[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 963-972]
CHAPTER 9
Election Contests
[[Page 963]]
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Commentary and editing by John Theodore Fee, J.D.
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A. In General
Sec. 1. Constitutional Provisions; Historical Background
Sec. 2. Contested Election Laws
Sec. 3. State or Local Election Boards
B. Jurisdiction and Powers
Sec. 4. The House
Sec. 5. Election Committees
Sec. 6. The Clerk; Transmittal of Papers
Sec. 7. The Courts
C. Grounds of Contest
Sec. 8. Generally
Sec. 9. Faulty Credentials; Citizenship
Sec. 10. Violation of Federal or State Election Laws
Sec. 11. Improper Attempts to Influence or Confuse Voters
Sec. 12. Voting Booth and Balloting Irregularities
D. Defenses
Sec. 13. Generally
Sec. 14. Contestant's Credentials and Qualifications
Sec. 15. Abatement
Sec. 16. Limitations and Laches
E. Practice and Procedure
Sec. 17. Alternatives to Statutory Election Contests
Sec. 18. Commencing the Contest
[[Page 964]]
Sec. 19. Parties
F. Notice of Contest
Sec. 20. Generally; Time
Sec. 21. Service of Notice
Sec. 22. Form and Contents of Notice
G. Pleading
Sec. 23. Generally
Sec. 24. Answer
Sec. 25. Motion to Dismiss
Sec. 26. Motion for More Definite Statement
H. Taking of Testimony; Depositions
Sec. 27. Generally; Time
Sec. 28. Examination of Parties and Witnesses
Sec. 29. Scope of Examination; Objections
Sec. 30. Subpenas
Sec. 31. Affidavits
I. Committee Hearing and Review; Dismissal and Withdrawal
Sec. 32. Generally; Preparation of Briefs
Sec. 33. Dismissal and Withdrawal of Contest
J. Evidence
Sec. 34. Generally
Sec. 35. Burden of Proof
Sec. 36. Presumptions
Sec. 37. Ballots
Sec. 38. Determination of Voter Intention
K. Inspection and Recount of Ballots
Sec. 39. Generally
Sec. 40. Grounds
[[Page 965]]
Sec. 41. Procedure
L. Disposition of Contests; Resolutions
Sec. 42. Generally
Sec. 43. Committee Reports
Sec. 44. Form of Resolutions
Sec. 45. Costs and Expenses; Compensation and Allowances
M. Summaries of Election Contests, 1931-72
Sec. 46. Seventy-second Congress, 1931-32
Sec. 47. Seventy-third Congress, 1933-34
Sec. 48. Seventy-fourth Congress, 1935-36
Sec. 49. Seventy-fifth Congress, 1937-38
Sec. 50. Seventy-sixth Congress, 1939-40
Sec. 51. Seventy-seventh Congress, 1941-42
Sec. 52. Seventy-eighth Congress, 1943-44
Sec. 53. Seventy-ninth Congress, 1945-46
Sec. 54. Eightieth Congress, 1947-48
Sec. 55. Eighty-first Congress, 1949-50
Sec. 56. Eighty-second Congress, 1951-52
Sec. 57. Eighty-fifth Congress, 1957-58
Sec. 58. Eighty-sixth Congress, 1959-60
Sec. 59. Eighty-seventh Congress, 1961-62
Sec. 60. Eighty-eighth Congress, 1963-64
Sec. 61. Eighty-ninth Congress, 1965-66
Sec. 62. Ninetieth Congress, 1967-68
Sec. 63. Ninety-first Congress, 1969-70
Sec. 64. Ninety-second Congress, 1971-72
Appendix
Election Contests, 1917-31
DESCHLER'S PRECEDENTS
deschler's precedents
Ch. 9
Ch. 9
[[Page 966]]
INDEX TO PRECEDENTS
Abernethy et al. v Wheadon et al., Mississippi 1965, Sec. 61.2
Advisory opinions as to state law, Sec. Sec. 5.13, 5.14
Alford, investigation of right to seat, Arkansas 1959, Sec. 58.1
Alternatives to statutory election contests, Sec. Sec. 17.1-17.4
Answer, failure to make timely, Sec. 24.1
Ayres v Huber, Ohio 1951, Sec. 56.1
Ballot boxes, magistrate's authority to open, Sec. 7.7
Balloting irregularities, Sec. Sec. 12.2-12.8
Ballots
ambiguous, interpretation of voter intention, Sec. 37.1
best evidence for determining voter intention, Sec. 37.2
committee power to examine and recount, Sec. Sec. 5.10, 5.11
integrity of, preserving, Sec. Sec. 5.7, 5.8, 35.10, 37.19, 37.20
interpretation of voter intention, Sec. Sec. 38.1-38.3
marked for both candidates, Sec. 37.15
marked in wrong place, Sec. 37.16
marked with improper instrument, Sec. 37.18
marked with other than specified mark, Sec. Sec. 37.10, 37.11
``papers'' required to be produced, Sec. Sec. 29.2, 29.3
preservation of, Sec. Sec. 5.7, 5.8, 35.10, 37.19, 37.20
recount by stipulation of parties, Sec. Sec. 39.1, 39.2
recount conducted by federal auditors, Sec. 41.5
recount justified only if election result affected. Sec. Sec. 40.5-
40.7
recount of, burden of proof to show fraud or mistake before,
Sec. Sec. 40.3, 40.4
recount supervised by House, Sec. 39.4
recount, unsupervised, Sec. 39.3
stickers used in lieu of writing in name, Sec. Sec. 37.13, 37.14
stub attached to, Sec. 37.17
tallies, Sec. 37.21
``write in,'' misspelling name on, Sec. 37.12
writing in name of already listed candidate, effect of, Sec. 37.9
Beck v Shanahan, Pennsylvania 1934, Sec. 47.15
Blackburn v Mackay, Georgia 1967, Sec. 62.2
Blackney v Stevens, Michigan 1949, Sec. 55.3
Booth, see Voting booth
Bowles v Dingell, Michigan 1934, Sec. 47.1
Brewster v Utterback, Maine 1933, Sec. 47.2
Britten v McAndrews, Illinois 1934, Sec. 47.12
Browner v Cunningham, Iowa 1949, Sec. 55.1
Burden of proof (see also Presumptions)
claim to seat, establishing, Sec. 35.8
expenditures, allegations of improper, Sec. 35.9
recount of ballots, fraud or mistake shown before, Sec. Sec. 40.3,
40.8
results of election would be changed, Sec. Sec. 35.3-35.7, 40.5-
40.7
Burnham v Chandler, California 1934, Sec. 47.4
Campaign workers, prizes to, as grounds for contest, Sec. 11.4
Candidate's participation in irregularities, Sec. 13.2
Carter v LeCompte, Iowa 1957, Sec. 57.1
[[Page 967]]
Casey v Turpin, Pennsylvania 1934, Sec. 47.3
Certificates of election, Sec. Sec. 9.1-9.3
Chambers or Roush, Indiana 1961, Sec. 59.1
Chandler v Burnham, California 1934, Sec. 47.4
Citizenship, Member's qualifications as to, Sec. 9.4
Clark v Nichols, Oklahoma 1943, Sec. 52.1
Clerk
items transmitted to Speaker, Sec. Sec. 6.1-6.5
notice of contest to, forwarding in prescribed manner of, Sec. 25.1
powers of, Sec. Sec. 6.6-6.13
subpena, refusal to respond to party's, Sec. Sec. 6.13, 30.1
testimony, failure to forward to Clerk, Sec. 27.6
Coad v Dolliver, Iowa 1957, Sec. 57.2
Colmer v Gray, Mississippi 1965, Sec. 61.2
Contestant
failure to specify grounds relied upon, Sec. 13.8
standing to bring contest, Sec. Sec. 14.1, 19.1-19.6
Contingent fund, reimbursement of contest expenses from,
Sec. Sec. 45.1, 45.2
Cooper v Miller, Ohio 1936, Sec. 48.3
Corrupt Practices Act, Sec. Sec. 10.1-10.5
Cosey et al. v Williams, Mississippi 1965, Sec. 61.2
Coyle v Kent, Pennsylvania 1932, Sec. 46.1
Cunningham v Browner, Iowa 1949, Sec. 55.1
Curtis v Karst, Missouri 1951, Sec. 56.2
Davies v Fuller, New York 1949, Sec. 55.2
Davis v Lowe, Georgia 1948, Sec. 54.1
Davis v Lowe, Georgia 1951, Sec. 56.3
Davis v Mankin, Georgia 1947, Sec. 54.2
Debate on resolution disposing of contest
extension of time for, Sec. 42.9
participation by parties, Sec. Sec. 42.6, 42.7
Default judgment, motion for, Sec. 23.2
Deposition unsigned by witness, Sec. 28.1
Devine v Walker. Mississippi 1965, Sec. 61.2
Dingell v Bowles, Michigan 1934, Sec. 47.1
Directed verdict, motion for, Sec. 23.1
Directory laws distinguished from mandatory laws, Sec. Sec. 10.6-10.12
Dismiss, premature motion to, Sec. 25.6
Dismissal, cause for, Sec. 33.1
Disney v O'Connor, Oklahoma 1932, Sec. 46.3
Disposal of contest
parties' stipulation as to, Sec. 42.10
privileged resolutions, Sec. Sec. 42.2-42.5
resolution declaring seat vacant, Sec. Sec. 42.11, 42.12
Dolliver v Coad, Iowa 1957, Sec. 57.2
Dondero v Hicks, Michigan 1945, Sec. 53.1
Douglas v Roberts, California 1947, Sec. 54.4
Eaton v Scott, California 1940, Sec. 50.2
Election official
directory laws, violations of, Sec. Sec. 10.8, 10.10
mandatory laws, violations of, Sec. 10.7
violations and errors by, Sec. Sec. 10.13-10.15
voter confusion as excuse for entering booth, Sec. 12.1
Elections
conducted improperly, Sec. Sec. 10.17-10.19
illegal, as grounds for contest, Sec. Sec. 10.18, 14.2
unauthorized, Sec. 14.2
Ellenbogen, In re, Pennsylvania 1933, Sec. 47.5
[[Page 968]]
Ellis v Thurston, Iowa 1934, Sec. 47.6
Ellzey v Reese, Mississippi 1934, Sec. 47.13
Evidence (see also Burden of proof; Presumptions)
ballots as best evidence, Sec. 37.2
ex parte proceedings, Sec. 34.3
future use, collecting for, Sec. 34.1
preservation of, by committee, Sec. Sec. 5.7-5.9
production of contestant's, Sec. 34.2
standard of ``air preponderance,'' Sec. 35.2
testimony from prior state inquiry, Sec. 34.4
withdrawal of, Sec. 32.1
Expenses of election contests, see Reimbursement of contest expenses
``Fair preponderance'' of evidence standard, Sec. 35.2
Feighan v Thierry, Ohio 1949, Sec. 55.4
Felix v Muldowney, Pennsylvania 1934, Sec. 47.7
Financing extra editions of magazine as grounds for contest, Sec. 11.2
Fox v Higgins, Connecticut 1934, Sec. 47.8
Frankenberry v Ottinger, New York 1965, Sec. 61.1
Fuller v Davies, New York 1949, Sec. 55.2
Funds, illegal use of, Sec. 10.20
Gormley v Goss, Connecticut 1934, Sec. 47.9
Goss v Gormley, Connecticut 1934, Sec. 47.9
Granata v Kunz, Illinois 1932, Sec. 46.2
Granger v Wilson, Utah 1948, Sec. 54.5
Gray v Colmer, Mississippi 1965, Sec. 61.2
Greenwood v Macy, New York 1951, Sec. 56.4
Gross v Peterson, Iowa 1965, Sec. 61.3
Hale v Oliver, Maine 1958, Sec. 57.3
Hamer v Whitten, Mississippi 1965, Sec. 61.2
Harrington v Swanson, Iowa 1940, Sec. 50.4
Hicks v Dondero, Michigan 1945, Sec. 53.1
Higgins v Fox, Connecticut 1934, Sec. 47.8
House resolution disposing of contest, see Resolutions disposing of
contest
Huber v Ayres, Ohio 1951, Sec. 56.1
Illegal elections, Sec. Sec. 10.17-10.19, 14.2
Illegal use of funds, Sec. 10.20
Invalid elections, see Elections
Investigations continuing after adjournment
authority for, Sec. 5.12
funding for, Sec. 45.1
Investigations of right to seat, see Alternatives to statutory election
contest
Jenks v Roy, New Hampshire 1938, Sec. 49.1
Joint resolution
reimbursement of contest expenses authorized by, Sec. 45.3
Jurisdiction, notice of contest as basis for House, Sec. 4.1
Karst v Curtis, Missouri 1951, Sec. 56.2
Kefauver v Neal, Tennessee 1940, Sec. 50.1
Kemp, Sanders investigation, Louisiana 1934, Sec. 47.14
Kent v Coyle, Pennsylvania 1932, Sec. 46.1
King v McCandless, Hawaii 1936, Sec. 48.2
Kirwan v Miller, Ohio 1941, Sec. 51.1
Kunz v Granata, Illinois 1932, Sec. 46.2
Laches, defense to contest, Sec. 16.1
LaGuardia v Lanzetta, New York 1934, Sec. 47.10
Lanzetta v LaGuardia, New York 1934, Sec. 47.10
[[Page 969]]
Lanzetta v Marcantonio, New York 1936, Sec. 48.1
LeCompte v Carter, Iowa 1957, Sec. 57.1
Lovette v Reece, Tennessee 1934, Sec. 47.11
Lowe v Davis, Georgia 1948, Sec. 54.1
Lowe v Davis, Georgia 1951, Sec. 56.3
Lowe v Thompson, Georgia 1967, Sec. 62.1; 1969, Sec. 63.1
Maas v Williams, Minnesota 1937, Sec. 49.3
Mackay v Blackburn, Georgia 1967, Sec. 62.2
Macy v Greenwood, New York 1951, Sec. 56.4
Mahoney v Smith, Kansas 1959, Sec. 58.2
Mandatory laws distinguished from directory laws, Sec. Sec. 10.6-10.12
Mankin v Davis, Georgia 1947, Sec. 54.2
Marcantonio v Lanzetta, New York 1936, Sec. 48.1
McAndrews v Britten, Illinois 1934, Sec. 47.12
McCandless v King, Hawaii 1936, Sec. 48.2
McEvoy v Peterson, Georgia 1944, Sec. 52.2
McMurray v Thill, Wisconsin 1944, Sec. 52.6
Members on subcommittee on elections, qualifications of, Sec. 5.4
Memorial, see Alternatives to statutory election contest
Michael v Smith, Virginia 1947, Sec. 54.3
Miller v Cooper, Ohio 1936, Sec. 48.3
Miller v Kirwan, Ohio 1941, Sec. 51.1
Miller v Sullivan, Missouri 1943, Sec. 52.5
Minority reports, Sec. Sec. 43.7-43.9
Mississippi, The Five Cases of, 1965, Sec. 61.2
Moreland v Schuetz, Illinois 1943, Sec. 52.3
Motion for directed verdict, Sec. 23.1
Motion for default judgment, Sec. 23.2
Motion to dismiss, premature, Sec. 25.6
Muldowney v Felix, Pennsylvania 1934, Sec. 47.7
Myers v Springer, Illinois 1959, Sec. 58.3
Neal v Kefauver, Tennessee 1940, Sec. 50.1
Nichols v Clark, Oklahoma 1943, Sec. 52.1
Notice of contest
commencement of 30-day period for filing, Sec. 20.5
good-faith requirement in filing for reimbursement of expenses,
Sec. 45.7
signature, necessity of, Sec. 22.4
Oath, administration of, as evidence of right to seat, Sec. 35.1
Oath, administration of candidate's, Sec. Sec. 4.2, 4.3
O'Brien v Woodward, Illinois 1947, Sec. 54.6
O'Connor v Disney, Oklahoma 1932, Sec. 46.3
Odegard v Olson, Minnesota 1963, Sec. 60.1
Oliver v Hale, Maine 1958, Sec. 57.3
Olson v Odegard, Minnesota 1963, Sec. 60.1
Osser v Scott, Pennsylvania 1951, Sec. 56.5
Ottinger v Frankenberry, New York 1965, Sec. 61.1
Petition of right to seat, see Alternatives to statutory election
contest
Peterson v Gross, Iowa 1965, Sec. 61.3
Peterson v McEvoy, Georgia 1944, Sec. 52.2
Plunkett, In re, 1945, Sec. 53.2
Polk v Smith, Ohio 1939, Sec. 50.3
Pre-election irregularities
courts, appeal to state, Sec. 7.1
[[Page 970]]
Presumptions (see also Burden of proof)
absence of witnesses and challengers for contestant, Sec. 36.8
closeness of election result, Sec. 36.11
official returns as prima facie evidence, Sec. Sec. 36.1-36.7
tally sheets, correctness of, Sec. 36.9
Primary election, improperly conducted, Sec. 10.19
Privileged resolutions, disposing of contests, Sec. Sec. 42.2-42.5
Prizes to campaign workers as grounds for contest, Sec. 11.4
Racial discrimination as grounds for contesting election, Sec. 11.3
Recount of ballots
burden on contestant to produce evidence justifying, Sec. 41.3
burden on contestant to show fraud or mistake before, Sec. 40.3
conducted by auditors from General Accounting Office, Sec. 41.5
court, state, recount supervised by, Sec. 39.6
exhaustion of state remedies before, Sec. 41.1
House supervision, held pursuant to state law, Sec. 39.4
joint applications for, Sec. 41.4
reconsideration of actions ordering, Sec. 41.6
result of election be affected in order to justify, Sec. 39.5
stipulation of parties to, Sec. Sec. 39.1, 39.2
unsupervised, Sec. 39.3
Reece v Lovette, Tennessee 1934, Sec. 47.11
Reese v Ellzey, Mississippi 1934, Sec. 47.13
Reimbursement of expenses or allowances
abatement of contest, request made after, Sec. 45.6
alternatives to statutory election contests, reimbursement to
parties in, Sec. 45.4
good-faith filing, conditioned upon, Sec. 45.7
House contingent fund, payments from, Sec. 45.1, 45.2
joint resolution authorizing, Sec. 45.3
parties' expenses, Sec. 45.4
retroactive to convening of Congress for Member-elect, Sec. 45.5
Reports on contest by committee
failure to submit to House, Sec. Sec. 43.13, 43.14
minority, Sec. Sec. 43.7-43.9
resolutions accompanying, Sec. 43.4
timeliness of, Sec. Sec. 43.5, 43.6
withdrawal of contest by contestant, reciting, Sec. Sec. 43.10,
43.12
Representatives on subcommittee on elections, qualifications of,
Sec. 5.4
Residency, commencement, determined by state court, Sec. 7.4
Resolutions disposing of contest
admitting neither candidate to seat, Sec. 42.15
debate upon, extensions of, Sec. 42.9
debate upon, participation of parties in, Sec. Sec. 42.6-42.8
declaring seat vacant, Sec. Sec. 42. 11, 42.12
form of resolution, Sec. Sec. 44.1-44.3
language in, appropriateness of, Sec. 44.1
privileged, Sec. 42.2-42.5
several contests treated in same resolution, Sec. 44.3
substitutes to, offering of, Sec. 42.17, 42.18
Roberts v Douglas, California 1947, Sec. 54.4
Roush or Chambers. Indiana 1961. 59.1
Roy v Jenks, New Hampshire 1938, Sec. 49.1
Rutherford v Taylor, Tennessee 1937, Sec. 49.2
[[Page 971]]
Sanders, Kemp investigation, Louisiana 1934, Sec. 47.14
Schafer v Wasielewski, Wisconsin 1944, Sec. 52.4
Schuetz v Moreland, Illinois 1943, Sec. 52.3
Scott v Eaton, California 1940, Sec. 50.2
Scott v Osser, Pennsylvania 1951, Sec. 56.5
Service, substituted, Sec. 21.1
Shanahan v Beck, Pennsylvania 1934, Sec. 47.15
Signature necessary on notice of contest, Sec. 22.4
Simpson v Weber, Illinois 1934, Sec. 47.16
Smith v Mahoney, Kansas 1959, Sec. 58.2
Smith v Michael, Virginia 1947, Sec. 54.3
Smith v Polk, Ohio 1939, Sec. 50.3
Springer v Myers, Illinois 1959, Sec. 58.3
Standing
contestant's, to bring contest, Sec. Sec. 14.1, 19.1-19.6
third party's, to bring contest, Sec. Sec. 19.1-19.3
State law
advisory opinions by state courts on, Sec. 7.3
advisory opinions by state officials on, Sec. 5.13
court, local, adoption or rejection of opinion of, Sec. Sec. 7.4-
7.6, 38.4
nominating procedure, illegal, Sec. 10.21
voter intention as paramount consideration, Sec. 38.4, 38.5
State or local elections, intervention in, Sec. 3.2
State remedy, effect of failure to exhaust, Sec. Sec. 13.4, 13.5
Stevens v Blackney, Michigan 1949, Sec. 55.3
Stickers, see Ballots
Stipulation of parties
disposal of contest by, Sec. 42.10
jurisdiction on Congress, as to conferring, Sec. 4.1
recount of ballots, joint applications for, Sec. 41.4
time, extensions of, Sec. 27.15
``Straight ticket'' votes, interpretation of, Sec. 37.6-37.8
Stubs, see Ballots
Subpena
Clerk's refusal to respond to, Sec. 30.1
noncompliance with, Sec. 30.2
Substituted service, see Service
Sullivan v Miller, Missouri 1943, Sec. 52.5
Swanson v Harrington, Iowa 1940, Sec. 50.4
Tally sheets, presumption of correctness of, Sec. 36.9
Taylor v Rutherford, Tennessee 1937, Sec. 49.2
Testimony (see also Evidence)
Clerk, failure to forward to, Sec. 25.1, 27.6
failure to produce, Sec. 29.1
failure to take within statutory period, Sec. Sec. 15.1-15.3, 27.1-
27.5
time, extensions of for taking, Sec. Sec. 27.7-27.10
Thierry v Feighan, Ohio 1949, Sec. 55.4
Thill v McMurray, Wisconsin 1944, Sec. 52.6
Thompson v Lowe, Georgia 1967, Sec. 62.1; 1969, Sec. 63.1
Thurston v Ellis, Iowa 1934, Sec. 47.6
Time
extension by stipulation of parties of, Sec. 27.15
extension during debate on resolution disposing of contest of,
Sec. 42.9
extension only for good cause of, Sec. Sec. 27.11, 27.12
extension, subsequent authorization of, Sec. 27.14
[[Page 972]]
Transmittal of papers, see Clerk
Tunno v Veysey, California 1971, Sec. 64.1
Turpin v Casey, Pennsylvania 1934, Sec. 47.3
Utterback v Brewster, Maine 1933, Sec. 47.2
Vacancy, notification to Governor of, Sec. 4.6
Veysey v Tunno, California 1971, Sec. 64.1
Voter intention, state law as related to interpreting, Sec. Sec. 38.4,
38.5
Voters, confusing or misleading as grounds for contest, Sec. 11.1
Votes, see Ballots
Voting booth
election official entering, voter confusion as excuse for,
Sec. 12.1
Walker v Devine, Mississippi 1965, Sec. 61.2
Wasielewski v Schafer, Wisconsin 1944, Sec. 52.4
Weber v Simpson, Illinois 1934, Sec. 47.16
Wheadon et al. v Abernethy et al., Mississippi 1965, Sec. 61.2
Whitten v Hamer, Mississippi 1965, Sec. 61.2
Williams v Cosey et al., Mississippi 1965, Sec. 61.2
Williams v Maas, Minnesota 1937, Sec. 49.3
Wilson v Granger, Utah 1948, Sec. 54.5
Withdrawal of contest, Sec. Sec. 33.3-33.6
Witness, signing of deposition by, Sec. 28.1
Woodward v O'Brien, Illinois 1947, Sec. 54.6
``Write in'' votes, see Ballots
[[Page 973]]
CHAPTER 9
Election Contests
A. IN GENERAL
Sec. 1. Constitutional Provisions; Historical Back-
ground
This chapter sets forth the substantive and procedural aspects of
an election contest brought to determine the right to a seat in the
House. Emphasis is placed on contests initiated by defeated candidates,
known as contestants. In the style of an election contest, the
contestant's name is always given first.
The format of this chapter differs in some respects from other
chapters in this work. Following each precedent is a brief note
identifying the election contest involved and a reference to the
complete account of the contest. A comprehensive review of each contest
will be found in the last division of this chapter (Sec. Sec. 46 et
seq.).
An appendix to this chapter has been included to cover election
contests during the 65th through the 71st Congresses (1917-1931). It
was thought necessary to include these cases even though outside the
normal scope of these volumes, because no substantial coverage now
exists of election contests during that period.(1)
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1. For election contests considered prior to the 72d Congress, see, in
addition to the appendix to this chapter, 1 Hinds' Precedents
Sec. Sec. 634-844, 2 Hinds' Precedents Sec. Sec. 845-1135, 6
Cannon's Precedents Sec. Sec. 90-189, 7 Cannon's Precedents
Sec. Sec. 1721, 1722.
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Election contests are to be distinguished from proceedings by the
House to exclude or expel a Member, and from suits brought by an
elector of the Member's district.(2)
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2. Exclusion or expulsion proceedings, see Ch. 12, infra. Memorials
and other alternatives to statutory election contests are
briefly treated in Sec. 17, infra. See also Ch. 8, supra, which
includes a discussion of elections and election regulations.
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Under section 4 of article I of the United States Constitution, the
times, places, and manner of holding elections for Representatives
shall be prescribed in each state by the legislature thereof but the
Congress may at any time by law make or alter such regulations. As
noted elsewhere in this work (see Chapter 8, supra), Congress has
designated the date pursuant to that provision on which
[[Page 974]]
the elections for Representatives are to be held. Congress also by
statute requires that all votes for Representatives in Congress be by
written or printed ballot, or by voting machine, the use of which has
been duly authorized by the state law (2 USC Sec. Sec. 7, 9).
Under section 5 of article I of the Constitution, it is provided:
``Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Mem-
bers. . . .''
Recently, in Roudebush v. Hartke, 405 U.S. 15 (1972), the Court
characterized the question of title to a seat in Congress as a
``nonjustifiable political question.'' (3)
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3. Congress has always regarded itself as the final judge of
elections. For example, the Committee on House Administration,
in a report dated May 24, 1972 (H. Rept. No. 92-1090), stated:
``It is the committee's feeling that once the final returns in
any election have been ascertained, the determination of the
right of an individual to a seat in the House of
Representatives is in the sole and exclusive jurisdiction of
the House of Representatives under [section 5 of article I,
Constitution of United States].''
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The extent to which a violation of the Corrupt Practices Act, 2 USC
Sec. Sec. 241-256 (repealed), provided grounds for an election contest
is discussed herein (4) but the limitations on campaign
expenditures set forth in that statute are treated elsewhere in this
work.(5)
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4. See Sec. 10, infra.
5. See Ch. 8, supra. The Corrupt Practices Act has been replaced by
the Federal Election Campaign Act of 1971, 2 USC Sec. Sec. 431
et seq.
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CHAPTER 9
Election Contests
A. IN GENERAL
Sec. 2. Contested Election Laws
Contests for seats in the House of Representatives are governed by
the Federal Contested Elections Act. This statute (2 USC Sec. Sec. 381-
396) sets forth the procedure by which a defeated candidate may have
his claim to a seat adjudicated by the House. The act provides for the
filing of notice of contest and other proceedings (Sec. Sec. 20-26,
infra), for the taking of testimony of witnesses (Sec. Sec. 27-31,
infra), and for a hearing on the depositions and other papers
(Sec. Sec. 32, 33, infra) that have been filed with the Clerk (Sec. 6,
infra). The contest is heard by the Committee on House Administration
(Sec. 5, infra). Acting upon committee reports, the House, by
privileged resolution, then disposes of the case by declaring one of
the parties to be entitled to the seat (Sec. 44, infra).
The act (Public Law 91-138) provides as follows:
[[Page 975]]
short title
Section 1. This Act may be cited as the ``Federal Contested
Election Act''.
definitions
Sec. 2. For purposes of this Act--
(a) The term ``election'' means an official general or special
election to chose a Representative in or Resident Commissioner to
the Congress of the United States, but does not include a primary
election, or a caucus or convention of a political party.
(b) The term ``candidate'' means an individual (1) whose name
is printed on the official ballot for election to the House of
Representatives of the United States, or (2) notwithstanding his
name is not printed on such ballot, who seeks election to the House
of Representatives by write-in votes, provided that he is qualified
for such office and that, under the law of the State in which the
congressional district is located, write-in voting for such office
is permitted and he is eligible to receive write-in votes in such
election.
(c) The term ``contestant'' means an individual who contests
the election of a Member of the House of Representatives of the
United States under this Act.
(d) The term ``contestee'' means a Member of the House of
Representatives of the United States whose election is contested
under this Act.
(e) The term ``Member'' means an incumbent Representative in or
Resident Commissioner to the Congress of the United States, or an
individual who has been elected to either of such offices but has
not taken the oath of office.
(f) The term ``Clerk'' means the Clerk of the House of
Representatives of the United States.
(g) The term ``committee'' means the Committee on House
Administration of the House of Representatives of the United
States.
(h) The term ``State'' includes territory and possession of the
United States.
(i) The term ``write-in vote'' means a vote cast for a person
whose name does not appear on the official ballot by writing in the
name of such person on such ballot or by any other method
prescribed by the law of the State in which the election is held.
notice of contest
Sec. 3. (a) Whoever, having been a candidate for election to
the House of Representatives in the last preceding election and
claiming a right to such office, intends to contest the election of
a Member of the House of Representatives, shall, within thirty days
after the result of such election shall have been declared by the
officer or Board of Canvassers authorized by law to declare such
result, file with the Clerk and serve upon the contestee written
notice of his intention to contest such election.
(b) Such notice shall state with particularity the grounds upon
which contestant contests the election and shall state that an
answer thereto must be served upon contestant under section 4 of
this Act within thirty days after service of such notice. Such
notice shall be signed by contestant and verified by his oath or
affirmation.
(c) Service of the notice of contest upon contestee shall be
made as follows:
(1) by delivering a copy to him personally;
[[Page 976]]
(2) by leaving a copy at his dwelling house or usual place of
abode with a person of discretion not less than sixteen years of
age then residing therein;
(3) by leaving a copy at his principal office or place of
business with some person then in charge thereof;
(4) by delivering a copy to an agent authorized by appointment
to receive service of such notice; or
(5) by mailing a copy by registered or certified mail addressed
to contestee at his residence or principal office or place of
business. Service by mail is complete upon mailing;
(6) the verified return by the person so serving such notice,
setting forth the time and manner of such service shall be proof of
same, and the return post office receipt shall be proof of the
service of said notice mailed by registered or certified mail as
aforesaid. Proof of service shall be made to the Clerk promptly and
in any event within the time during which the contestee must answer
the notice of contest. Failure to make proof of service does not
affect the validity of the service.
answer; defenses made by motion
Sec. 4. (a) Any contestee upon whom a notice of contest as
described in section 3 shall be served, shall, within thirty days
after the service thereof, serve upon contestant a written answer
to such notice, admitting or denying the averments upon which
contestant relies. If contestee is without knowledge or information
sufficient to form a belief as to the truth of an averment, he
shall so state and this shall have the effect of a denial. Such
answer shall set forth affirmatively any other defenses, in law or
fact, on which contestee relies. Contestee shall sign and verify
such answer by oath or affirmation.
(b) At the option of contestee, the following defenses may be
made by motion served upon contestant prior to contestee's answer:
(1) Insufficiency of service of notice of contest.
(2) Lack of standing of contestant.
(3) Failure of notice of contest to state grounds sufficient to
change result of election.
(4) Failure of contestant to claim right to contestee's seat.
(c) If a notice of contest to which an answer is required is so
vague or ambiguous that the contestee cannot reasonably be required
to frame a responsive answer, he may move for a more definite
statement before interposing his answer. The motion shall point out
the defects complained of and the details desired. If the motion is
granted and the order of the committee is not obeyed within ten
days after notice of the order or within such other time as the
committee may fix, the committee may dismiss the action, or make
such order as it deems just.
(d) Service of a motion permitted under this section alters the
time for serving the answer as follows, unless a different time is
fixed by order of the committee: If the committee denies the motion
or postpones its disposition until the hearing on the merits, the
answer shall be served within ten days after notice of such action.
If the committee grants a motion for a more definite statement the
answer shall be served within ten days after service of the more
definite statement.
service and filing of papers other than notice of contest; how
made; proof of service
Sec. 5. (a) Except for the notice of contest, every paper
required to be
[[Page 977]]
served shall be served upon the attorney representing the party,
or, if he is not represented by an attorney, upon the party
himself. Service upon the attorney or upon a party shall be made:
(1) by delivering a copy to him personally;
(2) by leaving it at his principal office with some person then
in charge thereof; or if the office is closed or the person to be
served has no office, leaving it at his dwelling house or usual
place of abode with a person of discretion not less than sixteen
years of age then residing therein; or
(3) by mailing it addressed to the person to be served at his
residence or principal office. Service by mail is complete upon
mailing.
(b) All papers subsequent to the notice of contest required to
be served upon the opposing party shall be filed with the Clerk
either before service or within a reasonable time thereafter.
(c) Papers filed subsequent to the notice of contest shall be
accompanied by proof of service showing the time and manner of
service, made by affidavit of the person making service or by
certificate of an attorney representing the party in whose behalf
service is made. Failure to make proof of service does not affect
the validity of such service.
default of contestee
Sec. 6. The failure of contestee to answer the notice of
contest or to otherwise defend as provided by this Act shall not be
deemed an admission of the truth of the averments in the notice of
contest. Notwithstanding such failure, the burden is upon
contestant to prove that the election results entitle him to
contestee's seat.
taking testimony by deposition
Sec. 7. (a) Either party may take the testimony of any person,
including the opposing party, by deposition upon oral examination
for the purpose of discovery or for use as evidence in the
contested election case, or for both purposes. Depositions shall be
taken only within the time for the taking of testimony prescribed
in this section.
(b) Witnesses may be examined regarding any matter, not
privileged, which is relevant to the subject matter involved in the
pending contested election case, whether it relates to the claim or
defense of the examining party or the claim or defense of the
opposing party, including the existence, description, nature,
custody, condition and location of any books, papers, documents, or
other tangible things and the identity and location of persons
having knowledge of relevant facts. After the examining party has
examined the witness the opposing party may cross examine.
(c) The order in which the parties may take testimony shall be
as follows:
(1) Contestant may take testimony within thirty days after
service of the answer, or, if no answer is served within the time
provided in section 4, within thirty days after the time for answer
has expired.
(2) Contestee may take testimony within thirty days after
contestant's time for taking testimony has expired.
(3) If contestee has taken any testimony or has filed
testimonial affidavits or stipulations under section 8(c),
contestant may take rebuttal testimony within ten days after
contestee's time for taking testimony has expired.
(d) Testimony shall be taken before an officer authorized to
administer
[[Page 978]]
oaths by the laws of the United States or of the place where the
examination is held.
(e) Attendance of witnesses may be compelled by subpena as
provided in section 9.
(f) At the taking of testimony, a party may appear and act in
person, or by his agent or attorney.
(g) The officer before whom testimony is to be taken shall put
the witness under oath and shall personally, or by someone acting
under his direction and in his presence, record the testimony of
the witness. The testimony shall be taken stenographically and
transcribed. All objections made at the time of examination 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, and any other objection to the proceedings, shall be
noted by the officer upon the deposition. Evidence objected to
shall be taken subject to the objections. In lieu of participating
in the oral examination, a party served with a notice of deposition
may transmit written interrogatories to the officer, who shall
propound them to the witness and record the answers verbatim.
(h) When the testimony is fully transcribed, the deposition
shall be submitted to the witness for examination and shall be read
to or by him, unless such examination and reading are waived by the
witness and the parties. Any changes in the form or substance which
the witness desires to make shall be entered upon the deposition by
the officer with a statement of the reasons given by the witness
for making them. The deposition shall be signed by the witness,
unless the parties by stipulation waive the signing or the witness
is ill or cannot be found or refuses to sign. If the deposition is
not signed by the witness, the officer shall sign it and note on
the deposition the fact of the waiver or of the illness or the
absence of the witness or the fact of refusal to sign together with
the reason, if any, given therefor; and the deposition may then be
used as fully as though signed, unless on a motion to suppress, the
committee rules that the reasons given for the refusal to sign
require rejection of the deposition in whole or in part.
notice of depositions; testimony by affidavit or stipulation
Sec. 8. (a) A party desiring to take the deposition of any
person upon oral examination shall serve written notice on the
opposing party not later than two days before the date of the
examination. The notice shall state the time and place for taking
the deposition and the name and address of each person to be
examined. A copy of such notice, together with proof of such
service thereof, shall be attached to the deposition when it is
filed with the Clerk.
(b) By written stipulation of the parties, the deposition of a
witness may be taken without notice. A copy of such stipulation
shall be attached to the deposition when it is filed with the
Clerk.
(c) By written stipulation of the parties, the testimony of any
witness of either party may be filed in the form of an affidavit by
such witness or the parties may agree what a particular witness
would testify to if his deposition were taken. Such testimonial
affidavits
[[Page 979]]
or stipulations shall be filed within the time limits prescribed
for the taking of testimony in section 7.
subpenas; production of documents
Sec. 9. (a) Upon application of any party, a subpena for
attendance at a deposition shall be issued by:
(1) a judge or clerk of the United States district court for
the district in which the place of examination is located;
(2) a judge or clerk of any court of record of the State in
which the place of examination is located; or
(3) a judge or clerk of any court of record of the county in
which the place of examination is located.
(b) Service of the subpena shall be made upon the witness no
later than three days before the day on which his attendance is
directed. A subpena may be served by any person who is not a party
to the contested election case and is not less than eighteen years
of age. Service of a subpena upon a person named therein shall be
made by delivering a copy thereof to such person and by tendering
to him the fee for one day's attendance and the mileage allowed by
section 10. Written proof of service shall be made under oath by
the person making same and shall be filed with the Clerk.
(c) A witness may be required to attend an examination only in
the county wherein he resides or is employed, or transacts his
business in person, or is served with a subpena, or within forty
miles of the place of service.
(d) Every subpena shall state the name and title of the officer
issuing same and the title of the contested election case, and
shall command each person to whom it is directed to attend and give
testimony at a time and place and before an officer specified
therein.
(e) A subpena may also command the person to whom it is
directed to produce the books, papers, documents, or other tangible
things designated therein, but the committee, upon motion promptly
made and in any event at or before the time specified in the
subpena for compliance therewith, may (1) quash or modify the
subpena if it is unreasonable or oppressive, or (2) condition
denial of the motion upon the advancement by the party in whose
behalf the subpena is issued of the reasonable cost of producing
the books, papers, documents, or tangible things. In the case of
public records or documents, copies thereof, certified by the
person having official custody thereof, may be produced in lieu of
the originals.
officer and witness fees
Sec. 10. (a) Each judge, clerk of court, or other officer who
issues any subpena or takes a deposition and each person who serves
any subpena or other paper herein authorized shall be entitled to
receive from the party at whose instance the service shall have
been performed such fees as are allowed for similar services in the
district courts of the United States.
(b) Witnesses whose depositions are taken shall be entitled to
receive from the party at whose instance the witness appeared the
same fees and travel allowance paid to witnesses subpenaed to
appear before the House of Representatives or its committees.
penalty for failure to appear, testify, or produce documents
Sec. 11. Every person who, having been subpenaed as a witness
under
[[Page 980]]
this Act to give testimony or to produce documents, willfully makes
default, or who, having appeared, refuses to answer any question
pertinent to the contested election case, shall be deemed guilty of
a misdemeanor punishable by fine of not more than $1,000 nor less
than $100 or imprisonment for not less than one month nor more than
twelve months, or both.
certification and filing of depositions
Sec. 12. (a) The officer before whom any deposition is taken
shall certify thereon that the witness was duly sworn by him and
that the deposition is a true record of the testimony given by the
witness. He shall then securely seal the deposition, together with
any papers produced by the witness and the notice of deposition or
stipulation, if the deposition was taken without notice, in an
envelope endorsed with the title of the contested election case and
marked ``Deposition of (here insert name of witness)'' and shall
within thirty days after completion of the witness' testimony, file
it with the Clerk.
(b) After filing the deposition, the officer shall promptly
notify the parties of its filing.
(c) Upon payment of reasonable charges therefor, not to exceed
the charges allowed in the district court of the United States for
the district wherein the place of examination is located, the
officer shall furnish a copy of deposition to any party or the
deponent.
record; printing and filing of briefs and appendixes
Sec. 13. (a) Contested election cases shall be heard by the
committee on the papers, depositions, and exhibits filed with the
Clerk. Such papers, depositions, and exhibits shall constitute the
record of the case.
(b) Contestant shall print as an appendix to his brief those
portions of the record which he desires the committee to consider
in order to decide the case and such other portions of the record
as may be prescribed by the rules of the committee.
(c) Contestee shall print as an appendix to his brief those
portions of the record not printed by contestant which contestee
desires the committee to consider in order to decide the case.
(d) Within forty-five days after the time for both parties to
take testimony has expired, contestant shall serve on contestee his
printed brief of the facts and authorities relied on to establish
his case together with his appendix.
(e) Within thirty days of service of contestant's brief and
appendix, contestee shall serve on contestant his printed brief of
the facts and authorities relied on to establish his case together
with his appendix.
(f) Within ten days after service of contestee's brief and
appendix, contestant may serve on contestee a printed reply brief.
(g) The form and length of the briefs, the form of the
appendixes, and the number of copies to be served and filed shall
be in accordance with such rules as the committee may prescribe.
filings of pleadings, motions, depositions, appendixes, briefs, and
other papers
Sec. 14. (a) Filings of pleadings, motions, depositions,
appendixes, briefs, and other papers shall be accomplished by:
[[Page 981]]
(1) delivering a copy thereof to the Clerk of the House of
Representatives at his office in Washington, District of Columbia,
or to a member of his staff at such office; or
(2) mailing a copy thereof, by registered or certified mail,
addressed to the Clerk at the House of Representatives, Washington,
District of Columbia: Provided, That if such copy is not actually
received, another copy shall be filed within a reasonable time; and
(3) delivering or mailing, simultaneously with the delivery or
mailing of a copy thereof under paragraphs (1) and (2) of this
subsection, such additional copies as the committee may by rule
prescribe.
(b) All papers filed with the Clerk pursuant to this Act shall
be promptly transmitted by him to the committee.
time; computation and enlargement
Sec. 15. (a) In computing any period of time prescribed or
allowed by this Act or by the rules or any order of the committee,
the day of the act, event, or default after which the designated
period of time begins to run shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday,
a Sunday, or a legal holiday, in which event the period shall run
until the end of the next day which is neither a Saturday, a
Sunday, nor a legal holiday. When the period of time prescribed or
allowed is less than seven days, intermediate Saturdays, Sundays,
and legal holidays shall be excluded in the computation. For the
purposes of this Act, ``legal holiday'' shall mean New Year's Day,
Washington's Birthday, Memorial Day, Independence Day, Labor Day,
Veterans Day, Thanksgiving Day, Christmas Day, and any other day
appointed as a holiday by the President or the Congress of the
United States.
(b) Whenever a party has the right or is required to do some
act or take some proceeding within a prescribed period after the
service of a pleading, motion, notice, brief, or other paper upon
him, which is served upon him by mail, three days shall be added to
the prescribed period.
(c) When by this Act or by the rules or any order of the
committee an act is required or allowed to be done at or within a
specified time, the committee, for good cause shown, may at any
time in its discretion (1) with or without motion or notice, order
the period enlarged if request therefor is made before the
expiration of the period originally prescribed or as extended by a
previous order, or (2) upon motion made after the expiration of the
specified period, permit the act to be done where the failure to
act was the result of excusable neglect, but it shall not extend
the time for serving and filing the notice of contest under section
3.
death of contestant
Sec. 16. In the event of the death of the contestant, the
contested election case shall abate.
allowance of party's expenses
Sec. 17. The committee may allow any party reimbursement from
the contingent fund of the House of Representatives of his
reasonable expenses of the contested election case, including
reasonable attorneys fees, upon the verified application of such
party accompanied by a complete and detailed
[[Page 982]]
account of his expenses and supporting vouchers and receipts.
repeals
Sec. 18. The following provisions of law are repealed:
(a) Sections 105 through 129 of the Revised Statutes of the
United States (2 U.S.C. 201-225).
