[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[C. Grounds of Contest]
[Â§ 10. Violation of Federal or State Election Laws]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1003-1012]
 
                               CHAPTER 9
 
                           Election Contests
 
                         C. GROUNDS OF CONTEST
 
Sec. 10. Violation of Federal or State Election Laws

    Frequently alleged as a basis for an election contest are 
violations of state and federal laws relating to the conduct of such 
elections. Whether a challenge based on such grounds will be sufficient 
to overturn the result of the election depends in part on whether the 
candidate himself participated, whether the errors were committed by 
election officials, and whether the violations were of laws regarded as 
merely directory or mandatory.
    Until 1972, campaign practices in congressional elections were 
governed by the Corrupt Practices Act of 1925, as 
amended.(9) The Federal Election Campaign Act of 1971, which 
became effective 60 days after the date of enactment (Feb. 7, 1972), 
repealed the Corrupt Practices Act of 1925 and established a new and 
comprehensive code for campaign practices and 
expenditures.(10)
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 9. 2 USC Sec. Sec. 241-256 (repealed).
10. 2 USC Sec. Sec. 431 et seq.; Pub. L. No. 92-225; 86 Stat. 3, Feb. 
        7, 1972. Violations relating to campaign expenditures are also 
        treated in Ch. 8, supra.

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[[Page 1004]]

Corrupt Practices Act

Sec. 10.1 The violation of those provisions of the federal campaign 
    practices statute, or a state counterpart, which limit the amount 
    which a candidate may spend in his campaign, may be alleged as 
    grounds for an election contest.

    In Schafer v Wasielewski (Sec. 52.4, infra), a 1944 Wisconsin 
contest, contestant alleged that contestee had expended more money 
during his campaign than was permitted by the Federal Corrupt Practices 
Act and by the election laws of Wisconsin, and that contestee had 
failed to file correct reports of expenditures as required by law. The 
committee found, however, that although the Wisconsin statutes limited 
the amount of money which could be spent by a candidate personally, 
they placed no limitation upon expenditures of individuals or groups 
that ``might voluntarily interest themselves'' in behalf of a 
candidate. The committee determined that certain sums listed actually 
represented expenditures of a ``voluntary committee'' rather than 
expenditures of a personal campaign committee; accordingly, the 
committee found that such expenditures were not personal expenditures 
and thus not limited by state law.

Sec. 10.2 A House committee has suggested that censure by the House 
    might be appropriate where a Member has failed to comply with the 
    requirements of federal law as to the filing of forms and 
    statements showing campaign expenditures.

    In McCandless v King, a 1936 Hawaii contest, (Sec. 48.2, infra), a 
one-year delay in filing forms under the Corrupt Practices Act showing 
campaign expenditures was held to subject the contestee to censure, 
though not forfeiture of his seat. The finding of the committee was 
based on the fact that although contestee had failed to file within 30 
days a complete and itemized account of his expenditures, he did write 
a timely letter to the Clerk itemizing certain expenditures and stating 
that on his arrival in Washington he would fill out the required form.

Sec. 10.3 Mere negligence on the part of a contestee in preparing 
    expenditure accounts to be filed with the Clerk under the Federal 
    Corrupt Practices Act will not, in the

[[Page 1005]]

    absence of fraud, operate to deprive him of his seat where he has 
    received a substantial plurality of votes.

    In Schafer v Wasielewski (Sec. 52.4, infra), a 1944 Wisconsin 
contest, the contestant, who had been defeated in the election by 
approximately 17,000 votes, alleged inter alia that contestee had 
failed to file correct reports of expenditures as required by law. The 
committee found, however, that the contestee had negligently listed 
``voluntary committee'' expenditures as ``personal'' expenditures, 
though only the latter were limited by state law. The committee found 
no evidence of fraud, and concluded that it should not deprive 
contestee of his seat as a result of negligence in preparing the 
accounts.

Sec. 10.4 Mere negligence on the part of a contestee and his counsel in 
    preparing campaign expenditure accounts to be filed with the Clerk 
    is not sufficient to deprive him of his seat in the House, where he 
    received a substantial majority of votes, and there was no evidence 
    of fraud.

