[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[D. Defenses]
[Â§ 13. Generally]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1016-1020]
 
                               CHAPTER 9
 
                           Election Contests
 
                              D. DEFENSES
 
Sec. 13. Generally


    Under the new Federal Contested Elections Act (2 USC Sec. Sec. 381-
396), the contestee may, prior to answering the contestant's notice of 
contest, make the following defenses by motion served on the contestant 
and such motions may form the basis of a motion to dismiss made before 
the Committee on House Administration: insufficiency of service of 
notice of contest; lack of standing of the contestant; failure of the 
notice of contest to state grounds sufficient to change the result of 
the election; and failure of the contestant to claim right to the 
contestee's seat [see 2 USC Sec. 383(b)]. These statutory defenses are 
supplemental to those described in the precedents below.

[[Page 1017]]

Permissible Defenses to Election Contests

Sec. 13.1 Among the defenses which may be raised as grounds for 
    dismissing an election contest are that contestant has failed to 
    make out a prima facie case, did not file the contest in good 
    faith, has failed to exhaust available legal remedies at the state 
    level, or that contestant was not a proper party

    In McEvoy v Peterson (Sec. 52.2, infra), a 1944 Georgia contest, 
the House dismissed an election contest as recommended by the unanimous 
committee report, where it appeared that contestant's name had not 
appeared on any ballots and he had not received any votes, that 
contestant had failed to exhaust available legal remedies, had not 
filed the election contest in good faith, and had failed to make out a 
prima facie case.

Candidate's Participation in irregularities

Sec. 13.2 The mere existence of an irregularity in any campaign should 
    not be attributed to a particular candidate where he did not 
    participate in such irregularity.

    In the 1959 Arkansas investigation of the right of Dale Alford to a 
seat in the House (Sec. 58.1, infra), the election committee condemned 
the use of an unsigned pre-election circular by an individual who had 
distributed information in Mr. Alford's behalf, apparently without the 
candidate's knowledge. The committee ruled, however, that the mere 
existence of an irregularity in any campaign should not be attributed 
to a particular candidate where he did not participate therein. The 
House agreed to a resolution that Mr. Alford was entitled to his seat.

Alleged Error Insufficient to Change Result

Sec. 13.3 Where more ballots were cast than there were names listed on 
    the polls, an elections committee may still recommend dismissal of 
    the contest if the errors were inadvertent and insufficient to 
    change the result even if all the excess ballots were added to the 
    contestant's total.

    In the 1965 Iowa election contest of Peterson v Gross (Sec. 61.3, 
infra), the election committee found that although there may have been 
human errors committed at the polls on election day there was no 
evidence of fraud or

[[Page 1018]]

willful misconduct. In regard to a specific allegation by the 
contestant that more ballots were cast than names listed on the polls, 
the committee concluded that some inadvertent errors had been made but 
the errors were insufficient to change the result even if all the 
excess ballots were added to the total of the contestant.

Failure to Exhaust State Remedy

Sec. 13.4 In rejecting contestant's demand for a recount of a vote by 
    the House, an elections committee may take into consideration 
    contestant's failure to exhaust his remedy of obtaining a recount 
    through a state court.

    In Swanson v Harrington (Sec. 50.4, infra), a 1940 Iowa contest, 
contestant claimed that the House should require a recount, citing an 
informal recount he had taken in connection with an election involving 
a local sheriff's office. The committee found that contestant had not 
exhausted his remedy of obtaining a recount through the state courts, 
as permitted by the Iowa code, and rejected his argument that he had 
been precluded from invoking state court aid inasmuch as the state 
courts had not construed the relevant state election law as it applied 
to a seat in the House. [Compare Sec. 5.13, supra.]

Sec. 13.5 Where the contestee did not participate in widespread 
    violations of state laws governing absentee voting, which 
    violations had been committed by election officials, and contestant 
    had not exhausted his state remedies to prevent improper absentee 
    ballots from being cast or to punish those responsible, the 
    election committee would not overturn the results of the election.

    In the 1957 Iowa election contest of Carter v LeCompte (Sec. 57.1, 
infra), the committee majority found violations of state laws governing 
absentee ballots committed by officials throughout the district, but 
determined that the contestant had not proven fraud by the contestee 
and had not challenged absentee ballots under state law, with the 
result that he had not sustained his burden of proving that the 
election results would have been different. The minority on the 
committee cited the contest of Steel v Scott (6 Cannon's Precedents 
Sec. 146), for the proposition that total disregard of election laws by 
election officials, though in the absence of fraud, was sufficient 
basis for a

[[Page 1019]]

recount, which in this contest would have shown contestant Carter the 
winner by 1,260 votes.

Pre-election Irregularity

Sec. 13.6 Results of an election will not be overturned on the basis of 
    a pre-election irregularity, where the contestant could have made 
    timely objection thereto, under state law, but failed to do so.

    In the 1957 Iowa election contest of Carter v LeCompte (Sec. 57.1, 
infra), the election committee majority found that there were 
violations of state laws governing absentee voting committed by 
election officials throughout the district, although the contestee had 
not personally participated in these violations. The majority 
determined that the contestant had not shown that he had exhausted his 
state remedies to prevent improper absentee ballots from being cast or 
to punish those responsible. Citing Huber v Ayres (Sec. 56.1, infra), a 
1951 Ohio contest, the majority determined also that the contestant had 
not properly entered his objections to errors as to the form of the 
absentee ballots prior to the election, as permitted by Iowa law, and 
that therefore the results of the election could not be ``overturned 
because of some pre-election irregularity.''

Sec. 13.7 Where contestant had not properly entered objections to 
    errors in the form of the absentee ballot prior to the election, as 
    permitted by state law, the results of the election could not be 
    ``overturned because of some preelection irregularity'' (see 
    Sec. 13.6, supra).

Failure to Specify Grounds Relied Upon by Contestant

Sec. 13.8 The contestant must specify particularly the grounds upon 
    which he relies in an election contest.

    In Roberts v Douglas (Sec. 54.4, infra), a 1947 California contest, 
contestee Helen Gahagan Douglas moved to dismiss on the grounds (1) 
that the contestant had not instituted a valid contest, as the statute 
then in force (2 USC Sec. 201) and House precedents required him to 
specify the grounds upon which he relied in the contest and (2) 
contestant had taken no testimony within the 90 days permitted to 
support his notice of contest. By voice vote, the House resolved that 
the contest be dismissed and the contestee take her seat.

[[Page 1020]]

                          -------------------