[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[H. Taking of Testimony; Depositions]
[Â§ 27. Generally; Time]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1041-1046]
 
                               CHAPTER 9
 
                           Election Contests
 
                  H. TAKING OF TESTIMONY; DEPOSITIONS
 
Sec. 27. Generally; Time


    Under the Federal Contested Elections Act, either party may take 
the testimony by deposition of any person, including the opposing 
party, either for discovery purposes or for use as evidence in the case 
or for both purposes.(12)~
---------------------------------------------------------------------------
12. 2 USC Sec. 386(a).
---------------------------------------------------------------------------

    Contestant may take testimony within 30 days after service of the 
answer, or, if no answer is served, within 30 days after the time for 
answer has expired. Contestee may take testimony within 30 days after 
contestant's time for taking testimony has expired. Ten days is 
permitted for the taking of rebuttal testimony.(13)~
---------------------------------------------------------------------------
13. 2 USC Sec. 368(c).
---------------------------------------------------------------------------

    The testimony must be taken before an officer authorized by law to 
administer oaths.(14)~
---------------------------------------------------------------------------
14. 2 USC Sec. 386(d).
            As for pay of witnesses subpenaed to appear before the 
        House or any of its committees, see Rule XXXV, House Rules and 
        Manual Sec. 931 (1973).
---------------------------------------------------------------------------

    A party desiring to take a deposition must serve written notice on 
the opposing party not later than two days before the examination, 
unless the parties stipulate in writing to the 
contrary.(15)~
---------------------------------------------------------------------------
15. 2 USC Sec. 387 (a), (b).
---------------------------------------------------------------------------

    Where a witness who has been subpenaed under the Federal Contested 
Elections Act willfully makes default, or refuses to answer a pertinent 
question, he is subject to both fine and imprisonment.(16)~
---------------------------------------------------------------------------
16. 2 USC Sec. 390, authorizing a fine of not more than $1,000 or 
        imprisonment of not more than 12 months, or both.
---------------------------------------------------------------------------

    Except for the time for serving and filing a notice of contest, the 
Committee on House Administration, for good cause shown, may at any 
time in its discretion order a period enlarged if request therefor is 
made before the expiration of the period originally prescribed or 
ordered; or, on motion made after the expiration of the specified 
period, it may permit the act to be done where the failure to act was 
the result of excusable neglect.(17)~
---------------------------------------------------------------------------
17. 17. 2 USC Sec. 394(c).

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

[[Page 1042]]

 Dismissal for Failure to Take Testimony 
    Within Statutory Period

Sec. 27.1 Failure to take testimony within the time required by law and 
    committee rules governing contested elections results in dismissal 
    by the House of contestant's notice of intention to contest an 
    election.

    In 1949, in the Iowa contested election of Browner v Cunningham 
(Sec. 55.1, infra), the House agreed without debate to dismiss the 
contest after more than 90 days had elapsed from the filing of notice 
and no testimony ``of any character, kind, or nature,'' according to 
the committee report, had been received by the Clerk in support of the 
allegations set forth in the notice of intention to contest the 
election.(18)~
---------------------------------------------------------------------------
18. See also Fuller v Davies (Sec. 55.2, infra), and Thierry v Feighan 
        (Sec. 55.4, infra), contests from New York and Ohio, 
        respectively, which were settled by the same resolution for the 
        same reason.
---------------------------------------------------------------------------

Sec. 27.2 If the testimony is not taken within the time and in the 
    manner required by statute, a motion to dismiss will lie.

    In Hicks v Dondero (Sec. 53.1, infra), a 1945 Michigan contest, the 
contestant submitted copies of transcripts of testimony taken before a 
local Michigan canvassing board prior to the initiation of the contest. 
This material was not received by the Clerk within the time prescribed 
by law, and had not been properly addressed or transmitted. Contestee's 
motion to dismiss the contest, and contestant's affidavit in opposition 
to that motion, were filed. A resolution dismissing the contest was 
agreed to by voice vote and without debate.

