[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[B. Jurisdiction and Powers]
[Â§ 4. The House]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 984-986]
 
                               CHAPTER 9
 
                           Election Contests
 
                       B. JURISDICTION AND POWERS
 
Sec. 4. The House


    The House acquires jurisdiction of an election contest upon the 
filing of a notice of contest.(8)~ Normally the papers 
relating to an election contest are transmitted by the Clerk to the 
Committee on House Administration, pursuant to 2 USC Sec. 393(b), 
without a formal referral or other action by the House. However, the 
House may initiate an election investigation if a Member-elect's right 
to take the oath is challenged by another Member, by referring the 
question to the committee. The House may also summarily dismiss a 
contest by the adoption of a resolution providing 
therefor.(9)~ In some cases, the House has even advised a 
contestant that it will not consider any future petitions or matters 
relating to the case.(10)~
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 8. Sec. 4.1, infra.
 9. Sec. Sec. 4.4, 4.5, infra.
10. Sec. 51.1, infra.
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    One way that the House exercises its control over election contests 
is by refusing to administer the oath to a party in an election contest 
until the contest is resolved.(11)~
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11. Sec. 4.3, infra.                          -------------------
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Notice of Contest as Basis of Jurisdiction

Sec. 4.1 Jurisdiction of a contested election is acquired by the House 
    upon the filing of a notice of contest as required by the contested 
    elections law with the Clerk of the House. Jurisdiction cannot be 
    conferred on the House, or on a committee thereof, by any joint 
    agreement of the parties.

    In the 1943 Missouri contested election case of Sullivan v Miller 
(Sec. 52.5, infra), the parties filed a joint application proposing 
that the House order the Missouri Board of Election Commissioners to 
conduct a recount. The Clerk's letter to the Speaker advised that the 
parties had submitted a joint letter and drafts of resolutions or

[[Page 985]]

dering the recount and extending time for taking testimony, together 
with depositions in support thereof. After further investigation, the 
election committee recommended in its report that the House should not 
intervene in the contest ``that has been initiated but not brought 
officially to the House . . . .'' During brief debate in the House, a 
Member stated that the effect of the committee's unanimous report would 
be to establish that jurisdiction could not be ``conferred on the House 
or any of its committees by any joint agreement of parties to an 
alleged election contest unofficially or otherwise submitted.''

Power Over Administration of Oath to Candidate in Election Contest

Sec. 4.2 The House, by resolution, may authorize the Speaker to 
    administer the oath of office to a Member-elect whose election is 
    in dispute, even though he does not possess a certificate of 
    election.

    In the 1933 Maine election contest of Brewster v Utterback 
(Sec. 47.2, infra), a Member objected to the oath being administered to 
Member-elect Utterback, who then stood aside while other Members-elect 
and Delegates-elect were sworn. The House then adopted a resolution 
authorizing the Speaker to administer the oath to Mr. Utterback even 
though the latter did not possess a certificate of election from his 
state.

Sec. 4.3 Where two persons claim the same seat in the House from the 
    same congressional district, the House may refuse to permit either 
    candidate to take the oath of office pending a determination of 
    their rights by the House.

    In the Kemp, Sanders investigation (Sec. 47.14, infra), arising 
from a special election held in Louisiana to fill the vacancy created 
by the death of Bolivar E. Kemp, the widow of Mr. Kemp claimed to be 
elected to the seat on the basis of an election held on Dec. 5, 1933, 
and the contestant claimed the seat on the basis of an election held on 
Dec. 27, 1933. Confronted with allegations that the Governor had 
personally selected the candidates and given unreasonable notice of the 
time, place, and manner of the election, the House declined to seat 
either party on the convening of the second session of the 73d Congress 
on Jan. 3, 1934. Ultimately, the House resolved, after investigation, 
that neither party had been validly elected and directed the Speaker to 
commu

[[Page 986]]

nicate the fact of the vacancy to the Governor of Louisiana.

Power of Summary Dismissal of Election Contest

Sec. 4.4 The House may dismiss an election contest, on the ground that 
    contestant is incompetent to initiate the proceeding, by adoption 
    of a resolution.

    In the 1941 Ohio election contest of Miller v Kirwan (Sec. 51.1, 
infra), the Majority Leader called up as privileged a resolution 
dismissing an election contest, which resolution the House adopted 
without debate and by voice vote. The resolution stated that the 
contestant who had been a candidate in the party primary, but not in 
the general election, was not a person competent to bring a contest for 
the seat.

Sec. 4.5 Election contests are ordinarily referred to a committee for 
    investigation and study; however, there have been instances in 
    which the House, acting without committee action and consideration, 
    has dismissed a contest.

    In Miller v Kirwan (Sec. 51.1, infra), a 1941 Ohio contest, the 
House dismissed an election contest which had not been referred to the 
Committee on House Administration; it appeared that contestant had not 
been a candidate in the general election he disputed, and was therefore 
incompetent to initiate the proceeding.

Notification to Governor of Vacancy

Sec. 4.6 The House authorized the Speaker to notify a Governor of the 
    existence of a vacancy, where neither party to a contest was found 
    to be validly elected.

    In the Kemp and Sanders investigation (Sec. 47.14), a committee on 
elections concluded that neither of two elections held to fill a 
vacancy in a Louisiana seat in the 73d Congress was vaIid. 
Subsequently, House Reso]ution 231 was called up as privileged and 
adopted by voice vote. The resolution set forth the conclusion of the 
committee and authorized the Speaker to notify the Governor of the 
existing vacancy.


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