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


[Page 997-1000]
 
                               CHAPTER 9
 
                           Election Contests
 
                       B. JURISDICTION AND POWERS
 
Sec. 7. The Courts

    Although the House is the final judge of the elections of its 
Members, candidates are frequently subjected to actions in state and 
federal courts for violations of laws regulating campaign practices, an 
area which Congress has largely left to the states. Beyond the scope of 
this chapter are injunctions against the issuance of election 
certificates (22) and suits by individuals such as those 
arising from violations of the 1965 Voting Rights Act, 42 USC 
Sec. Sec. 1971 et seq., and court-ordered congressional 
redistricting.(1)
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22. See Ch. 8 Sec. 16.4, supra, for discussion of an instance wherein a 
        state court had issued a preliminary injunction against the 
        issuance of a certificate to a Member-elect, and the House 
        referred the question of his right to be seated to a committee.
 1. See Wesberry v Sanders, 376 U.S. 1 (1963) and kindred cases such as 
        Gray v Sanders, 372 U.S. 368 (1963) which invalidated the use 
        of the ``county unit'' system of selecting party candidates. 
        Generally, see Ch. 8, supra.
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    This section takes up precedents involving (1) the necessity to 
appeal to state courts before the election to cure pre-election 
irregularities;(2) (2) the acceptance of advisory opinions 
from state courts on the laws of that state; (3) and (3) the 
binding effect of local court determinations.(4)
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 2. Sec. 7.1, infra.
 3. Sec. 7.3, infra.
 4. Sec. 7.4, infra.
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    The House has stated that local magistrates lack authority to break 
open ballot boxes.(5)
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 5. Sec. 7.7, infra. The jurisdiction of the courts over the election 
        of Members is more fully discussed in Ch. 8, 
        supra.                          -------------------
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Appeal to State Court Regarding Pre-election Irregularities

Sec. 7.1 A contestant must exhaust state law remedies by protesting 
    pre-election irregularities to the state board of election, with 
    appeal to the state courts, prior to the election, in order to 
    overturn the results of that election on the basis of the pre-
    election irregularity.

[[Page 998]]

    In the 1951 Ohio contested election case of Huber v Ayres 
(Sec. 56.1, infra), the majority of the committee recommended dismissal 
of a contest on the basis that the contestant had failed to exhaust his 
state remedies first. The majority also suggested that discrimination 
against the contestant may have been due to the failure of the Ohio 
legislature to implement a constitutional provision calling for an 
equal rotation of the candidates' names in the different positions on 
the ballots. Although the minority disagreed with the majority 
conclusion, and further argued that the contestant had not been 
afforded a fair chance to discover the error before the election in 
order to take appropriate action, the House nevertheless approved a 
resolution dismissing the contest and seating the contestee.

Sec. 7.2 Contestant did not have to seek recourse to the highest state 
    court to show that the Iowa election laws did not permit him a 
    recount under state law.

    In the 1957 Iowa contested election case of Carter v LeCompte 
(Sec. 57.1, infra), the elections committee expressly overruled the 
view of the committee in the 1940 election contest of Swanson v 
Harrington (Sec. 50.4, infra), in which the contestant had been 
required to seek recourse to the highest state court in order to show 
that the Iowa election laws did not permit him to seek a recount. The 
committee adopted the opinion of the state attorney general as 
expressed in a letter to the Governor and secretary of state.

Advisory Opinions by State Courts

Sec. 7.3 A state supreme court, empowered to issue advisory opinions, 
    advised a state Governor to issue a certificate of election to a 
    contestee, based on the official canvass of votes, and that he had 
    no authority to determine the validity of disputed ballots counted 
    in that canvass.

    In the 1958 Maine contested election case of Oliver v Hale 
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, a 
recount was conducted as permitted by state law with representatives 
present from the ``Special Committee to Investigate Campaign 
Expenditures of the House of Representatives.'' The contestee requested 
that a certificate of election be issued to him, to which request the 
contestant objected. The Governor declined to issue such certificate 
pending receipt of an

[[Page 999]]

advisory opinion from the Supreme Court of Maine. The supreme court 
advised that the Governor had no authority to determine the validity of 
disputed ballots, and that he should issue a certificate based on the 
official canvass of votes. Accordingly, the Governor and council issued 
the certificate of election to the contestee on Dec. 5, 1956.

Local Court Determinations as Controlling

Sec. 7.4 Where state law required county residence for a certain length 
    of time as a qualification for registration, and no challenge of 
    voters was made at the time of such registration or at the time of 
    voting, a local court interpretation as to when residency commenced 
    to run was regarded by the House elections committee as 
    controlling.

    In the 1951 New York contested election case of Macy v Greenwood 
(Sec. 56.4, infra), the contestee had received a plurality of only 135 
votes over the contestant, who argued that 932 voters were not 
qualified as to residence for the reason that they had not satisfied 
the four-month county residency requirement under state law. According 
to the contestant, such period should have begun when a voter actually 
moved into the district rather than on the date of signing a contract 
to purchase a house therein. The House committee, however, found that 
the local board of elections had relied, in their interpretation of the 
requirement, on a county court decision to the effect that the date of 
signing any such contract was determinative.
    In expressing the view that the votes had been fairly tabulated, 
the committee found that no challenges were made under provisions of 
New York law which permitted challenging of voters at the time of 
registration and voting. Furthermore, the committee report stated that 
no instance could be found in which the House had rejected votes as 
illegal for the reason that the voter had not resided in the county for 
the statutory period of time. In recommending adoption of a resolution 
seating the contestee, the committee also noted that, ``Had it found 
the votes illegally cast, the votes presumably would be deducted 
proportionally from both candidates, according to the entire vote 
returned for each.''
    The contest was subsequently dismissed by the House.

Sec. 7.5 A committee on elections stated that it was not bound

[[Page 1000]]

    by the actions of a state court in supervising a recount; but the 
    committee denied contestant's motion to suppress testimony obtained 
    at a state inquiry, where the contestant had initiated the state 
    recount procedure and would be estopped from offering rebuttal 
    testimony as to the result of the recount.

    In Kent v Coyle (Sec. 46.1, infra), a partial recount was conducted 
by a state court pursuant to state law; but a committee on elections 
held that contestant had failed to sustain the burden of proof of fraud 
where a discrepancy between the official returns and the partial 
recount was inconclusive.

Interpretation of Law Governing Nominations

Sec. 7.6 A committee on elections adopted a state court decision on the 
    legality of the nomination of a party candidate, where petitioner, 
    who had unsuccessfully sought such nomination for himself, filed a 
    petition in the House against the candidate who had subsequently 
    defeated the nominee in the general election.

    In Lowe v Thompson (Sec. 62.1, infra), a contest was dismissed and 
a petition denied where a state court suit challenging the alleged 
irregular nomination of the candidate opposing contestee had been 
dismissed.

Magistrates Lack Authority To Open Ballot Boxes

Sec. 7.7 A magistrate taking testimony in an election contest is not a 
    person or tribunal authorized to try the merits of the contest and 
    has no authority to order ballot boxes to be broken open.

    In the 1949 Michigan contested election case of Stevens v Blackney 
(Sec. 55.3, infra), the committee majority cited early cases in the 
report quoting the ``accepted uniform rule'' that a magistrate taking 
testimony ``was not a person or a tribunal authorized to try the merits 
of the election [contest] and had no authority under the law of 
Pennsylvania or of Congress to order those boxes to be broken open.''

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