(b) The second paragraph under the center heading ``House of
Representatives'' in the first section of the Act of March 3, 1879
(2 U.S.C. 226).
(c) Section 2 of the Act entitled ``An Act further supplemental
to the various Acts prescribing the mode of obtaining evidence in
cases of contested elections'', approved March 2, 1875 (2 U.S.C.
203).
effective date
Sec. 19. The provisions of, and the repeals made by, this Act
shall apply with respect to any general or special election for
Representative in, or Resident Commissioner to, the Congress of the
United States occurring after the date of enactment of this Act.
Approved December 5, 1969.
Prior to the Federal Contested Election Act, election contests were
governed by the provisions of the now repealed Contested Elections Act,
2 USC Sec. Sec. 201-226. This statute itself was derived in part from
an earlier statute dating from the acts of Feb. 19, 1851, with sundry
subsequent amendments.
Except for the contested election of Tunno v Veysey (Sec. 64.1,
infra), all the election contest cases in this chapter were decided
under the prior statute. For this reason, citations are given to the
prior statute, and comparable provisions in the present statute are
generally cited in footnotes.
Congress, in judging election disputes involving its Members, will
look first to the applicable federal law, if any, and then to the
applicable state law.
In the Kemp, Sanders investigation (Sec. 47.14, infra), Congress
looked to the state law regulating the time for the holding of
elections to fill vacancies, there being no federal law on the
subject. -------------------
Application of State Law
Sec. 2.1 At the state level, an election contest may be initiated
pursuant to a state law making it mandatory for the secretary of
state or other state official to conduct a recount at the request
of either candidate.
In the 1938 New Hampshire election contest of Roy v Jenks
(Sec. 49.1, infra), the original official returns from the Nov. 3,
1936, election gave Arthur B. Jenks a plurality of 550 votes over
Alphonse Roy. Mr. Roy then applied to the New Hampshire Secretary of
State for a recount, pursuant to
[[Page 983]]
state law making it mandatory for that official to conduct a recount
upon request of either candidate. Ultimately the House voted to seat
Mr. Roy.
CHAPTER 9
Election Contests
A. IN GENERAL
Sec. 3. State or Local Election Boards
Article I, section 4, clause 1 of the United States Constitution
provides that the State legislatures shall prescribe the time, place
and manner of holding congressional elections, but authorizes the
Congress at any time to make or alter such regulations (except as to
the location for electing Senators). Although Congress has provided the
time for the election of Representatives (see 2 USC Sec. 7), most of
the procedures for holding elections to the House--including the
printing, casting, and counting of ballots--have been left to the state
and local election boards and commissions to prescribe. (See Ch. 8,
supra, for a complete discussion of election procedures.) Ordinarily,
the House will refuse to intervene to overturn voting procedures
adopted by the local authorities.(6)~ And it has been held
that the House has no authority to order them to conduct a
recount.(7)~
---------------------------------------------------------------------------
6. Sec. 3.2, infra.
7. Sec. 3.1, infra. -------------------
---------------------------------------------------------------------------
Lack of Authority Over State or Local Election Boards
Sec. 3.1 The House has no authority to order a state or local board of
elections to conduct a recount.
In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest,
the parties filed a joint application proposing that the House order
the Missouri Board of Election Commissioners to conduct a recount. It
was concluded that although the House itself, through an elections
committee, could undertake a recount, there was no precedent wherein
the House had ordered a state or local board of election commissioners
to take a recount.
Intervention in State or Local Elections
Sec. 3.2 The House will refuse to intervene in an election contest at
the state or local level, even at the request of both parties.
In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest,
the parties had filed a joint application proposing that the House
order the Missouri Board of Election Commissioners to conduct a
recount. This application alleged that a prior recount by the state in
a local election for Recorder in
[[Page 984]]
dicated a miscount of over 1,000 votes. The report of the Committee on
Elections determined that the contest had not been formally brought
before the House, and that the House should not intervene in a local
contest merely to gather evidence for the parties.
CHAPTER 9
Election Contests
B. JURISDICTION AND POWERS
Sec. 4. The House
The House acquires jurisdiction of an election contest upon the
filing of a notice of contest.(8)~ Normally the papers
relating to an election contest are transmitted by the Clerk to the
Committee on House Administration, pursuant to 2 USC Sec. 393(b),
without a formal referral or other action by the House. However, the
House may initiate an election investigation if a Member-elect's right
to take the oath is challenged by another Member, by referring the
question to the committee. The House may also summarily dismiss a
contest by the adoption of a resolution providing
therefor.(9)~ In some cases, the House has even advised a
contestant that it will not consider any future petitions or matters
relating to the case.(10)~
---------------------------------------------------------------------------
8. Sec. 4.1, infra.
9. Sec. Sec. 4.4, 4.5, infra.
10. Sec. 51.1, infra.
---------------------------------------------------------------------------
One way that the House exercises its control over election contests
is by refusing to administer the oath to a party in an election contest
until the contest is resolved.(11)~
---------------------------------------------------------------------------
11. Sec. 4.3, infra. -------------------
---------------------------------------------------------------------------
Notice of Contest as Basis of Jurisdiction
Sec. 4.1 Jurisdiction of a contested election is acquired by the House
upon the filing of a notice of contest as required by the contested
elections law with the Clerk of the House. Jurisdiction cannot be
conferred on the House, or on a committee thereof, by any joint
agreement of the parties.
In the 1943 Missouri contested election case of Sullivan v Miller
(Sec. 52.5, infra), the parties filed a joint application proposing
that the House order the Missouri Board of Election Commissioners to
conduct a recount. The Clerk's letter to the Speaker advised that the
parties had submitted a joint letter and drafts of resolutions or
[[Page 985]]
dering the recount and extending time for taking testimony, together
with depositions in support thereof. After further investigation, the
election committee recommended in its report that the House should not
intervene in the contest ``that has been initiated but not brought
officially to the House . . . .'' During brief debate in the House, a
Member stated that the effect of the committee's unanimous report would
be to establish that jurisdiction could not be ``conferred on the House
or any of its committees by any joint agreement of parties to an
alleged election contest unofficially or otherwise submitted.''
Power Over Administration of Oath to Candidate in Election Contest
Sec. 4.2 The House, by resolution, may authorize the Speaker to
administer the oath of office to a Member-elect whose election is
in dispute, even though he does not possess a certificate of
election.
In the 1933 Maine election contest of Brewster v Utterback
(Sec. 47.2, infra), a Member objected to the oath being administered to
Member-elect Utterback, who then stood aside while other Members-elect
and Delegates-elect were sworn. The House then adopted a resolution
authorizing the Speaker to administer the oath to Mr. Utterback even
though the latter did not possess a certificate of election from his
state.
Sec. 4.3 Where two persons claim the same seat in the House from the
same congressional district, the House may refuse to permit either
candidate to take the oath of office pending a determination of
their rights by the House.
In the Kemp, Sanders investigation (Sec. 47.14, infra), arising
from a special election held in Louisiana to fill the vacancy created
by the death of Bolivar E. Kemp, the widow of Mr. Kemp claimed to be
elected to the seat on the basis of an election held on Dec. 5, 1933,
and the contestant claimed the seat on the basis of an election held on
Dec. 27, 1933. Confronted with allegations that the Governor had
personally selected the candidates and given unreasonable notice of the
time, place, and manner of the election, the House declined to seat
either party on the convening of the second session of the 73d Congress
on Jan. 3, 1934. Ultimately, the House resolved, after investigation,
that neither party had been validly elected and directed the Speaker to
commu
[[Page 986]]
nicate the fact of the vacancy to the Governor of Louisiana.
Power of Summary Dismissal of Election Contest
Sec. 4.4 The House may dismiss an election contest, on the ground that
contestant is incompetent to initiate the proceeding, by adoption
of a resolution.
In the 1941 Ohio election contest of Miller v Kirwan (Sec. 51.1,
infra), the Majority Leader called up as privileged a resolution
dismissing an election contest, which resolution the House adopted
without debate and by voice vote. The resolution stated that the
contestant who had been a candidate in the party primary, but not in
the general election, was not a person competent to bring a contest for
the seat.
Sec. 4.5 Election contests are ordinarily referred to a committee for
investigation and study; however, there have been instances in
which the House, acting without committee action and consideration,
has dismissed a contest.
In Miller v Kirwan (Sec. 51.1, infra), a 1941 Ohio contest, the
House dismissed an election contest which had not been referred to the
Committee on House Administration; it appeared that contestant had not
been a candidate in the general election he disputed, and was therefore
incompetent to initiate the proceeding.
Notification to Governor of Vacancy
Sec. 4.6 The House authorized the Speaker to notify a Governor of the
existence of a vacancy, where neither party to a contest was found
to be validly elected.
In the Kemp and Sanders investigation (Sec. 47.14), a committee on
elections concluded that neither of two elections held to fill a
vacancy in a Louisiana seat in the 73d Congress was vaIid.
Subsequently, House Reso]ution 231 was called up as privileged and
adopted by voice vote. The resolution set forth the conclusion of the
committee and authorized the Speaker to notify the Governor of the
existing vacancy.
CHAPTER 9
Election Contests
B. JURISDICTION AND POWERS
Sec. 5. Election Committees
Jurisdiction over contested elections is given to the Committee on
House Administration by the House rules; (12)~ and the
responsi
[[Page 987]]
bility for hearing contested election cases falls on the Committee on
House Administration.(13)~
---------------------------------------------------------------------------
12. Rule XI clause 9(k), House Rules and Manual Sec. 693 (1973).
13. 2 USC Sec. 392(a).
---------------------------------------------------------------------------
Under the Federal Contested Elections Act, the term ``committee''
means the Committee on House Administration of the House of
Representatives.(14)~
---------------------------------------------------------------------------
14. 2 USC Sec. 381(g).
---------------------------------------------------------------------------
In this chapter, the term ``committee,'' or ``election committee,''
refers generally to the Subcommittee on Elections of the Committee on
House Administration in the case of contests after 1946, or the
particular election committee investigating a contest (such as
Elections Committee No. 3) in the case of contests prior to the 1946
congressional reorganization.
Prior to the 1946 reorganization of House committees, election
contests were brought before an ``elections'' committee. Such a
committee had been created in 1794 and divided into three committees in
1895, each consisting of nine members.(15)~ In 1946, these
committees were merged in the Committee on House Administration, as was
the Committee on the Election of the President, Vice President, and
Representatives in Congress, which had been in existence since 1893.
Generally, the latter committee was responsible for regulating the time
and manner of elections, and campaign expenditures and
practices.(16)~
---------------------------------------------------------------------------
15. 4 Hinds' Precedents Sec. 4019.
16. For information regarding the creation and history of the Committee
on the Election of the President, Vice President, and
Representatives in Congress, see 4 Hinds' Precedents Sec. 4299;
and 7 Cannon's Precedents
Sec. 2023. -------------------
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Jurisdiction Over Contests Initiated Under the Contested Elections
Statutes
Sec. 5.1 Among the election disputes that were referred to a committee
on elections for disposition was a contest initiated under the
contested election statute by an individual who, though not a
candidate, was protesting the elections of Members from states
having poll taxes.
See In re Plunkett (Sec. 53.2, infra), a 1945 dispute, wherein a
letter of explanation from the Clerk was referred to the elections
committee; the committee took no action in the matter, it appearing
that the contestant, not being a candidate in the disputed election,
was not qualified to initiate the proceedings.
[[Page 988]]
Overlapping Jurisdiction; Com-mittee to Investigate Campaign
Expenditures
Sec. 5.2 Parliamentarian's Note: Prior to the 93d Congress, a Special
Committee to Investigate Campaign Expenditures was often created
with subpena authority to expedite the investigation of certain
elections.(17)
---------------------------------------------------------------------------
17. For a more complete discussion of this subject. see Ch. 8 Sec. 14,
supra.
---------------------------------------------------------------------------
In the 1963 Minnesota election contest of Odegard v Olson
(Sec. 60.1, infra), several minority members of the election committee
pointed to the ``confusion which may be created during the period
surrounding a general election by the existence of two separate
committees of the House having parallel and overlapping jurisdiction.''
The contestee had complained about allegedly improper evidence
submitted by the contestant to the Special Committee to Investigate
Campaign Expenditures of the 87th Congress, which evidence had been
referred to the Committee on House Administration.
Sec. 5.3 A ``Special Committee to Investigate Campaign Expenditures of
the House of Representatives'' of the preceding Congress
recommended that the Committee on House Administration investigate
certain disputed returns and report to the House by a certain date.
In the 1958 Maine contested election of Oliver v Hale (Sec. 57.3,
infra), arising from the Sept. 10, 1956, election, representatives from
a special House committee established by the 84th Congress were present
at a recount conducted under a Maine state law; the committee later
issued a report recommending that the Committee on House Administration
immediately investigate the approximately 4,000 ballots in dispute and
report to the House by Mar. 15, 1957. The committee minority contended
unsuccessfully that a committee of the 84th Congress should not
``purport to dictate to the Committee on House Administration of the
85th Congress how it shall conduct its operations or when it shall file
its report.''
Qualifications of Members on Subcommittee on Elections
Sec. 5.4 The members of the Subcommittee on Elections of the Committee
on House Administration are chosen on the basis of their seniority
and legal experience.
In the 1965 Iowa election contest of Peterson v Gross (Sec. 61.3,
[[Page 989]]
infra), during debate on a resolution dismissing the contest, a Member
criticized the composition of the subcommittee on elections because, as
he stated, no Member on the majority side was ``from north of Virginia
or west of the Mississippi River.'' In response, House Administration
Committee Chairman Omar T. Burleson, of Texas, stated that subcommittee
members were chosen because they were lawyers and on the basis of
seniority.(18)
---------------------------------------------------------------------------
18. 111 Cong. Rec. 26503, 89th Cong. 1st Sess., Oct. 11, 1965, during
debate on H. Res. 602.
---------------------------------------------------------------------------
Power to Dismiss Contests
Sec. 5.5 The power to dismiss a contest, on proper grounds, is one
normally exercised by the House itself; however, there have been
instances in which the power to recommend dismissal has been
exercised by the committee to which the contest had been referred.
In the 1940 Tennessee election contest of Neal v Kefauver
(Sec. 50.1, infra), the election committee submitted a report stating
that it had dismissed the contest for failure of the contestant to take
evidence and because there was no evidence before the committee of the
matters charged in his notice of contest, and no briefs filed. The
contestant had not appeared in person as requested by the committee.
The House adopted a resolution from the committee that the contestee
was entitled to the seat.
Sec. 5.6 A motion to dismiss a contest for failure of contestant to
take testimony within the time prescribed by law will be referred
to the committee with jurisdiction over election disputes.
In the 1947 Illinois contested election case of Woodward v O'Brien
(Sec. 54.6, infra), the Clerk transmitted the contestee's motion to
dismiss for failure of the contestant to take testimony within the time
prescribed by law to the Speaker for reference to the Committee on
House Administration, which subsequently issued a report recommending
dismissal of the contest.
Actions to Preserve Evidence in Election Contests
Sec. 5.7 An elections committee may request county auditors to retain
and preserve the ballots and other papers for use in an election
contest, although declining to assume custody of the ballots.
[[Page 990]]
In the 1957 Iowa contested election of Carter v LeCompte
(Sec. 57.1, infra), the Committee on House Administration denied a
motion by the contestant that the committee assume custody of the
ballots. However, the committee did, by telegram, request county
auditors to preserve all ballots and other papers for possible use by
the committee. The request was honored in each county. The committee
noted that the laws of Iowa afforded no mode of preserving the ballots
cast, and in fact directed the auditors to destroy the ballots in
congressional elections after six months.
Sec. 5.8 Where state law mandated destruction of the ballots after an
election, an elections committee notified state officials to
preserve the ballots notwithstanding the state law.
In the 1959 Kansas election contest of Mahoney v Smith (Sec. 58.2,
infra), an elections committee acted upon the contestant's motion for
preservation of the ballots by notifying state officials to preserve
ballots despite state law which required their destruction six months
after the election. Certain county clerks, however, had not been
officially notified of the pending contest and had destroyed ballots
prior to the filing of the contestant's motion.
Sec. 5.9 An elections committee may go to the site of an election and
take physical custody of the ballots and other materials to
facilitate the investigation of the right of a Member-elect to a
seat in the House.
Following the 1958 Arkansas election of write-in candidate Dale
Alford to a seat in the House (Sec. 58.1, infra), the House authorized
the Committee on House Administration to send for persons and papers
and to examine witnesses under oath. The Committee on House
Administration in turn requested the federal authorities in possession
of the ballots and other documents to release them to the committee. To
facilitate the investigation, the Subcommittee on Elections traveled to
Little Rock, Arkansas, to take physical custody of the ballots and
other materials.
Power to Examine and Recount Disputed Ballots
Sec. 5.10 The Committee on House Administration has adopted motions to
conduct an examination and recount of disputed ballots and to
request counsel for both par
[[Page 991]]
ties to reduce the number of ballots in dispute.
In the 1958 Maine contested election of Oliver v Hale (Sec. 57.3,
infra), arising from the Sept. 10, 1956, election, the Committee on
House Administration on Apr. 30, 1958, adopted motions to conduct an
examination and recount of the disputed ballots, and to request counsel
for both parties to reduce further, if possible, the number of ballots
in dispute. Accordingly, counsel reduced the number to 142 regular
ballots and 3,626 absentee ballots in dispute, thus giving contestee a
stipulated plurality of 174 votes.
Sec. 5.11 An elections committee has the power to declare invalid an
entire group of ballots, but it will exercise such power only where
it cannot distinguish the valid ballots from the invalid ballots.
In Chandler v Burnham, a 1934 California contest (Sec. 47.4,
infra), the contestant alleged numerous irregularities concerning the
method of counting ballots, the composition of election boards, the
preparation of tally sheets, and the like. The contestant sought to
have the returns rejected in total. The elections committee, however,
while recognizing its power to reject an entire group of ballots,
declared that such power would be exercised only ``where it is
impossible to ascertain with reasonable certainty the true vote.''
Continuing Investigations
Sec. 5.12 Upon adoption by the House of a resolution sanctioning it,
the Committee on House Administration may continue its
investigation into a contested election case notwithstanding any
adjournment or recess of a session of Congress.
In Wilson v Granger (Sec. 54.5, infra), a 1948 Utah contest, the
House agreed by voice vote and without debate to a resolution (H. Res.
338) authorizing the Committee on House Administration to continue an
investigation that had been delayed over a year by numerous extensions
granted to the parties in a contested election case. The expenses of
the investigation were authorized to be paid out of the contingent fund
of the House and any testimony and papers referred by the Speaker to
the committee were to be printed as House documents of the next
succeeding session of the Congress.(19)
---------------------------------------------------------------------------
19. See also Lowe v Davis, Sec. 54.1, infra; and Mankin v Davis,
Sec. 54.2, infra.
---------------------------------------------------------------------------
[[Page 992]]
Advisory Opinions on State Law
Sec. 5.13 An elections committee may accept the opinion of a state
attorney general as to the effect of state laws for disputing an
election.
In the 1957 Iowa contested election of Carter v LeCompte
(Sec. 57.1, infra), the election committee expressly rejected the
ruling in Swanson v Harrington (Sec. 50.4, infra), a 1940 Iowa election
contest in which the contestant had been required to show, by seeking
recourse to the highest state court, that the Iowa election laws did
not permit him a recount. This time, however, the committee adopted the
view of the Iowa attorney general, as expressed in a letter to the
Governor and secretary of state, that the laws of Iowa contained no
provision for contesting a House seat.
Sec. 5.14 An advisory opinion by a state supreme court that ballots
from certain precincts should be discounted for failure of election
officials to perform duties made mandatory by state law may be
accepted as binding by an elections committee of the House.
In Brewster v Utterback (Sec. 47.2, infra), a 1933 Maine contest,
contestant alleged the fraudulent or negligent failure. of election
officials to perform their duties as required by state law. He claimed
that election officials had neglected to provide voting booths in
certain precincts, that in another precinct more ballots had been cast
than there were voters, and that in yet another precinct officials had
illegally permitted and assisted unqualified voters to cast ballots.
The Committee on Elections assumed the validity of the state
supreme court opinion to the effect that certain ballots should be
discounted for failure of election officials to perform duties required
by state law.
CHAPTER 9
Election Contests
B. JURISDICTION AND POWERS
Sec. 6. The Clerk; Transmittal of Papers
Under the modern practice, all papers filed with the Clerk pursuant
to the Federal Contested Elections Act are to be promptly transmitted
by him to the Committee on House Administration.(20) By
long-standing practice, testimony taken by deposition in an election
contest is transmitted to the Clerk.(21)
---------------------------------------------------------------------------
20. 2 USC Sec. 393(b).
21. 1 Hinds' Precedents Sec. Sec. 703, 705.
---------------------------------------------------------------------------
Under the prior contested elections statute, the Clerk trans
[[Page 993]]
mitted the original notice of contest, answer, and testimony directly
to the committee (pursuant to 2 USC Sec. 223), but other special
motions and papers filed with the Clerk by either party were forwarded
to the Speaker for reference by him to the committee, as reflected in
the precedents which
follow. -------------------
Items Transmitted by Clerk to Speaker
Sec. 6.1 Prior to 1969, among the documents that were communicated to
the Speaker for reference to an elections committee was a
communication to the Clerk from a contestee raising the question as
to whether contestant was barred from proceeding further because of
a failure to comply with some provision of the Federal Contested
Elections Act.
In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the
contestee sought to bar contestant from further proceeding under the
statute because of a failure to forward certain testimony to the Clerk
within the time required by law. The contestee's letter to this effect
was transmitted to the Speaker for referral.
Sec. 6.2 In the event that certificates of election are submitted by
both parties to a contest, they are included with the communication
from the Clerk to the Speaker.
In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra), the
Clerk transmitted a certificate of election of Mrs. Bolivar E. Kemp,
Sr., signed by the Governor of Louisiana and attested by the secretary
of the State of Louisiana, along with a certificate of election of J.
Y. Sanders, which certificate was prepared by the ``Citizens' Election
Committee of the Sixth Congressional District.'' Ultimately, the House
determined that neither party had been validly elected.
Sec. 6.3 Among the papers which prior to 1969 the Clerk transmitted to
the Speaker for reference to an elections committee was a
contestant's application for extension of time for taking
testimony.
In the 1943 Illinois election contest of Moreland v Schuetz
(Sec. 52.3, infra), the Speaker laid before the House a letter from the
Clerk conveying a request by the contestant for an extension of time
because the time and facilities of the responsible election officials
were
[[Page 994]]
then being totally consumed in preparation for local elections. By
resolution, the House extended the time for taking testimony by 65
days.
Sec. 6.4 The Clerk's letter transmitting a contest has been ordered
printed by the Speaker to include copies of the contestant's notice
of the contest, contestee's answer thereto, contestee's two motions
to dismiss the contest, and contestant's memorandum in explanation
of his failure to take testimony within the time prescribed by law
and of his discontinuance of further action in the matter.
In the 1951 Missouri contested election case of Karst v Curtis
(Sec. 56.2, infra), the contestant brought the contest on the advice of
his county party committee, based on allegations of improper tallying
of ballots in a local election held simultaneously with his own. When
the recount failed to disclose the discrepancies, the contestant
notified the House of his decision to discontinue action, which the
Speaker ordered printed as a House document and referred to the
Committee on House Administration along with the other documents
received by the Clerk. The other documents included: (1) contestant's
notice of contest; (2) contestee's answer; (3) contestee's motion to
dismiss for failure of contestant to take testimony within 40 days
after service of answer; (4) a memorandum from contestant explaining
his failure to take testimony during the 40 days; and (5) contestee's
renewed motion to dismiss for failure of contestant to take testimony
during the 90-day statutory period.
Sec. 6.5 A communication from the Clerk transmitting a memorial
challenging the right of a Member-elect to a seat was referred to a
committee on elections but not printed as a House document
In the 1933 investigation of the citizenship qualifications of a
Member-elect from Pennsylvania, In re Ellenbogen (Sec. 47.5, infra),
the Clerk transmitted to the Speaker a letter containing a memorial and
accompanying papers filed by Harry A. Estep, a former Member,
challenging the citizenship qualifications of the Member-elect. The
communication and accompanying papers were referred to the Committee on
Elections, but not ordered printed.
Sec. 6.6 In his letter of transmittal to the Speaker rel
[[Page 995]]
ative to an election contest, the Clerk may point out that he does
not regard the contestant as competent to bring the contest under
the statutes governing such proceedings.
See In re Plunkett (Sec. 53.2, infra), a 1945 dispute, in which the
Clerk expressed his belief that an individual who was attempting to
contest the election of 79 Members from various states had not been a
party to any of the elections and was therefore incompetent to initiate
such a contest.
Sec. 6.7 In his letter of transmittal to the Speaker, the Clerk may
point out that neither party had taken testimony during the time
prescribed by law and that the contest appears to have abated.
In Roberts v Douglas (Sec. 54.4, infra), a 1947 California contest,
the Clerk's letter, together with copies of the contestant's notice of
contest and contestee's motion to dismiss and a letter from her
attorney in support thereof, were referred by the Speaker to the
Committee on House Administration. The Clerk's letter noted that
testimony had not been timely taken and that the contest appeared to
have abated. The House subsequently agreed to dismiss the contest on a
voice vote and without debate.
Sec. 6.8 The Clerk may include the contestee's answer, though filed for
information only, in a letter transmitted to the Speaker stating
the Clerk's opinion that the contest has abated.
In Browner v Cunningham, a 1949 Iowa contested election case
(Sec. 55.1, infra), the contestee's answer was transmitted by the Clerk
to the Speaker along with the Clerk's letter relating that no testimony
had been received and the opinion of the Clerk that the contest had
abated.
Sec. 6.9 Where the Clerk receives an application for an extension of
time for taking testimony, he communicates that fact to the Speaker
together with accompanying papers, which the Speaker then refers to
an appropriate committee.
In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest,
an application for an extension of time for taking testimony, although
filed before the contest had been formally presented to the House, was
communicated by the Clerk to the Speaker together
[[Page 996]]
with accompanying papers, which the Speaker referred to a committee and
ordered printed.
Sec. 6.10 In communicating with the Speaker relative to an apparent
election contest and papers pertaining thereto, the Clerk may rely
on ``unofficial knowledge.'' And the Speaker may refer such
communication and accompanying papers to a committee on elections.
In Reese v Ellzey (Sec. 47.13, infra), a 1934 Mississippi contest,
the Speaker laid before the House a letter from the Clerk transmitting
his ``unofficial knowledge'' of the contest, together with contestant's
letter of withdrawal therefrom. The Clerk's letter and accompanying
papers were referred to a committee on elections and ordered printed.
Sec. 6.11 The Clerk's letter transmitting a notice of contest to the
Speaker may disclose that the contestee has not filed a brief in
support of his position within the time prescribed by law.
In the 1947 Georgia election contest of Mankin v Davis (Sec. 54.2,
infra), the Clerk's letter, which the Speaker ordered printed as a
House document, stated that the contestant had complied with the
requirements to forward his brief to the contestee and file notice
within 30 days, but that the contestee had not submitted his brief in
answer within the requisite time.
Sec. 6.12 In the Clerk's letter of transmittal, he may include the
information that contestant has not forwarded testimony to his
office in the manner prescribed by law.
In Hicks v Dondero (Sec. 53.1, infra), a 1945 Michigan contest, the
Clerk's letter of transmittal to the House related that he had received
packets of material which had not been addressed to the Clerk, or
prepared in the manner required by law. The Clerk's letter further
stated that since the proper statutory procedure had not been followed,
he was transmitting all of the material received to the House for its
disposition.
Production of Documents Under Subpena
Sec. 6.13 The Clerk has refused to comply with a subpena duces tecum
served upon him by a contestant's notary public requesting
production of documents filed by the contestee.
In the 1934 Illinois contested election case of Weber v Simpson
[[Page 997]]
(Sec. 47.16, infra), the contestant's notary public served a subpena
duces tecum upon the Clerk, who refused to comply with it without
permission of the House. The subpena requested production of documents
filed by the contestee in the dispute. The subpena and accompanying
papers were referred to the Committee on the Judiciary and ordered
printed. The 73d Congress did not authorize the Clerk to respond to the
subpena.
CHAPTER 9
Election Contests
B. JURISDICTION AND POWERS
Sec. 7. The Courts
Although the House is the final judge of the elections of its
Members, candidates are frequently subjected to actions in state and
federal courts for violations of laws regulating campaign practices, an
area which Congress has largely left to the states. Beyond the scope of
this chapter are injunctions against the issuance of election
certificates (22) and suits by individuals such as those
arising from violations of the 1965 Voting Rights Act, 42 USC
Sec. Sec. 1971 et seq., and court-ordered congressional
redistricting.(1)
---------------------------------------------------------------------------
22. See Ch. 8 Sec. 16.4, supra, for discussion of an instance wherein a
state court had issued a preliminary injunction against the
issuance of a certificate to a Member-elect, and the House
referred the question of his right to be seated to a committee.
1. See Wesberry v Sanders, 376 U.S. 1 (1963) and kindred cases such as
Gray v Sanders, 372 U.S. 368 (1963) which invalidated the use
of the ``county unit'' system of selecting party candidates.
Generally, see Ch. 8, supra.
---------------------------------------------------------------------------
This section takes up precedents involving (1) the necessity to
appeal to state courts before the election to cure pre-election
irregularities;(2) (2) the acceptance of advisory opinions
from state courts on the laws of that state; (3) and (3) the
binding effect of local court determinations.(4)
---------------------------------------------------------------------------
2. Sec. 7.1, infra.
3. Sec. 7.3, infra.
4. Sec. 7.4, infra.
---------------------------------------------------------------------------
The House has stated that local magistrates lack authority to break
open ballot boxes.(5)
---------------------------------------------------------------------------
5. Sec. 7.7, infra. The jurisdiction of the courts over the election
of Members is more fully discussed in Ch. 8,
supra. -------------------
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Appeal to State Court Regarding Pre-election Irregularities
Sec. 7.1 A contestant must exhaust state law remedies by protesting
pre-election irregularities to the state board of election, with
appeal to the state courts, prior to the election, in order to
overturn the results of that election on the basis of the pre-
election irregularity.
[[Page 998]]
In the 1951 Ohio contested election case of Huber v Ayres
(Sec. 56.1, infra), the majority of the committee recommended dismissal
of a contest on the basis that the contestant had failed to exhaust his
state remedies first. The majority also suggested that discrimination
against the contestant may have been due to the failure of the Ohio
legislature to implement a constitutional provision calling for an
equal rotation of the candidates' names in the different positions on
the ballots. Although the minority disagreed with the majority
conclusion, and further argued that the contestant had not been
afforded a fair chance to discover the error before the election in
order to take appropriate action, the House nevertheless approved a
resolution dismissing the contest and seating the contestee.
Sec. 7.2 Contestant did not have to seek recourse to the highest state
court to show that the Iowa election laws did not permit him a
recount under state law.
In the 1957 Iowa contested election case of Carter v LeCompte
(Sec. 57.1, infra), the elections committee expressly overruled the
view of the committee in the 1940 election contest of Swanson v
Harrington (Sec. 50.4, infra), in which the contestant had been
required to seek recourse to the highest state court in order to show
that the Iowa election laws did not permit him to seek a recount. The
committee adopted the opinion of the state attorney general as
expressed in a letter to the Governor and secretary of state.
Advisory Opinions by State Courts
Sec. 7.3 A state supreme court, empowered to issue advisory opinions,
advised a state Governor to issue a certificate of election to a
contestee, based on the official canvass of votes, and that he had
no authority to determine the validity of disputed ballots counted
in that canvass.
In the 1958 Maine contested election case of Oliver v Hale
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, a
recount was conducted as permitted by state law with representatives
present from the ``Special Committee to Investigate Campaign
Expenditures of the House of Representatives.'' The contestee requested
that a certificate of election be issued to him, to which request the
contestant objected. The Governor declined to issue such certificate
pending receipt of an
[[Page 999]]
advisory opinion from the Supreme Court of Maine. The supreme court
advised that the Governor had no authority to determine the validity of
disputed ballots, and that he should issue a certificate based on the
official canvass of votes. Accordingly, the Governor and council issued
the certificate of election to the contestee on Dec. 5, 1956.
Local Court Determinations as Controlling
Sec. 7.4 Where state law required county residence for a certain length
of time as a qualification for registration, and no challenge of
voters was made at the time of such registration or at the time of
voting, a local court interpretation as to when residency commenced
to run was regarded by the House elections committee as
controlling.
In the 1951 New York contested election case of Macy v Greenwood
(Sec. 56.4, infra), the contestee had received a plurality of only 135
votes over the contestant, who argued that 932 voters were not
qualified as to residence for the reason that they had not satisfied
the four-month county residency requirement under state law. According
to the contestant, such period should have begun when a voter actually
moved into the district rather than on the date of signing a contract
to purchase a house therein. The House committee, however, found that
the local board of elections had relied, in their interpretation of the
requirement, on a county court decision to the effect that the date of
signing any such contract was determinative.
In expressing the view that the votes had been fairly tabulated,
the committee found that no challenges were made under provisions of
New York law which permitted challenging of voters at the time of
registration and voting. Furthermore, the committee report stated that
no instance could be found in which the House had rejected votes as
illegal for the reason that the voter had not resided in the county for
the statutory period of time. In recommending adoption of a resolution
seating the contestee, the committee also noted that, ``Had it found
the votes illegally cast, the votes presumably would be deducted
proportionally from both candidates, according to the entire vote
returned for each.''
The contest was subsequently dismissed by the House.
Sec. 7.5 A committee on elections stated that it was not bound
[[Page 1000]]
by the actions of a state court in supervising a recount; but the
committee denied contestant's motion to suppress testimony obtained
at a state inquiry, where the contestant had initiated the state
recount procedure and would be estopped from offering rebuttal
testimony as to the result of the recount.
In Kent v Coyle (Sec. 46.1, infra), a partial recount was conducted
by a state court pursuant to state law; but a committee on elections
held that contestant had failed to sustain the burden of proof of fraud
where a discrepancy between the official returns and the partial
recount was inconclusive.
Interpretation of Law Governing Nominations
Sec. 7.6 A committee on elections adopted a state court decision on the
legality of the nomination of a party candidate, where petitioner,
who had unsuccessfully sought such nomination for himself, filed a
petition in the House against the candidate who had subsequently
defeated the nominee in the general election.
In Lowe v Thompson (Sec. 62.1, infra), a contest was dismissed and
a petition denied where a state court suit challenging the alleged
irregular nomination of the candidate opposing contestee had been
dismissed.
Magistrates Lack Authority To Open Ballot Boxes
Sec. 7.7 A magistrate taking testimony in an election contest is not a
person or tribunal authorized to try the merits of the contest and
has no authority to order ballot boxes to be broken open.
In the 1949 Michigan contested election case of Stevens v Blackney
(Sec. 55.3, infra), the committee majority cited early cases in the
report quoting the ``accepted uniform rule'' that a magistrate taking
testimony ``was not a person or a tribunal authorized to try the merits
of the election [contest] and had no authority under the law of
Pennsylvania or of Congress to order those boxes to be broken open.''
[[Page 1001]]
CHAPTER 9
Election Contests
C. GROUNDS OF CONTEST
Sec. 8. Generally
While the new Federal Contested Elections Act (2 USC Sec. Sec. 381-
396) does not attempt to describe or specify the grounds upon which a
contestant may bring an election contest, it is significant that 2 USC
Sec. 383(b)(3) provides that the contestee may assert as a defense
``failure of notice of contest to state grounds sufficient to change
result of election'' (emphasis supplied). Hence, the grounds asserted
by the contestant in bringing an election contest should be sufficient
to change the result of the election, under the new statute.
The House generally will not unseat a Member for alleged campaign
irregularities if he possesses a proper certificate of election and
where the violations of the applicable statutes were unintentional and
not fraudulent.(6)
---------------------------------------------------------------------------
6. See Ch. 8, supra.
---------------------------------------------------------------------------
Failure to file timely and accurate expenditure reports with the
Clerk of the House does not necessarily deprive a contestee of his
seat, and the Committee on House Administration will consider evidence
of mitigating circumstances and negligence, as opposed to
fraud.(7)
---------------------------------------------------------------------------
7. Id.
---------------------------------------------------------------------------
CHAPTER 9
Election Contests
C. GROUNDS OF CONTEST
Sec. 9. Faulty Credentials; Citizenship
After presentation of a certificate of election to the Clerk, the
Member-elect is usually administered the oath along with the other
Members-elect, unless he is asked to step aside. Once sworn and seated,
the contestee may benefit from a number of presumptions which must be
refuted by the contestant (see Sec. Sec. 35, 36, infra). Hence, the
possession of a certificate of election, issued by state authorities,
declaring a candidate to be the winner of the election, is of great
importance.
A challenge to seating a Member-elect may also be based on his
failure to meet the constitutional requirements as to citizenship,
residence, or age for the office, and in that context is treated as a
matter of ``exclusion'' and not as an election contest. (See Ch. 8,
supra.) -------------------
Certificates of Election
Sec. 9.1 Where two persons claim a seat in the House from the same
congressional district, one having a certificate of election signed
by the Governor of the state, and the
[[Page 1002]]
other having a certificate of election from a citizens' elections
committee, the House may refuse to permit either to take the oath
of office and refer the dispute to a House committee on elections.
In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra), both
parties claimed credentials to the seat from the Sixth Congressional
District of Louisiana. The Clerk transmitted a certificate of election
of Mrs. Bolivar E. Kemp, signed by the Governor of Louisiana and
attested by the secretary of the State of Louisiana, to fill a vacancy
created by the death of her husband. The Clerk's letter also
transmitted a certificate of election of J. Y. Sanders, prepared by the
``Citizens' Election Committee of the Sixth Congressional District,''
to fill the vacancy. The House refused to permit either party to take
the oath of office and referred the question of their prima facie
credentials to the Committee on Elections.(8)
---------------------------------------------------------------------------
8. Certificates of election are also discussed in Ch. 8, supra.
---------------------------------------------------------------------------
Sec. 9.2 There have been instances in which the House has permitted a
contestee to be seated pending the outcome of a contest brought
against him, notwithstanding the fact that he does not hold a
certificate of election signed by the Governor of his state.
In Brewster v Utterback (Sec. 47.2, infra), a 1933 Maine contest,
it was contended that the House should not recognize the prima facie
right of a contestee to a seat by permitting him to take the oath
absent a certificate of election. It was ruled, following earlier
precedents, that the House may permit a Member-elect to take the oath
of office after being ``satisfied [from the evidence] that the man was
elected,'' though it appears that his election might still be in
dispute.
Sec. 9.3 A certificate of election from a state Governor is only prima
facie evidence of election and may be rendered ineffective by
adoption of a House resolution referring the election contest to
the Committee on House Administration without seating either
candidate.
In the 1961 Indiana investigation of the right of Roush or Chambers
to a seat in the House (Sec. 59.1, infra), the House agreed, by a
division of 205 yeas to 95 nays, to a resolution on the day of
organization that referred the case to the Committee on House
[[Page 1003]]
Administration, and seating neither party to the dispute, although the
Governor of Indiana had already certified Chambers as the winner with a
12-vote majority of the 214,615 votes cast.
Citizenship
Sec. 9.4 A Member-elect who has not been a citizen for seven years when
elected or upon the convening of Congress may be challenged as
unqualified under the Constitution.
In the 1933 investigation of the citizenship qualifications of a
Member-elect from Pennsylvania, In re Ellenbogen (Sec. 47.5, infra),
initiated by the filing of a memorial by an individual with the Clerk,
the committee determined that the Member-elect, who was born in Vienna,
Austria on Apr. 3, 1900, and was admitted to citizenship on June 17,
1926, was qualified to take the oath of office at the time of the
commencement of the second session of the 73d Congress on Jan. 3, 1934.
The Member-elect, who had been a citizen for only six years and five
months at the time of his election on Nov. 8, 1932, and for only six
years and eight months at the time of the commencement of the first
session of the 73d Congress on Mar. 9, 1933, had been a citizen for
over seven and a half years at the time of the convening of the second
session of the 73d Congress, thus satisfying the requirements of
article I, section 2, clause 2 of the Constitution.
CHAPTER 9
Election Contests
C. GROUNDS OF CONTEST
Sec. 10. Violation of Federal or State Election Laws
Frequently alleged as a basis for an election contest are
violations of state and federal laws relating to the conduct of such
elections. Whether a challenge based on such grounds will be sufficient
to overturn the result of the election depends in part on whether the
candidate himself participated, whether the errors were committed by
election officials, and whether the violations were of laws regarded as
merely directory or mandatory.
Until 1972, campaign practices in congressional elections were
governed by the Corrupt Practices Act of 1925, as
amended.(9) The Federal Election Campaign Act of 1971, which
became effective 60 days after the date of enactment (Feb. 7, 1972),
repealed the Corrupt Practices Act of 1925 and established a new and
comprehensive code for campaign practices and
expenditures.(10)
---------------------------------------------------------------------------
9. 2 USC Sec. Sec. 241-256 (repealed).
10. 2 USC Sec. Sec. 431 et seq.; Pub. L. No. 92-225; 86 Stat. 3, Feb.
7, 1972. Violations relating to campaign expenditures are also
treated in Ch. 8, supra.
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[[Page 1004]]
Corrupt Practices Act
Sec. 10.1 The violation of those provisions of the federal campaign
practices statute, or a state counterpart, which limit the amount
which a candidate may spend in his campaign, may be alleged as
grounds for an election contest.
In Schafer v Wasielewski (Sec. 52.4, infra), a 1944 Wisconsin
contest, contestant alleged that contestee had expended more money
during his campaign than was permitted by the Federal Corrupt Practices
Act and by the election laws of Wisconsin, and that contestee had
failed to file correct reports of expenditures as required by law. The
committee found, however, that although the Wisconsin statutes limited
the amount of money which could be spent by a candidate personally,
they placed no limitation upon expenditures of individuals or groups
that ``might voluntarily interest themselves'' in behalf of a
candidate. The committee determined that certain sums listed actually
represented expenditures of a ``voluntary committee'' rather than
expenditures of a personal campaign committee; accordingly, the
committee found that such expenditures were not personal expenditures
and thus not limited by state law.
Sec. 10.2 A House committee has suggested that censure by the House
might be appropriate where a Member has failed to comply with the
requirements of federal law as to the filing of forms and
statements showing campaign expenditures.
In McCandless v King, a 1936 Hawaii contest, (Sec. 48.2, infra), a
one-year delay in filing forms under the Corrupt Practices Act showing
campaign expenditures was held to subject the contestee to censure,
though not forfeiture of his seat. The finding of the committee was
based on the fact that although contestee had failed to file within 30
days a complete and itemized account of his expenditures, he did write
a timely letter to the Clerk itemizing certain expenditures and stating
that on his arrival in Washington he would fill out the required form.
Sec. 10.3 Mere negligence on the part of a contestee in preparing
expenditure accounts to be filed with the Clerk under the Federal
Corrupt Practices Act will not, in the
[[Page 1005]]
absence of fraud, operate to deprive him of his seat where he has
received a substantial plurality of votes.
In Schafer v Wasielewski (Sec. 52.4, infra), a 1944 Wisconsin
contest, the contestant, who had been defeated in the election by
approximately 17,000 votes, alleged inter alia that contestee had
failed to file correct reports of expenditures as required by law. The
committee found, however, that the contestee had negligently listed
``voluntary committee'' expenditures as ``personal'' expenditures,
though only the latter were limited by state law. The committee found
no evidence of fraud, and concluded that it should not deprive
contestee of his seat as a result of negligence in preparing the
accounts.
Sec. 10.4 Mere negligence on the part of a contestee and his counsel in
preparing campaign expenditure accounts to be filed with the Clerk
is not sufficient to deprive him of his seat in the House, where he
received a substantial majority of votes, and there was no evidence
of fraud.