Sec. 27.3 Contestant, a candidate for the party nomination in the 
    primary but not in the general election, failed to take testimony 
    within the time prescribed by law.

    In the 1951 Georgia contested election case of Lowe v Davis 
(Sec. 56.3, infr ), the Committee on House Administration unanimously 
recommended the adoption of a resolution, to which the House 
subsequently agreed, that the contest should be dismissed. The report 
states that the contestant did not comply with the procedural statutory 
time requirements for conducting a contest, specifically the taking of 
testimony pursuant to 2 USC Sec. 203.(19)~
---------------------------------------------------------------------------
19. Now 2 USC Sec. 386.
---------------------------------------------------------------------------

Sec. 27.4 Where no testimony has been taken within the time

[[Page 1043]]

    prescribed by law and contestee alleges that the notice of contest 
    does not specify with particularity the grounds upon which the 
    contestant relies, the House has agreed to dismissal of a contest 
    without debate.

    In Roberts v Douglas (Sec. 54.4, infra), a 1947 California contest, 
the Clerk transmitted the notice of contest to the Speaker. (The 
contest appeared to have abated as neither party had taken testimony 
within the time prescribed.) The Speaker referred the letter, the 
notice of contest, a motion for dismissal from the contestee and a 
letter from her attorney in support thereof, to the Committee on House 
Administration. Subsequently the House dismissed the contest on a voice 
vote and without debate.

Sec. 27.5 A motion to dismiss is available to contestee where the 
    contestant has failed to take testimony within the time prescribed 
    by law, even though contestee's answer to the notice was not filed 
    within the required period.

    In Woodward v O'Brien (Sec. 54.6, infra), a 1947 Illinois contest, 
the House dismissed the contest after contestee had moved to dismiss on 
the grounds that no testimony had been taken by contestant, during the 
prescribed period, though such motion recited that contestee had not 
filed his answer within the time required by statute.

Failure to Forward Testimony to Clerk

Sec. 27.6 A failure to forward testimony to the Clerk within the 30-day 
    period was raised in a letter to the House as a bar to prevent 
    contestant from continuing with the contest, but this request was 
    not considered by the elections committee.

    In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the 
contestee requested the House to prevent contestant from proceeding 
with the contest because of his failure to comply with the 30-day 
period, as required by law (former 2 USC Sec. 231); the committee did 
not consider the request that contestant be barred from continuing the 
contest, but nevertheless recommended that the contest be dismissed on 
other grounds.

Extensions of Time for Taking Testimony

Sec. 27.7 Where testimony is taken pursuant to a con

[[Page 1044]]

    tested elections statute, and the contestee is charged with a wide 
    variety of statutory violations, an elections committee may 
    conclude that it cannot properly decide the contest without the 
    taking of further testimony.

    In Lanzetta v Marcantonio (Sec. 48.1, infra), a 1936 New York 
contest, contestee was charged with violations of ``nearly all of the 
elections laws including intimidation of voters, violation of the 
Corrupt Practices Act, illegal and excessive expenditure of money, 
failure to account for various contributions, and inciting and leading 
riots.'' The committee concluded that it could not properly decide the 
contest without causing further testimony to be taken, and that further 
testimony could not be taken due to the approach of adjournment sine 
die of the 74th Congress.

Sec. 27.8 The statutory period during which a contestant is permitted 
    to take testimony is tolled during the time that ballots sought to 
    be subpenaed by his appointed official are in the custody of a 
    court and unavailable.

    In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois contest, the 
question arose as to whether the statutory period allowed for the 
taking of testimony had expired. The contestant had applied for an 
appointment of a notary public to obtain testimony on his behalf, and 
he in turn had served a subpena upon the election officials requiring 
them to produce ballots and certain other materials pertaining to the 
election. These actions proved ineffective, however, because 
contestee's counsel had obtained a court order impounding the ballots 
cast in the election. Under these circumstances, the elections 
committee majority concluded that the ballots were ``in custodia 
legis'' and that the time during which the ballots were so held should 
not be considered in determining the statutory period in which the 
contestant was allowed to take testimony.

