[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[B. Jurisdiction and Powers]
[Â§ 6. The Clerk; Transmittal of Papers]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 992-997]
 
                               CHAPTER 9
 
                           Election Contests
 
                       B. JURISDICTION AND POWERS
 
Sec. 6. The Clerk; Transmittal of Papers

    Under the modern practice, all papers filed with the Clerk pursuant 
to the Federal Contested Elections Act are to be promptly transmitted 
by him to the Committee on House Administration.(20) By 
long-standing practice, testimony taken by deposition in an election 
contest is transmitted to the Clerk.(21)
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20. 2 USC Sec. 393(b).
21. 1 Hinds' Precedents Sec. Sec. 703, 705.
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    Under the prior contested elections statute, the Clerk trans

[[Page 993]]

mitted the original notice of contest, answer, and testimony directly 
to the committee (pursuant to 2 USC Sec. 223), but other special 
motions and papers filed with the Clerk by either party were forwarded 
to the Speaker for reference by him to the committee, as reflected in 
the precedents which 
follow.                          -------------------

Items Transmitted by Clerk to Speaker

Sec. 6.1 Prior to 1969, among the documents that were communicated to 
    the Speaker for reference to an elections committee was a 
    communication to the Clerk from a contestee raising the question as 
    to whether contestant was barred from proceeding further because of 
    a failure to comply with some provision of the Federal Contested 
    Elections Act.

    In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the 
contestee sought to bar contestant from further proceeding under the 
statute because of a failure to forward certain testimony to the Clerk 
within the time required by law. The contestee's letter to this effect 
was transmitted to the Speaker for referral.

Sec. 6.2 In the event that certificates of election are submitted by 
    both parties to a contest, they are included with the communication 
    from the Clerk to the Speaker.

    In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra), the 
Clerk transmitted a certificate of election of Mrs. Bolivar E. Kemp, 
Sr., signed by the Governor of Louisiana and attested by the secretary 
of the State of Louisiana, along with a certificate of election of J. 
Y. Sanders, which certificate was prepared by the ``Citizens' Election 
Committee of the Sixth Congressional District.'' Ultimately, the House 
determined that neither party had been validly elected.

Sec. 6.3 Among the papers which prior to 1969 the Clerk transmitted to 
    the Speaker for reference to an elections committee was a 
    contestant's application for extension of time for taking 
    testimony.

    In the 1943 Illinois election contest of Moreland v Schuetz 
(Sec. 52.3, infra), the Speaker laid before the House a letter from the 
Clerk conveying a request by the contestant for an extension of time 
because the time and facilities of the responsible election officials 
were

[[Page 994]]

then being totally consumed in preparation for local elections. By 
resolution, the House extended the time for taking testimony by 65 
days.

Sec. 6.4 The Clerk's letter transmitting a contest has been ordered 
    printed by the Speaker to include copies of the contestant's notice 
    of the contest, contestee's answer thereto, contestee's two motions 
    to dismiss the contest, and contestant's memorandum in explanation 
    of his failure to take testimony within the time prescribed by law 
    and of his discontinuance of further action in the matter.

    In the 1951 Missouri contested election case of Karst v Curtis 
(Sec. 56.2, infra), the contestant brought the contest on the advice of 
his county party committee, based on allegations of improper tallying 
of ballots in a local election held simultaneously with his own. When 
the recount failed to disclose the discrepancies, the contestant 
notified the House of his decision to discontinue action, which the 
Speaker ordered printed as a House document and referred to the 
Committee on House Administration along with the other documents 
received by the Clerk. The other documents included: (1) contestant's 
notice of contest; (2) contestee's answer; (3) contestee's motion to 
dismiss for failure of contestant to take testimony within 40 days 
after service of answer; (4) a memorandum from contestant explaining 
his failure to take testimony during the 40 days; and (5) contestee's 
renewed motion to dismiss for failure of contestant to take testimony 
during the 90-day statutory period.

Sec. 6.5 A communication from the Clerk transmitting a memorial 
    challenging the right of a Member-elect to a seat was referred to a 
    committee on elections but not printed as a House document

    In the 1933 investigation of the citizenship qualifications of a 
Member-elect from Pennsylvania, In re Ellenbogen (Sec. 47.5, infra), 
the Clerk transmitted to the Speaker a letter containing a memorial and 
accompanying papers filed by Harry A. Estep, a former Member, 
challenging the citizenship qualifications of the Member-elect. The 
communication and accompanying papers were referred to the Committee on 
Elections, but not ordered printed.

