[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[F. Notice of Contest]
[Â§ 20. Generally; Time]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1030-1032]
 
                               CHAPTER 9
 
                           Election Contests
 
                          F. NOTICE OF CONTEST
 
Sec. 20. Generally; Time


    Under the Federal Contested Elections Act, a defeated candidate has 
30 days in which to initiate a contest; that is, the notice of contest 
must be filed within 30 days after the result of the election has been 
declared by the properly authorized officer or Board of 
Canvassers.(8)
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 8. 2 USC Sec. 382(a).                          -------------------
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Necessity of Filing Notice of Contest

Sec. 20.1 An election dispute that is not instituted by notice of 
    contest as required by law is subject to dismissal.

    In the 1934 disposition of the Michigan contested election of 
Bowles v Dingell (Sec. 47.1, infra), the summary report of the 
Committee on Elections related that ``there was no notice of contest 
ever filed in said matter, as provided by law.'' The contest was 
dismissed. The report accompanied a resolution, which was adopted by 
the House by voice vote and without debate, providing that the 
contestant was not entitled to a seat and that the contestee was 
entitled to a seat in the House.

Notice of Contest Filed Late

Sec. 20.2 The House may, by resolution, permit a contestant to initiate 
    a contest within a certain period of time notwithstanding the 
    expiration of the time permitted by law for the filing of such a 
    contest.

    In Brewster v Utterback (Sec. 47.2, infra), a 1933 Maine contest, 
the House, by resolution, authorized the Speaker to administer the oath 
of office to the Member-elect from Maine, and permitted contestant 
Brewster to contest the seat under the contested elections law 
notwithstanding the expiration of the time fixed for bringing such 
contests, provided such contest would be filed within 60 days.

Sec. 20.3 An elections committee may consider testimony taken pursuant 
    to an amended notice of contest, though such notice was not filed 
    until after the time permitted by law.

    In Lovette v Reece (Sec. 47.11, infra), a 1934 Tennessee contest, 
contestant filed timely notice of contest on Dec. 17, 1932, to which 
contestee filed timely answer and motion to dismiss on Jan. 15, 1933. 
Then, in April of 1933, con

[[Page 1031]]

testant filed an amended and supplemental notice of contest. Although 
the notice was not filed until after the time prescribed by law for the 
filing of notice of contest, the committee granted contestant's request 
that testimony of certain witnesses, taken pursuant to such notice, be 
printed. The committee found that such evidence failed to support the 
charges.

Sec. 20.4 A motion to dismiss an election contest may be brought on the 
    grounds that contestant failed to file notice of contest within the 
    30-day period required by law.

    In McClandless v King (Sec. 48.2, infra), a 1936 Hawaii contest, 
contestee moved to dismiss the contest as not having been timely 
commenced, in that notice of contest was not filed within 30 days after 
the result of the election had been determined by the official 
authorized to do so. The Governor of the Territory of Hawaii issued a 
certificate of election on Nov. 10, 1934. Subsequently, on Nov. 27, 
1934, the secretary of the territory canvassed the vote and issued 
certification thereof. Contestant's notice of contest was filed on Dec. 
15, 1934. The general election laws of the Territory of Hawaii in 
effect at the time of the election provided that the secretary was to 
declare and certify all election results. Accordingly, the committee 
reported that the certificate issued by the Governor was without legal 
effect, and the proper certification was that issued by the secretary, 
and that the contestant had therefore filed his notice of contest 
within the 30-day period. Contestee's motion to dismiss was denied.

Commencement of Statutory 30-day Period

Sec. 20.5 The statutory requirement that the contestant file notice of 
    contest within 30 days after the result of such election shall have 
    been determined has been construed to run from the actual issuance 
    of a certificate of election to the contestee, and not from the 
    date of an official canvass of votes under state law.

    In the Maine election contest of Oliver v Hale (Sec. 57.3, infra), 
arising from the Sept. 10, 1956, election, the contestee claimed in his 
answer that the contestant's notice of contest, which notice had been 
filed on Jan. 2, 1957, was not timely as it was not ``within 30 days 
after the result of such election shall have been determined . . .'' as 
required by 2 USC

[[Page 1032]]

Sec. 201.(9) In deciding against the contestee's claim that 
the determination date should have been considered as Sept. 26, 1956, 
the date of the official canvass, the committee ruled that there was no 
determination under the federal statute until the actual issuance of 
the certificate to the contestee on Dec. 5, 1956.
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 9. Under the Contested Elections Act of 1969, this section is now 2 
        USC Sec. 382(a).
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