    In Thill v McMurray (Sec. 52.6, infra), a 1944 Wisconsin contest, 
contestee's statement of expenditures filed with state officials 
conflicted with those filed with the Clerk of the House. The Committee 
on Elections considered evidence that the statement filed with the 
Clerk had been erroneously prepared and signed. It admonished contestee 
for signing an expenditure statement under oath without being familiar 
with its contents or the irregularities therein, but refused to 
recommend that he be deprived of his seat.

Sec. 10.5 In determining whether contestee's failure to comply with the 
    Corrupt Practices Act should result in forfeiture of his seat, the 
    elections committee may consider such circumstances as the personal 
    character of the contestee, his experience as a candidate for 
    public office, the extent of any improper campaign expenditures, 
    and the effect of such violations on the rights of the contestant.

    See McClandless v King, a 1936 Hawaii contest (Sec. 48.2, infra), 
where the Committee on Elections, in determining whether a violation of 
the Corrupt Practices Act should result in censure or forfeiture of a 
seat, took into account contestee's naval record, his incomplete 
knowledge of election

[[Page 1006]]

laws and procedures, and the fact that the Clerk had not mailed the 
required forms to contestee.

Distinction Between Mandatory and Directory Laws

Sec. 10.6 An elections committee has distinguished between mandatory 
    and directory provisions of state law pertaining to elections.

    In the 1961 Indiana investigation of the right of Roush or Chambers 
to a seat in the House (Sec. 59.1, infra), the elections committee 
cited the Nebraska case of Waggoner v Russell, 34 Neb. 116, 51 N.W. 465 
(1892), which stated in part:

        In general, those statutory provisions which fix the day and 
    the place of the election and the qualifications of the voters are 
    substantial and mandatory, while those which relate to the mode of 
    procedure in the election, and to the record and the return of the 
    results, are formal and directory. Statutory provisions relating to 
    elections are not rendered mandatory, as to the people, by the 
    circumstance that the officers of the election are subjected to 
    criminal liability for their violation.

    The committee followed this guideline in determining whether 
certain Indiana provisions governing ballot validity and counting were 
mandatory or merely directory.

Sec. 10.7 Although violation of state laws governing the conduct of 
    election officials, absent fraud, is not sufficient ground for 
    invalidating ballots, statutes regulating the conduct of voters 
    must be substantially complied with, as such laws are mandatory.

    In the 1958 Maine contested election case of Oliver v Hale 
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, the 
committee followed a state supreme court advisory opinion that certain 
alleged violations of the provisions of the law touching upon procedure 
to be followed in handling and preserving of applications and envelopes 
of absentee votes by election officials were to be viewed as directory 
rather than mandatory. On the other hand, the committee cited state 
court decisions which distinguished between acts of the voter and acts 
of the election officials, and which required the voter to 
substantially comply with the statute in order for his vote to be 
considered as properly cast. Therefore, the committee rejected 109 
absentee and physical disability ballots.

Sec. 10.8 An elections committee has adopted a state court opinion 
    which had construed state laws regarding poll procedure and 
    disposition of absentee ballots, envelopes, and

[[Page 1007]]

    applications as directory rather than mandatory, violations of 
    which would not invalidate the absentee ballots cast.

    In the 1958 Maine contested election case of Oliver v Hale 
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, there 
were a number of alleged violations by election officials relative to 
absentee voting, such as failure of the board of registration to retain 
the application or envelope, or failure of various clerks to send in 
the application and envelopes along with the absentee ballots. In this 
situation, the committee followed an advisory opinion of the Supreme 
Court of Maine, issued under similar circumstances, which concluded 
that provisions of the statute touching the procedure to be employed at 
the polls and the disposition of applications and envelopes following 
the election were directory and not mandatory in nature. Hence, the 
committee followed the advisory opinion that violation of the statute 
by election officials, in the absence of fraud, was not a sufficient 
ground for invalidating the ballots.

Sec. 10.9 Where a state law required alternation of names on ballots 
    and publication and display of ballots for a certain period prior 
    to an election, the majority of an elections committee ruled that a 
    violation of the statute was deemed to be a pre-election 
    irregularity and, absent fraud, insufficient to overturn the 
    election.