Sec. 6.6 In his letter of transmittal to the Speaker rel

[[Page 995]]

    ative to an election contest, the Clerk may point out that he does 
    not regard the contestant as competent to bring the contest under 
    the statutes governing such proceedings.

    See In re Plunkett (Sec. 53.2, infra), a 1945 dispute, in which the 
Clerk expressed his belief that an individual who was attempting to 
contest the election of 79 Members from various states had not been a 
party to any of the elections and was therefore incompetent to initiate 
such a contest.

Sec. 6.7 In his letter of transmittal to the Speaker, the Clerk may 
    point out that neither party had taken testimony during the time 
    prescribed by law and that the contest appears to have abated.

    In Roberts v Douglas (Sec. 54.4, infra), a 1947 California contest, 
the Clerk's letter, together with copies of the contestant's notice of 
contest and contestee's motion to dismiss and a letter from her 
attorney in support thereof, were referred by the Speaker to the 
Committee on House Administration. The Clerk's letter noted that 
testimony had not been timely taken and that the contest appeared to 
have abated. The House subsequently agreed to dismiss the contest on a 
voice vote and without debate.

Sec. 6.8 The Clerk may include the contestee's answer, though filed for 
    information only, in a letter transmitted to the Speaker stating 
    the Clerk's opinion that the contest has abated.

    In Browner v Cunningham, a 1949 Iowa contested election case 
(Sec. 55.1, infra), the contestee's answer was transmitted by the Clerk 
to the Speaker along with the Clerk's letter relating that no testimony 
had been received and the opinion of the Clerk that the contest had 
abated.

Sec. 6.9 Where the Clerk receives an application for an extension of 
    time for taking testimony, he communicates that fact to the Speaker 
    together with accompanying papers, which the Speaker then refers to 
    an appropriate committee.

    In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest, 
an application for an extension of time for taking testimony, although 
filed before the contest had been formally presented to the House, was 
communicated by the Clerk to the Speaker together

[[Page 996]]

with accompanying papers, which the Speaker referred to a committee and 
ordered printed.

Sec. 6.10 In communicating with the Speaker relative to an apparent 
    election contest and papers pertaining thereto, the Clerk may rely 
    on ``unofficial knowledge.'' And the Speaker may refer such 
    communication and accompanying papers to a committee on elections.

    In Reese v Ellzey (Sec. 47.13, infra), a 1934 Mississippi contest, 
the Speaker laid before the House a letter from the Clerk transmitting 
his ``unofficial knowledge'' of the contest, together with contestant's 
letter of withdrawal therefrom. The Clerk's letter and accompanying 
papers were referred to a committee on elections and ordered printed.

Sec. 6.11 The Clerk's letter transmitting a notice of contest to the 
    Speaker may disclose that the contestee has not filed a brief in 
    support of his position within the time prescribed by law.

    In the 1947 Georgia election contest of Mankin v Davis (Sec. 54.2, 
infra), the Clerk's letter, which the Speaker ordered printed as a 
House document, stated that the contestant had complied with the 
requirements to forward his brief to the contestee and file notice 
within 30 days, but that the contestee had not submitted his brief in 
answer within the requisite time.

Sec. 6.12 In the Clerk's letter of transmittal, he may include the 
    information that contestant has not forwarded testimony to his 
    office in the manner prescribed by law.

    In Hicks v Dondero (Sec. 53.1, infra), a 1945 Michigan contest, the 
Clerk's letter of transmittal to the House related that he had received 
packets of material which had not been addressed to the Clerk, or 
prepared in the manner required by law. The Clerk's letter further 
stated that since the proper statutory procedure had not been followed, 
he was transmitting all of the material received to the House for its 
disposition.

Production of Documents Under Subpena

Sec. 6.13 The Clerk has refused to comply with a subpena duces tecum 
    served upon him by a contestant's notary public requesting 
    production of documents filed by the contestee.

    In the 1934 Illinois contested election case of Weber v Simpson

[[Page 997]]

(Sec. 47.16, infra), the contestant's notary public served a subpena 
duces tecum upon the Clerk, who refused to comply with it without 
permission of the House. The subpena requested production of documents 
filed by the contestee in the dispute. The subpena and accompanying 
papers were referred to the Committee on the Judiciary and ordered 
printed. The 73d Congress did not authorize the Clerk to respond to the 
subpena.


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