Sec. 27.9 An elections committee may give consideration to testimony 
    laid before it by the Clerk pursuant to the election contest law, 
    though not taken within the time required by the statute, where the 
    committee finds justification for the delay.

    In Lanzetta v Marcantonio (Sec. 48.1, infra), a 1936 New York 
contest, more than 4,000 pages of testimony and exhibits were taken, 
but the testimony of con

[[Page 1045]]

testant was not taken until after the expiration of the 90-day period 
prescribed by former section 203, title 2 of the United States Code. 
The Clerk did not order printed that portion of the testimony taken 
after the expiration of the required time, but the elections committee, 
having found some justification for the delay, considered all testimony 
that was made available to it by the Clerk.

Sec. 27.10 An extension of time for taking testimony, may be in the 
    form of a resolution granting a total of 65 days, with the 
    contestant to take testimony during the first 30 days, the 
    contestee to take testimony during the succeeding 30 days, and the 
    contestant to take testimony in rebuttal during the remaining five 
    days.

    See the 1943 Illinois election contest of Moreland v Schuetz 
(Sec. 52.3, infra), where the House agreed to a resolution extending 
the time allowed for taking testimony to 65 days, based on a showing of 
``good cause'' by the contestant.

Extensions of Time for Good Cause

Sec. 27.11 An extension of time for the taking of testimony for an 
    election contest will be granted only upon a showing of good cause.

    In Moreland v Schuetz (Sec. 52.3, infra), a 1943 Illinois contest, 
good cause for an extension of time was shown where contestant alleged 
certain irregularities in the counting of write-in votes and ``split-
ticket'' ballots, but was unable to establish such allegations within 
the time required by law, because the election officials involved were 
unavailable.

Sec. 27.12 Extensions of time for taking testimony were based on the 
    fact that time was needed to prepare an application for a recount.

    In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest, 
contestant, based on time consumed by both parties in preparing a joint 
application for recount, asked for 40 additional days in which to 
prepare testimony and for 40 days thereafter for contestee to take 
testimony. The House adopted a resolution based on a committee's 
recommendation that each party be given a 30-day extension of time for 
taking testimony, with an additional five days for contestant to 
compile rebuttal testimony.

Sec. 27.13 The sufficiency of reasons shown for granting ad

[[Page 1046]]

    ditional time to take testimony may be referred to an elections 
    committee.

    In the 1957 Iowa election contest of Carter v LeCompte (Sec. 57.1, 
infra), the contestant petitioned the House for an additional 20 days 
to take testimony. The request was ultimately referred to the 
Subcommittee on Elections which considered the House precedents on the 
requested extension before unanimously determining that the contestant 
had shown insufficient reasons for the extension. The Committee on 
House Administration unanimously adopted the subcommittee opinion. No 
formal report on the issue was made to the House.

Subsequent Authorization for Informal Extension

Sec. 27.14 The Committee on House Administration has informally granted 
    extensions of time to parties in a contest for taking testimony 
    without the House having adopted a resolution to that effect, and 
    has subsequently authorized such extensions in its final report.

    In Wilson v Granger (Sec. 54.5, infra), a 1948 Utah contest, the 
delay of over a year by the parties in filing the required papers with 
the Clerk as provided by statute is explained merely by the statement 
in the report that ``the extensions of time heretofore granted in this 
contest by the Committee on House Administration are hereby authorized 
and approved.''

Stipulation of Parties for Extension of Time

Sec. 27.15 The parties to a contest may agree to a stipulation ret 
    questing an extension of time for the contestant to compensate for 
    an adjournment taken at the contestee's request.

    In the New York contested election case of Macy v Greenwood 
(Sec. 56.4, infra), arising out of the 1950 election, the contestant, 
at the contestee's request, adjourned the calling of two witnesses for 
six days during the 40-day period allotted for the taking of testimony 
under 2 USC Sec. Sec. 201 et seq. Both parties had thus agreed to a 
compensatory extension of six days, subject to approval by the House. 
The House agreed by resoltion tn the extension.