[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[G. Pleading]
[Â§ 25. Motion to Dismiss]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1038-1040]
 
                               CHAPTER 9
 
                           Election Contests
 
                              G. PLEADING
 
Sec. 25. Motion to Dismiss

    Today, a failure of the contestant to allege grounds for an 
election contest is raised by motion to dismiss.(9) Under 
the new statute, the burden of proof is upon contestant in the first 
instance to present sufficient evidence, even prior to the formal 
submission of testimony under the statute, to overcome the motion to 
dismiss,(10) since exhaustive hearings and investigations 
should be avoided where contestant cannot make a prima facie case.
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 9. 2 USC Sec. 383(b)(3).
10. See Tunno v Veysey, discussed in Sec. Sec. 35.7, 64.1, 
        infra.                          -------------------
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Failure to Properly Forward Evidence

Sec. 25.1 A motion to dismiss will lie where the contestant has not 
    adduced evidence or forwarded testimony to the Clerk's office in 
    the manner prescribed by law.

    In the 1945 Michigan election contest of Hicks v Dondero 
(Sec. 53.1, infra), the Clerk transmitted a letter to the Speaker 
relating that his office had received packets of material which had not 
been addressed to the Clerk or adduced in the ``manner contemplated by 
the provisions of the statutes.'' The election committee's report 
stated that the contestant had not taken any testimony in support of 
his notice of contest within the time prescribed by law. Contestee 
having entered a motion to dismiss, the House adopted a resolution 
dismissing the contest and declaring the contestee to be entitled to 
his seat.

Failure to Produce Evidence

Sec. 25.2 An elections committee may dismiss an election contest for 
    failure of the contestant to transmit evidence taken by him in the 
    matter to the Clerk, as required by law.

    In Shanahan v Beck (Sec. 47.15, infra), a 1934 Pennsylvania con

[[Page 1039]]

test, the committee dismissed the contest for failure to transmit 
evidence to the Clerk, noting that there was no evidence before the 
committee of the matters charged in the notice of contest, and no 
briefs filed, as provided by law.

Sec. 25.3 Where the Clerk of the House receives contestee's motion to 
    dismiss a contest, no evidence having been submitted by either 
    party within the time permitted by law, the Clerk communicates that 
    fact to the Speaker together with the motion to dismiss. This 
    motion may be ordered printed by the Speaker and referred to the 
    Committee on Elections.

    In the 1940 Tennessee election contest of Neal v Kefauver 
(Sec. 50.1, infra), the Speaker laid before the House on Mar. 1, 1940, 
a communication from the Clerk relating that no testimony on behalf of 
either party had been submitted within the time permitted by law. 
Accompanying the Clerk's letter was a motion by the contestee to 
dismiss the contest. The Clerk's communication and motion by the 
contestee were referred by the Speaker to an elections committee and 
ordered printed. The House later agreed to a resolution dismissing the 
contest and declaring the contestee to be entitled to the seat.

Sec. 25.4 A contestee may move to dismiss a contest for failure of the 
    contestant to take testimony after the expiration of the 
    contestant's time for taking testimony, and may renew the motion 
    after the expiration of all time permitted by law.

    In the 1951 Missouri contested election case of Karst v Curtis 
(Sec. 56.2, infra), the contestee moved to dismiss for failure of the 
contestant to take testimony within 40 days after service of the 
contestee's answer; and he renewed that motion after expiration of the 
90-day statutory period. This, along with the contestant's letter 
informing the committee of his desire to discontinue further action 
after a recount failed to disclose any alleged discrepancies in the 
voting was cited in the committee report recommending the adoption of a 
resolution, which the House agreed to, that the contest be dismissed.

Sec. 25.5 Where the contestant fails to take testimony within the 
    statutory time limits for taking such testimony in a contested 
    election, an elections committee may dismiss the contest upon 
    motion by the contestee.

[[Page 1040]]

    In the 1963 Minnesota contested election case of Odegard v Olson 
(Sec. 60, infra), the contestee moved to dismiss, claiming that the 40-
day period for gathering evidence by contestant had expired and that no 
evidence had been obtained and forwarded to the Clerk as provided under 
2 USC: Sec. Sec. 203, 223, and that therefore no contest existed. The 
elections committee found that the contestant ``had abandoned the 
statutory procedure which established a specific time within which to 
develop evidence. . . .'' By majority vote, the committee concluded 
that the contestee's contention should be sustained on the grounds that 
the contestant ``failed to comply with the statutes in that he did not 
take testimony as provided by law and that the time limit for taking 
such testimony has now expired.''

Motion to Dismiss as Premature

Sec. 25.6 Contestee's motion to dismiss will be denied as premature 
    although made at a time when there is no evidence actually before 
    the election committee, where it appears that testimony adduced 
    under the election contest statute has not yet been printed or 
    transmitted by the Clerk to the committee.

    In the 1959 Kansas contested election case of Mahoney v Smith 
(Sec. 58.2, infra), the Committee on House Administration concurred in 
the election subcommittee's denial of contestee's motion to dismiss the 
contest ``for the reason that it was impossible at that early date to 
evaluate the merits of the case or rule on the testimony.'' There was 
no evidence before the committee because the testimony adduced under 
the contest statute had not yet been printed or transmitted by the 
Clerk to the committee.