In Thill v McMurray (Sec. 52.6, infra), a 1944 Wisconsin contest,
contestee's statement of expenditures filed with state officials
conflicted with those filed with the Clerk of the House. The Committee
on Elections considered evidence that the statement filed with the
Clerk had been erroneously prepared and signed. It admonished contestee
for signing an expenditure statement under oath without being familiar
with its contents or the irregularities therein, but refused to
recommend that he be deprived of his seat.
Sec. 10.5 In determining whether contestee's failure to comply with the
Corrupt Practices Act should result in forfeiture of his seat, the
elections committee may consider such circumstances as the personal
character of the contestee, his experience as a candidate for
public office, the extent of any improper campaign expenditures,
and the effect of such violations on the rights of the contestant.
See McClandless v King, a 1936 Hawaii contest (Sec. 48.2, infra),
where the Committee on Elections, in determining whether a violation of
the Corrupt Practices Act should result in censure or forfeiture of a
seat, took into account contestee's naval record, his incomplete
knowledge of election
[[Page 1006]]
laws and procedures, and the fact that the Clerk had not mailed the
required forms to contestee.
Distinction Between Mandatory and Directory Laws
Sec. 10.6 An elections committee has distinguished between mandatory
and directory provisions of state law pertaining to elections.
In the 1961 Indiana investigation of the right of Roush or Chambers
to a seat in the House (Sec. 59.1, infra), the elections committee
cited the Nebraska case of Waggoner v Russell, 34 Neb. 116, 51 N.W. 465
(1892), which stated in part:
In general, those statutory provisions which fix the day and
the place of the election and the qualifications of the voters are
substantial and mandatory, while those which relate to the mode of
procedure in the election, and to the record and the return of the
results, are formal and directory. Statutory provisions relating to
elections are not rendered mandatory, as to the people, by the
circumstance that the officers of the election are subjected to
criminal liability for their violation.
The committee followed this guideline in determining whether
certain Indiana provisions governing ballot validity and counting were
mandatory or merely directory.
Sec. 10.7 Although violation of state laws governing the conduct of
election officials, absent fraud, is not sufficient ground for
invalidating ballots, statutes regulating the conduct of voters
must be substantially complied with, as such laws are mandatory.
In the 1958 Maine contested election case of Oliver v Hale
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, the
committee followed a state supreme court advisory opinion that certain
alleged violations of the provisions of the law touching upon procedure
to be followed in handling and preserving of applications and envelopes
of absentee votes by election officials were to be viewed as directory
rather than mandatory. On the other hand, the committee cited state
court decisions which distinguished between acts of the voter and acts
of the election officials, and which required the voter to
substantially comply with the statute in order for his vote to be
considered as properly cast. Therefore, the committee rejected 109
absentee and physical disability ballots.
Sec. 10.8 An elections committee has adopted a state court opinion
which had construed state laws regarding poll procedure and
disposition of absentee ballots, envelopes, and
[[Page 1007]]
applications as directory rather than mandatory, violations of
which would not invalidate the absentee ballots cast.
In the 1958 Maine contested election case of Oliver v Hale
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, there
were a number of alleged violations by election officials relative to
absentee voting, such as failure of the board of registration to retain
the application or envelope, or failure of various clerks to send in
the application and envelopes along with the absentee ballots. In this
situation, the committee followed an advisory opinion of the Supreme
Court of Maine, issued under similar circumstances, which concluded
that provisions of the statute touching the procedure to be employed at
the polls and the disposition of applications and envelopes following
the election were directory and not mandatory in nature. Hence, the
committee followed the advisory opinion that violation of the statute
by election officials, in the absence of fraud, was not a sufficient
ground for invalidating the ballots.
Sec. 10.9 Where a state law required alternation of names on ballots
and publication and display of ballots for a certain period prior
to an election, the majority of an elections committee ruled that a
violation of the statute was deemed to be a pre-election
irregularity and, absent fraud, insufficient to overturn the
election.
In the 1951 Ohio contested election case of Huber v Ayres
(Sec. 56.1, infra), although conceding that there had been
discrimination against the contestant because his name had not appeared
``substantially an equal number of times at the beginning, at the end,
and in each intermediate place . . .'' (11) in the group of
contestants among which his name belonged, the committee majority
nevertheless refused to recommend that the election results be
overturned, partly because the contestant had not exhausted his
remedies under state law. The minority disagreed with the conclusion,
contending that it was impossible for the contestant to ascertain the
unequal method of rotation in advance of the election in time to invoke
state law remedies. Nevertheless, the House agreed to a resolution that
the contestee was duly elected and entitled to his seat.
---------------------------------------------------------------------------
11. Ohio Constitution, art. V, Sec. 2a, adopted Nov. 8, 1949.
---------------------------------------------------------------------------
Sec. 10.10 Mandatory election laws confer rights of suffrage
[[Page 1008]]
and by their terms invalidate ballots not cast in compliance
therewith, while directory election laws prescribe procedures to be
followed by election officials, departure from which will not
vitiate ballots without a further showing of fraud or uncertainty
of result.
In Chandler v Burnham, a 1934 California contest (Sec. 47.4,
infra), contestant alleged various instances of illegal ballot
counting, invalid election boards, unattested tally sheets, and
irregular ballots. In evaluating these charges, the Committee on
Elections considered the distinction between ``mandatory'' laws, which
void an election unless certain procedures are followed, and
``directory'' statutes, which fix penalties for violation of procedural
safeguards, but do not invalidate an election in the event of
noncompliance. The committee further declared that the rules prescribed
by law for conducting an election are designed to afford an opportunity
for the free and fair exercise of the elective franchise, to prevent
illegal voting, and to ascertain with certainty the result. A departure
from the mode prescribed will not vitiate an election, the committee
stated, if the irregularities do not involve these considerations. The
committee concluded that contestant had alleged violations of statutes
that were merely ``directory'' in nature.
Sec. 10.11 Noncompliance with administrative requirements imposed by
state election laws will not vitiate an election unless the
procedures involved are declared by law to be essential to the
validity of the election.
In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the
Committee on Elections found that certain administrative requirements
imposed by state law, including the keeping of precinct registration
books, were not declared by law to be essential to the validity of the
election; the committee regarded such requirements as merely directory,
not mandatory, and refused to disturb what it considered the certain
decision of the electorate.
Sec. 10.12 Violations of a state's registration and election laws
prohibiting transportation of voters to places of registration,
providing qualifications for registrars, confining registration to
certain hours, and requiring detailed registration lists were held
not to affect the correct result of the election, and
[[Page 1009]]
therefore did not nullify the election.
In Wilson v Granger (Sec. 54.5, infra), a 1948 Utah contest, a
contestee with a 104-vote majority prevailed despite ``numerous and
widespread errors and irregularities in many parts of the district,
which revealed a lack of knowledge of the law and a failure to enforce
properly the registration and election statutes by those charged with
that duty.''
Violations and Errors by Officials
Sec. 10.13 In determining whether the violation of election laws by
election officials will justify a recount or nullify the election,
the House will look to the sufficiency of the evidence of legal
fraud or intentional corruptness.
In Brewster v Utterback (Sec. 47.2, infra), a 1933 Maine contest,
it appeared that in certain precincts irregularities occurred in the
election procedure in the Third Congressional District of Maine. The
committee found that, even assuming the validity of contestant's
allegations as to voting booth and ballot irregularities, contestee was
left with a clear majority. The committee further found that there was
insufficient evidence of fraud or corruption to justify a recount of
ballots or to sustain the contestant's allegations.
Sec. 10.14 Ballots will not be voided for failure of election officials
to be sworn, their acts under color of office being binding as to
election returns that are otherwise proper.
In Chandler v Burnham, a 1934 California contest (Sec. 47.4,
infra), a committee on elections rejected contestant's claims that
ballots in certain precincts should be voided because certain election
officials had not been sworn. The committee found that all such
officials, with the exception of inspectors, had in fact subscribed to
the required oath, and added that, in any event, an election will not
be invalidated based on such failure, the acts of election officials
under color of office being binding.
Sec. 10.15 Where there have been violations of state laws (governing
absentee voting) by election officials throughout the district, the
results of the election will not be overturned when the contestant
has failed to exhaust his state remedies to prevent improper
absentee ballots from being cast or to punish those responsible.
[[Page 1010]]
In the 1957 Iowa contested election of Carter v LeCompte
(Sec. 57.1, infra), the election committee majority found that there
had been widespread violations by election officials of state laws
regarding absentee voting, but as contestant had not proven fraud by
contestee and had not challenged absentee ballots under state law, he
had not sustained his burden of proving that the election result was
changed. Therefore, the results of the election could not be
``overturned because of some pre-election irregularity.''
Sec. 10.16 In the absence of fraud, charges of irregularities as to
registration and the failure of election officials to assign ballot
numbers to electors will not invalidate the votes cast.
In the New York contested election of Macy v Greenwood (Sec. 56.4,
infra), arising from the 1950 election, the contestee won by a
plurality of only 135 votes, which induced the contestant to allege
violations as to voter registration procedures. However, the House
agreed to a resolution dismissing the contest and declaring the
contestee entitled to his seat.
Improperly Conducted Special Elections
Sec. 10.17 Where a Governor's proclamation fails to give proper notice,
as required by state law, of a special election called to fill a
vacancy in the House, the House may conclude that the election was
invalid.
The 1934 Kemp, Sanders investigation (Sec. 47.14, infra), arose
from the death of Bolivar E. Kemp, which created a vacancy in the Sixth
Congressional District of Louisiana. The Governor of Louisiana issued a
proclamation calling for a special election to fill this vacancy within
eight days, although state law required that primary elections to
nominate candidates for special elections be held ``not less than 10
days'' after the call for such special election. The Committee on
Elections concluded that the Governor, in his proclamation, was
required to give 10 days notice of the special election, and his
failure to do so rendered it invalid.(12)
---------------------------------------------------------------------------
12. The subject of elections to fill vacancies is discussed extensively
in Ch. 8, supra.
---------------------------------------------------------------------------
Sec. 10.18 An election to fill a vacancy in Congress, conducted by a
``Citizens' Committee,'' is invalid where state law does not
provide for such a procedure.
In the Kemp, Sanders investigation (Sec. 47.14, infra), a special
elec
[[Page 1011]]
tion was called by the Governor of Louisiana to fill the vacancy
created by the death of Bolivar E. Kemp, from the Sixth Congressional
District of Louisiana. One of the candidates was J. Y. Sanders, and a
certificate of his election, prepared by the ``Citizens' Election
Committee'' of the Sixth Congressional District was laid before the
House. This committee had met in the district and fixed the date for
the ``election'' 30 days after the meeting. This election was found to
be illegal and void, there being no provision under the laws of
Louisiana for the holding of such an election.
Improperly Conducted Primary Elections
Sec. 10.19 Where state law requires the nomination of candidates by
direct primary elections called by party committees, the nomination
of a candidate by a committee is illegal and void.
In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra),
arising from a Louisiana special election, it was shown that state law
required that candidates be nominated in a primary election called by a
political party committee. Since the contestant was nominated, not by a
direct primary election but by the party committee itself, his
``election'' was found to be void.
Illegal Use of Funds
Sec. 10.20 The illegal use of campaign funds may be alleged as a basis
for an election contest.
In Lovette v Reece, a 1934 Tennessee contest (Sec. 47.11, infra),
contestant alleged the illegal use of funds to influence the election;
it was contended that contestee's brother had collected large sums of
money to finance contestee's election. However, the committee found
that such claims were associated more closely with the race for
Governor and involved transactions occurring after the election not
connected with contestee.
Illegal Nominating Procedure
Sec. 10.21 Alleged violations of state law with respect to the
nomination of a candidate cannot sustain a contest brought by a
losing primary candidate against the contestee, who was elected in
the subsequent general election.
In Lowe v Thompson (Sec. 62.1, infra), a committee on elections
denied a petition based on alleged illegality in the nomination of the
candidate of petitioner's party,
[[Page 1012]]
where the opponent of such party nominee won the subsequent general
election.
CHAPTER 9
Election Contests
C. GROUNDS OF CONTEST
Sec. 11. Improper Attempts to Influence or Confuse Voters
Confusing the Voters
Sec. 11.1 In determining whether to credit a candidate with certain
ballots, an election committee considered whether his opponent had
induced or procured a ``third party'' candidate or had improperly
participated in the makeup of ``third party'' ballots.
In Fox v Higgins (Sec. 47.8, infra), a 1934 Connecticut contest,
the Committee on Elections found that the contestant had failed to
sustain his allegations that contestee, in an attempt to confuse the
voters, had procured the candidacy of a ``third party'' candidate. The
committee also found that contestee, in his capacity as secretary of
state, had not deliberately prepared ballots in such a manner as to be
confusing or to obtain unfair advantage.
Financing Extra Editions of Magazine
Sec. 11.2 An elections committee found no evidence that the contestee
financed extra editions of a magazine which supported his
candidacy.
In the 1951 New York contested election case of Macy v Greenwood
(Sec. 56.4, infra), which the contestant lost by only 135 votes, he
alleged that the contestant had violated the Corrupt Practices Act by
either financing or inspiring the printing of extra editions of
``Newsday,'' which had been devoted exclusively to the defeat of the
contestant. The committee found no evidence supporting the allegation
and recommended that the contest be dismissed, and the House followed
this recommendation.
Racial Discrimination
Sec. 11.3 Discrimination against potential voters based on race may
afford grounds for bringing an election contest.
In the 1965 Mississippi election contest of Wheadon et al. v
Abernethy et al. [The Five Mississippi Cases] (Sec. 61.2, infra), the
Committee on House Administration recommended dismissal of the election
contests arising out of the November 1964 Mississippi congressional
elections. The dismissal recommendation was based in part on the
contestants' failure to follow the established procedure
[[Page 1013]]
for bringing election contests, and in part on the failure to avail
themselves of the legal steps to challenge alleged discrimination prior
to the elections.
The Committee report did state, however, that in arriving at such
conclusions, the committee did not condone disenfranchisement of voters
in the 1964 or previous election, nor was a precedent being established
to the effect that the House would not take action, in the future, to
vacate seats of sitting Members. It noted that the Federal Voting
Rights Act of 1965 had been enacted in the interim and that if evidence
of its violation were presented to the House in the future, appropriate
action would be taken.
``Prizes'' to Campaign Workers
Sec. 11.4 A contestee's offer of prizes to his precinct captains has
been found by an elections committee not to be a violation of that
section of the Corrupt Practices Act prohibiting expenditures to
influence votes.
In McAndrews v Britten (Sec. 47.12, infra), a 1934 Illinois
contest, the contestant had alleged in his notice of contest that the
contestee had ``offered prizes to the various precinct captains whose
precincts voted the largest votes in proportion to the Republican votes
that were given in these precincts.'' The offering of such prizes was
acknowledged by the contestee on the floor of the House during debate.
The committee found that this offering of prizes was not a violation of
2 USC Sec. 150, which made it unlawful ``for any person to make or
offer to make an expenditure . . . either to vote or withhold [a] vote
or to vote for or against any candidate. . .
.'' -------------------
CHAPTER 9
Election Contests
C. GROUNDS OF CONTEST
Sec. 12. Voting Booth and Balloting Irregularities
As a basis for contesting an election, a wide variety of charges
have been made in election contests with respect to use of voting
booths and voting machines and equipment. Similarly, alleged
improprieties in balloting are frequently cited as a reason for
overturning the result of an
election. -------------------
Voter Confusion as Excuse for Official's Entering Booth
Sec. 12.1 In determining whether an election official, in entering a
voting booth and conversing with voters, was act
[[Page 1014]]
ing fraudulently and in conspiracy with a candidate, the elections
committee may consider the extent to which there existed voter
confusion as to the proposition on the ballot or in the operation
of voting machines.
In Gormley v Goss (Sec. 47.9, infra), a 1934 Connecticut contest,
contestant failed to establish that an election official's actions in
entering a booth and talking to voters were fraudulent and
conspiratorial. The committee noted that there existed voter confusion
as to the placement of a proposition on the ballot and that there were
no complaints of interference with voter intent.
Balloting irregularities
Sec. 12.2 A committee finding of evidence of irregularities in the
conduct of an election will not provide a sufficient basis for
overturning that election where there is no evidence connecting
contestee with such irregularities.
In Miller v Cooper (Sec. 48.3, infra), a 1936 Ohio contest, the
Committee on Elections found evidence of irregularities in the
destruction of ballots, tabulations of votes cast, and in the method of
conducting the election. However, there was no evidence whatsoever
connecting the contestee therewith, and the committee recommended that
he be seated.
Sec. 12.3 Where votes are cast by persons not qualified to vote, being
only temporarily in the district, such votes are considered
invalid.
In Swanson v Harrington (Sec. 50.4, infra), a 1940 Iowa contest,
contestant claimed that 70 of the 528 votes cast in a certain precinct
were illegal as they were cast by Works Progress Administration workers
only temporarily in the district; the committee ruled, however, that
while such votes were illegal and could be disregarded, they would not
affect the outcome of the election.
Sec. 12.4 An allegation that contestee had received a
disproportionately large number of ``split votes'' must be
supported by the evidence.
In McAndrews v Britten (Sec. 47.12, infra), a 1934 Illinois
contest, contestant alleged that contestee had received a ``split
vote'' so disproportionately large as compared to the ``straight ticket
votes'' that a presumption of fraud followed. This allegation was
rejected as not supported by the evidence, the testimony of an
[[Page 1015]]
expert being regarded as ``frail and unconvincing''; it appeared that a
large split vote had been the case for many members of contestee's
political party, as they had to have ``run ahead of the ticket'' to
have been elected.
Sec. 12.5 An elections committee will not presume ballots marked for
the Presidential nominee of contestant's party to have been
intended as ``straight ticket'' votes where the state law provides
for a separate circle for casting ``straight ticket'' ballots.
In Ellis v Thurston (Sec. 47.6, infra), an election contest
originating in the 1934 Iowa election, the contestant argued that on a
number of ballots on which the voters had marked the squares opposite
the Presidential and Vice Presidential candidates but which indicated
no choice for Representative, the voters had intended to vote a
straight party ticket. The committee ruled against this contention,
however, noting that the state statute provided that a cross be placed
in a separate party circle in order to cast a straight party ticket.
Sec. 12.6 Where state law voids ballots cast for more than one
``straight party'' ticket, an elections committee will not validate
ballots that are marked for ``straight ticket'' and, in addition,
for a local ``wet party'' ticket, the latter being adjacent to a
column permitting a vote for repeal of the 18th amendment, in the
absence of evidence that such voters intended to vote for repeal
and mistakenly voted for two ``straight tickets.''
In Fox v Higgins (Sec. 47.8, infra), a 1934 Connecticut contest,
the Committee on Elections, while conceding the probability of some
voter confusion, found that the juxtaposition of the ``wet party''
entry with the column relating to the repeal of the 18th amendment, had
been arranged in the customary way by a competent state elections
official.
Sec. 12.7 Statutory violations by voters in failing to comply with
state absentee voting laws were held sufficient to invalidate the
ballots cast.
In the 1958 Maine contested election case of Oliver v Hale
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, the
report of the Committee on House Administration listed nine areas
stressed by the contestant in which there had been a failure on the
part of the voter to comply
[[Page 1016]]
with the absentee voting laws of Maine: application for absentee or
physical incapacity ballot not signed by the voter; application for
physical incapacity ballot not certified by physician; envelope not
notarized; no signature of voter on envelope; jurat not in form as
prescribed by statute; name of voter and official giving the oath are
the same; variance in writing between signature on application and
signature on envelope; failure of voter to specify on envelope his
reason for absentee voting; and voter not properly registered or
qualified to vote.
The committee concluded that there were 109 instances where the
voter failed to substantially comply with the elect on laws, leading to
rejection of the ballots as compliance was mandatory.
Sec. 12.8 Where state law required alternation of names of all
candidates on ballots so that each name appeared an equal number of
times at the beginning, end, and at intermediate places thereon,
failure to comply with the requirement did not result in
overturning the election.
In the 1951 Ohio contested election case of Huber v Ayres
(Sec. 56.1, infra), a newly adopted state constitutional provision
required alternation of the candidates' names an equal number of times
in various positions on the ballot. However, the majority recommended,
and the House agreed to, a resolution dismissing the contest on the
basis that the remedy under state law had not been exhausted.
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]]
-------------------
CHAPTER 9
Election Contests
D. DEFENSES
Sec. 14. Contestant's Credentials and Qualifications
Just as the contestee's credentials and qualifications may be
grounds for bringing an election contest (see Sec. 9, supra), so may
the contestant's credentials and qualifications be raised as a basis
for dismissing an election
contest. -------------------
Contestant's Standing
Sec. 14.1 An elections contest may be dismissed where it appears that
the contestant was not a candidate of a registered political party
in the state.
In McEvoy v Peterson (Sec. 52.2, infra), a 1944 Georgia contest,
the House dismissed an elections contest where it appeared, inter alia,
that contestant had attempted to run for the First Congressional
District of Georgia seat as an ``independent Republican'' though there
was no such political party in Georgia.(13)~
---------------------------------------------------------------------------
13. The ``standing'' of a contestant to bring an election contest is
discussed below, under ``Parties,'' Sec. 19, infra.
---------------------------------------------------------------------------
Invalid Elections
Sec. 14.2 Contestants selected through an ``election'' held without any
authority of law in the state lack standing to bring an election
contest.
In the 1965 Mississippi election contest of Wheadon et al. v
Abernethy et al. (Sec. 61.2, infra), the House dismissed election
contests brought by contestants that had been selected at an unofficial
``election'' held by persons in Mississippi from Oct. 30 through Nov.
2, 1964.
The contestants were all citizens, none of whom had been candidates
in the official November 1964 election for Members of the U.S. House of
Representatives. The ``election'' that had selected the contestants, by
contrast, was held without any authority of law in the state.
The contestants had urged the unseating of the contestees and
vacating of the official election on the basis of the alleged
disenfranchisement of large numbers of Negro voters from the electoral
process through intimidation and violence.
CHAPTER 9
Election Contests
D. DEFENSES
Sec. 15. Abatement
Under the Federal Contested Elections Act, a case abates in the
event of the death of the contestant.(14)~ Moreover, there
have been
---------------------------------------------------------------------------
14. 2 USC Sec. 395.
---------------------------------------------------------------------------
[[Page 1021]]
several election contests which were dismissed or otherwise dropped
because of a failure by the contestant to carry forward with the case.
Failure to Take Testimony Within Prescribed Time
Sec. 15.1 Where parties to an election contest have not taken testimony
within the time prescribed by law, the Clerk informs the Speaker
that the contest has apparently abated.
See Casey v Turpin (Sec. 47.3, infra), a 1934 Pennsylvania election
contest in which the contestant neither produced testimony nor appeared
to show cause why the contest should not be dismissed, the House agreed
to a resolution by voice vote and without debate that the contestant
was not, and the contestee was, entitled to a seat.(15)~
---------------------------------------------------------------------------
15. Time limitations generally, see Sec. 27, infra.
---------------------------------------------------------------------------
Sec. 15.2 Where parties to an election contest have not transmitted
testimony to the Clerk within the time prescribed by law, the Clerk
informs the Speaker that the contest has apparently abated.
In LaGuardia v Lanzetta, a 1934 New York contest (Sec. 47.10,
infra), the Clerk advised the Speaker by letter that a copy of a notice
of contest and reply thereto had been filed, but that, since no
testimony had been transmitted within the time prescribed by law, the
contest had apparently abated.(16)~
---------------------------------------------------------------------------
16. See also Browner v Cunningham (Sec. 55.1, infra), a 1949 Iowa
contest.
---------------------------------------------------------------------------
Sec. 15.3 Where the parties to an election contest fail to forward
testimony within the time required by law, and the Clerk informs
the Speaker that the contest has apparently abated, the contest may
be referred to committee.
In Shanahan v Beck (Sec. 47.15, infra), a 1934 Pennsylvania
contest, the Speaker laid before the House a letter from the Clerk
transmitting a copy of the notice of contest and reply thereto, with
the statement that no testimony had been received within the time
prescribed by law and that the contest appeared to have abated. The
contest was referred to a committee, which confirmed that there was no
evidence before the committee of the matters charged in the notice.
[[Page 1022]]
CHAPTER 9
Election Contests
D. DEFENSES
Sec. 16. Limitations and Laches
Where the contestant delays in collecting and forwarding evidence,
laches may provide a basis for dismissal of the
contest. -------------------
Laches
Sec. 16.1 An elections committee may dismiss a contest for laches on
the part of contestant on the ground that he failed, within the
time required by law, to take evidence, to file a brief, or to
appear in person before the committee.
In Neal v Kefauver (Sec. 50.1, infra), a Tennessee contest,
contestant on Oct. 19, 1939, served notice on the returned Member (Mr.
Estes Kefauver) of his purpose to contest the election. On Feb. 23,
1940, contestee submitted a communication requesting a dismissal of the
contest and setting forth reasons therefor. On June 18, 1940, the
Committee on Elections submitted a report stating that the committee
had dismissed the contest on the grounds that contestant had failed to
take evidence as required by law, 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, and that contestant had failed to
respond to a notification to appear in person before the committee.
Inexcusable Delay in Filing Briefs and Taking Testimony
Sec. 16.2 An elections committee will recommend dismissal of a contest
where testimony and briefs have not been filed within the time
prescribed by law and where circumstances do not excuse such
failure.
In Shanahan v Beck, a 1934 Pennsylvania contest (Sec. 47.15,
infra), the committee found that laches was not excusable under the
circumstances, and permitted contestant to withdraw unprinted evidence
which he had submitted while testifying before the
committee.(17)
---------------------------------------------------------------------------
17. See also Sec. 27, infra, for a discussion of time considerations in
the taking of testimony.
---------------------------------------------------------------------------
[[Page 1023]]
CHAPTER 9
Election Contests
E. PRACTICE AND PROCEDURE
Sec. 17. Alternatives to Statutory Election Contests
In addition to the statutory election contest procedures discussed
in this chapter, election committees have often dealt with election
disputes arising under other procedures, and involving the right of a
Member-elect to his seat in the House.(18)
---------------------------------------------------------------------------
18. See Sec. Sec. 17.1, et seq., infra.
---------------------------------------------------------------------------
The right to a seat in the House based upon a challenge of an
election may be determined pursuant to: (1) an election contest
initiated by a defeated candidate and instituted in accordance with
law; (2) a protest filed by an elector of the district concerned; (3) a
protest filed by any other person; and (4) a motion of a Member of the
House.
Of the four procedures described above, only the first, strictly
speaking, is an election contest as that term is used in this chapter.
The last three, while often considered by an election committee after
referral by the Speaker or the House, are treated generally as
determinations of the elections and return of Members, and should be
distinguished from proceedings in the nature of a proposition to
exclude, where the right to a seat based upon the Member-elect's
qualifications under the Constitution are called into question, or to
expel, where a Member's behavior or qualifications are at issue. Such
proceedings are treated elsewhere in this work.(19)
---------------------------------------------------------------------------
19. See Ch. 7, supra, and Ch. 12,
infra. -------------------
---------------------------------------------------------------------------
Alternatives to Filing Election Contests
Sec. 17.1 Where the losing candidate did not file a contest under the
statute governing contested elections, but an investigation of the
right of a Member-elect to hold the seat was held as a result of
charges made by a single voter from the district, the committee
report expressed its strong preference for determining contested
elections by proceeding under the statute.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the House authorized the election
committee investigation as a result of charges made by a single voter
from the district, many of the charges made on the basis of hearsay.
The losing candidate of
[[Page 1024]]
fered to assist in the investigation, although he did not file an
election contest under the statute, 2 USC Sec. Sec. 201 et seq. In the
committee report, a strong preference was expressed for determining
disputed elections by following the procedures under the contested
elections statute. The House ultimately agreed to a resolution seating
the Member-elect, who won the election on the basis of write-in votes.
Sec. 17.2 The House may direct the Committee on House Administration to
make an ``investigation of the question of the right'' of two
candidates to a disputed seat in the House, where neither candidate
initiates a contest under the statute.
In the 1961 Indiana investigation of the right of J. Edward Roush
or George O. Chambers to a seat in the House (Sec. 59.1, infra), the
investigation was conducted by the Subcommittee on Elections, which
determined that Mr. Roush was entitled to the seat. The committee
report, with which the House expressed its agreement by adopting a
resolution, recommended that the candidates be reimbursed for their
expenses in accordance with the provisions of law governing election
contests, although neither candidate sought to invoke that statute.
Sec. 17.3 An investigation of the qualification of a Member-elect to be
sworn and of his right to a seat was instituted by the filing of a
memorial by an individual challenging his citizenship
qualifications.
In the 1933 investigation of the citizenship qualifications of a
Member-elect from Pennsylvania, In re Ellenbogen (Sec. 47.5, infra),
the investigation was initiated, following the election, by a memorial
and accompanying papers filed by Harry Estep (a former Member) with the
Clerk, who transmitted it in a letter to the Speaker, who in turn laid
it before the House and referred it to the Committee on Elections.
Sec. 17.4 An investigation of the right of a Member-elect to a seat in
the House has been initiated by a letter from a voter in the
district.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the House authorized the
Committee on House Administration to conduct an investigation of the
election on the basis of a letter from a voter in the district, after
the Member-elect won as a write-
[[Page 1025]]
in candidate. The defeated candidate did not file a contest, but
offered to help the investigation. The committee report strongly
recommended that in such cases proceedings be under the provisions of
the contested elections statute.
Petition
Sec. 17.5 Contestant, not a candidate in the general election and
therefore incompetent to institute a statutory contest, initiated
an elections committee investigation by petition.
In Lowe v Thompson (Sec. 62.1, infra), a losing primary candidate
was held to be without standing to institute a statutory contest
against a candidate elected in the general election. A committee on
elections, however, considered and then denied the petition brought by
such primary candidate.
CHAPTER 9
Election Contests
E. PRACTICE AND PROCEDURE
Sec. 18. Commencing the Contest
Under the Federal Contested Elections Act, the contest is initiated
by a notice of contest which is filed with the Clerk and served on the
contestee.(20) This was also the practice under the
Contested Elections Act, 2 USC Sec. Sec. 201 et seq.(1)
---------------------------------------------------------------------------
20. 2 USC Sec. 382(a).
1. The ``rules of the elections committees for hearing a contested
election case'' [6 Cannon's Precedents Sec. 110] are no longer
applicable. -------------------
---------------------------------------------------------------------------
Compliance With Statutory Requisites
Sec. 18.1 Where the defeated candidate complains about his opponent's
conduct in an election in a letter to the Clerk, but takes no other
action or otherwise complies with the laws regulating contested
election cases, the Committee on House Administration may decline
to take action in the contest.
In the 1959 Illinois election contest of Myers v Springer
(Sec. 58.3, infra), the defeated candidate sent a letter to the Clerk
complaining that the contestee had violated the Corrupt Practices Act
by appointing the editor of a local paper, which paper had denied
coverage to the contestant, to a position as acting postmaster. The
letter was transmitted by the Clerk to the Speaker, who laid it before
the House and referred it to the Committee on House Administration, and
ordered the con
[[Page 1026]]
testant's letter printed as a House document. There was no record,
however, showing that the contestant complied with the requirements for
bringing an election contest, and the committee took no action on the
contest.
Sec. 18.2 Where an election contest has been initiated but not brought
officially to the House, the House will not intervene simply for
the purpose of procuring evidence for the use of the parties to the
contest.
In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest,
the parties filed a joint application for a recount although no
election contest had been formally presented to the House at that time;
the House refused to grant such application, the committee having
recommended that the House not intervene ``simply for the purpose of
procuring evidence for the use of the parties to the contest.''
Sec. 18.3 On matters of procedure, an election contest is governed by
the applicable federal statutes dealing with contested elections,
and not the Federal Rules of Civil Procedure.
In the 1957 Iowa contested election case of Carter v LeCompte
(Sec. 57.1, infra), the election committee determined that the
contestant's motion to ``amend the pleadings to make them conform to
the proof'' was premature, as the testimony had not yet been printed
and referred to the committee. The committee reasoned that it was
governed by the relevant federal statute, then 2 USC Sec. Sec. 201 et
seq., and not by Rule 15 of the Federal Rules of Civil Procedure, under
which such motions and answers thereto are generally granted.
Limit on Number of Contests Initiated by an Individual
Sec. 18.4 There appears to be no limit on the number of contests that
may be initiated by the same individual. However, the House tends
to look with increasing disfavor and skepticism upon contests that
are filed year after year by the same individual upon the same
grounds, particularly where he fails to produce evidence of his
claims.
See Prioleau v Legare (6 Cannon's Precedents Sec. 130) wherein a
person had unsuccessfully instituted five consecutive election
contests, and in which the House ex
[[Page 1027]]
pressed the hope that the fifth would be the last.(2)~
---------------------------------------------------------------------------
2. See also Lowe v Davis (Sec. 54.1, infra), Lowe v Davis (Sec. 56.3,
infra), and Lowe v Thompson (Sec. Sec. 62.1, 63.1, infra),
contests brought by the same individual.
---------------------------------------------------------------------------
CHAPTER 9
Election Contests
E. PRACTICE AND PROCEDURE
Sec. 19. Parties
The Federal Contested Elections Act uses the term ``candidate''
with reference to those persons who may initiate a suit under the
statute.(3) This term is defined as referring to an
individual (1) whose name is printed on the official ballot for
election to the House, or (2) who seeks election to the House by write-
in votes, provided he is qualified and eligible to receive such votes,
and provided write-in voting for such office is
permitted.(4)~
---------------------------------------------------------------------------
3. 2 USC Sec. 382 (a).
4. 2 USC Sec. 381 (b).
---------------------------------------------------------------------------
Under the prior contested elections statute,(5)~ the
phrase ``any person'' was used with reference to those authorized to
file notice of intention to contest an election.
---------------------------------------------------------------------------
5. See former 2 USC Sec. 201.
---------------------------------------------------------------------------
However, even under this legislation, a person who had not been a
candidate in the general election was deemed incompetent to institute a
contest in the House, though he had been a candidate in the primary
election.(6)~
---------------------------------------------------------------------------
6. See Sec. 19.1, infra.
---------------------------------------------------------------------------
An election involving the Delegate to the House of Representatives
from the District of Columbia is governed by the Federal Contested
Elections Act, as is one involving the Resident Commissioner to the
Congress [from Puerto Rico].(7)~
---------------------------------------------------------------------------
7. 2 USC Sec. 25 (note); 2 USC
Sec. 381(a). -------------------
---------------------------------------------------------------------------
Contestants as Candidates in General Election
Sec. 19.1 Where the contestant was not a candidate in the general
election, but merely in the party primary, the election committee
will recommend dismissal of the contest on the basis of the
contestant's lack of standing.
In the 1969 Georgia election contest of Lowe v Thompson (Sec. 63.1,
infra), the election committee considered the notice of contest, brief
of the contestant, oral argument, and precedents of the House, and
recommended dismissal of the fourth contested election case brought by
the contestant in 20 years, for lack of standing. The contestant, who
did not allege any fraud or wrongdoing on the part of the contestee,
was not a candidate in the general election, having lost his own
party's primary.
[[Page 1028]]
Similarly, in the 1967 contest between the same parties (Sec. 62.1,
infra), the committee on elections had declared that there was no
precedent for depriving a member of his seat solely on the basis of the
irregularity of the nomination of his opponent in the general election,
and concluded that Mr. Lowe, not being a candidate in the general
election, had no standing to bring a contest under the contested
election law.
Sec. 19.2 The House has adopted a resolution providing that one who was
not a candidate in an election for a seat in the House was not
competent to contest the election.
In the 1965 New York contested election case of Frankenberry v
Ottinger (Sec. 61.1, infra), by a vote of 245 yeas to 102 nays, the
House agreed to a resolution that dismissed the contest and held the
contestant, who had not been a candidate in the election, not to be
competent to bring a contested election contest under 2 USC
Sec. Sec. 201 et seq. During debate, proponents of the resolution cited
the 1941 Ohio contested election of Miller v Kirwan (Sec. 51, infra),
and In re Voorhis, 291 F 673 (S.D. N.Y. 1923) in support of their
position. In the former, the House had similarly found a no candidate
not to be competent to bring an election contest; and in the latter,
the court had held that questions as to the application of the
contested election statute are justiciable by the House and the House
alone.
Sec. 19.3 Contestants who have not been candidates at the election have
no standing to invoke the contested election statute.
In the 1965 Mississippi election contest of Wheadon et al. v
Abernethy et al. [The Five Mississippi Cases] (Sec. 61.2, infra), the
election committee report recommended dismissal of five election
contests in which the contestants had not been candidates in the
general election of November 1964 for Members of the U.S. House of
Representatives.
The contestants alleged that large numbers of Negroes had been
excluded from the electoral process through intimidation and violence,
with the result that the free will of the voters had not been
expressed. The desired relief was to have the House unseat the
contestees and vacate the elections.
The contestants had been selected at an unofficial ``election,''
which was held without any authority of law in the state.
[[Page 1029]]
The House followed its precedents in dismissing the contests
because the contestants lacked standing under 2 USC Sec. Sec. 201 et
seq.
Sec. 19.4 A person who was a candidate in the primary election, but not
in the general election won by contestee, is not competent to
institute a contest in the House.
In Miller v Kirwan (Sec. 51.1, infra), a 1941 Ohio contest, the
House dismissed a contest initiated by a person who had been a
candidate for the Democratic nomination from the 19th Congressional
District of Ohio in the primary election, but not in the ensuing
general election, on the ground that the contestant was incompetent to
initiate the contest.
Sec. 19.5 A contestant who had been a candidate in the primary election
but who had not been a candidate in the general election instituted
a contest under the statute governing contested election cases.
In the 1951 Georgia contested election case of Lowe v Davis
(Sec. 56.3, infra), the contestant, who had been a candidate in the
party primary, but not in the general election, challenged the
contestee, who had prevailed in both the primary and the general
election. The Committee on House Administration ultimately recommended
dismissal of the contest for failure to take testimony within the time
prescribed and the House agreed to a resolution dismissing the contest.
Sec. 19.6 To entitle a person to bring a contest under the statute, he
must have been a candidate for the seat in the House during the
general election in question.
See In re Plunkett (Sec. 53.2, infra), wherein the Chairman of the
Committee on the Judiciary advised the Members of the House to ignore
proceedings contesting the 1944 elections of 79 Members of the House
from states having poll taxes.
[[Page 1030]]
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)
---------------------------------------------------------------------------
8. 2 USC Sec. 382(a). -------------------
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
9. Under the Contested Elections Act of 1969, this section is now 2
USC Sec. 382(a).
---------------------------------------------------------------------------
CHAPTER 9
Election Contests
F. NOTICE OF CONTEST
Sec. 21. Service of Notice
Under the Federal Contested Elections Act, the notice of contest
must be served on contestee in the manner specified. The notice may be
served on contestee by delivery of a copy to him personally or to his
authorized agent, by leaving a copy at his home or place of business,
or by mailing a copy to him by registered or certified
mail.(10)
---------------------------------------------------------------------------
10. 2 USC Sec. 382(c), (1)-(5).
---------------------------------------------------------------------------
Service by mail is complete on mailing, and the return receipt from
the post office is proof thereof. Proof of service must be made to the
Clerk promptly and within the time allowed for contestee's answer, but
the failure to do so does not affect the validity of the
service.(11)
---------------------------------------------------------------------------
11. 2 USC Sec. 382(c), (5),
(6). -------------------
---------------------------------------------------------------------------
Substituted Service
Sec. 21.1 Subsequent valid service of notice of contest renders moot
any question of the efficacy of prior attempted ``substituted
service.''
In the 1957 Iowa election contest of Carter v LeCompte (Sec. 57.1,
infra), the official result of the election was not determined until
Dec. 10, 1956, but the contestant had earlier served the contestee by
``substituted service.'' The election committee majority decided that
the contestant's subsequent personal service on the contestee on Dec.
17, rendered ``moot any question as to the sufficiency of the service
contemplated by 2 USC Sec. 201.'' (12)
---------------------------------------------------------------------------
12. This is now 2 USC Sec. 382(a).
---------------------------------------------------------------------------
In the 1957 Iowa election contest of Dolliver v Coad (Sec. 57.2,
infra), the issue arose as to whether ``substituted service,'' as
provided under Rules 4(d)(1) and 56(a) of the Federal Rules of Civil
Procedure, complied with the requirements of proper service under 2 USC
Sec. 201, but the election committee did not decide the issue. Under
the present 2 USC 382(c), however, ``substituted service'' is
permissible.
[[Page 1033]]
CHAPTER 9
Election Contests
F. NOTICE OF CONTEST
Sec. 22. Form and Contents of Notice
Under the Federal Contested Elections Act, the notice of contest
must state with particularity the grounds on which the contestant
relies. The notice must also state that an answer to it must be served
on contestant within 30 days after service of the
notice.(13)~ The Act further requires that the notice of
contest be signed and verified.(14)~
---------------------------------------------------------------------------
13. 2 USC Sec. 382(b).
14. 2 USC Sec. 382(b).
---------------------------------------------------------------------------
The notice of contest should also claim right to the contestee's
seat, as the contestee may, at his option, assert the failure to claim
right to the seat as a defense under the provisions of 2 USC
Sec. 383(b)(4). Similarly, while the act does not specify what
constitutes grounds that the contestant may assert to contest the
election, the contestee may, at his option, raise as a defense the
failure of the notice of contest to state grounds ``sufficient to
change result of election'' under 2 USC Sec. 383(b)(3). Therefore, the
notice of contest should state with particularity the grounds upon
which the contestant contests the election and such grounds should be
sufficient to change the result of the
election. -------------------
Failure to State Grounds With Particularity
Sec. 22.1 A contestee may request dismissal where the allegations in
the notice are ``vague and uncertain and lacking in the necessary
particulars.''
In Gormley v Goss (Sec. 47.9, infra), a 1934 Connecticut contest,
contestant alleged that through ``fraud, irregularities, corruption,
and deceit'' on the part of contestee's agents at a voting booth he was
deprived of ``many votes far in excess'' of the number of votes
necessary to overcome his opponent's majority. Contestee sought
dismissal on the ground that such allegations were ``vague and
uncertain and lacking in the necessary particulars.'' The committee
heard argument as to the sufficiency of notice, and while deciding the
contest on other grounds, agreed that contestant's motion did not meet
the statutory requirements.
Sec. 22.2 A contestee may move to dismiss on the ground that the
contestant has failed to state with particularity the grounds on
which he relies in his notice of contest.
In Chandler v Burnham (Sec. 47.4, infra), a 1934 California
contest, contestant served notice alleging
[[Page 1034]]
that ``he had received a majority of all the lawful votes cast''; that
election officials had rejected as void certain ballots that had been
cast for him; that there were deviations in the number of ballots
delivered to and the number accounted for in certain precincts; that
many ballots were unaccountably missing from the ballot boxes; and
``that by reason of frauds, irregularities, and substantial errors,
many votes counted for the contestee should have been counted for the
contestant.'' The committee, while not dismissing the contest for
failure of contestant to state his case with particularity, declared
that contestant's notice of contest had been insufficient in this
respect and would under other circumstances afford grounds for
sustaining contestee's motion to dismiss.
Sec. 22.3 Where contestant's notice does not specify with particularity
the grounds upon which he relies in the contest, and no testimony
is taken within the prescribed time, the House may sustain the
contestee's dismissal motion based on those grounds.
In Roberts v Douglas (Sec. 54.4, infra), a 1947 California contest,
contestant's notice recited only:
Contest of your right to hold said seat is entered upon the
grounds of failure to meet residence requirements under both the
Constitution of the United States and the State of California.
Additional grounds for contest of your right to hold said
congressional seat is to be found in many fraudulent practices
alleged in the election of November 5, 1946, which justify
congressional investigation.
There was no testimony taken within the prescribed period. The
Speaker referred the Clerk's letter, together with a letter from the
contestee's attorney and contestee's motion to dismiss to the Committee
on House Administration, and ordered all the papers printed as a House
document. The committee, through a resolution offered by Mr. Ralph A.
Gamble, of New York, then recommended dismissal of the contest, with
which resolution the House agreed.(15)
---------------------------------------------------------------------------
15. See also Michael v Smith, Sec. 54.3, infra.
---------------------------------------------------------------------------
Necessity of Signature
Sec. 22.4 A notice of contest is not sufficient if it does not bear the
original signature of the contestant.
