 
    shall certify thereon that the witness was duly sworn by him and 
    that the deposition is a true record of the testimony given by the 
    witness. He shall then securely seal the deposition, together with 
    any papers produced by the witness and the notice of deposition or 
    stipulation, if the deposition was taken without notice, in an 
    envelope endorsed with the title of the contested election case and 
    marked ``Deposition of (here insert name of witness)'' and shall 
    within thirty days after completion of the witness' testimony, file 
    it with the Clerk.
        (b) After filing the deposition, the officer shall promptly 
    notify the parties of its filing.
        (c) Upon payment of reasonable charges therefor, not to exceed 
    the charges allowed in the district court of the United States for 
    the district wherein the place of examination is located, the 
    officer shall furnish a copy of deposition to any party or the 
    deponent.

            record; printing and filing of briefs and appendixes

        Sec. 13. (a) Contested election cases shall be heard by the 
    committee on the papers, depositions, and exhibits filed with the 
    Clerk. Such papers, depositions, and exhibits shall constitute the 
    record of the case.
        (b) Contestant shall print as an appendix to his brief those 
    portions of the record which he desires the committee to consider 
    in order to decide the case and such other portions of the record 
    as may be prescribed by the rules of the committee.
        (c) Contestee shall print as an appendix to his brief those 
    portions of the record not printed by contestant which contestee 
    desires the committee to consider in order to decide the case.
        (d) Within forty-five days after the time for both parties to 
    take testimony has expired, contestant shall serve on contestee his 
    printed brief of the facts and authorities relied on to establish 
    his case together with his appendix.
        (e) Within thirty days of service of contestant's brief and 
    appendix, contestee shall serve on contestant his printed brief of 
    the facts and authorities relied on to establish his case together 
    with his appendix.
        (f) Within ten days after service of contestee's brief and 
    appendix, contestant may serve on contestee a printed reply brief.
        (g) The form and length of the briefs, the form of the 
    appendixes, and the number of copies to be served and filed shall 
    be in accordance with such rules as the committee may prescribe.

    filings of pleadings, motions, depositions, appendixes, briefs, and 
                                other papers

        Sec. 14. (a) Filings of pleadings, motions, depositions, 
    appendixes, briefs, and other papers shall be accomplished by:

[[Page 981]]

        (1) delivering a copy thereof to the Clerk of the House of 
    Representatives at his office in Washington, District of Columbia, 
    or to a member of his staff at such office; or
        (2) mailing a copy thereof, by registered or certified mail, 
    addressed to the Clerk at the House of Representatives, Washington, 
    District of Columbia: Provided, That if such copy is not actually 
    received, another copy shall be filed within a reasonable time; and
        (3) delivering or mailing, simultaneously with the delivery or 
    mailing of a copy thereof under paragraphs (1) and (2) of this 
    subsection, such additional copies as the committee may by rule 
    prescribe.
        (b) All papers filed with the Clerk pursuant to this Act shall 
    be promptly transmitted by him to the committee.

                     time; computation and enlargement

        Sec. 15. (a) In computing any period of time prescribed or 
    allowed by this Act or by the rules or any order of the committee, 
    the day of the act, event, or default after which the designated 
    period of time begins to run shall not be included. The last day of 
    the period so computed shall be included, unless it is a Saturday, 
    a Sunday, or a legal holiday, in which event the period shall run 
    until the end of the next day which is neither a Saturday, a 
    Sunday, nor a legal holiday. When the period of time prescribed or 
    allowed is less than seven days, intermediate Saturdays, Sundays, 
    and legal holidays shall be excluded in the computation. For the 
    purposes of this Act, ``legal holiday'' shall mean New Year's Day, 
    Washington's Birthday, Memorial Day, Independence Day, Labor Day, 
    Veterans Day, Thanksgiving Day, Christmas Day, and any other day 
    appointed as a holiday by the President or the Congress of the 
    United States.
        (b) Whenever a party has the right or is required to do some 
    act or take some proceeding within a prescribed period after the 
    service of a pleading, motion, notice, brief, or other paper upon 
    him, which is served upon him by mail, three days shall be added to 
    the prescribed period.
        (c) When by this Act or by the rules or any order of the 
    committee an act is required or allowed to be done at or within a 
    specified time, the committee, for good cause shown, may at any 
    time in its discretion (1) with or without motion or notice, order 
    the period enlarged if request therefor is made before the 
    expiration of the period originally prescribed or as extended by a 
    previous order, or (2) upon motion made after the expiration of the 
    specified period, permit the act to be done where the failure to 
    act was the result of excusable neglect, but it shall not extend 
    the time for serving and filing the notice of contest under section 
    3.

                            death of contestant

        Sec. 16. In the event of the death of the contestant, the 
    contested election case shall abate.

                       allowance of party's expenses

        Sec. 17. The committee may allow any party reimbursement from 
    the contingent fund of the House of Representatives of his 
    reasonable expenses of the contested election case, including 
    reasonable attorneys fees, upon the verified application of such 
    party accompanied by a complete and detailed

[[Page 982]]

    account of his expenses and supporting vouchers and receipts.

                                  repeals

        Sec. 18. The following provisions of law are repealed:
        (a) Sections 105 through 129 of the Revised Statutes of the 
    United States (2 U.S.C. 201-225).
        (b) The second paragraph under the center heading ``House of 
    Representatives'' in the first section of the Act of March 3, 1879 
    (2 U.S.C. 226).
        (c) Section 2 of the Act entitled ``An Act further supplemental 
    to the various Acts prescribing the mode of obtaining evidence in 
    cases of contested elections'', approved March 2, 1875 (2 U.S.C. 
    203).

                               effective date

        Sec. 19. The provisions of, and the repeals made by, this Act 
    shall apply with respect to any general or special election for 
    Representative in, or Resident Commissioner to, the Congress of the 
    United States occurring after the date of enactment of this Act.
        Approved December 5, 1969.

    Prior to the Federal Contested Election Act, election contests were 
governed by the provisions of the now repealed Contested Elections Act, 
2 USC Sec. Sec. 201-226. This statute itself was derived in part from 
an earlier statute dating from the acts of Feb. 19, 1851, with sundry 
subsequent amendments.
    Except for the contested election of Tunno v Veysey (Sec. 64.1, 
infra), all the election contest cases in this chapter were decided 
under the prior statute. For this reason, citations are given to the 
prior statute, and comparable provisions in the present statute are 
generally cited in footnotes.
    Congress, in judging election disputes involving its Members, will 
look first to the applicable federal law, if any, and then to the 
applicable state law.
    In the Kemp, Sanders investigation (Sec. 47.14, infra), Congress 
looked to the state law regulating the time for the holding of 
elections to fill vacancies, there being no federal law on the 
subject.                          -------------------

Application of State Law

Sec. 2.1 At the state level, an election contest may be initiated 
    pursuant to a state law making it mandatory for the secretary of 
    state or other state official to conduct a recount at the request 
    of either candidate.

    In the 1938 New Hampshire election contest of Roy v Jenks 
(Sec. 49.1, infra), the original official returns from the Nov. 3, 
1936, election gave Arthur B. Jenks a plurality of 550 votes over 
Alphonse Roy. Mr. Roy then applied to the New Hampshire Secretary of 
State for a recount, pursuant to

[[Page 983]]

state law making it mandatory for that official to conduct a recount 
upon request of either candidate. Ultimately the House voted to seat 
Mr. Roy.