[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[H. Taking of Testimony; Depositions]
[Â§ 29. Scope of Examination; Objections]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1048-1050]
 
                               CHAPTER 9
 
                           Election Contests
 
                  H. TAKING OF TESTIMONY; DEPOSITIONS
 
Sec. 29. Scope of Examination; Objections

    Witnesses may be examined regarding any matter, not privileged, 
relevant to the subject matter involved in the case, whether it relates 
to a claim or defense. The examination may extend to such subjects as 
the existence, description, nature, custody, and the condition and 
location of books, papers, documents, or other tangible things, as well 
as the identity and location of persons having knowledge of relevant 
facts. The right of cross examination is to be afforded the opposing 
party.(6)
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 6. 2 USC Sec. 386(b).
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    Objections to the proceedings, including objections to the 
qualifications of the officer taking the deposition or to the manner of 
taking it, or to the evidence presented, or the conduct of any party, 
are to be noted by the officer. Evidence objected to is taken subject 
to such objection.(7)
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 7. 2 USC Sec. 386(g).
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    A subpena to compel the production of books, papers, or other 
tangible things designated therein is permitted under the Federal 
Contested Elections Act. However, the Committee on House 
Administration, on motion, may quash or modify the subpena if it is 
unreasonable or oppressive, or condition denial of it on the 
advancement of reasonable production costs.(8)
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 8. 2 USC 388(e).                          -------------------
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Failure to Produce Testimony

Sec. 29.1 A request was made by contestant to the Clerk of the House 
    seeking the production of testimony taken before a commissioner who 
    failed to forward it to the Clerk.

    In Casey v Turpin (Sec. 47.3, infra), a 1934 Pennsylvania contest, 
the committee recommended dismissal of the contest for lack of evidence 
of the matters charged in the notice, and for the failure of the 
contestant to appear in person and show cause why his contest should 
not be dismissed. The contestant had argued that he could not present 
evidence because an official failed to forward testimony, and that he 
had asked the clerk to seek such testimony.

Ballots as ``Papers'' Required To Be Produced

Sec. 29.2 The statute authorizing an officer to require the production 
    of ``papers'' has been construed to confer authority to require the 
    production of ballots.

[[Page 1049]]

    In the 1932 Illinois election contest of Kunz v Granata (Sec. 46.2, 
infra),(9) ballots were determined to be ``papers'' within 
the meaning of 2 USC Sec. 219 such that their production could be 
demanded by a party.(10)
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 9. Also reported in 6 Cannon's Precedents Sec. 186.
10. 2 USC Sec. 219, now 2 USC Sec. 388. But see the 1949 Michigan 
        contested election case of Stevens v Blackney (Sec. 55.3 
        infra).
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    In this instance the contestant sought and obtained the appointment 
of a notary public to obtain testimony in his behalf. This notary 
public served a subpena duces tecum on the election officials, who then 
procured the ballots and other materials from a court which had 
impounded them (for recounting a municipal election).
    Upon a recount conducted by the election officials under the 
supervision of the contestant's notary public, and in the presence of a 
notary public appointed by the contestee, it was determined that the 
contestant had received a majority of 1,288 votes in the election.

Sec. 29.3 The more recent view, as asserted by the majority of an 
    elections committee in 1949 and supported by the House, is that 
    ballots themselves are not considered ``papers'' within the meaning 
    of the contested elections statute permitting certain officers to 
    require the production of papers pertaining to an election.

    In the 1949 Michigan contested election case of Stevens v Blackney 
(Sec. 55.3, infra), the Subcommittee on Elections sustained the action 
of an election official who refused to comply with a subpena duces 
tecum issued by a notary public ordering him to bring the ballots in a 
contested election. Although the minority contended that the notary 
public was an ``official'' within the purview of 2 USC Sec. 206, who 
could demand production of the ballots as ``papers'' within the meaning 
of 2 USC Sec. 219, and cited the contested election case of Kunz v 
Granata (Sec. 46, infra), in support thereof, the majority disagreed 
with this interpretation of Sec. 219 and ruled that the official did 
not have to produce the ballots. The decision was based upon certain 
practical considerations, such as the difficulty of submitting 
certified copies of such ``official papers'' to the Clerk, payment to 
officials for making such copies and inclusion of voting machines as 
``official papers.'' Further, the majority cited the problem of decid

[[Page 1050]]

ing which count would be accepted by the House, that of the 
contestant's notary public or that of the bipartisan officials who 
first conducted the count. It was suggested that the alternative of 
having the House conduct a third count would not be effective because 
the inviolability of the ballots would then have been destroyed. 
Ultimately, the House sustained the committee by agreeing to a 
resolution seating the contestee.(11)
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11. Under the 1969 Contested Elections Act, the question whether the 
        ballots are ``papers'' that must be produced is not resolved. 
        While only judges, or their clerks whether federal, state or 
        county, may now issue subpenas under 2 USC Sec. 388(a), they 
        may command the person to whom it is directed to bring ``books, 
        papers, documents, or other tangible things'' designated in the 
        subpena under Sec. 388(e). Ballots are not specifically 
        mentioned. However, the subsection further provides that the 
        committee before the time specified in the subpena may ``quash 
        or modify the subpena if it is unreasonable or oppressive. . . 
        .'' (See also Sec. 39.3, infra.)
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