In the 1957 Iowa election case of Dolliver v Coad (Sec. 57.2,
infra), the House agreed to a resolution without debate providing that
it
[[Page 1035]]
would not recognize an unsigned paper as valid notice of contest and
that the contestant's unsigned notice of contest was not in the form
required by the applicable statute (2 USC Sec. 201).(16)
---------------------------------------------------------------------------
16. The requirement as to contestant's signature is presently embodied
in 2 USC Sec. 382(b).
---------------------------------------------------------------------------
CHAPTER 9
Election Contests
G. PLEADING
Sec. 23. Generally
The pleadings in an election contest include the response of
contestee to contestant's notice. This response must be made within 30
days after the service of the notice.(17)
---------------------------------------------------------------------------
17. 2 USC Sec. 383.
Notice of contest, see Sec. Sec. 20, et seq., supra.
---------------------------------------------------------------------------
Certain defenses, at the option of contestee, may be raised by
motion prior to answer. They are: (1) insufficiency of service of
notice of contest, (2) lack of standing of contestant, (3) failure of
the notice to state grounds sufficient to change the result of the
election, and (4) failure of contestant to claim a right to contestee's
seat.(18)
---------------------------------------------------------------------------
18. 2 USC Sec. 383(b).
---------------------------------------------------------------------------
A motion for more definite statement is permitted under the Federal
Contested Elections Act.(19)
---------------------------------------------------------------------------
19. 2 USC Sec. 383(c).
---------------------------------------------------------------------------
If a motion to dismiss is entered and denied, or if its disposition
is postponed until a hearing on the merits, the answer is to be served
within 10 days after notice of such action. If a motion for more
definite statement is granted, the answer is to be served within 10
days after service of the more definite statement.(20)
---------------------------------------------------------------------------
20. 2 USC Sec. 383(d).
---------------------------------------------------------------------------
Except for the notice of contest, every paper required to be served
is to be served on the attorney representing the party, or, if he is
not so represented, on the party himself, in the manner specified by
the controlling statute.(1)
---------------------------------------------------------------------------
1. 2 USC Sec. 384.
---------------------------------------------------------------------------
Proof of service, while not affecting the validity of such service,
is a necessary procedural step under the Federal Contested Elections
Act. Papers filed subsequent to the notice of contest are to be
accompanied by proof of service by affidavit showing the time and
manner thereof.(2)
---------------------------------------------------------------------------
2. 2 USC Sec. 384(c).
---------------------------------------------------------------------------
A motion to suppress a deposition may be sought on the ground that
the reasons given for a re
[[Page 1036]]
fusal to sign it require rejection of it in whole or in
part.(3)
---------------------------------------------------------------------------
3. 2 USC Sec. 386(h).
---------------------------------------------------------------------------
A motion to quash or modify a subpena compelling the production of
documents, or to deny it conditionally, is permitted under the Federal
Contested Elections Act. It provides that the Committee on House
Administration, on motion timely made, may (1) quash or modify the
subpena if it is unreasonable or oppressive, or (2) deny it
conditionally on the advancement by the subpena proponent of the
reasonable cost of producing the material sought.(4)
---------------------------------------------------------------------------
4. 2 USC Sec. 388(e).
---------------------------------------------------------------------------
The manner in which the pleadings and other papers in a case are to
be filed with the Clerk is prescribed by the Federal Contested
Elections Act.(5)
---------------------------------------------------------------------------
5. 2 USC Sec. 393. -------------------
---------------------------------------------------------------------------
Motion for Directed Verdict
Sec. 23.1 Where testimony had not been collected by the Clerk, printed,
and laid before the House, and the contested election had not yet
been referred to the Committee on House Administration,
contestant's motion for a ``directed verdict'' was premature.
In the 1957 Iowa contested election of Carter v LeCompte
(Sec. 57.1, infra), the Clerk's letter transmitting the testimony and
required papers was not referred by the Speaker to the Committee on
Elections and laid before the House until Aug. 26, 1957, four days
before adjournment of the first session of the 85th Congress. On that
date the contest was formally presented to the House. Earlier, however,
the contestant had filed a motion for a ``directed verdict'' with the
Committee on House Administration, which ruled that it was premature,
as a contrary ruling would have been in violation of the rules of the
House [then clause 9(k) of Rule XI] requiring contested elections to be
referred to the Committee on House Administration, and also in
violation of the old federal statute [then 2 USC Sec. 201 et seq.]
requiring that testimony be collected by the Clerk, printed and laid
before the House for reference.
Motion for Default Judgment
Sec. 23.2 The House has refused to take action on a contestant's motion
to enter a default against the contestee for his failure to answer
the notice of contest within the time prescribed by law.
[[Page 1037]]
In Woodward v O'Brien (Sec. 54.6, infra), a 1947 Illinois contest,
contestant submitted a letter stating that contestee had not answered
the notice of contest within the required period, and that a default
should be entered against contestee by the House. This letter was
referred to the appropriate committee, but the committee took no action
on it and indeed recommended that the notice be dismissed for failure
to take testimony within the required period.
CHAPTER 9
Election Contests
G. PLEADING
Sec. 24. Answer
The Federal Contested Elections Act provides that when a notice of
contest is served in the manner prescribed, contestee must respond with
a written answer, and that such answer must be served on contestant
within 30 days. The answer must admit or deny the averments relied on
by contestant. If contestee is without knowledge or information
sufficient to form a belief as to the truth of an averment, he must so
state, such statement having the effect of a denial. This answer must
set forth affirmatively any other defenses, in law or fact, relied on
by contestee.(6)
---------------------------------------------------------------------------
6. 2 USC Sec. 383.
---------------------------------------------------------------------------
Contestee must sign and verify his answer by oath or
affirmation.(7) Under the controlling statute, the failure
of contestee to answer the notice of contest is not to be deemed an
admission of the truth of the averments in the notice.(8)
---------------------------------------------------------------------------
7. 2 USC Sec. 383.
8. 2 USC Sec. 385. -------------------
---------------------------------------------------------------------------
Failure to Make Timely Answer
Sec. 24.1 Contestee's failure to file an answer within the requisite 30
days did not prevent him from ultimately prevailing and having the
contest dismissed.
In Mankin v Davis (Sec. 54.2, infra), a 1947 Georgia contest, a
contestant who had not been a candidate in the general election, but
only during the primary, timely filed an election contest notice and
brief. The contest was dismissed, the contestee's reply having been
given due consideration even though not filed within the requisite time
period.
Answer Filed for Information Only
Sec. 24.2 Contestee's answer, filed with the Clerk for information
only, can be included in
[[Page 1038]]
the Clerk's communication to the Speaker relating that no testimony
has been filed in the contest.
In Browner v Cunningham, a 1949 Iowa contested election case
(Sec. 55.1, infra), the contestee's answer was transmitted by the Clerk
to the Speaker along with the Clerk's letter relating that no testimony
had been received and stating the opinion of the Clerk that the contest
had abated.
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.
---------------------------------------------------------------------------
9. 2 USC Sec. 383(b)(3).
10. See Tunno v Veysey, discussed in Sec. Sec. 35.7, 64.1,
infra. -------------------
---------------------------------------------------------------------------
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.
CHAPTER 9
Election Contests
G. PLEADING
Sec. 26. Motion for More Definite Statement
A motion for more definite statement is permitted under the Federal
Contested Elections Act. It provides that if a notice of contest to
which an answer is required is so vague or ambiguous that the contestee
cannot reasonably be required to frame a responsive answer, he may move
for a more definite statement before interposing his answer. The motion
must point out the defects complained of and the details desired. If
the motion, which is heard by the Committee on House
[[Page 1041]]
Administration, is granted, and the order of the committee is not
obeyed by contestant within the time required, the committee may
dismiss the action or make such other order as it deems
just.(11)~
---------------------------------------------------------------------------
11. 2 USC Sec. 383(c).
---------------------------------------------------------------------------
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.
CHAPTER 9
Election Contests
H. TAKING OF TESTIMONY; DEPOSITIONS
Sec. 28. Examination of Parties and Witnesses
The officer before whom the testimony is taken puts the witness
[[Page 1047]]
under oath and records his testimony stenographically.(20)
The opposing party has the right of cross examination; (21)
if he does not wish to participate, he may transmit written
interrogatories to the officer, who then propounds them to the witness
and records the answers verbatim.(1)
---------------------------------------------------------------------------
20. 2 USC Sec. 386(g).
21. 2 USC Sec. 386(b).
1. 2 USC Sec. 386(g).
---------------------------------------------------------------------------
After the testimony has been fully transcribed, the deposition is
to be submitted to the witness for examination and reading, unless
waived. Changes which the witness desires to make are to be entered on
the deposition. The witness' refusal to sign a deposition may, in a
proper case, be used against him unless, on a motion to suppress, the
Committee on House Administration rules that the reasons given for such
refusal require rejection of the deposition in whole or in
part.(2)
---------------------------------------------------------------------------
2. 2 USC Sec. 386(h). This section of the statute permits waiver of
the signature requirement.
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Upon completion of a deposition, the officer before whom it is
taken certifies thereon that the witness was duly sworn and that it is
a true record of the testimony given. He then seals it, together with
any accompanying papers, and files it with the Clerk of the
House.(3)
---------------------------------------------------------------------------
3. 2 USC Sec. 391.
---------------------------------------------------------------------------
The officer must then promptly notify the parties of the filing of
the deposition with the Clerk. And he must furnish a copy of the
deposition to any party or the deponent on payment of reasonable
charges therefore.(4)
---------------------------------------------------------------------------
4. 2 USC Sec. 391 (b),
(c). -------------------
---------------------------------------------------------------------------
Unsigned Transcript of Deposition by Witness
Sec. 28.1 There have been instances in which attorneys have refused to
accept an unsigned transcript of a witness' deposition,
notwithstanding their prior agreement to waive such signatures.
In Lanzetta v Marcantonio (Sec. 48.1, infra), a 1936 New York
election contest, the Committee on Elections called the attention of
the House to the actions of the contestee's attorneys in refusing to
accept unsigned testimony as agreed, which necessitated further
subpenas to witnesses, some of whom refused to respond or could not be
found. Notwithstanding these actions, the House agreed to a resolution
that contestee was entitled to the disputed seat.(5)
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5. For the procedure under the present statute, see 2 USC Sec. 386(h).
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[[Page 1048]]
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)
---------------------------------------------------------------------------
6. 2 USC Sec. 386(b).
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
7. 2 USC Sec. 386(g).
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
8. 2 USC 388(e). -------------------
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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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CHAPTER 9
Election Contests
H. TAKING OF TESTIMONY; DEPOSITIONS
Sec. 30. Subpenas
The attendance of witnesses may be compelled by subpena in the
manner provided by the Federal Contested Elections Act.(12)
Subpenas for compelling attendance at a deposition must be issued by a
judge or clerk of a federal district court or court of record of the
state or county where the place of examination is
located.(13)
---------------------------------------------------------------------------
12. 2 USC Sec. 386(e).
13. 2 USC Sec. 388(a).
---------------------------------------------------------------------------
The time, method, and proof of service is prescribed under the act,
as is the form of the subpena.(14)
---------------------------------------------------------------------------
14. 2 USC Sec. 388 (b), (d).
---------------------------------------------------------------------------
A witness may be required to attend an examination only in certain
counties or within 40 miles of the place of service.(15)
---------------------------------------------------------------------------
15. 2 USC Sec. 388(c). -------------------
---------------------------------------------------------------------------
Clerk's Refusal to Respond to Subpena
Sec. 30.1 The settled rule that the Clerk will not give up House
documents without authorization from the House has been followed by
the Clerk in refusing to respond to a subpena served by contestant
in an election contest for purposes of obtaining documents filed by
contestee in a contested election case.
In the 1934 Illinois election case of Weber v Simpson (Sec. 47.16,
infra), the contestant's notary public served a subpena duces tecum
upon the Clerk requesting
[[Page 1051]]
production of documents filed by the contestee in compliance with the
Corrupt Practices Act. The Clerk transmitted the subpena, along with
his reply refusing to comply with it, to the Speaker, who referred it
to the Committee on the Judiciary. The 73d Congress did not authorize
the Clerk to respond to the subpena.(16)
---------------------------------------------------------------------------
16. See 3 Hinds' Precedents Sec. 2663.
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Noncompliance With Subpena
Sec. 30.2 Although the election contest statute authorized the use of
subpenas, there were instances of refusals to testify as well as
ignoring of subpenas by witnesses; for this reason, a House
elections committee recommended that the laws be amended and some
practical procedure be adopted by which witnesses could be required
to obey process and give testimony.
See Lanzetta v Marcantonio (Sec. 48.1, infra), a 1936 New York
contest, wherein various witnesses refused to testify or could not be
found or failed to obey the subpena or refused to sign testimony which
might have been incriminating; it also appeared that contestee's law
partner, the campaign fund treasurer, refused to testify. The law now
provides for fine or imprisonment for noncompliance.(17)
---------------------------------------------------------------------------
17. Under the present statute, 2 USC Sec. 390, noncompliance is a
misdemeanor punishable by a fine of not more than $1,000 nor
less than $100, or imprisonment for not less than one month nor
more than 12 months.
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CHAPTER 9
Election Contests
H. TAKING OF TESTIMONY; DEPOSITIONS
Sec. 31. Affidavits
Under the Federal Contested Elections Act, the testimony of a
witness may be presented in the form of an affidavit. The act provides
that by written stipulation of the parties, the testimony of any
witness may be filed in the form of an affidavit; or the parties may
agree as to what a particular witness would testify to if his
deposition were taken. Such affidavits or stipulations are to be filed
within the time prescribed by the act.(18)
---------------------------------------------------------------------------
18. 2 USC Sec. 387(c).
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[[Page 1052]]
CHAPTER 9
Election Contests
I. COMMITTEE HEARING AND REVIEW; DISMISSAL AND WITHDRAWAL
Sec. 32. Generally; Preparation of Briefs
The controlling statute provides that contested election cases are
to be heard by the Committee on House Administration on the record of
the case. This record consists of the papers, depositions, and exhibits
filed with the Clerk.(19)
---------------------------------------------------------------------------
19. 2 USC Sec. 392(a).
---------------------------------------------------------------------------
The contestant prepares a brief with an appendix disclosing those
portions of the record sought to be considered. A similar brief is
prepared by contestee.(20)
---------------------------------------------------------------------------
20. 2 USC Sec. 392.
---------------------------------------------------------------------------
Withdrawal of Evidence
Sec. 32.1 A contestant may be permitted to withdraw (without prejudice)
unprinted evidence which he has submitted while testifying before a
committee.
In the 1934 Pennsylvania election contest of Shanahan v Beck
(Sec. 47.15, infra), the contestant presented no documentary evidence
to the election committee of the matters charged in his notice of
contest and filed no brief in the matter. While the committee found
that this constituted ``laches'' and was inexcusable under the
circumstances, the contestant was nevertheless permitted to withdraw
unprinted evidence which he had submitted while testifying before the
committee, without prejudice.
CHAPTER 9
Election Contests
I. COMMITTEE HEARING AND REVIEW; DISMISSAL AND WITHDRAWAL
Sec. 33. Dismissal and Withdrawal of Contest
Cause for Dismissal
Sec. 33.1 An elections committee may dismiss a contest for failure of a
party to present evidence of matters charged in a notice of
contest, or failure to file briefs as provided by law, or failure
of a contestant to appear and show cause why his contest should not
be dismissed.(21)
---------------------------------------------------------------------------
21. See Casey v Turpin (Sec. 47.3, infra), a 1934 Pennsylvania contest.
---------------------------------------------------------------------------
Order to Appear
Sec. 33.2 A contestant may be ordered to appear before a committee and
show cause why his contest should not be dismissed for failure to
submit evidence.
[[Page 1053]]
In the 1934 Pennsylvania election contest of Casey v Turpin
(Sec. 47.3, infra), the elections committee dismissed the case, stating
in its report that the contestant had failed to present evidence to the
committee of the matters charged in his notice of contest, or to file
briefs, or to appear in person to show cause why his contest should not
be dismissed.(1)~
---------------------------------------------------------------------------
1. In an earlier communication with the Clerk, the contestant had
alleged that the commissioner before whom testimony had been
taken in his behalf had failed to forward this testimony. The
contestant had accordingly requested the House to require
production of such testimony. Although the request was referred
to the Committee on Elections and ordered printed as a House
document, it is unclear whether action was ever taken on the
request.
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Withdrawal of Contest
Sec. 33.3 Where a recount failed to disclose evidence of an alleged
discrepancy, a contestant withdrew his contest.
In the 1951 Missouri contested election of Karst v Curtis
(Sec. 56.2, infra), the contestant requested withdrawal of his contest
after a recount failed to disclose the irregularities suggested by his
party's county committee, based on charges of improper tallying of
ballots in a local election. The contestant's communication was
referred by the Speaker to the Committee on House Administration and
printed as a House document. The contest was then dismissed by House
resolution.
Manner of Withdrawal
Sec. 33.4 Where a defeated candidate wishes to withdraw from a contest
he has initiated, he does so by way of a written request for
dismissal, which he should file with the Clerk of the House. Such
dismissal is then brought to the attention of the House by a letter
from the Clerk to the Speaker.
In Williams v Mass (Sec. 49.3, infra), a 1937 Minnesota contest, a
defeated candidate who had initiated an election contest communicated
to the Clerk his statement of withdrawal within the time permitted by
law for the taking of testimony.
Sec. 33.5 Contestant's notice of withdrawal of contest may be submitted
in the form of a letter to the Clerk at any time during the time
required by law for the taking of testimony.
In the 1939 Ohio election contest of Smith v Polk (Sec. 50.3,
infra), the Clerk transmitted a letter to
[[Page 1054]]
the Speaker informing him that the Clerk had received a letter from the
contestant withdrawing the contest. The contestant's letter asked that
the contest be dismissed by the House. The Speaker laid the
communication before the House and then referred it to the Committee on
Elections No. 3 and ordered it printed as a House document.
Sec. 33.6 Where, during the time required by law for the taking of
testimony, the contestant notifies the Clerk of his withdrawal of
the contest and of his request that it be dismissed, the Clerk
communicates such request to the House for reference to an
elections committee by the Speaker.
In Smith v Polk (Sec. 50.3, infra), a 1939 Ohio contest, contestant
notified the Clerk of the House by letter of his withdrawal of the
contest which he had instituted under the Federal Contested Elections
Statutes against the seated Member (James G. Polk). This letter asked
that the contest be dismissed by the House. Contestant's decision to
withdraw and dismiss his notice of contest was based on his belief as
to the expense of obtaining evidence and what he perceived as a
difficulty in obtaining a favorable determination from an elections
committee, the majority of which represented members from another
political party.(2)~
---------------------------------------------------------------------------
2. In debate on a resolution dismissing the 1965 Iowa election contest
of Peterson v Gross (Sec. 61.3, infra), Neal E. Smith (Iowa),
stated that election contest procedures cost from $10,000 to
$30,000 at a time when ``few, if any, Democratic candidates for
Congress in Iowa ever had $10,000 available to spend in a
general election campaign, let alone a contest. . . .'' 111
Cong. Rec. 26502, 89th Cong. 1st Sess., Oct. 11, 1965.
---------------------------------------------------------------------------
CHAPTER 9
Election Contests
J. EVIDENCE
Sec. 34. Generally
The ordinary rules of evidence govern in election contests as in
other cases; thus, the evidence must be relevant and confined to the
point in issue.(3)~
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3. Cannon's Precedents Sec. 77.
---------------------------------------------------------------------------
Evidence taken ex parte and not in conformity with the election
contests statutes will not be considered.(4)~ Evidence
gathered by a
[[Page 1055]]
special committee investigating campaign expenditures, however, has
been submitted to the Committee on House Administration in anticipation
of the filing of an election contest.(5)~
---------------------------------------------------------------------------
4. Sec. 34.3, infra.
5. Sec. 34.1, infra. -------------------
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Collecting Evidence for Future Use
Sec. 34.1 The findings of a special committee to investigate campaign
expenditures for the House, a committee established by the
preceding Congress, were given to the Committee on House
Administration in the event that a contest would be filed, to be
used by the parties to the contest to support their case.
In the New York contested election of Macy v Greenwood (Sec. 56.4,
infra), arising from the 1950 elections, the Committee on House
Administration accepted the findings of the Special Committee to
Investigate Campaign Expenditures. This committee had been specially
created by the preceding Congress, the 81st, and directed to report to
the House by Jan. 3, 1951. The special committee reported that the
votes in this election had been fairly tabulated.
The House subsequently agreed to a resolution that the contestee
was duly elected and entitled to his seat.
Necessity of Producing Evidence
Sec. 34.2 The Subcommittee on Elections informed a contestant, after
the filing of notice but before referral, that the House would not
order a recount without evidence and before testimony had been
taken.
In the 1949 Michigan contested election case of Stevens v Blackney
(Sec. 55.3, infra), the Subcommittee on Elections responded on Feb. 15,
1949, to a letter from a contestant, informing him that the House
could, ``on recommendation from the committee, order a recount after
all testimony had been taken, in precincts where the official returns
were impugned by such evidence.'' [Emphasis supplied.]
As the minority report later pointed out, before the contest was
presented to the House on Sept. 22, 1949, ``There was nothing before
the subcommittee or the House except the contestant's notice and
contestee's answer thereto.''
Evidence From Ex Parte Proceedings
Sec. 34.3 Transcripts of testimony before local canvassing
[[Page 1056]]
boards, taken ex parte and prior to the initiation of the election
contest in the House, are incompetent as evidence and will not be
considered by the Committee on Elections.
In Hicks v Dondero (Sec. 53.1, infra), a 1945 contest, the
contestant submitted two copies of transcripts of proceedings before
the Wayne County, Michigan Canvassing Board, which were held prior to
the initiation of his election contest in the House. The Committee on
Elections ruled that such transcripts were entirely ex parse and
incompetent as proof of any issues urged by contestant.
Testimony at State Inquiry
Sec. 34.4 A committee on elections stated that it was not bound by the
actions of a state court in supervising a recount; but the
committee denied contestant's motion to suppress testimony obtained
at a state inquiry where the contestant had initiated the state
recount procedure and would be estopped from offering rebuttal
testimony as to the result of the recount.
In Kent v Coyle (Sec. 46.1, infra), proceedings took place as
described above. A partial recount had been conducted by a state court
pursuant to state law; but a committee on elections held that
contestant had failed to sustain the burden of proof of fraud where a
discrepancy between the official returns and the partial recount was
inconclusive.
CHAPTER 9
Election Contests
J. EVIDENCE
Sec. 35. Burden of Proof
Under the Federal Contested Elections Act, the burden is on
contestant to prove that the election results entitled him to
contestee's seat, even where the contestee fails to answer the notice
of contest or otherwise defend as provided by such act,(6)~
and even in opposition to a motion to dismiss submitted by contestee in
advance of submission of formal evidence.(7)~
---------------------------------------------------------------------------
6. 2 USC Sec. 385.
7. See Tunno v Veysey, discussed in Sec. 35.7,
infra. -------------------
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Administration of Oath as Prima Facie Evidence of Right to Seat
Sec. 35.1 The administration of the oath to the contestee may establish
his prima facie right to the seat.
In the 1965 Mississippi election contest of Wheadon et al. v
[[Page 1057]]
Abernethy et al. [The Five Mississippi Cases] (Sec. 61.2, infra), the
committee report and comments by members of the committee, during
debate on the resolution dismissing the contest, suggested that the
Committee on Elections regarded the administration of the oath to the
contestees as establishing their prima facie right to the
seats.(8)~
---------------------------------------------------------------------------
8. See also the debate on H. Rept. No. 89-602 disposing of the
election contest of Peterson v Gross (Sec. 61.3, infra), for
more authority that the administration of the oath establishes
a prima facie right to the seat, with resulting evidentiary
burdens imposed on the contestant. 111 Cong. Rec. 26499, 89th
Cong. 1st Sess., Oct. 11, 1965.
---------------------------------------------------------------------------
Standard of ``Fair Preponderance of Evidence''
Sec. 35.2 In an election contest, contestant has the burden of proof to
establish his case, on the issues raised by the pleadings, by a
fair preponderance of the evidence.
In Scott v Eaton (Sec. 50.2, infra), a 1940 California contest, an
elections committee summarily ruled that a contestant had not
established by a fair preponderance of the evidence that contestee had
violated a California statute or the Federal Corrupt Practices Act, or
that any such violation directly or indirectly prevented contestant
from receiving a majority of votes cast.(9)
---------------------------------------------------------------------------
9. As to the ``fair preponderance'' standard, see also Gormley v Goss,
a 1934 Connecticut contest (Sec. 47.9, infra).
---------------------------------------------------------------------------
Burden of Showing Results of Election Would Be Changed
Sec. 35.3 In the absence of a showing that the results of the election
would be changed, lack of knowledge of registration laws and
improper enforcement by officials charged with their administration
are not such irregularities as will void the results of an
election.
In Wilson v Granger (Sec. 54.5, infra), a 1948 Utah contest, the
majority report of the Committee on House Administration acknowledged
``widespread and numerous errors and irregularities in many parts of
the district,'' but nevertheless upheld the 104 vote lead of the
contestee because the correct result of the election was not affected
by the irregularities shown. The House agreed to a resolution
dismissing the contest.
Sec. 35.4 Where the contestant alleges that procedural requirements in
an election have not been complied with,
[[Page 1058]]
he has the burden of showing that, due to fraud and irregularity,
the result of the election was contrary to the clearly defined wish
of the constituency involved.
In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, the
Committee on Elections determined that contestant had proven certain
irregularities relating to the failure of local officials in certain
precincts to keep registration books and to comply with various
administrative requirements imposed by state law, but dismissed the
contest for failure of the contestant to bear the burden of showing
fraud and irregularity by any election official whereby contestant was
deprived of votes.
Sec. 35.5 A contestant who alleges that voters had been registered who
did not reside in the precincts where registered must present such
evidence of these irregularities as to leave no doubt of their
existence.
In the 1951 Pennsylvania contested election case of Osser v Scott
(Sec. 56.5, infra), the contestant's testimony enumerated instances
where registrants had given fictitious residence addresses, and
indicated that as to such registrants contestant had filed some 2,000
``strike-off petitions.'' The committee, however, found that no
evidence had been presented to show that any of the illegal registrants
had voted for the contestee. Thus, the committee concluded that the
contestant had not presented sufficient evidence to impeach the
returns.
Sec. 35.6 An elections committee will recommend dismissal of a contest
where there is no evidence that the election was so tainted with
the misconduct of election officers that the true result cannot be
determined.
In the 1951 Pennsylvania contested election case of Osser v Scott
(Sec. 56.5, infra), the contestant contended, as stated in the report,
that he was unable to have ``honest-to-goodness Democrats file for
minority inspector [poll watchers]'' and that the Republican Party
``will register persons as Democrats in order to file them for minority
inspector and to complete the election board.'' However, the committee
recommended dismissal, which the House subsequently agreed to, because
no evidence was presented to show ``that the election was so tainted
with fraud, or with the misconduct of the election officers, that the
true result cannot be determined.''
[[Page 1059]]
Sec. 35.7 The requirement that the contestant in a contested election
case make a claim to the seat carries with it the implication that
the contestant will offer proof of such nature that the House of
Representatives acting on his allegations alone, could seat the
contestant.
Under the new contested election statute, contestant has the burden
of resisting contestee's motion to dismiss, prior to the submission of
evidence and testimony, by presenting sufficient evidence that the
election result would be different or that contestant is entitled to
the seat. Thus, in the 1971 California election contest of Tunno v
Veysey (Sec. 64.1, infra), the committee report recommended dismissal
of the contest where the contestant merely alleged that election
officials had wrongfully and illegally canceled the votes of 10,000
potential voters, without any evidence as to how these potential voters
would have voted.
The committee report noted the following burden of presenting
evidence:
Under the new law then the present contestant, and any future
contestant, when challenged by motion to dismiss, must have
presented, in the first instance, sufficient allegations and
evidence to justify his claim to the seat in order to overcome the
motion to dismiss.
The report continued:
The major flaw in the contestant's case is that he fails to
carry forward with his claim to the seat as required by the
precedents of the House of Representatives and the Federal
Contested Elections Act. A bare claim to the seat as the contestant
makes in his notice of contest without substantiating evidence
ignores the impact of this requirement and any contest based on
this coupled with a request for the seat to be declared vacant must
under the precedents fail. The requirement that the contestant make
a claim to the seat is not a hollow one. It is rather the very
substance of any contest. Such a requirement carries with it the
implication that the contestant will offer proof of such nature
that the House of Representatives acting on his allegations alone
could seat the contestant.
That the contestant in the present case fails to do this is
quite clear. If all of his allegations were found to be correct he
would still not be entitled to the seat. It is perhaps stating the
obvious but a contest for a seat in the House of Representatives is
a matter of most serious import and not something to be undertaken
lightly. It involves the possibility of rejecting the certified
returns of a state and calling into doubt the entire electoral
process. Thus the burden of proof placed on the contestant is
necessarily substantial.
The House agreed to a resolution dismissing the
contest.(10)
---------------------------------------------------------------------------
10. This was the first election contest arising under the present
Federal Contested Elections Act, 2 USC Sec. Sec. 381 et seq.
---------------------------------------------------------------------------
[[Page 1060]]
Burden of Establishing Claim to Seat
Sec. 35.8 Merely showing that some voters have been precluded from
voting through errors of the election officials does not satisfy
the contestant's burden of establishing his claim for the seat.
In the 1971 California election contest of Tunno v Veysey
(Sec. 64.1, infra), the contestant alleged that the election officials
had wrongfully and illegally canceled the registration of approximately
10,000 voters. However, the contestant did not show how these potential
voters would have voted, and the election committee, after expressing a
hesitancy to invalidate an election under these circumstances, held
that the contestant had not carried through on his burden of
establishing his claim to the seat under the Federal Contested
Elections Act [specifically, 2 USC Sec. Sec. 382, 383] and the
precedents of the House.
Allegations of Improper Expenditures
Sec. 35.9 A contestant has the burden of proof with respect to his
allegations of improper campaign expenditures by contestee.
In Lovette v Reece (Sec. 47.11, infra), a 1934 Tennessee contest,
the committee found that contestant's allegations of improper campaign
expenditures by contestee were based on hearsay evidence related to
other elections, and that the contestant had failed to sustain his
burden of proof.
Evidence Not Compelling Examination of Ballots
Sec. 35.10 To entitle a contestant in an election case to an
examination of the ballots, he must establish (a) that some fraud,
mistake or error has been practiced or committed whereby the result
of the election was incorrect, and a recount would produce a result
contrary to the official returns; and (b) that the ballots since
the election have been so rigorously preserved that there has been
no reasonable opportunity for tampering with them.
In O'Connor v Disney (Sec. 46.3, infra), a 1932 Oklahoma contest, a
committee on elections refused to conduct a partial recount where
contestant had failed to sustain the burden of proving fraud or
irregularities sufficient to change
[[Page 1061]]
the result of the election, and of proving such proper custody of
ballots as to reasonably prevent tampering with them.
CHAPTER 9
Election Contests
J. EVIDENCE
Sec. 36. Presumptions
Official Returns as Presumptively Correct
Sec. 36.1 A contestant in an election contest must overcome the prima
facie evidence of the correctness of the election as established by
the official returns.
In the 1934 Illinois election contest of Weber v Simpson
(Sec. 47.16, infra), after the contestant examined the tally sheets in
all of the 516 precincts of the district and found discrepancies in 128
of the precincts, he requested that the elections committee order a
recount based on the discrepancies shown. The committee denied this
request, finding no evidence of irregularities, intimidation, or fraud
in the casting of ballots, concluding that ``contestant has failed to
overcome the prima facie case made by the election returns upon which a
certificate of election was given to the contestee.''
Sec. 36.2 The burden is on the contestant to present sufficient
evidence to rebut the presumption that official returns are proof
of the result of an election.
In the 1951 Pennsylvania contested election of Osser v Scott
(Sec. 56.5, infra), the committee granted the contestant full
opportunity for presenting testimony and hearing arguments of counsel
supporting his claim, but still concluded that the contestant had not
sustained his contention, stating:
The returns of the election . . . and the certificate issued to
[the contestee] are presumptive proof of the result of that
election which will prevail unless rebutted by proper evidence.
The House then agreed to a resolution that the contestee was duly
elected and entitled to his seat.
Similarly, in O'Connor v Disney (Sec. 46.3, infra), the Committee
on Elections applied the principle that the burden of coming forward
with evidence to meet or resist the presumption of irregularity rests
with the contestant, and found that contestant had failed to overcome
the presumption of correctness of official returns.
Sec. 36.3 Election returns prepared by election officials regularly
appointed under the laws of the state where the election was held
are presumed to be correct until
[[Page 1062]]
they are impeached by proof of irregularity or fraud.
In Clark v Nichols (Sec. 52.1, infra), a 1943 Oklahoma contest, an
election contest involving alleged irregularities relating to precinct
registration books, the Committee on Elections cited the presumption as
to the correctness of election returns, and indicated that neither the
House nor its committees were constituted as mere boards of recount.
Sec. 36.4 A contestant must overcome the presumptions that official
returns are prima facie evidence of the regularity and correctness
of an election and that election officials have legally performed
their duties.
In Chandler v Burnham (Sec. 47.4, infra), a 1934 California
contest, contestant alleged that in 14 precincts there had been
instances of illegal ballot counting, improperly constituted election
boards, unsworn officials, and unattested tally sheets as well as
irregular ballots and envelopes, all of which warranted the rejection
of the returns in total. The Committee on Elections determined that
contestant failed to establish fraud or connivance on the part of the
contestee or any election official. The committee noted that (1) the
official returns are prima facie evidence of the legality and
correctness of official action, (2) that election officials are
presumed to have legally performed their duties, and (3) that the
burden of coming forward with evidence to meet or resist these
presumptions rests with the contestant.
Sec. 36.5 A contestant must overcome the presumptions that the official
returns are prima facie evidence of the regularity and correctness
of an election, and that election officials have performed their
duties honestly. An elections committee will not determine certain
irregular actions by precinct officers at an election supervised by
a nonpartisan board to be fraudulent or the result of a conspiracy
with contestee, absent a ``fair preponderance of evidence'' adduced
by contestant to the contrary.
In Gormley v Goss (Sec. 47.9, infra), a 1934 Connecticut contest,
according to the official returns, contestee received 42,132 votes to
42,054 votes for contestant--a majority of 78. Contestant alleged that
a precinct official, acting fraudulently and in conspiracy with
contestee, entered the voting booth and spoke to voters who
[[Page 1063]]
were casting ballots. The committee found that confusion existed among
voters with regard to voting on a certain proposition and as to its
placement on the voting machine. The committee further found that many
voters were seeking information in this respect and that they were
merely given assistance by the official in question. The committee also
determined that the intent of the voter was not vitiated by any
interference with the keys on the voting machine. The committee
concluded that the contestant had failed to establish the allegations
contained in the notice of contest, and had failed by a fair
preponderance of the evidence to establish any fraud or conspiracy.
Sec. 36.6 Where the contestant has not clearly presented proof
sufficient to overcome the presumption that the returns of the
returning officers were correct, the elections committee will not
order a recount.
In the 1965 Iowa election contest of Peterson v Gross (Sec. 61.3,
infra), there was no procedure available under Iowa law for a recount
in a contest in which the sitting Member had won by only 419 votes. The
contestant, who made no allegations of fraud against anyone, sought to
have the House order a recount, but the elections committee declined to
do so in the absence of proof overcoming the presumption that the
returns of the election officers were correct.
Sec. 36.7 The official returns of an election are prima facie evidence
of its regularity and correctness.
In the 1934 Illinois election contest of Weber v Simpson
(Sec. 47.16, infra), the elections committee recommended adoption of a
resolution dismissing the contest and declaring the contestee to be
entitled to the seat after it concluded that the ``contestant has
failed to overcome the prima facie case made by the election returns
upon which a certificate of election was given to the contestee.''
Effect of Absence of Witnesses for Contestant
Sec. 36.8 Where a contestant is unable to produce witnesses as to any
errors in the counting of ballots in certain precincts, an election
committee may presume that there has been a fair and honest count
in those precincts.
In the 1949 Michigan election contest of Stevens v Blackney
(Sec. 55.3, infra), although the con
[[Page 1064]]
testant produced evidence showing that the counting in four of 207
precincts had been erroneous, the majority of the committee applied a
principle of evidence to presume that the contestant's failure to
produce party election officials and challengers from any of the other
precincts as witnesses must have been ``because their testimony would
show an honest and fair count.'' The House agreed to a resolution
seating the contestee.
Correctness of Tally Sheets
Sec. 36.9 An official return based on tally sheets and check lists is
only prima facie evidence of the correctness of the result of the
election. This presumption may be overcome by a recount of all
ballots where such ballots are preserved as required by law and
their integrity is unimpeached.
In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest,
one of the parties claimed that he had not received credit, upon
recount, for ballots from a certain precinct. The committee ruled that
the presumption as to the correctness of the official return had been
overcome by a recount of all ballots, including those from the disputed
precinct; the committee accepted the recount as the best evidence of
the number of votes cast, and noted that the ballots had been preserved
as required by law and their integrity unimpeached.
Effect of Failure to Challenge Voter
Sec. 36.10 Persons voting without challenge on election day are
presumed to be entitled to vote, and election officials receiving
the votes are presumed to do their duty properly.
In the New York contested election case of Macy v Greenwood
(Sec. 56.4, infra), arising from a 1950 election which the contestant
lost by only 135 votes, contestant alleged for the first time that a
number of the voters were not qualified as to residence because they
had not been residents for the four months preceding the election, as
required under state law. The committee observed that the contestant
had not made any challenges under state law which permitted challenging
of voters at the time of registration or of voting. Furthermore, the
committee report could not cite a single instance wherein the House had
rejected votes as illegal for the reason that the voter had not resided
in the county for the statutory period of time. The report further
[[Page 1065]]
stated, ``It is apparently the settled law of elections that, where
persons vote without challenge, they are presumed to be entitled to
vote and that the election officers receiving the votes did their duty
properly and honestly.'' (11)
---------------------------------------------------------------------------
11. Citing the election contest of Finley v Bisbee, 2 Hinds' Precedents
Sec. 933.
---------------------------------------------------------------------------
Effect of Closeness of Result
Sec. 36.11 The mere closeness of the result of an election raises no
presumption of fraud, irregularity, or dishonesty. Fraud is never
presumed but must be proven.
In Chandler v Burnham, a 1934 California contest (Sec. 47.4,
infra), the official returns gave to contestee a plurality of 518 votes
from a total of 87,061 votes cast. The contestant alleged a wide
variety of procedural irregularities on the part of election officials.
The committee determined, however, that contestant had failed to
establish fraud or connivance and cited the general rules that fraud is
never presumed, and that the mere closeness of the result raises no
presumption thereof.
CHAPTER 9
Election Contests
J. EVIDENCE
Sec. 37. Ballots
Ambiguous Ballots
Sec. 37.1 In determining voter intention, an elections committee should
distinguish between ambiguous ballots, which permit examination of
the circumstantial evidence surrounding an election to determine
voter intent, and ballots mistakenly marked for two parties, as to
which voter intent would be a matter of conjecture.
In the 1934 Connecticut election contest of Fox v Higgins
(Sec. 47.8, infra), the ``Australian ballot,'' on which voters could
vote a ``straight ticket'' by marking an ``X'' in the circle above a
party column, was employed as the official ballot. State law voided
ballots marked with an ``X'' in more than one party circle. By
inadvertence, the committee found, the contestee had caused the ballots
to be printed with the party name ``Wet Party'' near the question on
repeal of the 18th amendment. The contestee had been charged with the
responsibility of preparing the ballots, being the Connecticut
secretary of state at the time. The effect of the juxtaposition was
that, as several witnesses testified, they inadvertently voted for more
than one political party when they intended to vote their regular party
affiliation and for repeal, and had mistakenly voted for the ``Wet
Party,'' a local political entity.
[[Page 1066]]
The committee found, however, that the question of the intention of
the voters of the rejected ballots was a matter of conjecture and that
the ballots were rightly rejected as this ``was not the case of an
ambiguous or doubtful ballot, where the committee can look at the
circumstances surrounding the election explaining the ballots.''
Ballots as Best Evidence
Sec. 37.2 In an election contest, the best evidence as to the number of
ballots cast, and for whom they were cast, is the ballots
themselves, and not tally sheets or check lists, provided the
integrity of the ballot box has been pre-served and there is no
evidence that the boxes have been tampered with or molested.
In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest,
the issue to be decided was whether the tally sheet and check list of a
certain precinct were to be considered the best evidence of the vote.
The minority of the Committee on Elections claimed that the number of
ballots cast as determined on recount, had been successfully impeached
by contrary evidence of check lists, tally sheets, and sworn
depositions of voters. But the committee did not accept such tally
sheets and check lists as the best evidence of the number of votes cast
for the parties in the precinct, and accepted the recount of the
ballots in that precinct as the best evidence thereof.
Method of Proportionate Deduction
Sec. 37.3 Where it is impossible to determine for which candidate
illegal absentee votes were cast, the proportionate deduction rule
for deducting such votes is followed.
In the 1961 Indiana investigation of the right of Roush or Chambers
to a seat (Sec. 59.1, infra), the Committee on Elections found that in
one precinct 42 absentee ballots had been illegally procured and cast,
though there was no proof as to the person for whom they were cast. The
committee first determined the total votes cast for each candidate in
the precinct (615 for Mr. Roush and 352 for Mr. Chambers). The
committee then determined the number of absentee ballots cast in the
precinct for Mr. Roush, 20, and for Mr. Chambers, 42. Of the 62 total
absentee ballots cast in the precinct, then, 68 percent were cast for
Mr. Chambers and 32 percent were cast for Mr. Roush. Applying these
percentages to the 42 votes
[[Page 1067]]
to be deducted, the subcommittee deducted 29 votes from Mr. Chambers'
total and 13 votes from Mr. Roush's total. In following this procedure,
the committee report cited precedents of the House in which this
proportionate deduction method had been followed: Oliver v Hale
(Sec. 57.3, infra); Macy v Greenwood (Sec. 56.4, infra); Wickersham v
Sulzer and Grigsby (6 Cannon's Precedents Sec. 113); Chandler v Bloom
(6 Cannon's Precedents Sec. 160); Bailey v Walters (6 Cannon's
Precedents Sec. 166); and Paul v Harrison (6 Cannon's Precedents
Sec. 158).
Sec. 37.4 Where absentee ballots should be rejected due to invalid
envelopes and applications filed by voters, but it cannot be
determined to which ballots the invalid material relates, an
elections committee will apply the method of proportionate
deduction as an equitable method of deducting votes from the totals
of each candidate.
In the Maine contested election case of Oliver v Hale (Sec. 57.3,
infra), arising from the Sept. 10, 1956, election, the committee cited
the contested election case of Macy v Greenwood (Sec. 56.4, infra), as
precedent for an equitable method of deducting 109 absentee ballots
from the totals of the contestant and contestee. This method
presupposed that each candidate received invalid ballots in the same
proportion that he received his total vote in the election precinct.
Thus, by dividing the number of absentee votes received by a candidate
in a precinct by the total number of absentee votes cast in that
precinct, and by then multiplying the fraction thereby obtained by the
number of absentee votes rejected in the precinct, the committee
determined that 86 votes should be deducted from the contestee's total
and 23 votes from the contestant's total.
Sec. 37.5 When it cannot be ascertained for which candidate the illegal
votes were cast, the votes will be deducted proportionally from
both candidates according to the entire vote returned for each
candidate.
In the New York election case of Macy v Greenwood (Sec. 56.4,
infra), the contestant, who had lost by only 135 votes, alleged that
932 voters were not qualified as to residence because they had entered
the district and voted although they had not been ``for four months a
resident of the county'' as required by state law.
[[Page 1068]]
Although the committee found additional basis for disregarding the
contestant's challenge and recommending dismissal of the contest, the
committee report specifically stated the ``general rule'' that ``had it
found the 932 votes illegally cast, the votes presumably would be
deducted proportionally from both candidates, according to the entire
vote returned for each.'' The House subsequently dismissed the contest.