    In the 1951 Ohio contested election case of Huber v Ayres 
(Sec. 56.1, infra), although conceding that there had been 
discrimination against the contestant because his name had not appeared 
``substantially an equal number of times at the beginning, at the end, 
and in each intermediate place . . .'' (11) in the group of 
contestants among which his name belonged, the committee majority 
nevertheless refused to recommend that the election results be 
overturned, partly because the contestant had not exhausted his 
remedies under state law. The minority disagreed with the conclusion, 
contending that it was impossible for the contestant to ascertain the 
unequal method of rotation in advance of the election in time to invoke 
state law remedies. Nevertheless, the House agreed to a resolution that 
the contestee was duly elected and entitled to his seat.
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11. Ohio Constitution, art. V,  Sec. 2a, adopted Nov. 8, 1949.
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Sec. 10.10 Mandatory election laws confer rights of suffrage

[[Page 1008]]

    and by their terms invalidate ballots not cast in compliance 
    therewith, while directory election laws prescribe procedures to be 
    followed by election officials, departure from which will not 
    vitiate ballots without a further showing of fraud or uncertainty 
    of result.

    In Chandler v Burnham, a 1934 California contest (Sec. 47.4, 
infra), contestant alleged various instances of illegal ballot 
counting, invalid election boards, unattested tally sheets, and 
irregular ballots. In evaluating these charges, the Committee on 
Elections considered the distinction between ``mandatory'' laws, which 
void an election unless certain procedures are followed, and 
``directory'' statutes, which fix penalties for violation of procedural 
safeguards, but do not invalidate an election in the event of 
noncompliance. The committee further declared that the rules prescribed 
by law for conducting an election are designed to afford an opportunity 
for the free and fair exercise of the elective franchise, to prevent 
illegal voting, and to ascertain with certainty the result. A departure 
from the mode prescribed will not vitiate an election, the committee 
stated, if the irregularities do not involve these considerations. The 
committee concluded that contestant had alleged violations of statutes 
that were merely ``directory'' in nature.

Sec. 10.11 Noncompliance with administrative requirements imposed by 
    state election laws will not vitiate an election unless the 
    procedures involved are declared by law to be essential to the 
    validity of the election.

    In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the 
Committee on Elections found that certain administrative requirements 
imposed by state law, including the keeping of precinct registration 
books, were not declared by law to be essential to the validity of the 
election; the committee regarded such requirements as merely directory, 
not mandatory, and refused to disturb what it considered the certain 
decision of the electorate.

Sec. 10.12 Violations of a state's registration and election laws 
    prohibiting transportation of voters to places of registration, 
    providing qualifications for registrars, confining registration to 
    certain hours, and requiring detailed registration lists were held 
    not to affect the correct result of the election, and

[[Page 1009]]

    therefore did not nullify the election.

    In Wilson v Granger (Sec. 54.5, infra), a 1948 Utah contest, a 
contestee with a 104-vote majority prevailed despite ``numerous and 
widespread errors and irregularities in many parts of the district, 
which revealed a lack of knowledge of the law and a failure to enforce 
properly the registration and election statutes by those charged with 
that duty.''

Violations and Errors by Officials

Sec. 10.13 In determining whether the violation of election laws by 
    election officials will justify a recount or nullify the election, 
    the House will look to the sufficiency of the evidence of legal 
    fraud or intentional corruptness.

    In Brewster v Utterback (Sec. 47.2, infra), a 1933 Maine contest, 
it appeared that in certain precincts irregularities occurred in the 
election procedure in the Third Congressional District of Maine. The 
committee found that, even assuming the validity of contestant's 
allegations as to voting booth and ballot irregularities, contestee was 
left with a clear majority. The committee further found that there was 
insufficient evidence of fraud or corruption to justify a recount of 
ballots or to sustain the contestant's allegations.

Sec. 10.14 Ballots will not be voided for failure of election officials 
    to be sworn, their acts under color of office being binding as to 
    election returns that are otherwise proper.

    In Chandler v Burnham, a 1934 California contest (Sec. 47.4, 
infra), a committee on elections rejected contestant's claims that 
ballots in certain precincts should be voided because certain election 
officials had not been sworn. The committee found that all such 
officials, with the exception of inspectors, had in fact subscribed to 
the required oath, and added that, in any event, an election will not 
be invalidated based on such failure, the acts of election officials 
under color of office being binding.