Interpretations of ``Straight Ticket'' Votes
Sec. 37.6 Where state law permits ``straight ticket'' voting by a mark
in the appropriate circle, and also permits voting for only part of
a ticket, a candidate for Representative is not entitled to ballots
cast for his party's Presidential nominee but not marked for
Representative.
In Ellis v Thurston (Sec. 47.6, infra), a 1934 Iowa contest, the
contestant claimed all ballots that were cast for the Presidential
nominee of his party, but which indicated no choice for Representative.
The Committee on Elections ruled that voters in marking the squares
opposite the Presidential and Vice Presidential candidates did not
intend to vote a straight party ticket, as the statute provided that a
cross be placed in a separate party circle in order to cast such a
vote. The committee dismissed contestant's claim that ``the intent of
the voter should be given effect regardless of local Iowa laws,'' and
refused to assume ``that because voters voted for Roosevelt, or Hoover,
who headed the respective tickets, that they intended to vote also for
the candidates for Congress toward whom the voters indicated their
neutrality.''
Sec. 37.7 In an election involving the use of ``straight ticket''
ballots, a candidate is entitled to the number of votes equal to
the total number of ``straight ticket'' ballots cast for his party
and on which his name appears undisturbed.
In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois case
involving the Australian (or so-called ``straight ticket'') balloting
system, the issue was whether the defeated candidate, a Democrat, was
entitled to be credited with the same number of votes cast for his
party by the ``straight ticket'' voters.
The majority of the Committee on Elections found in favor of
Democrat Kunz, notwithstanding the contention of the minority
[[Page 1069]]
that a number of straight Democratic ballots had been marked for his
Republican opponent, Granata. The majority took the view that Mr. Kunz
was entitled to every ``straight ticket'' ballot on which his name
appeared undisturbed along with the names of the other Democratic
candidates. The fact that the contestant did not receive the ``straight
ticket'' vote in many of the precincts was considered conclusive
evidence of fraud or gross irregularity, justifying a recount.
When the ``straight ticket'' vote was given contestant, he overcame
the contestee's apparent majority, and was eventually seated as the
Representative from his district.
Sec. 37.8 An elections committee will not presume ballots marked for
contestant's party Presidential nominee to have been intended as
``straight ticket'' votes where state law provided a separate
circle for casting ``straight ticket'' ballots.
In the 1934 Iowa contested election of Ellis v Thurston (Sec. 47.6,
infra), the committee dismissed the contestant's claim that ``the
intent of the voter should be given effect regardless of local Iowa
laws,'' holding instead that ``to presume now that the voters intended
to vote otherwise than as expressed by their marked ballots would be to
indulge in a presumption not justified in law or facts.'' The
contestant had argued that the voters, in marking the squares opposite
the Presidential and Vice Presidential candidates, intended to vote a
straight party ticket, although the statute provided that a cross be
placed in the party circle in order to cast such a vote. The committee
ruled otherwise, however.
Effect of Writing in Name of Listed Candidate
Sec. 37.9 Where voters write in the name of a candidate whose name is
already printed on the ballot, but do not put an ``X'' in the box
on the ballot opposite the name, the ballot may still be valid.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the Committee on Elections
validated two ballots on which the voter had written in the name of the
candidate, but had not marked an ``X'' in the box opposite his printed
name. In the absence of an Arkansas case on point, the committee cited
a Pennsylvania case as authority.
[[Page 1070]]
Using Other Than Specified Mark
Sec. 37.10 Where the voter places some mark other than an ``X'' in the
box opposite a candidate's name on a ballot, the ballot may still
be valid if the intention of the voter is clear.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the Committee on Elections
validated 42 of 43 ballots on which the voters had placed some mark
other than an ``X'' or check in the square opposite the name of the
candidate, as the intention of the voter was clear.
Sec. 37.11 Where the name of a candidate has been written in and the
box opposite his name checked, rather than ``Xed'' as required, the
ballot may nevertheless be held valid.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the elections committee found the
intention of the voters was clear and ruled valid 236 ballots in which
the voters had written in the name of a write-in candidate and placed a
check in the box on the ballot opposite his name, instead of placing an
``X'' in the box.
Incorrect or Wrong Name for Write-in Candidate
Sec. 37.12 Although a misspelling in the name of a write-in candidate
on a ballot does not necessarily invalidate it, where the name
provided is wrong or so badly spelled as to produce confusion as to
the intent of the voter, the ballot should be rejected.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the Committee on Elections
validated 1,035 of 1,097 ballots on which the name of the write-in
candidate was misspelled or only the last name used. The committee
invalidated those ballots on which the wrong given name was written or
the surname so incorrectly spelled as to render the intent of the voter
uncertain.
Stickers Used in Lieu of Writing in Name
Sec. 37.13 Where state law permits, stickers bearing a candidate's name
may be used in lieu of a ``write-in'' for the candidate.
In the 1959 investigation of the right of Dale Alford to a seat in
the House (Sec. 58.1, infra), the Committee on Elections determined
that an opinion of the state attor
[[Page 1071]]
ney general, issued immediately prior to the election, to the effect
that stickers were legal, was binding on the clerks and judges and they
were required to count the sticker votes. Neither the defeated
candidate nor any voter had appealed the attorney general's opinion.
The committee also cited a 1932 Arkansas Supreme Court decision that
ballots bearing stickers distributed at the polls were legal, as well
as the 1919 Massachusetts contested election case of Tague v Fitzgerald
(6 Cannon's Precedents Sec. 96), in support of the proposition that the
use of stickers in balloting should not void the ballots involved.
Sec. 37.14 Where the wrong end of a sticker has been placed on a ballot
or the sticker partly covers marks on the ballot for the other
candidate, the ballot is invalid.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the Committee on Elections ruled
invalid 52 ballots on which the wrong end of a sticker bearing the name
of a write-in candidate had been placed on the ballot. The committee
also found invalid seven ballots upon which stickers had been placed
over or partially over marks for the other candidate.
Ballot Marked for Both Candidates
Sec. 37.15 Where the name of a write-in candidate has been written in,
or placed on the ballot by sticker, and the box opposite the name
of the other candidate has also been marked, a ballot will be
declared invalid.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the Committee on Elections ruled
invalid 28 ballots, on the ground that a voter had voted twice on the
same ballot for the same office.
Failure to Mark in Designated Place
Sec. 37.16 Where the intent of the voter can be ascertained, a vote is
valid even though the voter fails to mark a cross in the square
provided on the ballot.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the Committee on Elections ruled
that 415 ballots which had the name of a write-in candidate written in,
or placed on the ballot by sticker, but which did not contain any mark
in the box opposite the name, were valid. In ruling that
[[Page 1072]]
the cross in the box opposite the name was not necessary, the committee
cited the election contest of Tague v Fitzgerald (6 Cannon's Precedents
Sec. 96).
Necessity of Detaching Stub From Ballot
Sec. 37.17 A ballot will be invalid if it does not have the stub
detached as required by state law.
In the 1959 Arkansas investigation of the right of Dale Alford to a
seat in the House (Sec. 58.1, infra), the Committee on Elections cited
an Arkansas statute which required that the voter detach the stub from
the ballot and deposit it separately, in ruling that each of 48 ballots
which did not have the stubs detached were invalid. The committee also
cited a Kentucky case which declared that detaching the stub is
mandatory in order to comply with requirements for preserving the
secrecy of the ballot.
Marking With Improper Instrument
Sec. 37.18 An elections committee has regarded state laws as merely
directory which provided that ballots were invalid if marked with
some instrument other than a blue pencil.
In the 1961 Indiana investigation of the right of Roush or Chambers
to a seat in the House (Sec. 59.1, infra), the Committee on Elections
ruled that 436 ballots that were marked with other than a blue pencil
were valid, despite Indiana court decisions that had invalidated
ballots marked with ink or lead pencil. The committee cited House
precedents, Goodich v Bullock and Kearby v Abbott (2 Hinds' Precedents,
Sec. Sec. 1038, 1076 respectively), in which the House had held state
statutory requirements that ballots be marked with designated
instruments to be directory, and not mandatory.
Integrity of Ballots
Sec. 37.19 The integrity of ballots is preserved where it is shown that
election officials have supervised the counting and storage of such
ballots in conformity with state law.
In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois contest, a
contention that the integrity of the ballots had not been preserved was
rejected by the Committee on Elections majority, where it was found
that the ballots had been preserved as provided by law and kept under
the supervision and control of the clerk of the Board of Election
Commissioners, and that the ballot boxes were all opened
[[Page 1073]]
under his supervision, and that after being counted the ballots were
replaced in boxes as required by law and put in the proper depository.
Sec. 37.20 A committee on elections refused to conduct a partial
recount, in part because contestant failed to prove such proper
custody of ballots as to reasonably prevent the opportunity for
tampering with them.
In O'Connor v Disney (Sec. 46.3, infra), the committee on elections
applied the principle that, to entitle a contestant in an election case
to an examination of the ballots, he must establish, in part, that the
ballots since the election have been so rigorously preserved that there
has been no reasonable opportunity for tampering with them. In this
case, some actual evidence of tampering with the ballot box existed.
Ballot Tallies
Sec. 37.21 An uncorroborated tally of ballots by contestant, taken
without the knowledge of contestee during an examination thereof by
both parties, will be rejected by an elections committee as an
inadmissible self-serving declaration.
In Chandler v Burnham (Sec. 47.4, infra), a 1934 California
contest, the official returns gave a plurality of 518 votes to
contestee from a total of 87,061 votes cast. At the time, state law did
not provide machinery for conducting a recount. Contestant alleged that
his own informal recount of approximately one-third of the ballots cast
showed that he had been elected. He contended that during the taking of
testimony under subpena, at which time the ballots had been examined in
the presence of both parties and their counsel, he had kept a tally of
votes cast, including certain ballots he declared to be void or
otherwise improper. The committee found that since contestee had not
known that contestant was conducting such a tally, and was not given
the opportunity to identify the ballots tallied, the testimony of
contestant was uncorroborated and constituted a self-serving
declaration of no probative value. The committee therefore ruled out,
as inadmissible, evidence concerning the tally as well as the tally
itself. The committee report was also critical of inconsistent or
contradictory allegations it attributed to contestant--namely, that on
the one hand, an examination of the ballots as shown by his tally
indicated that he had been elected
[[Page 1074]]
and, on the other hand, that the ballots were not preserved and
returned in the manner required by law. The committee ruled that these
dual contentions could not be maintained, and indicated that votes
could not be asserted as legal for one purpose and illegal for another.
CHAPTER 9
Election Contests
J. EVIDENCE
Sec. 38. Determination of Voter Intention
Voter Intention as Paramount Concern
Sec. 38.1 In the absence of proof of fraud, the intent of the voter
rather than a showing of irregular official conduct should govern
the decision whether to disenfranchise those voters.
In the 1933 Maine contested election of Brewster v Utterback
(Sec. 47.2, infra), after the contestant had apparently abandoned his
allegations of fraud and relied upon proof of negligence and
irregularities by officials to support his contest, the committee
accepted the recommendations of an advisory opinion of the Supreme
Court of Maine rendered to the Governor and his executive council.
Accordingly, the committee refused to ``disenfranchise the voters in
the 16 precincts . . . because of some alleged breach of official duty
of the election of officers.''
Sec. 38.2 An elections committee has applied state laws that required
ballots not be counted if the voter's choice could not be
ascertained for any reason.
In the 1958 Maine contested election case of Oliver v Hale
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, the
Committee on House Administration considered 142 disputed regular
ballots and applied the state law which required that a ballot could
not be counted ``if for any reason it is impossible to determine the
voter's choice.'' The application of the law made little difference,
however, as the committee determined that 57 votes had been cast for
each candidate and that 28 votes could not be ascertained.
Sec. 38.3 In determining voter intention, an elections committee should
distinguish between ambiguous ballots, which permit examination of
circumstantial evidence to determine voter intent, and ballots
mistakenly marked for two parties, as to which voter intention
becomes a matter of conjecture.
In Fox v Higgins (Sec. 47.8, infra), a 1934 Connecticut election
con
[[Page 1075]]
test, several witnesses testified that, in addition to their regular
party affiliation, they had intended to vote for repeal of the 18th
amendment, and had mistakenly voted for the ``Wet Party.'' The
committee noted that such ballots were not of the ambiguous or doubtful
type, so as to permit consideration of the circumstances surrounding
the election and explaining the ballot. The committee found the
question of intention of the voters of such ballots to be a matter of
conjecture. It concluded that the ballots were unreliable and properly
rejected.
Effect of State Law
Sec. 38.4 Although the House of Representatives generally follows state
law and the rulings of state courts in resolving election contests,
this is not necessarily so with respect to the validity of ballots
where the intention of the voter is clear and there is no evidence
of fraud.
In the 1961 Indiana investigation of the right of Roush or Chambers
to a seat in the House (Sec. 59.1, infra), the Committee on Elections
report posed, as the central issue to be decided, the question of
whether the ``House will necessarily follow State Court decisions in
ruling on validity of questionable ballots, particularly when those
decisions seem to be contrary to the intention of the voter in honestly
trying to indicate a choice between candidates.'' The report then cited
several ``instances in which the House, through its Committee on
Elections, has held that decisions of a state court are not binding on
the House in the examination of ballots to correct deliberate or
inadvertent mistakes and errors,'' specifically citing Brown v Hicks (6
Cannon's Precedents Sec. 143), and Carney v Smith (6 Cannon's
Precedents Sec. 146).
Sec. 38.5 Where uncertainty existed in state law with respect to the
validity of write-in votes in general elections, an elections
committee decided that the will of the voters should not be
invalidated by the uncertainty in the state law.
In the 1959 Arkansas investigation of the right of Dale Alford
(Sec. 58.1, infra), to a seat in Congress, following his election
victory as a write-in candidate, the elections committee disregarded an
uncertainty which existed in state law with respect to write-in votes
in general elections, and decided that the will of the voters should
not be invalidated by an
[[Page 1076]]
uncertainty in state law. The committee noted that it had been the
custom in Arkansas to accept write-in votes, that spaces had been
provided on the ballots for write-in votes, and the House had always
recognized the right of a voter to write in the name of his choice.
CHAPTER 9
Election Contests
K. INSPECTION AND RECOUNT OF BALLOTS
Sec. 39. Generally
Recount by Stipulation of Parties
Sec. 39.1 By stipulation, the parties may agree to conduct a recount
during an extension of time granted by the House for the taking of
testimony.
In Moreland v Schuetz (Sec. 52.3, infra), a 1944 Illinois contest,
the parties to an election contest agreed to conduct a recount in those
wards where the vote had been questioned by contestant.
Sec. 39.2 The parties to an election contest may conduct their own
recount, showing that one of the parties has received a majority of
the votes cast, and this may be made the basis of a stipulation
upon which the House may act.
In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest,
the parties, having been denied a joint application for recount by the
House, agreed to conduct their own recount, the results of which showed
that contestee had received a majority of all votes cast. The House
agreed to a resolution dismissing the case, based on a stipulation of
the parties to that effect.
Unsupervised Recount
Sec. 39.3 The contestant may not, of his own accord and without
evidence, conduct a recount of ballots without supervision of the
House.
In the 1949 Michigan contested election case of Stevens v Blackney
(Sec. 55.3, infra), prior to presentation of the contest to the House,
the contestant, on Feb. 10, 1949, applied to the Committee on House
Administration to send its agents to a conduct recount. The committee,
however, declined to do so on the ground that the probability of error
should first be shown. The contestant then had a notary public of his
own selection issue a subpena duces tecum to
[[Page 1077]]
the local election officials to obtain possession of the ballots and
voting machines. The local officials refused to honor the subpena and
the Subcommittee on Elections ``sustained the action of the election
official.'' In a letter from subcommittee Chairman Burr P. Harrison, of
Virginia, to the local officials, it was stated:
Precedents of the House of Representatives clearly establish
that in a contested election case ballots should be inspected and
preserved in strict conformity with State law so that their
inviolability is unquestioned. No action should be taken by either
contestant or contestee with reference to ballots that does not
follow the law of the State.
The official count of the ballots is presumed correct, and I am
certain that this presumption will not be brought into question by
any unauthorized recount which is made contrary to State law or
under circumstances which do not give full protection to both
contestant and contestee.
Recount Pursuant to State Law, With House Supervision
Sec. 39.4 Where state law permits, a party to an election may request
an inspection and recount of all votes cast, to be conducted by
bipartisan teams and to be supervised by representatives of a
special House committee to investigate campaign expenditures.
In the 1958 Maine contested election case of Oliver v Hale
(Sec. 57.3, infra), arising from the Sept. 10, 1956, election, the
contestant asked for an inspection and recount as permitted by state
law, of all votes cast, which was conducted under the supervision of
five teams of two men each (with each party represented on each team)
and with representatives of the ``Special Committee to Investigate
Campaign Expenditures of the House of Representatives.'' The report of
this committee was submitted Dec. 22, 1956. The majority of the
committee recommended that the Committee on House Administration of the
85th Congress immediately investigate the approximate 4,000 ballots in
dispute and report to the House by Mar. 15, 1957. The minority
contended that a committee of the 84th Congress should not ``purport to
dictate to the Committee on House Administration of the 85th Congress
how it shall conduct its operations or when it shall file its report.''
Significance of Number of Disputed Ballots
Sec. 39.5 A committee finding of balloting irregularities in an
election contest will not provide a sufficient basis for
overturning the election
[[Page 1078]]
where the disputed ballots are so few in number that, even if
disregarded, they would not change the result of the election.
In Miller v Cooper (Sec. 48.3, infra), involving a 1936 contest in
the 19th Congressional District of Ohio, the contestant alleged that
certain irregularities and frauds had occurred in Mahoning County, but
not in the other two counties of the district. The committee found some
irregularities with respect to the destruction of ballots, tabulations
of the votes cast, and the method of conducting the election in
Mahoning County. The committee further found, however, that even if it
should disregard entirely the ballots cast in Mahoning County, it would
not affect enough votes to change the result of the election.
State Court Recount
Sec. 39.6 A committee on elections stated that it was not bound by the
actions of a state court in supervising a recount; but the
committee denied contestant's motion to suppress testimony obtained
at a state inquiry where the contestant had initiated the state
recount procedure and would be estopped from offering rebuttal
testimony as to the result of the recount.
In Kent v Coyle (Sec. 46.1, infra), a partial recount was conducted
by a state court pursuant to state law; but a committee on elections
held that contestant had failed to sustain the burden of proof of fraud
where a discrepancy between the official returns and the partial
recount was inconclusive.
CHAPTER 9
Election Contests
K. INSPECTION AND RECOUNT OF BALLOTS
Sec. 40. Grounds
The precedents indicate that a recount will be ordered only when
the contestant has satisfied his burden of proving that such recount
would alter the result of the election,(12) based on
evidence sufficient to raise at least a presumption of irregularity or
fraud.(13) A mere suggestion of, or a speculative
possibility of, error, is not sufficient for an election committee to
order a recount.(14)
---------------------------------------------------------------------------
12. See Sec. Sec. 40.5-40.7, infra.
13. See Sec. Sec. 40.1, 40.4, infra.
14. See Sec. Sec. 40.1, 40.2,
infra. -------------------
---------------------------------------------------------------------------
Justification for Recount
Sec. 40.1 An application for a recount of votes in an election contest
must be based on evidence sufficient to raise at least a
presumption of irregularity or fraud, and a re
[[Page 1079]]
count will not be ordered on the mere suggestion of possible error.
In Swanson v Harrington (Sec. 50.4, infra), a 1940 Iowa contest,
the Committee on Elections determined the central issue to be whether
the contestant could show, by a preponderance of the evidence, that an
application for recount was justified due to fraud or irregularity. The
committee concluded that contestant had failed to carry the burden of
showing that, due to fraud and irregularity, the result of the election
was contrary to the clearly defined wish of the constituency involved.
Sec. 40.2 An elections committee will not conduct a recount until the
necessity therefor has been established by evidence showing a
probability of error.
In the contested elections case of Stevens v Blackney from Michigan
(Sec. 55.3, infra), presented to the House on Sept. 22, 1949, the
elections subcommittee informed a contestant prior to his taking any
testimony that a recount would be ordered by the committee in precincts
where the official returns were impugned by evidence. The committee
rationale was that the probability of error should first be shown in
order to avoid subjecting a Member whose election had been certified to
``fishing expeditions'' and ``frivolous contests.''
Burden of Showing Fraud, Irregularity, or Mistake
Sec. 40.3 Where a party to an election contest claims that a recount of
the ballots was in error, in that he was not credited with votes
from a certain ballot box, he has the burden of proof to establish
that through fraud or mistake such votes were removed from the box
before the recount.
In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest,
the defeated candidate, Alphonse Roy, applied to the secretary of state
of New Hampshire for a recount pursuant to state law. At the recount,
at which both parties were represented, discrepancies were found
resulting in a tie vote of 51,690 votes for each candidate. Both
candidates appealed to the ballot-law commission for final
determination. Subsequently, Arthur B. Jenks notified the Governor that
he had obtained proof of a 34- or 36-vote discrepancy in his favor in
the town of Newton, New Hampshire, and petitioned for a rehearing. The
Committee on Elections placed the burden of
[[Page 1080]]
proof on Mr. Jenks to establish that there were 34 votes cast for him
in the Newton precinct ballot box, which were not given to him on
either recount, and ``that these ballots by fraud or mistake were
removed from this ballot box at some time before a recount. . . .'' The
committee accepted the original recount of the Newton ballots as the
best evidence of the number of votes cast, and declared Mr. Roy elected
by a majority.
Sec. 40.4 The House will not order an elections committee to conduct a
recount until the necessity has been established by evidence which
warrants the presumption of fraud or irregularity.
In the 1949 Michigan contested election of Stevens v Blackney
(Sec. 55.3, infra), the House followed the majority report by declining
to order a recount because the contestant had offered no evidence
impugning the official returns. The rationale was that, unless error
were first demonstrated, the Committee on Elections would be burdened
with ``frivolous contests''; and there was no proof that a House-
conducted recount would be more accurate than the original count in any
event.
Burden of Proving Recount Would Change Election Result
Sec. 40.5 Where the contestant seeks a complete recount of votes, based
on a partial recount, he has the burden of proving that such
recount would change the result of the election--that is, would
establish a majority for him.
In Moreland v Schuetz (Sec. 52.3, infra), a 1944 Illinois contest,
the committee found that a partial recount, which covered 42 percent of
total votes cast and included over 56 percent of votes cast for
contestee, reduced contestee's majority, but not enough to change the
outcome. The committee ruled that contestant had failed to sustain his
burden of proof, and indicated that the partial recount was by no means
conclusive proof that the trend of the change as shown by the recount
in favor of the contestant would have continued throughout the recount
of all ballots.
Sec. 40.6 An election committee declared that it could proceed to a
recount if some substantial allegations of irregularity or fraud
are alleged, and the likelihood exists that the result of the
election would be different
[[Page 1081]]
were it not for such irregularity or fraud.
See the 1965 Iowa election contest of Peterson v Gross (Sec. 61.3,
infra), where the election committee declined to order a recount and
recommended dismissal of the contest, a recommendation with which the
House later agreed, after finding that the contestant (who lost by 419
votes) had not clearly presented proof sufficient to overcome the
presumption that the returns of the returning officers were correct.
The contestant had admitted that he was not alleging fraud on the part
of anyone.
Sec. 40.7 A committee on elections will not order a recount of ballots
where the contestant has merely shown errors in the official return
insufficient to change the results of the election.
In the 1934 Illinois contested election of Weber v Simpson
(Sec. 47.16, infra), the contestee won by a plurality of 1,222 votes
and the contestant requested that the committee order a recount after
his examination of the tally sheets in all the 516 precincts in the
district found discrepancies reducing the contestee's plurality to 920
votes. The committee denied the request, however, and recommended the
adoption of a resolution that the contestee was entitled to the seat.
Sec. 40.8 A committee on elections refused to conduct a partial recount
where contestant failed to sustain the burden of proving fraud or
irregularities sufficient to change the result of the election.
In addition to failure to sustain the burden of proof of fraud as
noted above, the contestant in O'Connor v Disney (Sec. 46.3, infra),
was held not to have sufficiently demonstrated that proper custody of
ballots was maintained subsequent to the election.
CHAPTER 9
Election Contests
K. INSPECTION AND RECOUNT OF BALLOTS
Sec. 41. Procedure
Exhaustion of State Remedies
Sec. 41.1 To obtain an order from the House for a recount of votes in
an election contest, contestant should show that he has exhausted
state court remedies to obtain a recount under state law.
In Swanson v Harrington (Sec. 50.4, infra), a 1940 Iowa contest,
contestant claimed that certain votes had been cast by persons only
temporarily within the district, and therefore unqualified, and sought
an order from the
[[Page 1082]]
House that would require a recount of the total vote. The Committee on
Elections found that contestant had not exhausted his remedy of
obtaining a recount through the state courts, as permitted by the Iowa
code, prior to appealing to the committee to order a recount. The
committee rejected contestant's argument that he had been precluded
from invoking state court aid as the courts had not construed the
relevant state election contest laws as they applied to House seats.
Although the committee claimed the power to order a recount, in its
discretion, without reference to state proceedings, it indicated it
would not order a recount until contestant had exhausted state court
remedies. [Compare Carter v LeCompte (Sec. 57.1, infra), a 1957 Iowa
contest in which the committee expressly rejected Swanson v
Harrington.]
Recounts Permitted by State Law
Sec. 41.2 A recount of votes may be sought pursuant to a statute
requiring the secretary of state to conduct a recount at the
request of either candidate.
In the 1938 New Hampshire election contest of Roy v Jenks
(Sec. 49.1, infra), the original official returns from the Nov. 3,
1936, election gave Alphonse Roy 51,370 votes and Arthur B. Jenks
51,920 votes, a plurality of 550 votes for Mr. Jenks. On Nov. 9, Mr.
Roy applied to the secretary of state of New Hampshire for a recount,
pursuant to state law making it mandatory upon that official to conduct
a recount upon request of either candidate.
Production of Evidence Justifying a Recount as Prerequisite
Sec. 41.3 The Subcommittee on Elections informed a contestant that the
House would not order a recount without evidence and before
testimony had been taken.
In the 1949 Michigan contested election case of Stevens v Blackney
(Sec. 55.3, infra), the Subcommittee on Elections responded on Feb. 15,
1949, to a letter from a contestant, informing him that the House
could, ``on recommendation from the committee, order a recount after
all testimony had been taken, in precincts where the official returns
were impugned by such evidence.'' [Emphasis supplied.]
Joint Applications for Recount
Sec. 41.4 Joint applications for a recount received by the
[[Page 1083]]
Clerk of the House are communicated by him to the Speaker together
with accompanying papers, and are then referred to a committee.
In the 1943 Missouri election contest of Sullivan v Miller
(Sec. 52.5, infra), the two parties to an election contest filed a
joint application proposing that the House order the Missouri Board of
Election Commissioners to conduct a recount. The Clerk received this
application and communicated it to the Speaker in a letter with
accompanying papers from the parties. The Speaker then referred the
materials to an elections committee.
Use of Auditors
Sec. 41.5 The actual counting and auditing of returns, on a recount of
ballots by the Subcommittee on Elections of the Committee on House
Administration, may be conducted by auditors from the General
Accounting Office assigned to the committee.
In the 1961 Indiana investigation of the right of Roush or Chambers
to a seat in the House (Sec. 59.1, infra), the Committee on House
Administration passed a motion directing the Subcommittee on Elections
to conduct a recount of the ballots. The Subcommittee on Elections then
proceeded to Indiana where the actual recount was performed by 13
auditors assigned to the committee from the General Accounting Office.
The elections subcommittee prescribed the procedures that the auditors
followed in conducting the recount.
Reconsideration of Action Ordering a Recount
Sec. 41.6 An elections committee may reconsider its action in ordering
a recount of ballots and determine that such recount is not
justified.
In McAndrews v Britten (Sec. 47.12, infra), a 1934 Illinois
contest, an elections committee voted to order a recount of ballots,
and funds were sought to defray the expense thereof. Subsequently,
however, the committee reconsidered and decided against such a recount
based on a rehearing at which contestee's objections to the recount
were presented.
[[Page 1084]]
CHAPTER 9
Election Contests
L. DISPOSITION OF CONTESTS; RESOLUTIONS
Sec. 42. Generally
Disposal By House Resolution
Sec. 42.1 Election contests, if not resolved on motion or other prior
proceedings, are generally disposed of by House resolution
following debate on the floor of the House.
The disposition of election contests by resolution, after debate
thereon, is a procedure that has been uniformly followed in nearly all
contests that have been brought before the House since the 1930's. See
Sec. 46.2, infra.
Resolution Disposing of Contest as Privileged
Sec. 42.2 A privileged resolution is the procedure to declare contestee
to have been elected and entitled to a seat.
In Gormley v Goss (Sec. 47.9, infra), a 1934 Connecticut contest, a
House resolution was called up as privileged; it was agreed to by voice
vote and without debate. It provided:
Resolved, that Edward W. Goss was elected a Representative in
the Seventy-third Congress from the Fifth Congressional District in
the State of Connecticut and is entitled to a seat as such.
Sec. 42.3 A resolution disposing of an election contest is privileged
and may be called up at any time.
In McAndrews v Britten (Sec. 47.12, infra), a 1934 Illinois
contest, a resolution disposing of an election contest was offered for
the immediate consideration of the House. When a Member sought time to
debate the resolution, it was withdrawn, and unanimous consent was
sought that it be considered the following day after disposition of
business on the Speaker's table. The Speaker, Henry T. Rainey, of
Illinois, observed that such a request was not necessary, as the
resolution was privileged and could be called up at any time.
Sec. 42.4 A resolution disposing of an election contest is privileged,
though offered in the House from the floor and not reported by an
elections committee.
In Miller v Kirwan (Sec. 51.1, infra), a 1941 Ohio contest, a
resolution declaring a contestant incompetent to institute a contest,
and dismissing the contest, was called up from the floor as a question
of the privilege of the House, although it was not reported by
[[Page 1085]]
an elections committee. [See also Frankenberry v Ottinger, Sec. 61.1,
infra.]
Sec. 42.5 A House resolution, accompanied by a committee report on an
election contest, may be called up as privileged and agreed to by
voice vote and without debate.
In the 1934 California election contest of Chandler v Burnham
(Sec. 47.4, infra), the election committee report contradicting the
contestant's contentions was submitted to the House by a committee
member on Apr. 19, 1934, and this same Member called up as privileged
on May 15, 1934, a resolution, which was agreed to by voice vote and
without debate, specifying that the contestee was elected and entitled
to the seat.
Participation of Parties; Debate on Resolution Disposing of Contest
Sec. 42.6 The parties to an election contest are sometimes permitted to
be present at, or participate in, the debate in the House on the
merits of the contest.
In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest,
the contestee, the seated Member, took the floor to plead his case
during debate in the House on a resolution to seat the contestant, and
a Member who called the attention of the House to the presence of the
contestant in the gallery was ruled out of order. [Under Rule XXXII,
House Rules and Manual Sec. 919 (1973), contestants have the privilege
of the floor, but not of debate.] (15)
---------------------------------------------------------------------------
15. In the Five Mississippi Cases of 1965 (Sec. 61.2, infra), it was
pointed out to the contestees that, if they were to enter into
debate, the contestants might also seek recognition
[contestants have floor privileges under Rule XXXII of the
House]. Therefore, the Mississippi Members did not enter into
debate although they did insert their remarks in the Record in
explanation of their position. 111 Cong. Rec. 24285, 24286,
89th Cong. 1st Sess., Sept. 17, 1965.
---------------------------------------------------------------------------
Sec. 42.7 A contestee, as sitting Member, may be permitted to
participate in the debate on the resolution disposing of the
contest.
In the 1932 Illinois election contest of Kunz v Granata (Sec. 46.2,
infra), during debate on the committee report, the spokesman for the
minority view yielded for debate to the contestee, the sitting Member,
who argued in his own behalf. Ultimately the House adopted a resolution
that the contestant, not the sitting Member, was entitled to the seat
and he thereafter appeared at the bar of
[[Page 1086]]
the House and took the oath of office.
Sec. 42.8 A Member supporting the recommendation of the committee
majority in an election contest is entitled to close debate.
In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois contest, the
Speaker, John N. Garner, of Texas, ruled that the side supporting the
seating of the contestant--the committee majority--rather than the
Member intending to offer a motion to recommit, was entitled to close
debate.
Extension of Time for Debate on Resolution Disposing of Contest
Sec. 42.9 The time for debate on a privileged resolution disposing of
an election contest may, by unanimous consent, be extended for
additional time, with such time to be equally divided between a
majority and a minority member of the Committee on Elections, with
the previous question to be considered as ordered at the conclusion
thereof.
In the 1938 New Hampshire election contest of Roy v Jenks
(Sec. 49.1, infra), a spokesman for the majority report on the election
contest obtained unanimous consent for an extension of time to two and
one-half hours for debate. The additional time was divided equally
between the spokesman for the majority view and the spokesman for the
minority view. The previous question was considered as ordered at the
conclusion of debate. A motion to recommit the resolution was agreed to
by the House.
Disposal by Stipulation of Parties
Sec. 42.10 An election contest may be disposed of by way of dismissal
pursuant to a stipulation of the parties to that effect.
In Sullivan v Miller (Sec. 52.5, infra), a 1943 Missouri contest,
the parties conducted their own recount of votes, which affirmed that
contestee had received a majority of the votes cast. The parties then
stipulated to the dismissal of the contest, which stipulation was
communicated to the committee and set forth in its report recommending
dismissal. The House agreed to the committee report.
Disposal by Resolution Declaring Seat Vacant
Sec. 42.11 Declaring a vacancy in a seat is one of the options
[[Page 1087]]
available to the House of Representatives and is generally
exercised when the House decides that the contestant, while he has
failed to justify his claim to the seat, has succeeded in so
impeaching the returns that the House believes that the only
alternative available to determine the will of the electorate is to
hold a new election.
In the 1971 California election contest of Tunno v Veysey
(Sec. 64.1, infra), the elections committee, construing the Federal
Contested Elections Act [2 USC Sec. Sec. 381 et seq.], stated that the
relief sought by the contestant, that the seat be declared vacant, was
not proper under the circumstances. The contestant was limited to
claiming the seat in question and offering proof to substantiate that
claim.
Sec. 42.12 The House may, by resolution, declare two elections held to
fill a vacancy in the House to be invalid, declare neither
contestant entitled to a seat, and require the Speaker to inform
the Governor of the existing vacancy.
In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra),
arising from a Louisiana special election, the Speaker upheld the
propriety of that clause in the resolution which required the Speaker
to notify the Governor of Louisiana of the action taken by the House in
declaring the seat vacant.
Demand for Division on Resolution Disposing of Contest
Sec. 42.13 The defeat of a substitute resolution declaring contestee to
have been elected does not preclude a demand for a division of the
question on a resolution declaring contestant entitled to a seat
and declaring contestee not so entitled.
In Kunz v Granata (Sec. 46.2, infra), a 1932 Illinois contest, a
demand was made for a division of the question for purposes of the vote
on a resolution, the first part of which declared the contestee to have
been defeated and the second part of which declared the contestant to
have been elected. This demand followed the defeat of a substitute
resolution that declared the contestee to have been elected. A point of
order was raised against the request for a division on the ground that
the House had just voted on the ``reverse of this proposition.'' The
Speaker overruled the point of order and the question was divided.
[[Page 1088]]
Sec. 42.14 A Member may demand a division of two propositions in a
resolution disposing of an election contest, the first declaring
contestee not entitled to a seat and the second declaring
contestant so entitled.
In the 1938 New Hampshire election contest of Roy v Jenks
(Sec. 49.1, infra), following three hours of debate on the election
committee report in which the contestee, a sitting Member,
participated, the previous question was ordered and a Member demanded a
division of two propositions in the resolution. Accordingly, on the
first proposition the House voted that the contestee, the sitting
Member, was not entitled to the seat and, on the second proposition,
that the contestant was entitled to the seat.
Resolutions Admitting Neither Contestant to a Seat
Sec. 42.15 A resolution may take the form of a declaration that the
prima facie as well as the final rights of the contestants be
referred to a committee on elections, and, until such committee
shall have reported and the House decided such questions, that
neither contestant be admitted to a seat.
In the 1934 Kemp, Sanders investigation (Sec. 47.14, infra), both
parties presented certificates of election at the date of convening of
the second session of the 73d (Congress. A Member from Louisiana
thereupon offered a resolution from the floor that neither of the
contestants be admitted to a seat until the elections committee
reported and the House decided on the question. Ultimately, neither
party was found to have been validly elected, and the House authorized
the Speaker to notify the Governor of the vacancy.
Sec. 42.16 A privileged resolution declaring contestant entitled to a
seat in the House may be recommitted to the Committee on Elections
with instructions that the committee obtain further testimony from
voters who cast certain disputed ballots.
In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest,
the House adopted a motion to recommit with instructions a privileged
resolution declaring a contestant entitled to a seat in the House. The
instructions provided for the taking of additional evidence, and that
either the whole committee or a subcommittee could investigate,
administer oaths, and issue subpoenas.
[[Page 1089]]
Substitute Resolutions
Sec. 42.17 A resolution disposing of an election contest is privileged,
and a Member may not offer a substitute therefore unless the Member
controlling the time for debate yields for that purpose or unless
the previous question is voted down.
In the 1934 Illinois election contest of McAndrews v Britten
(Sec. 47.12, infra), a Member, Homer C. Parker, of Georgia, sought
unanimous consent that a resolution disposing of the election contest
be considered after the close of business on the Speaker's table. The
Speaker informed the Member that such a request was not necessary, as
the resolution was privileged and could be called up at any time.
When the resolution was offered by Mr. Parker, another Member,
Adolph J. Sabath, of Illinois, immediately sought recognition to offer
a ``substitute'' for the resolution, but the Member refused to yield
for that purpose and was recognized by the Speaker pro tempore for one
hour. Mr. Sabath then asked for unanimous consent that his
``substitute'' be read for the information of the House, to which
request Mr. Ralph R. Eltse, of California, objected. Mr. Parker then
yielded a few minutes of his time to Mr. Sabath, who read the
''substitute'' resolution. The previous question was then ordered, and
no further action was taken on Mr. Sabath's resolution.
Sec. 42.18 The House has rejected a substitute resolution providing
that the contest be recommitted to the Committee on House
Administration with instructions (1) to allow contestant to inspect
all ballots and other pertinent papers; and (2) to permit
contestant to take additional testimony after such inspection.
In the 1949 Michigan contested election of Stevens v Blackney
(Sec. 55.3, infra), after the House had refused to allow a contestant a
recount because contestant had failed to produce evidence overcoming
the presumption that there had been a fair election, although a recount
of only seven of the 207 precincts had reduced contestee's plurality
from 1,217 votes to 784 votes. The House had under consideration a
resolution seating the contestee, when the Member handling the
resolution yielded for an amendment which would have sent the case back
to the Committee on House Administration. The substitute resolution was
rejected by voice vote and the
[[Page 1090]]
original resolution was then agreed to without debate and by voice
vote, thus seating the contestee.
Failure to Take Action on Reported Resolutions
Sec. 42.19 There have been instances in which the House has failed to
take action on resolutions reported from an elections committee
declaring contestee entitled to his seat.
In the 1940 Tennessee election contest of Neal v Kefauver
(Sec. 50.1, infra), the election committee report disclosed that it had
dismissed the contest because of the contestant's failure to take
evidence, file briefs, and appear in person. At the same time the
committee submitted the committee report it also reported a resolution
to the House declaring the contestee to be entitled to the seat. The
House did not take any action on the resolution during the 76th
(Congress, however. The contestee was a returned Member of Congress,
already sworn and in office.
Sec. 42.20 There have been instances in which the House has not called
up a resolution disposing of an election contest.
In the 1934 Illinois election contest of Weber v Simpson
(Sec. 47.16, infra), the committee report concluded that the contestant
had failed to ``overcome the prima facie case made by the election
returns upon which a certificate of election was given to the
contestee.'' The committee submitted a resolution that the contestee
was entitled to his seat, but the resolution was not called up.
CHAPTER 9
Election Contests
L. DISPOSITION OF CONTESTS; RESOLUTIONS
Sec. 43. Committee Reports
Under the House rules, until the 94th Congress, the Committee on
House Administration was required to make a final report to the House
in each contested election case.(16)
---------------------------------------------------------------------------
16. Rule XI clause 25, House Rules and Manual Sec. 733 (1973).
---------------------------------------------------------------------------
This report was to be made at such time ``as the committee
considers practicable in that Congress to which the contestee is
elected.'' (17) Prior to the adoption of this language, the
rule required submission of final reports not later than six months
from the first day of the first regular session of the Congress. Such
rules have been construed as directory rather than
mandatory.(18)
---------------------------------------------------------------------------
17. Id.
18. Id. (notes).
---------------------------------------------------------------------------
[[Page 1091]]
In General; Form of Report
Sec. 43.1 The committee report may be summary in form, and may provide
for the disposition of more than one contest in the same report.
In Woodward v O'Brien (Sec. 54.6, infra), a 1947 Illinois contest,
the Committee on House Administration disposed of the contest in a
summary report which also provided for the disposition of two other
cases. The report recited that no testimony in behalf of the contestant
had been taken during the required period, and recommended that notices
of intention to contest the elections be dismissed.
Sec. 43.2 An elections committee report may summarily recommend that a
contest be dismissed as lacking in merit.
In Mankin v Davis (Sec. 54.2, infra), a 1947 Georgia election
contest in which the contestant disputed the method by which the
contestee had been nominated in the primary election, the committee
report indicated that the committee had held full hearings in the
contest, and had given consideration to the contestee's brief, which
had been filed more than 30 days after reception of a copy of the
contestant's brief, and the committee summarily recommended that the
contest be dismissed ``as lacking in merit.'' Accordingly, the contest
was dismissed.
Sec. 43.3 The Committee on House Administration has submitted a final
report on an election contest brought by a defeated primary
candidate although there was no record of transmittal of the
contest to the committee.
In the 1951 Georgia contested election of Lowe v Davis (Sec. 56.3,
infra), there was no record of transmittal of the contest to the
Committee on House Administration, nor did the House adopt a resolution
referring the contest to the committee, but the committee nevertheless
submitted a unanimous report indicating that the contestant, who had
not been a candidate in the general election, had been defeated by the
contestee in the primary election and that ``the contestee had not been
guilty of any acts in connection with that primary which would
disqualify him for office.''
Resolution Accompanying Report
Sec. 43.4 A member of an elections committee may submit
[[Page 1092]]
a report on an election contest from the floor for printing in the
Record, and then immediately call up an accompanying privileged
resolution relating to the contest by unanimous consent.
In the 1943 Illinois election contest of Moreland v Schuetz
(Sec. 52.3, infra), after submitting the election committee report that
the contestant had not introduced sufficient evidence to warrant a
complete recount, which he had requested, a Member on the election
committee then by unanimous consent called up on the same day the
resolution disposing of the contest.
The House agreed to the resolution.(19)
---------------------------------------------------------------------------
19. This procedure has been followed in almost every election contest.
---------------------------------------------------------------------------
Timeliness of Report
Sec. 43.5 The rule that required the Committee on House Elections to
submit their final reports within six months from the first day of
the first regular session to which the contestee was elected was
construed to be directory and not mandatory, so as not to prevent
the consideration of an election contest reported after the six
months had expired.
In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest, a
point of order was made against acceptance of a final report on an
election contest by the House in that it was not timely, being in
violation of former section 47 of Rule XI, which required the
submission of such reports not later than six months from the first day
of the first regular session of the Congress to which the contestee was
elected. The Speaker overruled the point of order challenging the
report, noting that a mandatory construction of that rule would be
inconsistent with the constitutional right of the House to judge the
election of its Members, and inconsistent with the statutory right of
parties to collect testimony for a longer period.
Sec. 43.6 The Speaker ruled that a point of order could not be directed
against reception by the House of an elections committee report
that was not presented to the House until after the period required
for its submission had expired.
As noted above, in Roy v Jenks (Sec. 49.1, infra), a 1938 New
Hampshire contest, Speaker William B. Bankhead, of Alabama, overruled a
point of order directed against
[[Page 1093]]
the late filing of an elections committee report; an appeal from this
decision was laid on the table by a roll call vote.
Minority Reports
Sec. 43.7 By unanimous consent, the minority views of an elections
committee may be filed subsequent to the filing of the majority
final report.
In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest,
the minority of the Committee on Elections was granted one week, by
unanimous consent, to file its views.
Sec. 43.8 The minority views of an election committee, though filed
subsequent to the views of the majority, were by unanimous consent
printed to accompany the views of the majority.
In the 1932 Illinois election contest of Kunz v Granata (Sec. 46.2,
infra), the report from the majority on the Committee of Elections No.
3 was submitted on Mar. 11, 1932, and the following day a member of the
committee minority was given unanimous consent by the House to print
the minority views to accompany the majority report.
Sec. 43.9 Dissenting members of a subcommittee on elections have
presented minority views and recommendations, together with a
chronological chart of events, the rules of the Committee on
Elections, and the laws governing contested elections.
In the 1949 Michigan contested election of Stevens v Blackney
(Sec. 55.3, infra), the minority report took strong exception to the
actions of the subcommittee and filed a minority report citing
precedents of the House, court decisions and federal statutes.
Effect of Contestant's Withdrawal or Abandonment of Contest
Sec. 43.10 The report of an elections committee may recite the fact
that contestant had withdrawn his notice of contest, and may
include a resolution recommending that contestee be held entitled
to his seat.
In Smith v Polk (Sec. 50.3, infra), a 1939 Ohio contest, a
unanimous report of the Committee on Elections recited the fact that
contestant had withdrawn the contest and recommended the following
resolution:
Resolved, That the Honorable James G. Polk was duly elected as
Representative from the Sixth Congressional
[[Page 1094]]
District of the State of Ohio to the Seventy-sixth Congress and is
entitled to his seat.
Sec. 43.11 There have been instances in which an elections committee
has failed to submit a final report, particularly in those cases
where the House has been informed that the contestant has abandoned
his contest.
In the 1937 Tennessee contested election case of Rutherford v
Taylor (Sec. 49.2, infra), the Clerk transmitted a letter to the
Speaker advising that the contestant had initiated an election contest
on Dec. 4, 1936, by serving notice on the contestee, a returned Member,
and had taken testimony on Jan. 27, 29, and again on Apr. 27, 1937, but
that no further testimony had been adduced. The Clerk advised in the
letter that the contest had abated. The Speaker referred the letter,
along with copies of the notice and answer, to the Committee on
Elections No. 1 and ordered the materials printed as a House
document.(20)
---------------------------------------------------------------------------
20. See also LaGuardia v Lanzetta (Sec. 47.10, infra), a 1934 New York
election contest.
---------------------------------------------------------------------------
Sec. 43.12 A report of a committee on elections, containing its
recommendations as to the disposition of the contest, may include a
transcript of contestant's letter of withdrawal.
In the 1934 Mississippi election contest of Reese v Ellzey
(Sec. 47.13, infra), the Committee on Elections report contained a
letter from the contestant withdrawing from the contest, stating in
part that ``while so many matters of vital importance require the
attention of the Congress, it would be unpatriotic on my part to
attempt to occupy the time of Congress about a matter of such trivial
importance to the welfare of our country.''
Failure of Committee to Submit Report
Sec. 43.13 There have been instances in which an elections committee
did not submit a report and the House did not dispose of a contest
in which testimony had been taken by the parties and forwarded
pursuant to statute.
In the 1934 Pennsylvania election contest of Felix v Muldowney
(Sec. 47.7, infra), the Speaker laid before the House a letter from the
Clerk transmitting the contest instituted by the contestant. That
communication, containing also original testimony taken by the parties
and other accompanying
[[Page 1095]]
papers, was referred to the Committee on Elections and ordered printed.
The committee, however, did not submit a report relating to this
election contest during the 73d Congress, and the House took no other
action with respect to the contest.
Sec. 43.14 There have been instances in which the report of the
Subcommittee on Elections has been printed and adopted by the full
Committee on House Administration, but no further action taken on
the election contest.
In the 1963 Minnesota election contest of Odegard v Olson
(Sec. 60.1, infra), neither a resolution dismissing the contest or
declaring the contestee entitled to his seat nor the report of the
Subcommittee on Elections, was submitted by the Committee on House
Administration to the House, although the full committee had adopted
the subcommittee report finding that time for taking testimony had
expired.
CHAPTER 9
Election Contests
L. DISPOSITION OF CONTESTS; RESOLUTIONS
Sec. 44. Form of Resolutions
Form of Resolution Disposing of Contest
Sec. 44.1 In a resolution dismissing an election contest, the House
struck language declaring the contestee to be entitled to the seat,
as such language is inappropriate in a procedural matter.
In the 1965 Mississippi election contest of Wheadon et al. v
Abernethy et al. [The Five Mississippi Cases] (Sec. 61.2, infra), the
House determined that the contestants who were not candidates in the
official congressional election held in November 1964 (held under
statutes which had not been set aside by a court of competent
jurisdiction), lacked standing under the contested elections statute, 2
USC Sec. Sec. 201 et seq. Accordingly, the House voted to dismiss the
contests, based on its precedents. The resolution, however, further
declared that the contestees, all sitting Members, were entitled to
their seats. The resolution was amended to strike this language as
inappropriate in a procedural matter.
Sec. 44.2 For form of resolution declaring contestant incompetent to
initiate an election contest and dismissing his notice of contest,
and barring future consideration by the House of subsequent
petitions or papers relating to the case, see Miller v Kirwan
(Sec. 51.1, infra).
[[Page 1096]]
Sec. 44.3 A single resolution may dispose of several contested
elections.
In Roberts v Douglas (Sec. 54.4, infra), a 1947 California contest,
without debate and by voice vote, the House agreed to a resolution
disposing of three contested elections simultaneously on July 25, 1947.
In none of the cases had any testimony been taken on behalf of the
contestants within the time prescribed for taking of testimony.
In another instance in 1949, after the committee report recommended
that three contested elections be dismissed on the grounds that no
testimony had been received by the Clerk within the requisite time
period, the house agreed without debate and on a voice vote to a
resolution dismissing the contests simultaneously. See Browner v
Cunningham (Sec. 55.1, infra), Fuller v Davies (Sec. 55.2, infra), and
Thierry v Feighan (Sec. 55.4, infra).(21)
---------------------------------------------------------------------------
21. See also Michael v Smith, Sec. 54.3, infra.
---------------------------------------------------------------------------
CHAPTER 9
Election Contests
L. DISPOSITION OF CONTESTS; RESOLUTIONS
Sec. 45. Costs and Expenses; Compensation and Allowances
A witness whose deposition is taken under the Federal Contested
Elections Act is entitled to receive the same fees and travel allowance
paid to witnesses subpenaed to appear before the House of
Representatives or its committees.(1)
---------------------------------------------------------------------------
1. 2 USC Sec. 389(b).
---------------------------------------------------------------------------
The Committee on House Administration may allow to any party
reimbursement, from the contingent fund of the House, for his
reasonable expenses of the case, including reasonable attorney's fees.
An application for such reimbursement should be accompanied by a
detailed account of such expenses, together with supporting vouchers
and receipts.(2)
---------------------------------------------------------------------------
2. 2 USC Sec. 396.
---------------------------------------------------------------------------
Under the former Contested Elections Act, 2 USC Sec. 226, no
contestant or contestee was to be paid more than $2,000 for expenses in
election contests. Payment of any sum under the former statute was
subject to several conditions and obligations. No such limit, other
than the term ``reasonable expenses'' is contained in the present
statute, 2 USC Sec. 396. -------------------
Payments From Contingent Fund
Sec. 45.1 Where authorized by the House, the Committee on House
Administration may
[[Page 1097]]
make payments, even after the House adjourns, from the House
contingent fund for its expenses incurred in its investigation of
an election contest.
In Wilson v Granger (Sec. 54.5, infra), a 1948 Illinois contest,
following numerous extensions of time granted by the Committee on House
Administration to the parties in an election contest, the House agreed
to a resolution providing for payments, after adjournment, by the
committee of a limited amount from the contingent fund, to cover the
costs of employment of investigators, attorneys, and clerical,
stenographic, and other assistants involved in the investigation.
Sec. 45.2 The House may agree to a resolution providing for payment of
expenses incurred by an elections committee, from the contingent
fund of the House.
In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest, a
committee on elections having been directed to conduct an additional
investigation in a contested election case, the House agreed to a
resolution called up by unanimous consent by a member of the committee
which provided for payment of its expenses from the contingent fund of
the House.
Payments From Treasury Authorized by Joint Resolution
Sec. 45.3 Congress may, by joint resolution, appropriate money from the
Treasury to pay expenses incurred by the parties in an election
contest.
In Lanzetta v Marcantonio (Sec. 48.1, infra), a 1936 New York
contest, on the final day of the second session of the 74th Congress, a
House joint resolution was introduced from the floor which made
appropriations for the payment of expenses incurred in an election
contest for a seat in the House from New York. Payment was authorized
to both contestant and contestee for expenses incurred, as audited and
recommended by the Committee on Elections. The joint resolution was
passed without debate and by voice vote.
Payments to Candidates Involved in Election Dispute Investigation
Sec. 45.4 In an investigation of the right of two candidates for a seat
in the House in a disputed election, the House has authorized by
resolution the reimbursement of both candidates for mileage and
expenses actually incurred
[[Page 1098]]
in connection with the investigation by the Committee on House
Administration.
In the 1961 Indiana investigation of the right of J. Edward Roush
or George O. Chambers to a seat in the House (Sec. 59.1, infra), the
committee report reasoned that ``had the investigation . . . been an
actual `election contest,' both the contestant and the contestee would
have been authorized reimbursement of those expenses actually incurred
in connection with the investigation conducted by the committee'';
hence the House resolved to reimburse both candidates.
Retroactive Payments
Sec. 45.5 When, in a disputed election, the right of a candidate to a
seat in the House has been determined, the Member-elect may be
retroactively given the compensation, mileage, allowances, and
other emoluments of a Member from the time he would otherwise have
been sworn, had not his right to the seat been investigated.
In the 1961 Indiana investigation of the question of the right of
J. Edward Roush or George O. Chambers to a seat (Sec. 59.1, infra), the
House ultimately resolved that Roush was entitled to the seat and
awarded him the compensation, mileage, and the like, of a Member from
the time that the Congress had convened (when he would otherwise have
taken the oath).
Reimbursement Request Where Contest Has Abated
Sec. 45.6 A request for reimbursement of legal expenses incurred in a
contested election was submitted to the Clerk even though the
contest had abated by reason of the contestant's failure to produce
evidence in support of his case within the time required by law.
In the 1937 Tennessee election contest of Rutherford v Taylor
(Sec. 49.2, infra), the contestee claimed that he was entitled to
reimbursement for legal expenses as permitted by 2 USC
Sec. 226.(3)~ Eventually the Clerk transmitted a letter to
the Speaker notifying him that the contest had abated, but not before
the contestant had served notice of the contest upon the contestee, who
answered the notice. Also, some testimony was taken before the case
abated. The
---------------------------------------------------------------------------
3. Now 2 USC Sec. 396.
---------------------------------------------------------------------------
[[Page 1099]]
Committee on Elections never issued a final report on the case.
Payments Conditioned on Good Faith in Filing the Contest
Sec. 45.7 A contestant's petition for expenses may be denied by an
elections committee on the ground that contestant did not display
good faith in filing the contest and made no showing of probable
cause for relief.
In McEvoy v Peterson (Sec. 52.2, infra), a 1944 Georgia contest, an
elections committee concluded that contestant had not filed the contest
in good faith, and denied his petition for reimbursement of expenses,
it appearing that he had not been a member of any registered political
party in the state, his name had not been on any ballots' and he had
not received any votes.
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 46. Seventy-Second Congress, 1931-32
Sec. 46.1 Kent Coyle
In the general election held on Nov. 4, 1930, Everett Kent was a
candidate on the Democratic ticket and William R. Coyle was a candidate
on the Republican ticket for election as Representative in Congress
from the 30th Congressional District of Pennsylvania. The election
officials certified in the regular manner that in the election William
R. Coyle received 28,503 votes and Everett Kent 27,621 votes. Thereupon
the Governor of Pennsylvania, on Dec. 2, 1930, declared William R.
Coyle elected, and on the same day issued his certificate of such
election.
Citizens and residents of several election districts filed
petitions with a state court alleging, upon information, that fraud was
committed in the computation of the votes cast in said districts, and
asking that a recount of the ballots therein be ordered and held
pursuant to an act of the legislature which stated it to be the duty of
the court, upon proper petition, to appoint a recount board and to sit
with the same and supervise a recount of the ballots.
On Dec. 11, 1930, Mr. Kent caused notice of an election contest to
be served upon Mr. Coyle, and answer thereto was served upon Mr. Kent
on Jan. 9, 1931.
On Mar. 28, 1931, that being next to the last of the 40 days al
[[Page 1100]]
lowed contestee to offer proof, and after notice, contestee came in and
offered as proof in the contest the entire court proceedings had in the
recount in the election districts mentioned above, including
stenographers' notes of testimony, petitions, and orders. To this offer
of proof contestant objected, and the objection was renewed and
insisted upon in his brief and the argument before the elections
committee.
On Apr. 4 and again on Apr. 8, 1931, which was within the 10 days
allowed contestant for offering proof in rebuttal only, contestant,
after notice, offered evidence as in rebuttal of that offered by
contestee on Mar. 28, 1931, based upon the contention (1) that the
court in broadening and prosecuting the inquiry as it did, exceeded its
statutory authority, and (2) that the testimony was not taken before a
person and in the manner prescribed by Congress.
The report (No. 1264) of the elections committee, submitted May 7,
1932, stated in part:
The petitions asking for a recount of the vote in the districts
in question contained a general allegation of fraud in the
computation of the vote, and did not specify the congressional
vote. As the names of all candidates for office in the State were
printed on one ballot, the recount necessarily involved the vote
for State and local officers as well as representative in Congress.
How far a judge of the State court did or did not have a right to
go in an investigation of the election of State and local officers
is a matter with which this committee is not concerned. The
committee does not approve the manner in which the congressional
vote was investigated. . . . But neither the committee nor Congress
is bound in a matter of this kind by any act of a judge of a State
court, whether within or beyond statutory authority.
The committee does not concede any right of a party to an
election contest to take proof in any manner other than that fixed
by Congress, but feels that contestant is not in a position to
raise that point in this contest, for the following reasons:
In the first place the petitions were undoubtedly filed with
contestant's consent and approval, by his supporters and in the
interest of his cause. Having filed notice of contest and taken
testimony, he elected to go into the State court for a recount of
ballots at a time when Congress was in session and this committee
functioning.
In the second place contestant seeks to benefit by the result
of the recount. The testimony taken by him on the 4th and the 8th
of April relates mostly to the result of the recount, upon which is
based his chief contention. . . .
As to the remarkable difference between the count and the
recount of the ballots in the six districts in question, contestant
contends that he was deprived in the count and return of many votes
either by gross error or fraud of someone or more of the election
officials in each of the districts. Contestee contends that the
count and return
[[Page 1101]]
was bona fide and correct from each of said districts, but after
the election and prior to the recount someone secured access to the
ballots and changed the pencil markings on many of them.
[Election officials in the districts in question] were sworn
and examined, as well as the custodians of the ballot boxes,
handwriting experts, and all other persons who seemed likely to be
able to throw any light upon the subject. The ballot boxes, the
ballots themselves, and all other documentary evidence was
examined. A recital of much of this evidence in this report, or a
reference in detail to it, would accomplish no good purpose. The
committee has carefully considered the record, as well as the
briefs filed and the arguments made, and while it is unable to
point out therefrom exactly what did take place, it is of opinion
and holds that contestant has failed to sustain any of the
allegations of his notice of contest.
The committee therefore recommends to the House the adoption of
the following resolution:
Resolved, That Everett Kent was not elected a
Representative to the Seventy-second Congress from the
thirtieth congressional district of the State of Pennsylvania,
and is not entitled to a seat therein.
Resolved, That William R. Coyle was a duly elected
Representative to the Seventy-second Congress from the
thirtieth district of the State of Pennsylvania, and is
entitled to retain his seat therein.
The above privileged resolution (H. Res. 234) was agreed to by
voice vote and without debate.(4)~
---------------------------------------------------------------------------
4. 75 Cong. Rec. 11055, 72d Cong. 1st Sess., May 24, 1932.
---------------------------------------------------------------------------
On July 16, 1932, Speaker John N. Garner, of Texas, laid before the
House the following request:
Mr. Coyle asks leave to withdraw from the files of the House
the original records of the court of Carbon County, Pa., which are
adduced in evidence and made a part of the printed testimony in the
contested election case of Kent v. Coyle, Seventy-second Congress,
said case having been decided by the House of Representatives, the
return of said official court records having been requested by said
court of Carbon County, Pa.
There was no objection to the request, upon assurances from the
Speaker that ``this will not in any way affect the ordinary rules
concerning the withdrawal of papers.''
Note: A syllabus for Kent v Coyle may be found herein at Sec. 34.4
(evidence). See also Sec. 7 (jurisdiction and powers of courts) and
Sec. 39 (inspection and recount of ballots).
Sec. 46.2 Kunz v Granata(5)~
---------------------------------------------------------------------------
5. Also reported in 6 Cannon's Precedents Sec. 186.
---------------------------------------------------------------------------
On Mar. 11, 1932, Mr. John H. Kerr, of North Carolina, submitted
the report (6)~ of the majority from the Committee on
Elections No. 3 in the election contest brought by Democrat Stanley H.
[[Page 1102]]
Kunz against Republican Peter C. Granata from the Eighth Congressional
District of Illinois. The majority report was also signed by Mr. Butler
B. Hare, of South Carolina, Mr. John McDuffie, of Alabama, Mr. Guinn
Williams, of Texas, Mr. John E. Miller, of Arkansas, and Mr. Howard W.
Smith, of Virginia. Thereupon, Mr. Carl R. Chindblom, of Illinois,
obtained unanimous-consent permission (7)~ that the minority
of that committee have until midnight, Mar. 14, 1932, to file their
views. On Mar. 12, 1932, Mr. Charles L. Gifford, of Massachusetts, was
granted unanimous-consent permission (8)~ to file the
minority views, signed by himself and by Mr. Harry A. Estep, of
Pennsylvania, with the majority report.
---------------------------------------------------------------------------
6. H. Rept. No. 778, 75 Cong. Rec. 5848, 5849, 72d Cong. 1st Sess.; H.
Jour. 537, 538.
7. 75 Cong. Rec. 5848, 72d Cong. 1st Sess.; H. Jour. 537.
8. 75 Cong. Rec. 5885, 72d Cong. 1st Sess.; H. Jour. 541.
---------------------------------------------------------------------------
On Dec. 16, 1931, the Speaker (9)~ had laid before the
House a communication (10) from the Clerk transmitting the
contest. The communication and accompanying papers were referred to the
Committee on Elections No. 3 and ordered printed (though not as House
documents).
---------------------------------------------------------------------------
9. John N. Garner (Tex.).
10. 75 Cong. Rec. 652, 72d Cong. 1st Sess.; H. Jour. 157.
---------------------------------------------------------------------------
The certified returns of the election held Nov. 4, 1930, had given
contestee 16,565 votes to 15,394 votes for contestant, a majority of
1,171 votes for contestee.
Contestant Kunz, having filed timely notice of contest, applied for
appointment of a notary public within the Eighth Congressional
District, pursuant to 2 USC Sec. 206 (now 2 USC Sec. Sec. 386-388), to
obtain testimony in his behalf. The notary public ``commissioner''
thereupon served a subpena duces tecum upon election officials,
requiring them to produce ballots and other materials pertinent to the
election. This action necessitated the subsequent modification of two
court orders by the court which had impounded the ballots for recount
in certain municipal elections. A complete recount of all congressional
ballots was then conducted by the board of election commissioners under
supervision of contestant's notary public and in the presence of a
notary appointed by contestee. Their return, submitted by contestant's
notary public, gave contestant 16,345 votes to 15,057 votes for
contestee, a majority of 1,288 votes for contestant.
The revised returns as reported by the contestant's appointed
notary public were analyzed by the committee report as follows:
The contestant was entitled to every ``straight ticket'' cast .
. . [provided] his
[[Page 1103]]
name was thereon unmolested along with the other Democratic
candidates. The fact that the contestant did not receive the
straight-ticket vote in many of the precincts is conclusive
evidence of fraud or gross irregularity and mistakes. [T]his could
only be corrected by resort to the ballot boxes and a recount of
the vote; when this was done and the straight-ticket vote given
contestant which he had received, he overcame the contestee's
apparent majority of 1,171 votes, and defeated the contestee by a
majority of 1,288 votes.
The minority views took exception to this conclusion, and
questioned the correctness of the ``pretended recount,'' noting that
``a number of these so-called straight Democratic ballots were also
marked for Granata, which, under the Illinois law, should have been
counted for Mr. Granata.'' Decisions by the notary public with respect
to spoiled and defective ballots were challenged by the minority, as
was the absence of conclusive evidence regarding 6,458 votes counted
for contestant and claimed to be fraudulent by contestee. The minority
claimed that ``the record will show that some disputed ballots were put
in envelopes with the thought that they would be brought for the
decision of the committee or the House. They were not brought to the
committee or the House.''
The committee majority found that ``the ballots in this contest
were preserved as provided by law and were kept under the supervision
and control of . . . the clerk of the board of election commissioners,
and that the ballot boxes were all opened under his supervision or the
supervision of his deputies, and that after the same were counted they
were placed back in the boxes as the law required and again put in the
proper depository.'' The minority claimed that ``the integrity of the
ballots had not been preserved,'' as, rather than being forwarded to
the House committee, ballot boxes were opened several at a time,
improperly commingled and counted simultaneously at separate tables in
such unruly manner as to prevent thorough supervision by the notary
public.
The committee majority further found that contestee's counsel, who
had also been retained as counsel for contestants in certain municipal
elections, had procured the ballot impounding order [referred to above]
and writ which prohibited contestant from proceeding with taking
testimony during the statutory period (see 2 USC Sec. 386). The
committee concluded that the time during which the ballots were ``in
custodia legis'' should not be considered within the statutory period
in which the contestant was allowed to take
[[Page 1104]]
testimony. The majority also cited an agreement between counsel for
both parties to this effect.
The minority, while admitting the existence of informal agreements
between the parties regarding extension of time, cited Parillo v Kunz
(6 Cannon's Precedents Sec. 116) and Gartenstein v Sabath (6 Cannon's
Precedents Sec. 115) to support their contention that ``evidence not
having been taken in the time as required by statute, could not be
considered, even though there were stipulations of the parties to the
contrary.''
The committee majority concluded that the notary public
commissioner, designated by contestant to take testimony in his behalf,
``was an officer and the representative of the Congress to take
evidence in this contest'' (citing In re Lorley (1890), 134 U.S. 372),
and that in such capacity, and pursuant to statute, he could require
the production of ballots as ``papers'' pertaining to an election
(``the best evidence of the intention of the electors'') and could
recount such ballots in the presence of contestee's appointed notary
public commissioner.
The minority contended that ``there was no authority for the
alleged recount,'' and that, under an opinion of the Illinois attorney
general in Rinaker v Downing (2 Hinds' Precedents Sec. 1070), the
production of ballots could not be compelled under the statute. The
minority noted that, in Rinaker, the House had rejected the majority
committee report which had asserted the right of a notary public to
conduct a recount of ballots. The minority also contended that no
contested election case existed which held that ``a notary public can
conduct a recount where objection has been urged to such proceeding.''
The minority conceded that a federal court, while considering
contestee's motion for writ of prohibition, had held that ballots were
``papers'' within the meaning of the statute. They claimed, however,
that the court did not hold that the notary public, having obtained the
ballots, could conduct his own recount. Rather, the court had left that
issue for the House to decide. To establish the invalidity of such
recount by a notary public, the minority quoted the Committee on
Elections report in Gartenstein v Sabath (6 Cannon's Precedents
Sec. 115):
Your committee is of the opinion that the primary evidence of
the votes cast for the candidates for Representative in the
Congress of the United States in this district was the poll books
and ballots themselves, and that the official count by the election
officers should not be set aside by the tes
[[Page 1105]]
timony of a witness who merely looked at the ballots and testified
to the results.
Mr. Kerr called up as privileged House Resolution 186
(11) on Apr. 5, 1932. By unanimous consent,(12~)
pursuant to the request of Mr. Kerr, debate on the resolution was
extended to four hours, to be equally divided and controlled by himself
and Mr. Gifford. In stating the question, the Speaker included as part
of the request the ordering of the previous question at the conclusion
of debate. Then, Mr. Kerr asked unanimous consent that Mr. Edward H.
Campbell, of Iowa, be permitted to offer a substitute resolution at the
conclusion of debate. Mr. Campbell explained that his ``substitute''
would embody a motion to recommit to the Committee on Elections for the
purpose of conducting a recount of ballots. Reserving his right to
object, Mr. Gifford stated that the minority would offer as a
substitute their recommendation that contestee be declared entitled to
his seat. He thought that Mr. Campbell's motion might preclude such
motion. Then, in response to a parliamentary inquiry, the Speaker
stated that the House, having agreed to order the previous question at
the conclusion of debate, had precluded the offering of either proposed
motion. Therefore, the Chair restated the unanimous-consent request to
include the ordering of the previous question on the motion to recommit
and on the majority and minority resolutions.(13)
---------------------------------------------------------------------------
11. 75 Cong. Rec. 7491, 72d Cong. 1st Sess.; H. Jour. 641, 642.
12. 75 Cong. Rec. 7491, 72d Cong. 1st Sess.
13. Id. at p. 7492.
---------------------------------------------------------------------------
In debate, Mr. Kerr emphasized that the recount of ballots had been
made in the presence of contestee and a notary public appointed by him.
While denying that in every contest a recount would be justified by an
allegation that a contestant ``ran behind his ticket,'' Mr. Kerr
contended that a recount was justifiable where, as here, contestant
received ``1,284 votes less than the other Democratic candidates in 11
precincts.''
Mr. Gifford centered his contentions in debate upon the question of
the integrity of the ballots, claiming that ballots are not the ``best
evidence . . . when any opportunity has been given to let them be
tampered with.'' Mr. John C. Schafer, of Wisconsin, upon being informed
that the notary public for contestant had not transmitted the ballots
to the Committee on Elections, questioned the efficacy of the majority
finding that ballots were ``papers''
[[Page 1106]]
which in an election contest are required by the statute to be
transmitted to the House.
Mr. Kerr, in response to Mr. Frederick W. Dallinger, of
Massachusetts, distinguished Gartenstein as, in that case, the House
had decided that a similar recount conducted by contestant's notary
public was irregular because ``only half of the votes had been
recounted and therefore they could not tell who was elected.'' Mr.
Dallinger replied that, in the present contest as well, contestee's
counsel had repeatedly objected to the recount because ``from 100 to
600 ballots were found to be missing out of various ballot boxes.'' Mr.
Gifford yielded for debate to the contestee (Mr. Granata), the sitting
Member, who contended that under state law, the many ballots which had
been marked ``straight Democratic'' and had also been marked for him
should have been considered votes for him.
The Speaker pro tempore ruled that the side supporting seating of
the contestant, rather than the Member intending to offer a motion to
recommit, was entitled to close debate.
After all time had expired, Mr. Campbell, of Iowa, offered the
following resolution: (14)
---------------------------------------------------------------------------
14. 75 Cong. Rec. 7514, 72d Cong. 1st Sess.; H. Jour. 641.
---------------------------------------------------------------------------
Resolved, That the contested-election case of Stanley H. Kunz
v. Peter C. Granata be recommitted to the Committee on Elections
No. 3 with instructions either to recount such part of the vote for
Representative in the Seventy-second Congress from the eighth
congressional district of Illinois as they shall deem fairly in
dispute, or to permit the parties to this contest, under such rules
as the committee may prescribe, to recount such vote, and to take
any action in the premises, by way of resolution or resolutions, to
be reported to the House or otherwise, as they may deem necessary
and proper.
On demand of Mr. Campbell, the yeas and nays were ordered, and the
motion was rejected by 178 yeas to 186 nays, with 4 ``present.''
Thereupon, Mr. Gifford offered the following substitute
(~15) for the resolution:
---------------------------------------------------------------------------
15. 75 Cong. Rec. 7515, 72d Cong. 1st Sess.; H. Jour. 642.
---------------------------------------------------------------------------
Resolved, That Peter C. Granata was elected a Representative to
the Seventy-second Congress of the eighth congressional district of
the State of Illinois.
On demand of Mr. Gifford, the yeas and nays were ordered and the
substitute was rejected by 170 yeas to 189 nays, with 5 ``present.''
Mr. Estep demanded a division of the question for a vote on the
resolution (H. Res. 186), the first part of which stated:
Resolved, That Peter C. Granata was not elected as
Representative in the
[[Page 1107]]
Seventy-second Congress from the eighth congressional district in
the State of Illinois and is not entitled to the seat as such
Representative.
Mr. Thomas L. Blanton, of Texas, made a point of order against the
request for a division, claiming that the House had just voted on the
``reverse of this proposition.'' The Speaker overruled the point of
order under the precedents of the House. On a division vote, the first
part of the resolution was agreed to, 190 ayes to 168 noes.
The second part of the resolution stated:
Resolved, That Stanley H. Kunz was elected a Representative in
the Seventy-second Congress from the eighth congressional district
in the State of Illinois and is entitled to his seat as such
Representative.
Such portion of the resolution was agreed to by voice vote.
Thereupon, Mr. Kunz appeared at the bar of the House and took the
oath of office.
Note: Syllabi for Kunz v Granata may be found herein at Sec. 27.8
(extension of time for taking testimony); Sec. 29.2 (ballots as
``papers'' required to be produced); Sec. 37.7 (interpretations of
``straight ticket'' votes); Sec. 37.19 (integrity of ballots);
Sec. 42.1 (disposal of contest by House resolution); Sec. Sec. 42.7,
42.8 (participation by parties and debate on resolution disposing of
contests); Sec. 42.13 (demand for division on resolution disposing of
contest); Sec. 43.8 (minority reports).
Sec. 46.3 O'Connor v Disney
In the contested election case of O'Connor v Disney, the
contestant, Charles O'Connor, was the Republican candidate and the
contestee, Wesley E. Disney, was the Democratic candidate for
Representative in Congress from the First Congressional District of
Oklahoma at an election held Nov. 4, 1930. In accordance with the
official count and canvass of the election returns by the county
election boards certified to the state election board in accordance
with law, and in turn canvassed by such board, the state election board
found and certified that the contestant O'Connor received 41,642 votes
and the contestee Disney received 41,902 votes, and certified that the
contestee was elected Representative by a majority of 260 votes.
Accordingly, a certificate of election was duly issued by the said
board to the contestee on Nov. 15, 1930.
The contestant alleged that in two of the ten counties in the
district there had been fraudulent or irregular miscounts of ballots
which had deprived him of 862 votes. The contestee in his answer denied
such allegations and con
[[Page 1108]]
tended that ballot boxes in those counties had been left unprotected
and had afforded such opportunity for tampering that any change
indicated by a recount would be the result of such tampering.
The report in favor of contestee was submitted by Mr. Joseph A.
Gavagan of New York, for the Committee on Elections No. 2 on May 11,
1932 (Rept. No. 1288). The report stated that the committee, in
considering the evidence in the case, had been guided by the following
principles:
I. The official returns are prima facie evidence of the
regularity and correctness of official action.
II. The burden of coming forward with evidence to meet or
resist the presumption of regularity rests with the contestant.
III. That to entitle a contestant in an election case to an
examination of the ballots, he must establish (a) that some fraud,
mistake, or error has been practiced or committed whereby the
result of the election was incorrect, and a recount would produce a
result contrary to the official returns; (b) that the ballots since
the election have been so rigorously preserved that there has been
no reasonable opportunity for tampering with them.
In the view of the committee, the testimony conclusively
established that the precinct boards were properly instructed as to the
election law of Oklahoma with respect to the manner and method of
counting ballots and, in particular, split ballots; and that in
instances wherein questions arose as to split ballots, a judge of the
board would consult the law and properly instruct the counters and
watchers as to the principles governing the counting of the ballots.
The committee was thereby convinced that all ballots were duly and
properly counted, and concluded that the contestant had failed to
sustain the burden of proof of any mistake in the method of counting
the ballots.
With respect to the care and preservation of the ballots, the
committee noted the following circumstances:
The evidence established that each election precinct board at
the close of the election placed the paper ballots in folders
together with a tally sheet of the votes cast, which, in turn, were
placed in wooden boxes, and sent the boxes to the office of the
county election board located in a combination hotel and office
building; part of the offices were used as a real estate and
insurance office by the witness Lloyd La Motte, then secretary of
the county election board. Each ballot box was placed upon a shelf,
and in some instances the keys opening the locks thereon were left
dangling from the boxes, and in other instances the keys were kept
in an unlocked drawer. The testimony of the witness La Motte and
the witness Corkins . . . is to the effect that several persons had
keys to the outside office of the place where
[[Page 1109]]
the ballot boxes were kept, and the witness La Motte testified to
the fact that rumors of tampering with the ballot boxes were
prevalent on the streets for a period of days after the election.
This condition of easy access to the ballots continued for a period
of nine days after the election, before they were removed to a
place of safety and preservation.
The committee quoted the following language from the opinion in
People v Livingston: (16)
---------------------------------------------------------------------------
16. 79 N.Y. 279.
---------------------------------------------------------------------------
Everything depends upon keeping the ballot boxes secure. . . .
Every consideration of public policy, as well as the ordinary rules
of evidence, require that the party offering this evidence should
establish the fact that the ballots are genuine. It is not
sufficient that a mere possibility of security is proved, but the
fact must be shown with reasonable certainty. If the boxes have
been rigorously preserved the ballots are the best and highest
evidence; but if not, they are not only the weakest, but the most
dangerous evidence.
The majority of the committee concluded as follows:
In the opinion of the majority of your committee the record in
this case is barren of any competent proof tending to show or
establish fraud, mistake, or error, in either the counting of the
ballots cast or the official returns of the vote in the genera]
election held in November, 1930, in Ottawa County of the first
congressional district of Oklahoma; that said record is sterile of
proof of the safeguarding of the ballots after the said election,
but contrarywise, is pregnant with positive evidence that said
ballots were, for a 9-day period subsequent to said election,
available, accessible, and perhaps subjected to public interference
or private tampering; that the proof of such accessibility is so
compelling as to give rise to a reasonable presumption that the
sanctity of said ballots was indeed violated, the true result of
the election falsified, and the will of the electorate defeated,
thwarted, or destroyed. Consequently, the majority of your
committee believes that a recount of ballots cast in the said
election would destroy the will of the electorate, defeat the true
result of said election, and visit grave injustice on the duly
elected Representative from said district.
We therefore submit the following resolution. [H. Res. 233]:
Resolved, That Wesley E. Disney was elected a
Representative in the Seventy-second Congress from the first
congressional district in the State of Oklahoma, and is
entitled to a seat as such Representative.
In additional views, Mr. John C. Schafer, of Wisconsin, supported
the seating of contestee but contended that if the House were to be
guided by Kunz v Granata (see Sec. 46.2, supra), the then most recent
precedent regarding the validity of a recount, the recount should be
granted.
The privileged resolution (H. Res. 233) was agreed to by voice vote
after extended debate.(17)
---------------------------------------------------------------------------
17. 75 Cong. Rec. 11050, 72d Cong. 1st Sess., May 24, 1932.
---------------------------------------------------------------------------
[[Page 1110]]
Note: Syllabi for O'Connor v Disney may be found herein at
Sec. 35.10 (evidence necessary to compel examination of ballots);
Sec. 37.20 (preservation of ballots); and Sec. 40.8 (burden of proving
fraud sufficient to change election result).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 47. Seventy-third Congress, 1933-34
Sec. 47.1 Bowles v Dingell
On Feb. 9, 1934, Mr. John H. Kerr, of North Carolina, submitted the
report (18) of the Committee on Elections No. 3, in the
election contest of Charles Bowles against John D. Dingell, from the
15th Congressional District of Michigan, in the 73d Congress. On May
12, 1933, the Speaker (19) had laid before the House a
letter (20) from the Clerk transmitting a ``petition and
accompanying letter'' relating to the election of Nov. 8, 1932. The
communication and accompanying papers were referred to the Committee on
Elections No. 3 but not ordered printed.
---------------------------------------------------------------------------
18. H. Rept. No. 695, 78 Cong. Rec. 2282, 2292, 73d Cong. 2d Sess.; H.
Jour. 153.
19. Henry T. Rainey (Ill.).
20. 77 Cong. Rec. 3344, 73d Cong. 1st Sess.; H. Jour. 255.
---------------------------------------------------------------------------
The summary report related that ``there was no notice of contest
ever filed in said matter, as provided by law,'' and dismissed the
case. The report accompanied House Resolution 260,(21) which
Mr. Kerr offered from the floor as privileged on Feb. 24, 1934. The
resolution was agreed to by the House by voice vote and without debate.
It provided:
---------------------------------------------------------------------------
21. 78 Cong. Rec. 3165 73d Cong. 2d Sess.; H. Jour. 202.
---------------------------------------------------------------------------
Resolved, That Charles Bowles is not entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Fifteenth Congressional District of the State of Michigan; and be
it further
Resolved, That John D. Dingell is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Fifteenth Congressional District of the State of Michigan.
Note: Syllabi for Bowles v Dingell may be found herein at Sec. 20.1
(necessity for filing notice of contest).
Sec. 47.2 Brewster v Utterback
During the organization of the House of Representatives of the 73d
Congress on Mar. 9, 1933, Mr. Bertrand H. Snell, of New York, objected
to the oath being administered to the Member-elect, John G. Utterback,
from the Third Congressional District of Maine. Mr. Utterback
(contestee) was then asked by the Speaker,(22) under
[[Page 1111]]
the precedents, to stand aside while other Members-elect and Delegates-
elect were sworn. Thereafter, Mr. Edward C. Moran, Jr., of Maine,
offered from the floor as privileged House Resolution 5,(1)
which stated:
---------------------------------------------------------------------------
22. Henry T. Rainey (Ill.).
1. 77 Cong. Rec. 71, 73d Cong. 1st Sess.; H. Jour. 6.
---------------------------------------------------------------------------
Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to the gentleman from Maine, Mr. John
G. Utterback.
Resolved, That Ralph O. Brewster shall be entitled to contest
the seat of John G. Utterback under the provisions of chapter 7,
title 2, United States Code, notwithstanding the expiration of the
time fixed for bringing such contests, provided that notice of said
contest shall be filed within 60 days after the adoption of this
resolution.
In response to the parliamentary inquiry propounded by Mr. Joseph
W. Byrns, of Tennessee, the Speaker stated that under the general
parliamentary law, the rules of the House not having been adopted, Mr.
Moran was entitled to recognition for one hour on the resolution. Mr.
Moran thereupon was granted unanimous-consent permission that time on
the resolution be limited to 20 minutes, to be equally divided and
controlled by himself and Mr. Snell, and that he be permitted to yield
to Mr. Snell for the purpose of offering a substitute to the
resolution.
Mr. Moran related that the state canvassing board, consisting of
the Governor and a seven-man council and responsible for certifying the
election results, were divided four to four on the question of
certification of contestee's election and that contestee (Mr.
Utterback) did not possess a certificate signed by the Governor. Mr.
Moran contended that the Third Congressional District of Maine was
entitled to representation pending contestant's bringing of the contest
as permitted by his resolution.
Mr. Snell then offered his substitute resolution (2)
which provided:
---------------------------------------------------------------------------
2. 77 Cong. Rec. 72, 73d Cong. 1st Sess.; H. Jour. 6.
---------------------------------------------------------------------------
Resolved, That the papers in possession of the Clerk of the
House in the case of the contested election from the third district
of Maine, be referred to the Committee on Elections No. 1, with
instructions to report on the earliest day practicable who of the
contesting parties is entitled to be sworn in as sitting Member of
the House.
Mr. Snell contended that the House should not recognize the prima
facie right of contestee to a seat by permitting him to take the oath
absent a certificate of election required by the House and by
[[Page 1112]]
the laws of Maine. Mr. John W. McCormack, of Massachusetts, cited
several precedents wherein the House had permitted Members-elect to
take the oath of office ``when the House was satisfied that the man was
elected.'' Mr. Snell claimed that the election was still in dispute.
Upon his demand, the yeas and nays were ordered on his substitute,
which was defeated by 105 yeas to 296 nays. The resolution seating Mr.
Utterback was thereupon agreed to by voice vote, after which he
appeared at the bar of the House and took the oath of office,
confirming the seating of the contestee.
The report of the Committee on Elections No.. 3 was submitted by
Mr. Clark W. Thompson, of Texas, on May 22, 1934. Minority views of Mr.
Randolph Perkins, of New Jersey, accompanied the report. (On Mar. 6,
1934, the Speaker had laid before the House a letter (3)
from the Clerk transmitting the contest, original testimony and other
papers, and had referred it to the committee.)
---------------------------------------------------------------------------
3. 78 Cong. Rec. 3874, 73d Cong. 2d Sess.; H. Jour. 237.
---------------------------------------------------------------------------
The report related that in the ``regular state election'' held on
Sept. 12, 1932, contestee (Utterback) had received 34,520 votes to
34,226 votes for contestant and 213 votes for one Carl S. Godfrey, a
plurality of 294 votes for contestee. Contestant alleged that in 16 of
the voting precincts comprising the district, the fraudulent or
negligent failure of election officials to perform their duties as
required by state law was sufficient to void all votes cast in those
precincts and therefore to establish a remaining plurality of votes for
contestant. From the minority views of Mr. Perkins, it appears that
contestant was claiming that election officials had neglected to
provide voting booths in those precincts, that in other precincts
ballots contained identical markings made by the same hand, that in
another more ballots had been cast than there were voters, and that in
yet another precinct officials had illegally permitted and assisted
unqualified voters to cast ballots.
The committee report accepted as binding an advisory opinion of the
Supreme Court of Maine rendered to the Governor and his executive
council. That opinion advised that in two of the 16 contested precincts
ballots should be discounted for failure of election officials to
perform certain duties made mandatory by state law. The committee,
assuming the validity of that opinion, found that contestee's plurality
would then
[[Page 1113]]
be reduced to 74. The committee then made the further assumption that
``the advisory board did not think that there was sufficient evidence
to disturb the returns from the other 14 precincts complained of by the
contestant.'' As to those 14 precincts, the committee determined ``that
there was not sufficient evidence of legal fraud or intentional
corruptness to justify the committee to recount the ballots of those
precincts or to justify the committee in sustaining the contestant's
contentions.''
Contestant evidently abandoned his allegations of fraud during the
committee hearings, and relied upon proof of negligence and
irregularities by officials to support his contest. On these grounds,
the committee summarily sustained the court advisory opinion and
refused to ``disfranchise the voters in the 16 precincts . . . because
of some alleged breach of official duty of the election officers.''
Mr. Perkins contended ``that the provisions of voting booths as
required by state law is a mandatory requirement and that in their
absence the vote must be rejected'' [citing In re Opinions of the
Justices, 124 Me. 474, 126 A. 354 (1924)]. In one precinct where voting
booths were not employed, he cited as ``undisputed'' that 159 of 163
votes for contestee had been marked by a single election official.
Citing Yost v Tucker (2 Hinds' Precedents Sec. 1078), Mr. Perkins
argued that the House should follow a state court interpretation that a
particular state law is a mandatory requirement. Mr. Perkins further
contended that there was much corroborative evidence in support of
contestant's particular allegations.
Mr. Thompson called up House Resolution 390 (4) as
privileged on May 28, 1934. The resolution, which was agreed to by
voice vote and without debate, provided:
---------------------------------------------------------------------------
4. 78 Cong. Rec. 9760, 73d Cong. 2d Sess.; H. Jour. 587.
---------------------------------------------------------------------------
Resolved, That Ralph O. Brewster is not entitled to a seat in
the House of Representatives of the Seventy-third Congress from the
Third Congressional District of the State of Maine; and further
Resolved, That John G. Utterback is entitled to a seat in the
House of Representatives in the Seventy-third Congress from the
Third Congressional District of the State of Maine.