Sec. 10.15 Where there have been violations of state laws (governing 
    absentee voting) by election officials throughout the district, the 
    results of the election will not be overturned when the contestant 
    has failed to exhaust his state remedies to prevent improper 
    absentee ballots from being cast or to punish those responsible.

[[Page 1010]]

    In the 1957 Iowa contested election of Carter v LeCompte 
(Sec. 57.1, infra), the election committee majority found that there 
had been widespread violations by election officials of state laws 
regarding absentee voting, but as contestant had not proven fraud by 
contestee and had not challenged absentee ballots under state law, he 
had not sustained his burden of proving that the election result was 
changed. Therefore, the results of the election could not be 
``overturned because of some pre-election irregularity.''

Sec. 10.16 In the absence of fraud, charges of irregularities as to 
    registration and the failure of election officials to assign ballot 
    numbers to electors will not invalidate the votes cast.

    In the New York contested election of Macy v Greenwood (Sec. 56.4, 
infra), arising from the 1950 election, the contestee won by a 
plurality of only 135 votes, which induced the contestant to allege 
violations as to voter registration procedures. However, the House 
agreed to a resolution dismissing the contest and declaring the 
contestee entitled to his seat.

Improperly Conducted Special Elections

Sec. 10.17 Where a Governor's proclamation fails to give proper notice, 
    as required by state law, of a special election called to fill a 
    vacancy in the House, the House may conclude that the election was 
    invalid.

    The 1934 Kemp, Sanders investigation (Sec. 47.14, infra), arose 
from the death of Bolivar E. Kemp, which created a vacancy in the Sixth 
Congressional District of Louisiana. The Governor of Louisiana issued a 
proclamation calling for a special election to fill this vacancy within 
eight days, although state law required that primary elections to 
nominate candidates for special elections be held ``not less than 10 
days'' after the call for such special election. The Committee on 
Elections concluded that the Governor, in his proclamation, was 
required to give 10 days notice of the special election, and his 
failure to do so rendered it invalid.(12)
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12. The subject of elections to fill vacancies is discussed extensively 
        in Ch. 8, supra.
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Sec. 10.18 An election to fill a vacancy in Congress, conducted by a 
    ``Citizens' Committee,'' is invalid where state law does not 
    provide for such a procedure.

    In the Kemp, Sanders investigation (Sec. 47.14, infra), a special 
elec

[[Page 1011]]

tion was called by the Governor of Louisiana to fill the vacancy 
created by the death of Bolivar E. Kemp, from the Sixth Congressional 
District of Louisiana. One of the candidates was J. Y. Sanders, and a 
certificate of his election, prepared by the ``Citizens' Election 
Committee'' of the Sixth Congressional District was laid before the 
House. This committee had met in the district and fixed the date for 
the ``election'' 30 days after the meeting. This election was found to 
be illegal and void, there being no provision under the laws of 
Louisiana for the holding of such an election.

Improperly Conducted Primary Elections

Sec. 10.19 Where state law requires the nomination of candidates by 
    direct primary elections called by party committees, the nomination 
    of a candidate by a committee is illegal and void.

    In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra), 
arising from a Louisiana special election, it was shown that state law 
required that candidates be nominated in a primary election called by a 
political party committee. Since the contestant was nominated, not by a 
direct primary election but by the party committee itself, his 
``election'' was found to be void.

Illegal Use of Funds

Sec. 10.20 The illegal use of campaign funds may be alleged as a basis 
    for an election contest.

    In Lovette v Reece, a 1934 Tennessee contest (Sec. 47.11, infra), 
contestant alleged the illegal use of funds to influence the election; 
it was contended that contestee's brother had collected large sums of 
money to finance contestee's election. However, the committee found 
that such claims were associated more closely with the race for 
Governor and involved transactions occurring after the election not 
connected with contestee.

Illegal Nominating Procedure

Sec. 10.21 Alleged violations of state law with respect to the 
    nomination of a candidate cannot sustain a contest brought by a 
    losing primary candidate against the contestee, who was elected in 
    the subsequent general election.

    In Lowe v Thompson (Sec. 62.1, infra), a committee on elections 
denied a petition based on alleged illegality in the nomination of the 
candidate of petitioner's party,

[[Page 1012]]

where the opponent of such party nominee won the subsequent general 
election.