Note: Syllabi for Brewster v Utterback may be found herein at
Sec. 4.2 (House power over administration of oath to candidate in
election contests); Sec. 5.14 (advisory opinions on state law);
Sec. 9.2 (certificates of election); Sec. 10.13 (violations and errors
by officials as
[[Page 1114]]
grounds for contest); Sec. 20.2 (notice of contest filed late);
Sec. 38.1 (voter intention as paramount concern in interpreting
ballot).
Sec. 47.3 Casey v Turpin
Mr. John H. Kerr, of North Carolina, submitted the report
(5)~ of the Committee on Elections No. 3 on Mar. 12, 1934,
in the election contest of John J. Casey against C. Murray Turpin from
the 12th Congressional District of Pennsylvania. On Jan. 5, 1934, the
Speaker (6)~ had laid before the House a letter
(7)~ from the Clerk transmitting a copy of the notice of
contest and reply with the statement that no testimony had been
received within the time prescribed by law and that the contest
apparently had abated. The Speaker had referred that communication to
the Committee on Elections No. 3.
---------------------------------------------------------------------------
5. H. Rept. No. 930, 78 Cong. Rec. 4359, 4360, 73d Cong. 2d Sess.; H.
Jour. 252.
6. Henry T. Rainey (Ill.).
7. 78 Cong. Rec. 137, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
On Feb. 2, 1934, the Speaker laid before the House a letter
(8)~ from the Clerk transmitting a letter from contestant
which stated that the commissioner before whom testimony had been taken
in his behalf ``has failed to forward this testimony to the Clerk of
the House of Representatives in accordance with law, and
notwithstanding attempts to have her comply with the provisions of this
statute, she has, up to the present date, failed to do so.'' Contestant
requested the Clerk or the House to require the production of such
testimony. The Clerk's communication, together with the contestant's
request, was referred to the Committee on Elections No. 3 and ordered
printed as a House document.
---------------------------------------------------------------------------
8. H. Doc. No. 237, 78 Cong. Rec. 1854, 73d Cong. 2d Sess.; H. Jour.
123.
---------------------------------------------------------------------------
The committee report stated that ``there was no evidence before the
committee of the matters charged in his notice of contest, and no
briefs filed, as provided by law.'' The committee dismissed the contest
for lack of such evidence and for failure of contestant to appear in
person to show cause why his contest should not be dismissed.
The committee report accompanied House Resolution
345,(9)~ which Mr. Kerr called up as privileged on Apr. 20,
1934. Mr. Kerr immediately moved the previous question, and the
resolution was agreed to by voice vote and without debate. House
Resolution 345 provided:
---------------------------------------------------------------------------
9. 78 Cong. Rec. 7082, 73d Cong. 2d Sess.; H. Jour. 424.
---------------------------------------------------------------------------
Resolved, That John J. Casey is not entitled to a seat in the
House of Rep
[[Page 1115]]
resentatives of the Seventy-third Congress from the Twelfth
Congressional District of the State of Pennsylvania.
Resolved, That C. Murray Turpin is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Twelfth Congressional District of the State of Pennsylvania.
Note: Syllabi for Casey v Turpin may be found herein at Sec. 15.1
(failure to take testimony within prescribed time); Sec. 29.1 (failure
to produce testimony); Sec. 33.1 (cause for dismissal); Sec. 33.2
(order to appear).
Sec. 47.4 Chandler v Burnham
Mr. Joseph A. Gavagan, of New York, submitted the report
(10)~ of the Committee on Elections No. 2 on Apr. 19, 1934,
in the election contest brought by Claude Chandler against George
Burnham from the 20th Congressional District of California. The Speaker
(11)~ had referred the contest to that committee on Jan. 16,
1934, on which date he had laid before the House a letter
(12~) from the Clerk transmitting the contest, original
testimony, and relevant papers.
---------------------------------------------------------------------------
10. H. Rept. No. 1278, 78 Cong. Rec. 6971, 73d Cong. 2d Sess.; H. Jour.
419.
11. Henry T. Rainey (Ill.).
12. 78 Cong. Rec. 760, 73d Cong. 2d Sess.; H. Jour. 64.
---------------------------------------------------------------------------
In the election for Representative held Nov. 8, 1932, the official
returns gave a plurality of 518 votes to contestee from a total of
87,061 votes cast.
Contestant served timely notice of contest on Dec. 19, 1932,
alleging that ``he had received a majority of all the lawful votes
cast''; that election officials had rejected ``void, spoiled,
mutilated, or marked'' ballots cast for him; that there were deviations
in the number of ballots delivered to and the number accounted for in
some of the precincts; that many used ballots were unaccountably
missing from the ballot boxes; and ``that by reason of frauds,
irregularities, and substantial errors, many votes counted for the
contestee should have been counted for the contestant.'' The committee,
while not dismissing the contest for failure of contestant to state
with particularity the basis of his contest and the names and frauds
alleged, stated that contestant's notice of contest had been
insufficient in this respect and would under other circumstances be
grounds for sustaining contestee's motion to dismiss.
In testimony and in his brief before the Committee on Elections No.
2, contestant alleged that in 14 precincts the combination of
violations of election laws by officials through illegal counting,
invalid compositions of election
[[Page 1116]]
boards, unsworn officials, and unattested tally sheets and the
condition of ballots and envelopes containing ballots should ``warrant
the rejection of the returns in total.''
The committee determined that contestant ``failed to establish
fraud, deceit, conspiracy, or connivance on the part of the contestee
or any election board, official clerk, or employee.'' In arriving at
this determination, the committee was guided by the following
postulates:
1. The official returns are prima facie evidence of the
legality and correctness of official action.
2. That election officials are presumed to have legally
performed their duties.
3. That the burden of coming forward with evidence to meet or
resist these presumptions rests with the contestant.
4. That fraud is never presumed, but must be proven.
5. That the mere closeness of the result of an election raises
no presumption of fraud, irregularities, or dishonesty.
The committee considered the distinction between ``mandatory''
election laws, which confer the right of suffrage by voiding an
election unless certain procedures are followed, and ``directory''
statutes, which fix penalties for violation of procedural safeguards
but do not void an election for noncompliance. The committee determined
that contestant had alleged violations of ``directory'' statutes, ``a
departure from which will not vitiate an election, if the
irregularities do not deprive any legal voter of his vote, or admit an
illegal vote, or cast uncertainty on the result, and has not been
occasioned by the agency of a party seeking to derive benefit from
them.'' The committee, while recognizing its power to reject entire
groups of ballots as requested by contestant, stated that such power
would only be exercised ``where it is impossible to ascertain with
reasonable certainty the true vote.''
Specifically, the committee rejected contestant's claim that
ballots in five precincts should be voided because election boards and
precinct officials had not been sworn, finding that all such officials,
other than inspectors, had subscribed to the required oath, and citing
cases in support of the rule that an election will not be invalidated
based on such failure, the acts of election officials acting under
color of office being binding.
Contestant alleged ``that by reason of a recount of approximately
one third of the ballots cast'' he had been elected. State law did not
provide machinery for conducting a recount. Contestant
[[Page 1117]]
claimed that during the taking of testimony under subpena, at which the
ballots cast had been examined in the presence of both parties and
their counsel, he had kept a tally of votes cast, including the very
ballots he was declaring to be ``marked, mutilated, or identified, and
void, irregular, or otherwise improper ballots,'' and that this tally
was sufficient to overcome contestee's plurality. As contestee had not
known that contestant was conducting such tally, and was not given the
opportunity to identify the ballots tallied, the committee ruled that
``the testimony of the contestant in this respect is uncorroborated and
constitutes a self-serving declaration wholly inadmissible in evidence
and of no legal probative value.'' The committee therefore ruled out
evidence concerning the tally, as well as the tally itself.
The report commented that contestant had made contradictory
allegations on the one hand that an examination of the ballots as shown
by his tally indicated that he had been elected, on the other hand
``that the ballots were not preserved and returned in the manner
required by law.'' The committee ruled that ``these dual contentions
cannot be maintained . . . they cannot be asserted legal for one
purpose and illegal for another.''
On May 15, 1934, Mr. Gavagan called up as privileged House
Resolution 386 (13) which was agreed to by voice vote and
without debate, and which provided:
---------------------------------------------------------------------------
13. 78 Cong. Rec. 8921, 73d Cong. 2d Sess.; H. Jour. 543.
---------------------------------------------------------------------------
Resolved, That George Burnham was elected a Representative in
the Seventy-third Congress from the Twentieth Congressional
District of California and is entitled to a seat as such
Representative.
Note: Syllabi for Chandler v Burnham may be found herein at
Sec. 5.11 (election committee's power to examine and recount disputed
ballots); Sec. 10.10 (distinctions between mandatory and directory
state laws); Sec. 10.14 (violations and errors by officials); Sec. 22.2
(failure to state grounds with particularity); Sec. 36.4 (official
returns as presumptively correct); Sec. 36.11 (effective closeness of
result); Sec. 37.21 (ballot tallies); Sec. 42.5 (resolution disposing
of contest as privileged).
Sec. 47.5 In re Ellenbogen
On Mar. 11, 1933, the Speaker (14) laid before the House
a letter (15) from the Clerk transmitting a memorial and
accompanying papers filed by Harry E. Estep (a former Representative),
[[Page 1118]]
challenging the citizenship qualifications of Henry Ellenbogen, a
Representative-elect from the 33d Congressional District of
Pennsylvania. That communication and accompanying papers were referred
to the Committee on Elections No. 2 (not ordered printed).
---------------------------------------------------------------------------
14. Henry T. Rainey (Ill.).
15. 77 Cong. Rec. 239, 73d Cong. 1st Sess., H. Jour. 66.
---------------------------------------------------------------------------
The signed report (16) of the Committee on Elections No.
2, to accompany House Resolution 370, was submitted by Mr. Joseph A.
Gavagan, of New York, on May 1, 1934. The report related the following
undisputed facts:
---------------------------------------------------------------------------
16. H. Rept. No. 1431, 78 Cong. Rec. 7873, 7876, 73d Cong. 2d Sess.; H.
Jour. 479.
---------------------------------------------------------------------------
1. That Mr. Ellenbogen (respondent), was born in Vienna, Austria on
Apr. 3, 1900, declared his intention to become a United States citizen
on May 19, 1921, and was admitted to citizenship on June 17, 1926;
2. That respondent was elected a Representative on Nov. 8, 1932, at
that time being a citizen for six years, five months;
3. That upon commencement of the first session of the 73d Congress
(convened by Presidential proclamation) on Mar. 9, 1933, respondent had
been a citizen for six years, eight and one-half months and did not
take the oath of office;
4. That upon commencement of the second session of the 73d Congress
on Jan. 3, 1934, respondent, then a citizen for seven and one-half
years, took the oath of office;
5. That on Dec. 3, 1933, the date specified by article I, section
4, clause 2 of the Constitution for convening of the 73d Congress
(which provision had not been superseded by the 20th amendment on the
date of respondent's election) respondent would have been a citizen for
seven years, five months.
Article I, section 2, clause 2 of the Constitution provides:
No person shall be a Representative who shall not have attained
to the age of twenty-five years and been seven years a citizen of
the United States, and who shall not, when elected, be an
inhabitant of that State in which he shall be chosen.
The committee determined the central issue to be ``as of what date is
the seven year citizenship qualification for Representative provided
for in section 2 above, to be determined?'' Of particular interest was
whether the Constitution requires seven years' citizenship prior to
election, prior to the date on which the term commences, or prior to
the time when the Member-elect is sworn. As the committee could not
base its decision on an exact case in point, the committee resorted to
``rules of constitutional and statutory construction, constitutional
history,
[[Page 1119]]
the rules of syntax, and prior interpretations of related but not
identical sections of the Constitution.''
Employing first a syntax analysis, the committee determined that
the words ``when elected'' in the second clause of section 2 modified
the word ``person'' in the first clause only with respect to the
subject of the second clause, i.e., habitancy, and that such words had
no relation to the words ``shall not have'' and ``been'' in the first
clause.
Examining next the history of section 2 at the Constitutional
Convention and citing two preliminary drafts submitted at the
convention, the committee concluded that ``the intent of the framers
(was) to require only habitancy `when elected', the present section 2
leaving out `before the election' from the citizenship [requirement] in
the second draft.'' The committee studied the reasons expressed in the
debates at the convention for each of the three qualifications in
section 2, concluding that the age and citizenship qualifications could
only reasonably apply to Members (to assure maturity and loyalty),
``hence dates of elections need not be controlling.''
Asserting that the age and citizenship requirements of section 2
were inserted with similar intent by the convention, the committee
proceeded to cite precedents construing the age requirement for
Representatives or Senators as demanding attainment of the required age
when sworn and not when elected or at the commencement of term. The
committee then construed section 2 itself as distinguishing between
Representatives-elect in the second clause and Representatives who must
in addition meet the qualifications of the first clause, and cited
Hammond v Herrick (1 Hinds' Precedents Sec. 499) for the proposition
that election does not, of itself, constitute membership, ``although
the period may have arrived at which the congressional term
commences.'' As well, the committee reasoned that constitutional
language requiring Congress to assemble the first Monday of December
unless they by law appointed a different day indicated that the framers
did not intend that age and citizenship requirements must be met at a
fixed time.
The committee drew a further analogy from article I, section 6 of
the Constitution, which prohibits a Member of Congress from ``holding
any office under the United States.'' The report extensively cited
Hammond v Herrick, in
[[Page 1120]]
which the House had construed that provision to require Members of
Congress to divest themselves of incompatible offices before they are
sworn, as foreseen dangers of executive control ``could materialize
only in a Member.'' The committee report in the Hammond v Herrick
memorial matter stated:
. . . Neither do election and return create membership. These
acts are nothing more than the designation of the individual, who,
when called upon in the manner prescribed by law, shall be
authorized to claim title to a seat. This designation, however,
does not confer a perfect right; for a person may be selected by
the people, destitute of certain qualifications, without which he
cannot be admitted to a seat.
The Committee report concluded:
[A] plain reading of section 2 of the Constitution of the
United States, the historical background of the section as
exemplified by the debates in the Constitutional Convention, the
objects sought to be accomplished by the requirements of the
section, and the decisions of the committees of this House in
analogous cases all compel an interpretation of the citizenship
qualification of section 2 as to require 7 years of citizenship at
the time when the person presents himself to take the oath of
office.
On June 16, 1934 (legislative day of June 15), Mr. Gavagan called
up House Resolution 370 (17) as privileged. The resolution,
which was agreed to by voice vote and without debate, declared:
---------------------------------------------------------------------------
17. 78 Cong. Rec. 12193, 73d Cong. 2d Sess.; H. Jour. 818.
---------------------------------------------------------------------------
Resolved, That when Henry Ellenbogen, on January 3, 1934, took
the oath of office as a Representative from the Thirty-third
Congressional District of the State of Pennsylvania, he was duly
qualified to take such oath; and be it further
Resolved, That said Henry Ellenbogen was duly elected as a
Representative from the Thirty-third District of Pennsylvania, and
is entitled to retain his seat.
Note: Syllabi for In re Ellenbogen may be found herein at Sec. 6.5
(items transmitted by Clerk); Sec. 9.4 (citizenship); Sec. 17.3
(alternatives to statutory election contests).
Sec. 47.6 Ellis v Thurston
The report (18) of the Committee on Elections No. 1 was
submitted by Mr. Homer C. Parker, of Georgia, on Apr. 23, 1934, in the
election contest brought by Lloyd Ellis against Lloyd Thurston from the
Fifth Congressional District of Iowa. The contest had been referred to
that committee on Feb. 19, 1934, on which date the Speaker
(19) had laid before the House a letter (20) from
the Clerk
[[Page 1121]]
transmitting the contest, original testimony and accompanying papers.
The Clerk's communication had been ordered printed (not designated as a
House document).
---------------------------------------------------------------------------
18. H. Rept. No. 1305, 78 Cong Rec. 7186, 7190, 73d Cong. 2d Sess.; H.
Jour. 431.
19. Henry T. Rainey (Ill.).
20. 78 Cong. Rec. 2769, 73d Cong. 2d Sess.: H. Jour. 178.
---------------------------------------------------------------------------
The official returns gave contestee 51,909 votes to 51,732 votes
for contestant, a majority of 177 votes for contestee. On Jan. 26,
1933, the parties to the contest agreed in writing to conduct a
complete recount of votes, which showed contestant to have received
50,715 votes and contestee to have received 51,334 votes, a majority of
619 votes for contestee. The report stated that an additional 4,821
``disputed'' votes ``were not counted by the election judges for either
contestant or contestee'' and that 4,339 votes ``were conceded to be no
vote for either contestant or contestee.''
Issues and findings of the 4,821 disputed ballots, contestant
conceded that 1,575 ballots had been properly voided by election judges
as not having been cast in conformity with state law, but contended
that ``the voters intended 1,000 of these ballots to be for Mr. Ellis
and 575 for contestee, and should be included in the count.'' The
committee report, assuming the validity of contestant's argument, found
that contestee would retain a 194-vote majority.
The report then considered the remaining 3,246 disputed votes in
three categories. In his brief, contestant claimed that on 321 ballots
which had been cast only for Presidential and Vice Presidential
candidates, 250 had been cast for his party nominee and 71 for
contestee's party nominee. Assuming that the parties should be
respectively credited with such votes, the committee found contestee's
majority to be 15 votes.
Again considering the figures given by contestant in his brief, the
report cited 142 ballots marked for Presidential and Vice Presidential
candidates of contestant's (Democratic) party and marked for candidates
of the Republican party for other offices, but not marked for the
office of Representative, as well as 13 ballots marked in contrary
manner for the Presidential candidate of contestee's (Republican)
party, with splits for certain Democratic candidates, but not marked
for Representative. Finally, the report cited contestant's figures that
of the remaining 2,770 disputed ballots, 2,164 had been marked for
contestant's party candidate for President and Vice President and also
marked for candidates of both parties for other offices, but not marked
for Representative. By claiming all the ballots that were cast for the
Presidential nominee
[[Page 1122]]
of his party, but which indicated no choice for Representative, and by
claiming 1,000 of the 1,575 ballots found void under state law,
contestant urged in his brief that he was entitled to the seat from the
Fifth Congressional District of Iowa.
The report quoted the pertinent sections of Iowa law prescribing
the manner of voting, and then concluded that ``the figures given by
the contestant in his brief do not warrant a decision in his favor.''
The committee ruled that voters in marking the squares opposite the
Presidential and Vice Presidential candidates did not intend to vote a
straight-party ticket, as the statute provided that a cross be placed
in a separate party circle in order to cast such vote. The committee
rejected contestant's claim that ``the intent of the voter should be
given effect regardless of local Iowa laws,'' holding rather that--
. . . [T]o presume now that the voters intended to vote
otherwise than as expressed by their marked ballots would be to
indulge in a presumption not justified in law or facts. We cannot
assume that because voters voted for Roosevelt, or Hoover, who
headed the respective tickets, that they intended to vote also for
the candidates for Congress toward whom the voters indicated their
neutrality.
Mr. Parker offered House Resolution 359 (1) from the
floor as privileged on Apr. 25, 1934. The resolution, agreed to by
voice vote and without debate, provided:
---------------------------------------------------------------------------
1. 78 Cong. Rec. 7371, 73d Cong. 2d Sess.; H. Jour. 440, 441.
---------------------------------------------------------------------------
Resolved, That Lloyd Ellis was not elected a Representative in
the Seventy-third Congress from the Fifth Congressional District of
the State of Iowa, and is not entitled to a seat as such
Representative.
Resolved, That Lloyd Thurston was elected a Representative in
the Seventy-third Congress from the Fifth Congressional District of
the State of Iowa, and is entitled to a seat as such
Representative.
Note: Syllabi for Ellis v Thurston may be found herein at Sec. 12.5
(balloting irregularities); Sec. Sec. 37.6, 37.8 (interpretations of
``straight ticket'' votes).
Sec. 47.7 Felix v Muldowney
On Mar. 14, 1934, the Speaker (2) laid before the House
a letter (3) from the Clerk transmitting the contest
instituted by Anne E. Felix against Michael J. Muldowney from the 32d
Congressional District of Pennsylvania. That communication, containing
also original testimony and other accompanying papers, was referred to
the Committee on Elections No. 2 and ordered printed.
---------------------------------------------------------------------------
2. Henry T. Rainey (Ill.).
3. 78 Cong. Rec. 4508, 73d Cong. 2d Sess.; H. Jour. 259.
---------------------------------------------------------------------------
The Committee on Elections No. 2 did not submit a report relating
[[Page 1123]]
to this election contest during the 73d Congress, and the House took no
other action with respect to the contest.
Note: Syllabi for Felix v Muldowney may be found herein at
Sec. 43.13 (failure of committee to submit report on contest).
Sec. 47.8 Fox v Higgins
Mr. Randolph Perkins, of New Jersey, submitted the report
(4) of the Committee on Elections No. 3 on Mar. 10, 1934, in
the election contest brought by William C. Fox against William L.
Higgins from the Second Congressional District of Connecticut. The
Speaker (5) had referred the contest to that committee on
Jan. 5, 1934, on which date the Clerk had transmitted to him the notice
of contest, original testimony and accompanying papers relative to the
contest. The Speaker had ordered the Clerk's communication
(6) printed (not designated as a House document).
---------------------------------------------------------------------------
4. H. Rept. No. 894, 78 Cong. Rec. 4185, 4223, 73d Cong. 2d Sess.; H.
Jour. 247.
5. Henry T. Rainey (Ill.).
6. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
In 56 of the 62 towns or voting districts comprising the Second
Congressional District of Connecticut the ``Australian ballot,'' by
which voters could vote a ``straight ticket'' by marking an ``X'' in
the circle above a party column, was employed as the official ballot.
State law voided ballots marked with an ``X'' in more than one party
circle. The report stated that the committee had no evidence as to the
total number of ballots rejected for this reason in the 56 towns or
elections districts, but that contestant had introduced evidence that
in 28 of those districts 624 ballots were rejected for duplicity of
voting.
Contestant's witnesses (election officers) testified that the term
``Wet Party'' appeared adjacent to the column designated as ``Repeal,
eighteenth amendment, Yes and No'' on these ballots; that 447 of them
had been marked both in contestant's ``straight ticket'' Democratic
circle and in the ``Wet Party'' circle; and that 147 had been marked in
contestee's ``straight ticket'' Republican circle and in the ``Wet
Party'' circle. Contestant requested the committee to credit him with
the 300-vote differential, which, when taken from contestee's official
plurality of 221 votes, would establish contestant as having been
elected by 79 votes.
Contestant contended that ``by reason of the juxtaposition of the
`Wet Party' column and the `repeal
[[Page 1124]]
of the eighteenth-amendment' column, voters were confused and voted
their straight-party affiliations and then, through confusion,
intending to vote for repeal, voted in the `Wet Party' circle, and thus
vitiated their ballots.'' Contestant also alleged that contestee, in
his capacity as secretary of state, had intentionally caused such
confusion by preparing the ballots, and that contestee had induced one
Michael H. Rollo to become a candidate for Congress with the party
platform and designation of ``Wet Party'' so as to confuse the electors
and vitiate their ``Straight-ticket'' votes.
The committee found no evidence to justify it in reporting that the
official count of the votes was incorrect. The committee also stated
that contestant had produced no evidence that Mr. Rollo's candidacy was
in any way procured or induced by the contestee or by anyone in his
behalf. Mr. Rollo, called as a witness before the committee by
contestant, testified that his candidacy had not been solicited by
contestee.
The committee found that though ``it is not improbable that some
voters were confused,'' the evidence showed that the ballots had been
prepared according to law by a deputy secretary of state who had placed
the ``Wet Party'' last on the ticket in the Second District because it
was only being voted on in that district and not statewide. The
evidence also showed that the parties to be voted on statewide were
listed first, followed by the names of the local parties on certain
ballots that were printed separately. The committee found that
contestee, as secretary of state, had not ``designedly caused the
ballots to be printed in order to create confusion, or for the purpose
of obtaining an advantage as a can-
didate. . . .''
The committee found, consistent with contestant's admission, that
``the ballots which were rejected should have been rejected'' under
state law prohibiting voting for more than one ``straight ticket.''
Five witnesses testified that they had intended to vote their regular
party affiliation and, for repeal, and had mistakenly voted for the
``Wet Party.'' The report stated that ``this was not the case of an
ambiguous or doubtful ballot, where the committee can look at the
circumstances surrounding the election explaining the ballot, and get
at the intent and real act of the voter.'' Rather, as the ballots had
been marked for Mr. Rollo as well as for other candidates, the
committee could not
[[Page 1125]]
determine whether voters had intended to vote for Mr. Rollo and
otherwise for a straight Republican or Dermocratic ticket, or to cast a
straight vote for contestant's (Democratic) ticket or contestee's
(Republican) ticket and for repeal of the 18th amendment. The committee
found the question of intention of the voters of the rejected ballots
to be a matter of conjecture, and the evidence before the committee in
this respect to be ``wholly unreliable.''
The committee report accompanied House Resolution
296,(7) which was called up as privileged by Mr. Clark W.
Thompson, of Texas, on May 28, 1934. The resolution, which was agreed
to by voice vote and without debate, provided:
---------------------------------------------------------------------------
7. 78 Cong. Rec. 9760, 73d Cong. 2d Sess.; H. Jour. 587.
---------------------------------------------------------------------------
Resolved, That William C. Fox is not entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Second Congressional District of the State of Connecticut.
Resolved, That William L. Higgins is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Second Congressional District of the State of Connecticut.
Note: Syllabi for Fox v Higgins may be found herein at Sec. 11.1
(confusing the voters as grounds for contest); Sec. 12.6 (balloting
irregularities); Sec. 37.1 (ambiguous ballots); and Sec. 38.3 (voter
intention as paramount concern in interpreting ballot).
Sec. 47.9 Gormley v Goss
On Mar. 13, 1934, Mr. Joseph A. Gavagan, of New York, submitted the
report (8) of the Committee on Elections in the election
contest brought by Martin E. Gormley against Edward W. Goss from the
Fifth Congressional District of Connecticut. The Speaker (9)
had referred the contest to that committee on May 9, 1933, on which
date the Clerk had transmitted to him the notice of contest, original
testimony, papers, and documents relative to the contest. The Speaker
had ordered the Clerk's communication printed.(10)
---------------------------------------------------------------------------
8. H. Rept. No. 893, 78 Cong. Rec. 4035, 73d Cong. 2d Sess.; H. Jour.
244.
9. Henry T. Rainey (Ill.).
10. 77 Cong. Rec. 3085, 73d Cong. 1st Sess.; H. Jour. 245, 246.
---------------------------------------------------------------------------
According to the official returns of the election held Nov. 8,
1932, contestee received 42,132 votes to 42,054 votes for contestant--a
majority of 78 votes for contestee.
Contestant alleged that through ``fraud, irregularities,
corruption, and deceit'' on the part of contestee's agents at voting
booth No. 1 in the third voting precinct
[[Page 1126]]
in the city of Waterbury, he was ``deprived of many votes far in excess
of the number of votes necessary to overcome contestee's majority.''
Contestee requested dismissal of the allegations raised in the
notice of contest on the ground that they were ``vague and uncertain
and were lacking in necessary particulars'' as required by statutes (2
USC Sec. 201). The committee heard argument as to the sufficiency of
the notice of contest, and agreed that contestant's notice of contest
did not meet the requirements of the statute.
The committee considered the evidence in the case following the
``postulates'' that:
1. The official returns are prima facie evidence of the regularity
and correctness of official action.
2. That election officials are presumed to have performed their
duties loyally and honestly.
3. The burden of coming forward with evidence to meet or resist
these presumptions rests with the contestant.
Witnesses who had voted in the precinct in question testified that
the moderator of the voting district, Thomas Summa, ``on occasions was
seen to stick his head into the voting booth and on some occasions to
enter the said booth'.''
Considering all the testimony relating to booth No. 1 in the third
voting precinct, the committee found that ``confusion existed'' with
regard to voting on the question of ``the repeal or maintenance of the
eighteenth amendment,'' and as to this question's placement on the
voting machine. The committee further found that many voters were
seeking information in this respect and ``were given assistance and
attention''; and that there were no complaints made to the nonpartisan
election board as to ``irregularity, interference, or fraud.'' Of all
witnesses called, none testified that any of the votes cast were
fraudulently obtained by the contestee, and further that the intent of
the voter was not vitiated by any interference with the keys on the
voting machine.
Contestant alleged that Mr. Summa conspired with contestee to
influence voters in the booth by putting his head inside the curtain,
speaking to the voters, or entering the booth. This thesis the
committee rejected on the basis that they would have to ignore the fact
that ``the polling place in question was in charge of a bipartisan
election board'' and arbitrarily assume ``that the Democratic members
thereof were either deaf, dumb, and blind, or willfully corrupt
conspirators.'' Deciding that such conclusion ``would
[[Page 1127]]
be arbitrary, unjust, and unworthy of a judicial body,'' the committee
concluded instead that:
. . . [T]he contestant has failed to establish the allegations
contained in the notice of contest, has failed by a fair
preponderance of the evidence to establish any fraud, deceit, or
conspiracy on the part of the contestee and the election official
or officials engaged in the election in question.
The committee report accompanied House Resolution
346,(11) which was called up as privileged by Mr. Gavagan on
Apr. 20, 1934. The resolution, which was agreed to by voice vote and
without debate, provided:
---------------------------------------------------------------------------
11. 78 Cong. Rec. 7087, 73d Cong. 2d Sess.; H. Jour. 424.
---------------------------------------------------------------------------
Resolved, That Edward W. Goss vas elected a Representative in
the Seventy-third Congress from the Fifth Congressional District in
the State of Connecticut and is entitled to a seat as such
Representative.
Note: Syllabi for Gormley v Goss may be found herein at Sec. 12.1
(voter confusion as excuse for official's entering booth); Sec. 22.1
(failure to state grounds with particularity); Sec. 36.5 (official
returns as presumptively correct); Sec. 42.2 (resolution disposing of
contest as privileged).
Sec. 47.10 LaGuardia v Lanzetta
On Jan. 5, 1934, the Speaker (12) laid before the House
a letter (13) from the Clerk transmitting his unofficial
knowledge of the institution of an election contest by Fiorello H.
LaGuardia against James J. Lanzetta from the 20th Congressional
District of New York. It related that a copy of notice of contest and
reply thereto had been filed with the Clerk, but that, since no
testimony had been transmitted within the time prescribed by law, the
contest had apparently abated. The Clerk's communication and
accompanying papers were referred to the Committee on Elections No. 1
and ordered printed.
---------------------------------------------------------------------------
12. Henry T. Rainey (Ill.).
13. 78 Cong. Rec. 136, 137, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
The Committee on Elections No. 1 did not submit a report relating
to this election contest during the 73d Congress, and the House took no
action to dispose of the contest.
Note: Syllabi for LaGuardia v Lanzetta may be found herein at
Sec. 15.2 (failure to take testimony within prescribed time).
Sec. 47.11 Lovette v Reece
On Apr. 23, 1934, Mr. Clarence E. Hancock, of New York, submitted
the report (14) of the Committee on Elections No. 1 in the
election contest of O. B. Lovette against B. Carroll Reece from the
First Congressional District of
[[Page 1128]]
Tennessee. The contest had been referred to that committee on Jan. 5,
1934, on which date the Speaker (15) had laid before the
House a letter (16) from the Clerk transmitting the notice
of contest and original testimony. The Speaker had ordered the Clerk's
communication printed with accompanying papers.
---------------------------------------------------------------------------
14. H. Rept. No. 1306, 78 Cong. Rec. 7186, 7190, 73d Cong. 2d Sess.; H.
Jour. 431.
15. Henry T. Rainey (Ill.).
16. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
The report stated that in the general election held on Nov. 8,
1932, of six candidates for Representative from the First Congressional
District of Tennessee, contestee had received 30,366 votes to 27,888
votes for contestant, with 7,950 votes for one Tipton and a few hundred
other votes for the three remaining candidates, leaving a plurality of
2,478 votes for contestee over contestant. 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,
contestant filed an amended and supplemental notice of contest.
The committee first found that contestant (Mr. Lovette) had not
sustained the grounds of contest set forth in the original notice,
which alleged fraudulent uses of money to influence the election, and
which allegations were based on hearsay testimony. Specifically the
committee found that the alleged instances of fraud and irregularities
were more probably connected with simultaneous elections for Governor
and for President, and that contestee (Mr. Reece) had not participated
in such practices and had not benefited therefrom more than had
contestant.
With respect to the amended and supplemental notice, though filed
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 and after expiration of the
prescribed time period, be printed.
The committee found that, as to the allegations that contestee's
brother had collected large sums of money to finance contestee's
election, the evidence indicated that those efforts had been
concentrated upon securing a nominee for Governor and involved
transactions occurring after the election not connected with contestee.
Accordingly, the committee concluded that ``the evidence adduced by
contestant fails utterly to support the charges in the original notice
of contest and
[[Page 1129]]
in the amended and supplemental notice, and that what little evidence
there is which might tend to support some of the allegations is so
vague and inconclusive as to cast no doubt on the right of contestee to
retain his seat.''
The report recommended the adoption of House Resolution
358,(17) which Mr. Homer C. Parker, of Georgia, offered from
the floor as privileged on Apr. 25, 1934. The resolution, which was
agreed to without debate and by voice vote, provided:
---------------------------------------------------------------------------
17. 78 Cong. Rec. 7371, 73d Cong. 2d Sess.; H. Jour. 440.
---------------------------------------------------------------------------
Resolved, That O. B. Lovette was not elected a Representative
to the Seventy-third Congress from the First Congressional District
of the State of Tennessee, and is not entitled to a seat therein.
Resolved, That B. Carroll Reece was duly elected a
Representative to the Seventy-third Congress from the First
Congressional District of the State of Tennessee, and is entitled
to retain his seat therein.
Note: Syllabi for Lovette v Reece may be found herein at Sec. 10.20
(illegal use of funds); Sec. 20.3 (notice of contest filed late);
Sec. 35.9 (allegations of improper expenditures).
Sec. 47.12 McAndrews v Britten
Mr. Homer C. Parker, of Georgia, submitted the report
(18) from the Committee on Elections No. 1 on Apr. 23, 1934,
in the election contest of James McAndrews against Fred A. Britten from
the Ninth Congressional District of Illinois. The contest had been
referred to that committee on Jan. 5, 1934, on which date the Speaker
(19) had laid before the House a letter (20) from
the Clerk transmitting the notice of contest, testimony and other
papers.
---------------------------------------------------------------------------
18. H. Rept. No. 1298, 78 Cong. Rec. 7166, 7190, 73d Cong. 2d Sess.; H.
Jour. 431.
19. Henry T. Rainey (Ill.).
20. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
The report stated that contestee had received 40,253 votes from the
official returns of the election held Nov. 8, 1932, and that contestant
had received 36,596 votes in that election, a plurality of 3,657 votes
for contestee.
In his notice of contest, contestant alleged that contestee had
violated the Federal Corrupt Practices Act and that contestee had
received a ``split-vote'' so disproportionately large as compared to
the ``straight votes'' cast for him ``that the presumption of fraud
naturally and necessarily follows.'' The committee report rejected all
such allegations as not supported by the evidence, stating that ``the
testimony of a so-called `expert' upon the disproportionate split vote
is so frail and unconvincing in its nature as to leave no doubt
[[Page 1130]]
in the mind of the committee of the falsity of the charge of fraud by
reason of said disproportionate split vote.''
The contestant's allegations and the committee's grounds for their
rejection were more specifically elaborated in debate on the floor of
the House on Apr. 26, 1934. On that date, Mr. Parker offered House
Resolution 362 (l) from the floor as privileged. Mr. Parker
had, on Apr. 25, 1934, offered that resolution (2) for the
immediate consideration of the House. When a Member had sought time to
debate the resolution, Mr. Parker withdrew the resolution and sought
unanimous consent that it be considered the following day after
disposition of business on the Speaker's table. The Speaker informed
Mr. Parker that such request was not necessary, as the resolution was
privileged and could be called up at any time.
---------------------------------------------------------------------------
1. 78 Cong. Rec. 7456, 73d Cong. 2d Sess.; H. Jour. 448.
2. 78 Cong. Rec. 7371, 73d Cong. 2d Sess.
---------------------------------------------------------------------------
On Apr. 26, immediately upon the offering of the resolution by Mr.
Parker, Mr. Adolph J. Sabath, of Illinois, sought recognition to offer
a ``substitute'' for the resolution. Mr. Parker refused to yield for
that purpose and was recognized by the Speaker pro tempore
(3) for one hour. Mr. Sabath thereupon asked unanimous
consent that his ``substitute'' be read for the information of the
House, to which request Mr. Ralph R. Eltse, of California, objected.
Mr. Parker then yielded 30 minutes for debate to Mr. John B. Hollister,
of Ohio, and 15 minutes to Mr. Sabath. Mr. Sabath read the substitute
which he had attempted to offer:
---------------------------------------------------------------------------
3. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------
Whereas Committee on Elections No. 1, on March 15, 1934,
ordered a recount of the votes cast in the election held November
8, 1932, in the Ninth Congressional District in the State of
Illinois; and
Whereas a subcommittee was authorized to recount the ballots
and to obtain a determination of the actual votes cast for
contestant and contestee; and
Whereas notwithstanding said action of said committee, and
without said recount having been made, the committee reported on
April 23 to the House recommending the adoption of a resolution
entitling contestee to retain his seat; and
Whereas the action of the committee was taken without notice to
the contestant, and thereby nullified its own previous action
without due procedure or formality of notice to contestant:
Therefore be it
Resolved, That the Committee on Elections No. 1, or a
subcommittee thereof, is hereby authorized to recount the ballots
cast in said election and to
[[Page 1131]]
report to the House the number of votes received by the contestant
and the number of votes received by the contestee.
Mr. Sabath also stated that Mr. Parker had, on Apr. 16, 1934,
introduced House Resolution 335 which was referred to the Committee on
Accounts and which provided that ``$2,500 be appropriated for the
purpose of defraying the expense of recounting the ballots in the city
of Chicago.'' No action was taken on that resolution.
In response to Mr. Sabath's criticism of these committee actions,
Mr. Parker stated that the Committee on Elections No. 1 had voted to
conduct a recount on Mar. 15, 1934, ``because it believed that neither
party to the contest objected to the ballots being counted,'' and that
upon a rehearing in which contestee's objections to such procedure were
presented, the committee had voted unanimously to reconsider the
ordering of the recount. Mr. Lindsay C. Warren, of North Carolina,
defended the action of the Committee on Accounts in not reporting the
expense resolution, as no reason had been given that committee to
justify a recount and as the Committee on Elections had unanimously
reconsidered and decided against such recount.
With respect to alleged violations of the Corrupt Practices Act,
contestant had claimed, and contestee acknowledged on the floor of the
House during debate on the resolution, that contestee had ``offered
prizes to the various precinct captains whose precincts voted the
largest votes in proportion to the Republican votes that were given in
these precincts.'' Mr. David D. Terry, of Arkansas, defended the
committee finding that this offering of prizes was not a violation of 2
USC Sec. 150 which provided:
It is unlawful for any person to make or offer to make an
expenditure or to cause an expenditure to be made or offered to any
person either to vote or withhold his vote or to vote for or
against any candidate, and it is unlawful for any person to
solicit, accept, or receive any such expenditure in consideration
of his vote or the withholding of his vote.
Mr. Parker contended that the large split vote for contestee had
been the case for many members of contestee's political party, as they
had to have ``run ahead of the ticket'' to have been elected on Nov. 8,
1932, as a candidate of that party.
After Mr. Parker moved the previous question, which was ordered by
voice vote, the resolution was agreed to by voice vote. It provided:
Resolved, That James McAndrews was not elected a Representative
to the
[[Page 1132]]
Seventy-third Congress from the Ninth District of the State of
Illinois and is not entitled to a seat therein.
Resolved, That Fred A. Britten was duly elected a
Representative to the Seventy-third Congress from the Ninth
Congressional District of the State of Illinois and is entitled to
retain his seat.
Note: Syllabi for McAndrews v Britten may be found herein at
Sec. 11.4 (``prizes'' to campaign workers); Sec. 12.4 (balloting
irregularities); Sec. 41.6 (reconsideration of action of ordering a
recount); Sec. 42.3 (resolution disposing of contest as privileged);
Sec. 42.17 (substitute resolutions).
Sec. 47.13 Reese v Ellzey
On Feb. 9, 1934, Mr. John H. Kerr, of North Carolina, submitted the
report (4) of the Committee on Elections No. 3 in the
election contest of Reese v Ellzey from the Seventh Congressional
District of Mississippi. The contest had been referred to that
committee on Jan. 5, 1934, on which date the Speaker (5) had
laid before the House a letter(6) from the Clerk
transmitting his ``unofficial knowledge'' of the contest together with
contestant's letter of withdrawal therefrom. Upon referral, the Clerk's
letter and accompanying papers had been ordered printed.
---------------------------------------------------------------------------
4. H. Rept. No. 696, 78 Cong. Rec. 2282, 2292, 73d Cong. 2d Sess.; H.
Jour. 153.
5. Henry T. Rainey ( Ill.).
6. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
The committee report contained contestant's letter of withdrawal
from the contest. Contestant claimed that the election of Nov. 8, 1932,
was void ``when two so-called `Republican' tickets were placed on the
ballot in this district,'' that ``in the failure to appoint a single
Republican election officer or judge in the entire district as mandated
by the laws of the State of Mississippi, there was also a direct and
willful violation of the law'' and that ``my party and myself have been
illegally discriminated against.'' Nevertheless, ``while so many
matters of vital importance require the attention of the Congress, it
would be unpatriotic on my part to attempt to occupy the time of
Congress about a matter of such trivial importance to the welfare of
our country.'' The committee report accompanied House Resolution
261,(7) Mr. Kerr offered from the floor as privileged on
Feb. 24, 1934. The resolution was agreed to by voice vote and without
debate after Mr. John E. Rankin of Mississippi, observed that the
resolution incor
[[Page 1133]]
rectly referred to the Eighth Congressional District, rather than to
the Seventh Congressional District of the State of Mississippi. Mr.
Kerr obtained unanimous-consent permission that the resolution be
corrected accordingly. As thus amended, the resolution--
---------------------------------------------------------------------------
7. 78 Cong. Rec. 3165, 73d Cong. 2d Sess.; H. Jour. 202.
---------------------------------------------------------------------------
Resolved, That L. G. Reese is not entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Seventh Congressional District of the State of Mississippi; and be
it further
Resolved, That Russell Ellzey is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Seventh Congressional District of the State of Mississippi.
Note: Syllabi for Reese v Ellzey may be found herein at Sec. 6.10
(items transmitted by Clerk); Sec. 43.12 (effect of contestant's
withdrawal or abandonment of contest).
Sec. 47.14 Kemp, Sanders Investigation
On June 19, 1933, three days after the adjournment of the first
session of the 73d Congress, the death of Mr. Bolivar E. Kemp created a
vacancy in the seat from the Sixth Congressional District of Louisiana.
On Jan. 3, 1934, the date of the convening of the second session of
the 73d Congress, the Speaker (8) laid before the House a
letter (9) from the Clerk transmitting a certificate of
election of Mrs. Bolivar E. Kemp, Sr., signed by the Governor of
Louisiana and attested by the Secretary of State of Louisiana, to fill
the vacancy. The Clerk's letter also transmitted a certificate of
election of J. Y. Sanders, prepared by the ``Citizens' Election
Committee of the Sixth Congressional District,'' to fill said vacancy.
Thereupon, Mr. Riley J. Wilson, of Louisiana, offered from the floor
House Resolution 202: (l0)
---------------------------------------------------------------------------
8. Henry T. Rainey (Ill.).
9. 78 Cong. Rec. 11, 12, 73d Cong. 2d Sess.; H. Jour. 13, 14.
10. 78 Cong. Rec. 12, 73d Cong. 2d Sess.; H. Jour. 14.
---------------------------------------------------------------------------
Resolved, That the question of prima facie as well as the final
right of Mrs. Bolivar E. Kemp, Sr., and J. Y. Sanders, Jr.,
contestants, respectively, claiming a seat in this House from the
Sixth District of Louisiana, be referred to the Committee on
Elections No. 3; and until such committee shall have reported in
the premises and the House decided such question neither of said
contestants shall be admitted to a seat.
Mr. Wilson, recognized for one hour on his resolution, expressed
the acquiescence of the Louisiana delegation and of the contestants in
its adoption. The resolution was agreed to by voice vote.
On Jan. 20, 1934,(11) Mr. John H. Kerr, of North
Carolina, sub
[[Page 1134]]
mitted the unanimous report of the Committee on Elections No. 3 to
accompany House Resolution 231.(1~2~) The committee found no
dispute concerning the facts involving the election held on Dec. 5,
1933, at which Mrs. Kemp received about 5,000 votes (a few votes having
been cast for other parties), and involving the election held on Dec.
27, 1933, at which Mr. Sanders received about 15,000 votes (a few votes
having been cast for other parties).
---------------------------------------------------------------------------
11. H. Rept. No. 334, 78 Cong. Rec. 1035, 73d Cong. 2d Sess.; H. Jour.
80.
12. See 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934, where
resolution was adopted.
---------------------------------------------------------------------------
The report relates as undisputed fact that from the time of the
death of Bolivar E. Kemp on June 19, 1933, until Nov. 27, 1933, the
Governor of Louisiana did not issue a writ of election to fill the
vacancy, though he was ``petitioned by thousands of voters of the Sixth
Congressional District to issue his proclamation. . . .'' According to
the report, ``On the 27th day of November 1933, there was delivered to
the district committee in the city of New Orleans outside the Sixth
Congressional District a proclamation calling for an election to be
held within eight days, namely, on the fifth day of December 1933.'' In
his statement made in debate on Jan. 29, 1934, however, Mr. Kerr
related that the proclamation of the Governor had been ``entrusted to
the executive committee of the Sixth District, and that committee,
outside the district, in the city of New Orleans, called an election
pursuant to this proclamation of the Governor, or at least announced
that there would be an election, and undertook to name a candidate to
be voted on at that election.''
On Nov. 28, 1933, the Citizens' Election Committee of the Sixth
Congressional District met in the district and fixed the day for the
``election'' at Dec. 27, 1933, 30 days after the meeting.
The report then undertook to recite and interpret federal and state
law governing the holding of elections to fill vacancies. The report
cited provisions of the U.S. Constitution permitting the states to
prescribe the time, place, and manner of holding elections for
Representatives, subject to alteration by Congress (art. I, Sec. 4),
and providing that the state executive authority ``shall issue writs of
election'' to fill vacancies in the House of Representatives (art. I,
Sec. 2). Citing Ex parte Clarke (1879), 100 U.S. 399, the committee
affirmed the power of Congress to adopt the laws of the states
regulating methods of electing Representatives.
The report recited portions of the laws of Louisiana (the general
[[Page 1135]]
election law, Act 130, A.D. 1916, and the primary law, Act 97, A.D.
1922) relevant to the choosing of candidates for filling vacancies and
to the filling of such vacancies:
That it shall be the duty of the Governor, at least thirty days
before every general election, to issue his proclamation, giving
notice thereof, which shall be published in the official journal.
In case of a vacancy in the said office of Representative in
Congress, between the general elections, it shall be the duty of
the Governor by proclamation to cause an election to be held
according to law to fill such vacancy. (Emphasis added.)
From this, the committee concluded that ``the proclamation of the
Governor, who is required by law to call either a general or special
election, carries with it the duty to give the electorate a reasonable
notice of the time, place, and manner of such election, and the failure
to give said notice is a contravention of both the spirit and the
letter of the law.''
The report then cited section 9 of the primary election law which
provided:
That whenever a special election is held to fill a vacancy for
an unexpired term caused by death, resignation or otherwise of any
officer, the respective committees having authority to call primary
elections to nominate candidates for said office, shall have full
authority to fix the date at which a primary election shall be held
to nominate candidates in said special election, which date shall
not be less than ten days after the special election shall have
been ordered.
The committee concluded that ``it is mandatory that the Governor should
give more than 10 days' notice of said election in order that the
district committee might comply with the law and allow the electorate
of the district to select a candidate,'' i.e., ``to call a primary
`within not less than 10 days after the special election has been
called'.''
Section 1 of the primary law provided:
That all political parties shall make all nominations for
candidates for the United States Senate, Members of the House of
Representatives in the Congress . . . by direct primary elections.
That any nomination, of any person for any of the aforesaid
mentioned offices by any other method shall be illegal, and the
secretary of state is prohibited from placing on the official
ballot the name of any person as a candidate for any political
party not nominated in accordance with the provisions of this act.
The report stated that ``in this state a nomination in a Democratic
primary assures the candidate of election, at either a special or
general election; and this makes the primary most important.'' Thus the
primary election was, in effect, the sole method of selecting
candidates.
[[Page 1136]]
Section 31 of the primary laws provided three exceptions to the
requirement of direct primary elections:
That all vacancies caused by death or resignation or otherwise
among the nominees selected by any political party, under the
provisions of this act, shall be filled by the committee, which has
jurisdiction over the calling and ordering of the said primary
election, and in the event that no person shall have applied to
become a candidate for a political office within the time fixed by
law, or the call of the committee ordering the primary, or in any
other event wherein the party shall have no nominee selected under
the provisions of this act, the committee calling the primary shall
select the nominee for 'any position named in the call of the
committee and shall have full authority to certify said name as the
nominee of the said party: . . .
The report found that the district committee, without ``calling'' a
primary election, ``undertook and did name Mrs. Kemp as the candidate
to be voted for at the December 5 election, called by the Governor''
and that ``this procedure of the district committee could not come
within the exceptions defined in section 31 of the primary law.''
During debate in the House on Jan. 29, 1934, Mr. Kerr attempted to
clarify the intent of section 31 as permitting a committee to supply
nominees where none or only one had applied in response to the primary
call, ``so that the people could have the opportunity of selecting
their candidate.'' Mr. Cox raised the question whether if the election
were called at a time that made impossible the holding of a primary
election, the committee might then make the nomination itself. Mr. Kerr
replied that ``the committee had no right under the law to participate
in any kind of action which deprived the people of the state of
Louisiana of nominating a candidate.'' Mr. Cleveland Dear, of
Louisiana, interpreted the language ``or in any other event wherein the
party shall have no nominee selected under the provisions of this act''
as not permitting the executive committee to make a nomination where
there has been no primary election unless such primary had been called.
Citing the section 31 language ``the committee calling the election,''
Mr. Dear contended that the committee must call a primary election as a
condition precedent to its powers of nomination, as ``there must be a
time fixed for them (candidates) to qualify. . . . Under this section
the committee calling and ordering the primary has authority to select
the nominee for any position named in the call of the committee clearly
indicated that there must be first a call before it is au
[[Page 1137]]
thorized to name such a nominee.'' The report concluded that ``both the
nomination and election of Mrs. Kemp are illegal and void; that the
Governor's proclamation was not in accordance with the law; and the
voters of the district were not allowed to choose a candidate in the
method approved by law, and therefore, Mrs. Kemp is not entitled to a
seat in the House of Representatives.''
On Jan. 22, 1934, Mr. Ross A. Collins, of Mississippi, took the
floor (13) to dissent from the committee report which had
been submitted Jan. 20. He contended that Mrs. Kemp should have been
granted prima facie right to a seat, her credentials being regular in
form and there being no question as to her constitutional and personal
qualifications. To this Mr. Charles L. Gifford, of Massachusetts,
replied that the House had on Jan. 3, 1934, determined that such
question be referred to the Committee on Elections for report. During
debate on Jan. 29, 1934, Mr. Randolf Perkins, of New Jersey, claimed
that ``there could be no prima facie right unless there were a legal
election. A mere certificate would not establish prima facie right;
there would have to be underlying that certificate a legal election.''
---------------------------------------------------------------------------
13. 78 Cong. Rec. 1109-11, 73d Cong. 2d Sess.
---------------------------------------------------------------------------
Mr. Collins cited McCrary on Elections (George McCrary, A Treatise
on the American Law of Elections, Chicago, Callaghan & Co., 1897),
paragraphs 185 and 186, in support of his contention that the Governor
may fix the time for a special election to fill a vacancy where the
legislature has not established such time, and where the existence of
five candidates, none of whom might achieve a majority in the first
primary, would under state primary law force subsequent primaries
beyond Jan. 1, 1934, at which time state law would void the existing
registrations of voters and require new registrations. Mr. Collins also
supported the nomination of Mrs. Kemp by the committee, absent the
calling of a primary, claiming that the words ``calling the primary''
in section 31 were ``merely descriptive of the committee whose duty it
is to make the nomination. Were it not for this descriptive language,
some other congressional committee might claim the right to make the
nominations.''
With respect to the election of Mr. Sanders on Dec. 27, 1933, as
called by the ``Citizens Election Committee,'' the view was taken that
such election was illegal and void, there being no political machinery
under the laws of Louisiana providing therefor.
On Jan. 20, 1934, Mr. Kerr called up House Resolution 231 as
[[Page 1138]]
privileged, and obtained unanimous consent permission that time for
debate be extended to one and one-half hours, to be equally divided and
controlled by himself and Mr. Gifford. In response to the parliamentary
inquiry of Mr. Cassius C. Dowell, of Iowa, the Speaker upheld the
propriety of that clause in the resolution which required the Speaker
to notify the Governor of Louisiana of the action taken by the House in
declaring the seat vacant.
After debate, Mr. Kerr moved the previous question on the
resolution, which was ordered by a voice vote. Thereupon, House
Resolution 231 was agreed to by voice vote. The resolution stated:
Resolved, That there was no valid election for Representative
in the House of Representatives of the Seventy-third Congress from
the Sixth Congressional District of the State of Louisiana on the
5th day of December, or the 27th day of December, 1933, and that
neither Mrs. Bolivar E. Kemp nor J. Y. Sanders, Jr., is entitled to
a seat therein; and be it further
Resolved, That the Speaker communicate to the Governor of the
State of Louisiana that there is a vacancy in the representation of
that State in the Sixth Congressional District thereof.
Note: Syllabi for the Kemp, Sanders investigation may be found
herein at Sec. 4.3 (House power over administration of oath to
candidate in election contests); Sec. 6.2 (items transmitted by Clerk);
Sec. 9.1 (certificates of election); Sec. Sec. 10.17, 10.18 (improperly
conducted special election); Sec. 10.19 (improperly conducted primary
elections); Sec. 42.12 (disposal of contest by resolution declaring
seat vacant); Sec. 42.15 (resolution admitting neither contestant to a
seat).
Sec. 47.15 Shanahan v Beck
Mr. John H. Kerr, of North Carolina, submitted the report
(14) of the Committee on Elections No. 3 on Feb. 9, 1934, in
the election contest of John J. Shanahan against James M. Beck from the
Second Congressional District of Pennsylvania. The contest had been
referred to that committee on Jan. 5, 1934, on which date the Speaker
(15) had laid before the House a letter (16) from
the Clerk transmitting a copy of the notice of contest and reply, with
the statement that no testimony had been received within the time
prescribed by law and that the contest appeared to have abated. The
Speaker had ordered that communication to be printed (not designated as
a House document).
---------------------------------------------------------------------------
14. H. Rept. No. 694, 78 Cong. Rec. 2282, 2292, 73d Cong. 2d Sess.; H.
Jour. 153.
15. Henry T. Rainey (Ill.).
16. 78 Cong. Rec. 136, 73d Cong. 2d Sess.; H. Jour. 28.
---------------------------------------------------------------------------
The report confirmed that ``there was no evidence before the
[[Page 1139]]
committee of the matters charged in (the) notice of contest, and no
briefs filed, as provided by law.'' The committee found such ``laches''
to be inexcusable under the circumstances, but permitted contestant to
withdraw unprinted evidence which he had submitted while testifying
before the committee without prejudice. Finally, the report stated that
contestee had evidently been elected by a majority of more than 14,000
votes in the election held Nov. 8, 1932.
The report accompanied House Resolution 259,(17) which
Mr. Kerr offered from the floor as privileged on Feb. 24, 1934. The
resolution was agreed to by voice vote and without debate. It provided:
---------------------------------------------------------------------------
17. 78 Cong. Rec. 3165, 73d Cong. 2d Sess.; H. Jour. 201, 202.
---------------------------------------------------------------------------
Resolved, That John J. Shanahan is not entitled to a seat in
the House of Representatives of the Seventy-third Congress from the
Second Congressional District of the State of Pennsylvania; and be
it further
Resolved, That James M. Beck is entitled to a seat in the House
of Representatives of the Seventy-third Congress from the Second
Congressional District of the State of Pennsylvania.
Note: Syllabi for Shanahan v Beck may be found herein at Sec. 15.3
(failure to take testimony within prescribed time); Sec. 16.2
(inexcusable delay in filing briefs in taking testimony); Sec. 25.2
(failure to produce evidence); Sec. 22.1 (withdrawal of evidence).
Sec. 47.16 Weber v Simpson
On May 4, 1934, Mr. John H. Kerr, of North Carolina, submitted the
report (18) of the Committee on Elections No. 3 in the
election contest brought by Charles H. Weber against James Simpson, Jr.
and Ralph E. Church from the 10th Congressional District of Illinois.
---------------------------------------------------------------------------
18. H. Rept. No. 1494, 78 Cong. Rec. 8085, 8122, 73d Cong. 2d Sess.; H.
Jour. 489.
---------------------------------------------------------------------------
At the conclusion of the 72d Congress, on Mar. 3, 1933, the Speaker
(19) had laid before the House a letter (20) from
the Clerk transmitting a subpena duces tecum served upon him by
contestant's notary public and requesting the production of documents
filed by contestee (Mr. Simpson) in compliance with the Corrupt
Practices Act. The Clerk's letter included his reply by which he had
refused to comply with the subpena pending approval of the House. The
communication and accompanying papers were referred to the Committee on
the Judiciary and ordered printed (not
[[Page 1140]]
designated as a House document). The 72d Congress did not authorize the
Clerk to respond to the subpena duces tecum.
---------------------------------------------------------------------------
19. John N. Garner (Tex.).
20. 76 Cong. Rec. 5581, 72d Cong. 2d Sess.; H. Jour. 64.
---------------------------------------------------------------------------
The contest was transmitted to the Seventy-third Congress on Jan.
16, 1934, on which date the Speaker (1) laid before the
House a letter (2) from the Clerk. The communication was
referred to the Committee on Elections No. 3 and ordered printed (not
designated as a House document).
---------------------------------------------------------------------------
1. Henry T. Rainey (Ill.).
2. 78 Cong. Rec. 760, 761, 73d Cong. 2d Sess.; H. Jour. 64.
---------------------------------------------------------------------------
At the general election held Nov. 8, 1932, contestee (Mr. Simpson)
had received 101,671 votes to 100,449 votes for contestant and to
45,067 votes for Mr. Church, a plurality of 1,222 votes for contestee.
Contestant thereafter examined the tally sheets in all of the 516
precincts comprising the 10th Congressional District, and found
discrepancies in 128 precincts which reduced contestee Simpson's
plurality to 920 votes.
Contestant requested that the committee order a recount of all
ballots cast, based on the mistakes shown to have existed in 128
precincts. The committee denied this request, finding no evidence of
irregularities, intimidation or fraud in the casting of ballots. The
committee concluded that ``contestant has failed to overcome the prima
facie case made by the election returns upon which a certificate of
election was given to the contestee.'' House Resolution 374
(3) was submitted on May 4, 1934, by Mr. Kerr with the
report, and was referred to the House Calendar. As recommended by the
committee, the resolution--
---------------------------------------------------------------------------
3. 78 Cong. Rec. 8085, 8122, 73d Cong. 2d Sess.; H. Jour. 489.
---------------------------------------------------------------------------
Resolved, That Charles H. Weber is not entitled to a seat in
the House of Representatives of the Seventy-third Congress from the
Tenth Congressional District of the State of Illinois; and further
Resolved, That James Simpson, Jr. is entitled to a seat in the
House of Representatives of the Seventy-third Congress from the
Tenth Congressional District of the State of Illinois.
The resolution was not called up during the 73d Congress.
Note: Syllabi for Weber v Simpson may be found herein at Sec. 6.13
(items transmitted by Clerk); Sec. 30.1 (Clerk's refusal to respond to
subpena); Sec. Sec. 36.1, 36.7 (official returns as presumptively
correct); Sec. 44.7 (burden of proving recount would change election
result); Sec. 42.20 (House failure to take action on reported
resolutions).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 48. Seventy-fourth Congress, 1935-36
Sec. 48.1 Lanzetta v Marcantonio
[[Page 1141]]
On June 19, 1936 (Calendar Day, June 20, 1936), Mr. Milton H. West,
of Texas, submitted the unanimous report (4) from the
Committee on Elections No. 1 in the contested election case brought by
James J. Lanzetta against Vito Marcantonio from the 20th Congressional
District of New York. The contestee, Marcantonio, had received a
majority of 246 votes from the official tabulation of votes cast in the
election held Nov. 6, 1934. Contestant had filed notice of his
intention to contest on Dec. 31, 1934, with timely answer by contestee.
More than 4,000 pages of testimony and exhibits were taken, but the
testimony of contestant was not taken until after the expiration of the
90-day period prescribed by 2 USC Sec. 203 (running from the time
contestee's answer was filed).
---------------------------------------------------------------------------
4. H. Rept. No. 3084, 80 Cong. Rec. 10615, 74th Cong. 2d Sess.; H.
Jour. 689.
---------------------------------------------------------------------------
On Jan. 6, 1936, the Speaker had laid before the House a letter
from the Clerk of the House (5) transmitting information
that the notice of contest and reply thereto had been filed with his
office and that the Clerk would forward to the Committee on Elections
the testimony adduced on behalf of contestee within the time prescribed
by law. No testimony had at that time been received on behalf of
contestant. The Speaker referred the Clerk's communication to the
Committee on Elections No. 1, and ordered it printed as a House
document. The Clerk then permitted each party 30 days to file his brief
with his office, pursuant to 2 USC Sec. 223. The Clerk did not order
printed that portion of the testimony taken after the expiration of the
time required by law and received by the Clerk after referral of his
letter. The Committee on Elections No. 1, however, having found some
justification for delay, considered all testimony, it being made
available to the committee by the Clerk pursuant to 2 USC Sec. 223.
---------------------------------------------------------------------------
5. H. Doc. No. 383, 80 Cong. Rec. 98, 74th Cong. 2d Sess.; H. Jour.
24.
---------------------------------------------------------------------------
Contestant charged the violations by contestee ``of nearly all of
the election laws including intimidation of voters, violation of the
Corrupt Practices Act, illegal and excessive expenditure of money,
failure to account for various contributions, inciting and leading
riots,'' and other infractions. However, the committee found that none
of the charges were sufficiently proven to warrant a committee
recommendation that they be sustained. The committee concluded that it
could not properly
[[Page 1142]]
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, second session.
As the result of certain irregularities on the part of contestee
and his attorneys during the taking of testimony and refusals to
testify or ignoring of subpenas by witnesses, the committee
recommended--
. . . [T]hat the present election laws be amended and some
authority empowered to require witnesses to obey process and give
their testimony.
The committee feels that by the action of the contestee's
attorneys and associates it has been denied the opportunity under
the existing law to properly inquire into the fraud and corruption
which was charged in this election.
The committee called the attention of the House to actions of
contestee's attorneys and witnesses as follows:
(1) The attorneys for each side agreed to waive the requirement
that witnesses sign testimony, and that stenographer transcripts would
be sufficient; contestee's attorneys later refused to accept the agreed
testimony (unsigned by witnesses), which necessitated further subpenas
to witnesses, some of whom refused to respond or could not be found.
(2) Contestee's law partner, the campaign fund treasurer, refused
to testify on the ground that time for taking testimony had expired,
despite substantiated charges that contestee had not reported certain
contributions.
House Resolution 560 (6) was called up by Mr. West at
the time he submitted the report from the Committee on Elections No. 1,
and was agreed to without debate and by voice vote on June 19, 1936
(Calendar Day, June 20, 1936), the final day of the second session of
the 74th Congress. House Resolution 560 provided as follows:
---------------------------------------------------------------------------
6. 80 Cong. Rec. 10615, 74th Cong. 2d Sess.; H. Jour. 690.
---------------------------------------------------------------------------
Resolved, That James J. Lanzetta is not entitled to a seat in
the House of Representatives of the Seventy-fourth Congress from
the Twentieth Congressional District of the State of New York; and
be it further
Resolved, That Vito Marcantonio is entitled to a seat in the
House of Representatives of the Seventy-fourth Congress from the
Twentieth Congressional District of the State of New York
Prior to the adoption of the above resolution, Mr. James P.
Buchanan, of Texas, had, on June 19, 1936 (Calendar Day, June 20,
1936), asked unanimous consent for the immediate consideration of House
Joint Resolution 641 (7)
[[Page 1143]]
which he introduced at that time from the floor and sent to the Clerk's
desk, and which made ``appropriations for the payment of expenses
incurred in the election contest for a seat in the House of
Representatives from the Twentieth Congressional District of the State
of New York'' as follows:
---------------------------------------------------------------------------
7. 80 Cong. Rec. 10253, 74th Cong. 2d Sess.; H. Jour. 653.
---------------------------------------------------------------------------
Resolved, etc., That the following sums, respectively, are
hereby appropriated, out of any money in the Treasury not otherwise
appropriated, for payment to the contestant and the contestee for
expenses incurred in the contested-election case of Lanzetta
against Marcantonio, Twentieth Congressional District of the State
of New York, as audited and recommended by the Committee on
Elections No. 1 of the House of Representatives, namely:
To James J. Lanzetta, contestant, $2,000.
To Vito Marcantonio, contestee, $1,739.83.
The foregoing sums to be disbursed by the Clerk of the House of
Representatives.
The joint resolution was passed without debate and by voice vote,
passed by the Senate on the same day, and approved as Public Resolution
No. 122.
Note: Syllabi for Lanzetta v Marcantonio may be found herein at
Sec. Sec. 27.7, 27.9 (extensions of time for taking testimony);
Sec. 28.1 (unsigned transcript of deposition by witness); Sec. 30.2
(noncompliance with subpena); Sec. 45.3 (payments from Treasury
authorized by joint resolution).
Sec. 48.2 McCandless v King
On May 21, 1936, Mr. Joseph A. Gavagan, of New York, submitted the
report (8) from the Committee on Elections No. 2 in a
contested election case brought by Lincoln L. McCandless against Samuel
W. King, Hawaii Territory. According to the official tabulation of
votes, contestee (Mr. King) received 31,487 votes and contestant (Mr.
McCandless) received 29,630, a majority of 1,857 for contestee.
Contestant served and filed notice of contest on Dec. 15, 1934, with
timely answer by contestee. The Clerk of the House transmitted the
original testimony, papers, and documents to the Speaker on Jan. 6,
1936,(9) on which date the contested election case was
referred to the committee. These documents accompanied the Clerk's
letter, which the Speaker laid before the House and ordered printed.
---------------------------------------------------------------------------
8. H. Rept. No. 2736, 80 Cong. Reg. 7765, 74th Cong. 2d Sess.; H.
Jour. 482.
9. H. Doc. No. 384, 80 Cong. Reg. 98, 99, 74th Cong. 2d Sess.; H.
Jour. 24.
---------------------------------------------------------------------------
The committee dismissed contestant's contentions of intimidation
and coercion of voters by contestee, having found no com
[[Page 1144]]
petent evidence of such actions on the record.
The contestee moved to dismiss the contest as not having been
timely commenced, i.e., ``notice of contest not filed within 30 days
after the result of the election (has) been determined by the officer
or board of canvassers authorized by law to determine the same,'' as
required by 2 USC Sec. 201.
On Nov. 10, 1934, the Governor of the Territory of Hawaii issued a
certificate of election to contestee; on Nov. 17, 1934, the Secretary
of the Territory canvassed the vote and made a certification thereon.
Section 85 of the Hawaiian Organic Act provided, regarding election of
a Delegate to the U.S. House of Representatives:
. . . [T]he conduct of the election shall be in conformity to
the general laws of the Territory; that the person receiving the
greatest number of votes shall be declared by the Governor duly
elected, and a certificate shall be given accordingly.
The general elections laws of the Territory of Hawaii in effect at
the time of the election provided that the secretary of the territory
declare and certify election results. For this reason, the committee
reported that the certificate issued by the Governor was without legal
effect, that the proper certification was that issued by the secretary,
that the contestant had therefore filed notice of contest (on Dec. 15,
1934) within the 30 days required by 2 USC Sec. 201, and denied the
contestee's motion to dismiss.
Contestant's third point of contention cited excessive campaign
expenditures and contestee's failure to comply with the Corrupt
Practices Act by filing with the Clerk of the House the required forms
setting forth his campaign expenditures. The committee found that
contestee had, within the 30-day period imposed by the act, written a
letter to the Clerk of the House itemizing expenditures totaling
$2,473.90 and stating that he would file the required forms upon
arrival in Washington. The committee suggested that censure of
contestee for his one-year delay in filing the forms might be in order;
but the committee did not regard such delay as a sufficient basis for
forfeiture of his seat, in the light of all the circumstances.
Contestee's incomplete knowledge of the election laws and procedures,
and the fact that the Clerk of the House had not mailed the required
forms to contestee in Hawaii, were factors considered by the committee.
The report then stated--
. . . Furthermore, when analyzed, the contestee's statement
shows no im
[[Page 1145]]
proper or excessive expenditure. Your committee believes,
therefore, that a strict interpretation of the requirements of law,
under the circumstances of this case, might result in a wrong and
injustice to the contestee and cloud a distinguished and honorable
career. Considering that the contestee's failure to comply with the
requirements of law in no way affected the rights of the
contestant, your committee recommends that the issues raised by the
contestant's third contention be dismissed.
Mr. Gavagan called up as privileged House Resolution 521
(10) on June 2, 1936, which incorporated the language
recommended in the committee report as follows:
---------------------------------------------------------------------------
10. 80 Cong. Rec. 8705, 74th Cong. 2d Sess.: H. Jour. 538.
---------------------------------------------------------------------------
Resolved, That Lincoln Loy McCandless was not elected a
Delegate from the Territory of Hawaii to the House of
Representatives at the general election held November 6, 1934; and
Resolved, That Samuel Wilder King was elected a Delegate from
the Territory of Hawaii to the House of Representatives at the
general election held on November 6, 1934, and is entitled to his
seat.
The previous question was ordered without debate, and the
resolution was agreed to by voice vote.
Note: Syllabi for McCandless v King may be found herein at
Sec. Sec. 10.2, 10.5 (Corrupt Practices Act); Sec. 20.4 (notice of
contest filed late).
Sec. 48.3 Miller v Cooper
On Mar. 5, 1936, Mr. John H. Kerr, of North Carolina, submitted the
unanimous committee report 11 in the contested election case
brought by Locke Miller against John G. Cooper, 19th Congressional
District of Ohio.
---------------------------------------------------------------------------
11. H. Rept. No. 2131, 80 Cong. Rec. 3337, 74th Cong. 2d Sess.; H.
Jour. 215.
---------------------------------------------------------------------------
According to the official tabulation of votes as certified by the
Governor of Ohio, contestant had received 52,023 votes (27,335 of those
votes having come from Mahoning County, one of three counties in the
congressional district); whereas contestee had received a total of
56,200 votes (29,512 from Mahoning County); thus leaving a plurality of
4,177 votes for contestee in the district. Contestant filed timely
notice of contest, with proper answer by contestee.
On Jan. 6, 1936, the Speaker laid before the House a letter from
the Clerk of the House (l2) transmitting the information
that notice of contest and reply thereto had been filed with his
office, and transmitting therewith ``original testimony, papers, and
documents relating thereto.'' The Speaker referred the Clerk's letter
to the Committee on Elections No. 3 on
---------------------------------------------------------------------------
12. H. Doc. No. 385, 80 Cong. Rec. 99.
---------------------------------------------------------------------------
[[Page 1146]]
Jan. 6, 1936, and ordered the letter printed as a House document.
Contestant alleged that certain irregularities and frauds had
occurred in Mahoning County, but not in the other two counties of the
district. The committee, after considering all referred testimony and
hearing arguments of counsel, found--
. . . [S]ome irregularities, from the evidence, in respect to
the destruction of the ballots, tabulations of the votes cast, and
the method of conducting the election in Mahoning County, still,
there was no evidence whatsoever connecting the contestee with
these acts. And even if the committee should disregard entirely the
election in Mahoning County and cast these ballots out, still it
would not affect enough votes to change the result of this
election; for the reason that in the other two counties in which
the voting was not impeached, the contestee received a majority of
2,000 votes (though the unimpeached votes were not a majority of
all votes cast in the district).
The committee recommended the adoption of the following resolution:
Resolved, That Locke Miller is not entitled to a seat in the
House of Representatives of the Seventy-fourth Congress from the
Nineteenth District of the State of Ohio.
Resolved, That John G. Cooper is entitled to a seat in the
House of Representatives of the Seventy-fourth Congress from the
Nineteenth District of the State of Ohio.
On Mar. 13, 1936, Mr. Kerr called up as privileged House Resolution
438 (13) which embodied the language recommended by the
committee in its report. The previous question was immediately ordered
without debate, and House Resolution 438 thereupon agreed to by voice
vote. Mr. Cooper was thereby held entitled to his seat.
---------------------------------------------------------------------------
13. 80 Cong. Rec. 3740, 74th Cong. 2d Sess.; H. Jour. 236.
---------------------------------------------------------------------------
Note: Syllabi for Miller v Cooper may be found herein at Sec. 12.2
(balloting irregularities); Sec. 39.5 (significance of number of
disputed ballots).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 49. Seventy-fifth Congress, 1937-38
Sec. 49.1 Roy v Jenks
In the contested election case of Roy v Jenks in the First
Congressional District of New Hampshire the Clerk of the House
transmitted the testimony, papers, and documents to the Speaker on July
21, 1937,(14) on which date the contested election was
referred to the committee. These documents accompanied the Clerk's
letter, which the Speaker laid before the House and ordered printed.
---------------------------------------------------------------------------
14. H. Doc. No. 305, 81 Cong. Rec. 7339, 7352, 75th Cong. 1st Sess.; H.
Jour. 756.
---------------------------------------------------------------------------
Mr. John H. Kerr, of North Carolina, submitted the privileged
[[Page 1147]]
report (H. Rept. No. 1521) (15) from the Committee on
Elections No. 3 on Aug. 13, 1937, which was referred to the House
Calendar and ordered printed.
---------------------------------------------------------------------------
15. 81 Cong. Rec. 8842, 8878, 75th Cong. 1st Sess.; H. Jour. 859, 862.
---------------------------------------------------------------------------
Mr. Charles W. Tobey, of New Hampshire, subsequently made a point
of order against acceptance of the report by the House, in that it
violated Sec. 47 of Rule XI, which required the several elections
committees of the House to make final reports to the House in all
contested election cases not later than six months from the first day
of the first regular session of the Congress to which the contestee was
elected. (The six-month reporting requirement was changed in the 92d
Congress to a direction to report ``at such time as the committee
considers practicable in that Congress to which contestee was
elected.'' Rule XI clause 25, House Rules and Manual Sec. 733 [1971].
This requirement was omitted from the rules in the 94th Congress.)
Mr. Gerald J. Boileau, of Wisconsin, concurred with Mr. Tobey,
contending, that after the six months' period expired, the Committee on
Elections lost its privilege of calling up such resolution. Mr. Arthur
H. Greenwood, of Indiana, replied that the Constitution and the House
rules give the House the power to decide the question of its own
membership, which power would be denied should the rule be construed as
mandatory. Mr. John J. O'Connor, of New York, pointed out that an
elections committee which for any reason failed to report within six
months could successfully deprive the House of the opportunity to
decide the elections of its Members, were the rule to be construed as
mandatory. Mr. Kerr argued that the federal statutes governing
contested election cases give each party much longer than six months to
gather evidence and present it to the House.
The Speaker,(16) in overruling the point of order,
stated: (17)
---------------------------------------------------------------------------
16. William B. Bankhead (Ala.).
17. 81 Cong. Rec: 8845, 8846, 75th Cong. 1st Sess.
---------------------------------------------------------------------------
The Chair thinks it proper in the construction of this issue
not only to take into consideration the verbiage of this rule but
also a provision of the Constitution of the United States which has
been cited in this argument. Section 5 of article I of the
Constitution, in part, provides that each House shall be the judge
of the elections, returns, and qualifications of its own Members.
The Chair is of the opinion that although the terms of the rule
are in the language read by the Chair and as argued by the
gentleman from New Hampshire, yet, nevertheless, the
[[Page 1148]]
Chair must look at all the facts in the case in order to reach a
decision as to what was the fair intention of the House of
Representatives in the adoption of this rule. The Chair refers
briefly to the various steps that are authorized under the statute
in order to give the contestant and the contestee an opportunity to
take evidence, to give proper notice one to the other of the
procedures of the case, and to present it finally for the
determination of the House of Representatives. The Chair finds on
examination that under [former] sections 201, 202, 203, and 223
[now Sec. Sec. 382, 383, 386, 391(a), and 393] of title II, United
States Code, the contestee and the contestant are allowed no more
than 6 months in which to present the evidence in the case to the
House for its consideration. So that if they used, as they
apparently did in this case, the time that was allowed to them by
the statute . . . it would have been physically impossible as a
matter of time, for the House to have had the case presented to it
at all for its consideration. In this case, according to the letter
filed by the Clerk of the House with the Speaker, which may be
found in House Document 305, Seventy-fifth Congress, the issue was
filed on July 21, 1937, and immediately referred to the Committee
on Elections No. 3, and it appears to the Chair that the Committee
on Elections has not been dilatory in this matter, but, upon the
contrary, has exercised great diligence and dispatch in reaching
its conclusion with reference to the issues involved. So that the
Chair is under the impression that a fair construction of this
rule, taken in connection with the constitutional rights of the
contestant and the contestee, taken in connection with the fact
that both parties to the issue were entitled to use more than 6
months in the preparation of their case, and, taking into
consideration the fact that these issues were only presented to the
committee on July 21, that a fair construction of the rule under
all of the circumstances in this case would indicate that the
provisions of this rule properly construed are not strictly
mandatory, but directory. Otherwise, the Chair is of opinion that
the contestant, or even the contestee, might be deprived not only
of his constitutional privilege but under the terms of the statute
in such case made and provided it would be made impossible for the
issue to be properly presented to the House of Representatives for
its determination.
There is one other matter that the Chair feels justified in
taking into consideration in an interpretation of the rule under
discussion.
It will be remembered that the rule in question was adopted in
1924, at which time Congress ordinarily did not assemble until more
than 1 year had expired after the election of Members, and under
that situation the 6-month rule would be within the realm of reason
and give a fair opportunity to both parties to the contest to
comply with its provisions and the provisions of the statutory law.
Since its adoption, however, the so-called ``lame duck'' amendment
to the Constitution has been ratified, under the provisions of
which the Congress meets in regular session within 2 months after
the Members are elected. The Chair is of the opinion that if this
status had existed at the time the rule was adopted, that its harsh
and impossible terms would never have been agreed to as a perma
[[Page 1149]]
nent rule of the House of Representatives.
The contestee and the contestant having each more than 6 months
under the statutes to present their case, the Chair is of opinion
that under all of the circumstances the fair and reasonable and
just interpretation of this rule justifies him in overruling the
point of order, and the Chair does overrule the point of order.
Mr. Bertrand H. Snell, of New York, appealed from the decision of
the Chair, whereupon Mr. Sam Rayburn, of Texas, moved to lay the appeal
on the table, which motion was agreed to by a roll call vote of 286
yeas to 69 nays.
On Aug. 19, 1937, Mr. Kerr called up as privileged House Resolution
309,(18) which provided:
---------------------------------------------------------------------------
18. 81 Cong. Rec. 9356, 75th Cong. 1st Sess.; H. Jour. 893.
---------------------------------------------------------------------------
Resolved, That Arthur B. Jenks is not entitled to a seat in the
House of Representatives in the Seventy-fifth Congress from the
First Congressional District of the State of New Hampshire.
Resolved, That Alphonse Roy is entitled to a seat in the House
of Representatives in the Seventy-fifth Congress from the First
Congressional District of the State of New Hampshire.
House Report No. 1521 accompanied House Resolution 309. The views of
the majority as presented in this report were repeated verbatim in the
final committee report (H. Rept. No. 2255). Mr. Kerr obtained unanimous
consent that general debate be extended for two and one-half hours, to
be equally divided and controlled by himself and Mr. Charles L.
Gifford, of Massachusetts, who had submitted the minority views which
accompanied the committee report. Under Mr. Kerr's request, the
previous question was to be considered as ordered at the conclusion of
the general debate. At the conclusion of such debate, Mr. James M.
Wilcox, of Florida, offered the following motion (19) to
recommit House Resolution 309 to the Committee on Elections No. 3 with
instructions:
---------------------------------------------------------------------------
19. 81 Cong. Rec. 9374, 75th Cong. 1st Sess.; H. Jour. 893.
---------------------------------------------------------------------------
. . . [T]hat this resolution be recommitted to the committee;
that the committee be and hereby is authorized, empowered, and
directed to take or cause to be taken the testimony of the 458
Newton residents shown by the town election records to have voted
there in person on November 3, 1936, and such further testimony as
the committee may consider relevant to better enable it to
determine the issue raised by this case; and that the committee be
authorized to expend such sums in its investigation as it may deem
necessary, and report its findings and recommendations to this
House at the next session of Congress.
The motion to recommit was agreed to by a roll call vote of 231 to
129.
[[Page 1150]]
On Aug. 20, 1937, Mr. William B. Cravens, of Arkansas, asked
unanimous consent for the immediate consideration by the House of House
Resolution 329: (20)
---------------------------------------------------------------------------
20. 81 Cong. Rec. 9501, 75th Cong. 1st Sess.; H. Jour. 914.
---------------------------------------------------------------------------
Resolved, That the expenses of conducting the investigation
authorized by the House in the contested-election case of ROY
versus Jenks, incurred by the Committee on Elections No. 3, acting
as a whole or by subcommittee, not to exceed $5,000, including the
expenditures for the employment of experts, clerical, stenographic,
and other assistants, shall be paid out of the contingent fund of
the House on vouchers authorized by such committee or by any
subcommittee thereof, conducting such investigation or any part
thereof, signed by the chairman of the committee and approved by
the Committee on Accounts.
Sec. 2. Provided, That the committee shall during hearings in
the District of Columbia use the committee stenographers of the
House.
Mr. Lindsay C. Warren, of North Carolina, reserving the right to
object, stated that this resolution should properly come from the
Committee on Accounts. But, observing that the amount was reasonable
and that the resolution was for the purpose of carrying out the mandate
of the House to conduct an additional investigation, he withdrew his
objection. Whereupon, the resolution was agreed to by voice vote and
without further debate.
On Aug. 21, 1937, the final day of the first session of the 75th
Congress, Mr. John C. Nichols, of Oklahoma, asked unanimous consent for
the immediate consideration of House Resolution 339,(1)
which stated as follows:
---------------------------------------------------------------------------
1. 81 Cong. Rec. 9627, 75th Cong. 1st Sess.; H. Jour. 932.
---------------------------------------------------------------------------
Resolved, That the Committee on Elections No. 3, as a whole or
by subcommittee, is authorized, pursuant to order of the House,
August 18, 1937, to sit and act during the recesses of the Seventy-
fifth Congress, in the District of Columbia or elsewhere, and to
hold such hearings as the committee may determine in connection
with the contested-election case of Roy v. Jenks. For the purpose
of this resolution, the committee may require the attendance of
such witnesses and the production of such books, papers, and
documents, by subpena or otherwise, and to take such testimony as
it deems necessary. Subpenas shall be issued under the signature of
the Speaker of the House of Representatives or the chairman of said
committee, and shall be served by any person designated by them or
either of them. The chairman of the committee or any member thereof
may administer oaths to witnesses. Every person who, having been
summoned as a witness by authority of said committee or any
subcommittee thereof, willfully makes default, or who, having
appeared, refuses to answer any questions pertinent to the matter
herein authorized, shall be held to the pen
[[Page 1151]]
alties provided by sections 102, 103, and 104 of the Revised
Statutes of the United States, as amended (U.S.C., title 2, secs.
---------------------------------------------------------------------------
192, 193, and 194.)
Mr. Nichols then advised that the purpose of this resolution was to
modify the authority embodied in the motion to recommit, adopted
previously, so as to permit either the whole committee or a
subcommittee thereof, to conduct the investigation in Newton, New
Hampshire. This resolution further provided for administration of oaths
and issuance of subpenas. The resolution was thereupon agreed to.
On Apr. 28, 1938, Mr. Kerr submitted the majority report from the
Committee on Elections No. 3.(2) In that report the majority
of the committee stated that they had found no evidence as a result of
the investigation in Newton, New Hampshire, which changed their opinion
(incorporated in H. Rept. No. 1521 which accompanied H. Res. 309).
House Report No. 2255 and House Resolution 482 which it accompanied
were based on three findings of fact by the majority: first, the
original official returns from the Nov. 3, 1936, election having given
Mr. Roy 51,370 votes and Mr. Jenks 51,920 votes, Mr. Roy on Nov. 9
applied to the secretary of state of New Hampshire for a recount,
pursuant to state law making it mandatory upon that official to conduct
a recount upon request of either candidate. At the recount Nov. 24, at
which both parties were represented, discrepancies were found in 114 of
129 voting precincts, resulting in a net loss of 241 votes to Mr. Jenks
and in a net gain of 309 to Mr. Roy, and thus a tie vote of 51,690
votes to each candidate.
---------------------------------------------------------------------------
2. H. Rept. No. 2255, 83 Cong. Rec. 5957, 5960, 75th Cong. 3d Sess.;
H. Jour. 422.
---------------------------------------------------------------------------
Second, upon declaration of the tie vote, both candidates
immediately appealed to the ballot-law commission for final
determination. At the hearing of Dec. 2 and 3, both parties stipulated
that they would only contest 108 ballots at the recount of the
secretary of state, and thus the commission accepted the recount of all
other ballots. The commission found that Mr. Roy had received 51,695
votes and Mr. Jenks 51,678 votes, giving Mr. Roy a majority of 17
votes. Thereupon Mr. Roy requested a certificate of election from the
secretary of state, and Mr. Jenks notified the Governor and state
council that he had obtained proof of a 34- or 36-vote discrepancy, in
his favor in the town of Newton, New Hampshire, and requested that,
pending in
[[Page 1152]]
vestigation, the election certificate be withheld. Mr. Jenks had not
cited this discrepancy at the first recount or hearing, but it was
considered by the committee as one of the discrepancies found in 114 of
the 129 precincts upon the first recount.
Third, the state ballot-law commission granted Mr. Jenk's petition
for a rehearing on Dec. 16-18, 1936, to examine the discrepancies
between the election officers return and the recount of ballots in the
Newton precinct. Without deciding the matter, the commission on Dec. 19
ordered a recount of the total vote, and found, pursuant thereto, that
Mr. Roy had gained 7 votes, increasing his majority to 24 votes. Then,
for the first time, the commission held that there were 34 votes
missing in the Newton precinct box, all of which had been cast for Mr.
Jenks, thereby making him the winner by 10 votes. The secretary of
state thereupon issued an election certificate to Mr. Jenks. The
majority declared that the issue to be decided was whether the tally
sheets and check lists of the Newton precinct were to be considered the
best evidence as to the number of votes cast, or whether the ballots
themselves, which the committee, upon extensive testimony of the town
officials responsible for preserving the ballots, had found to be
preserved according to law without a ``scintilla'' of direct evidence
to the contrary, were to be considered the best evidence. The committee
placed the burden of proof upon the contestee Mr. Jenks to establish
that ``there were 34 votes cast for him in the Newton precinct ballot
box, which were not given to him in either recount, and that these
ballots by fraud or mistake were removed from this ballot box at some
time before a recount of same by the Secretary of State.''
Following a recitation in the report of testimony of each of the
officials responsible for safeguarding the ballots in question, the
committee ``declined to accept the tally sheets and the check lists as
the best evidence as to how many votes were cast for the contestant and
the contestee in Newton precinct.''
The committee report stated, at page 8, as follows:
. . . This official return was only prima facie evidence of its
correctness. This has been overcome by a mandatory recount of the
Newton ballots together with all other ballots cast for Congress,
which recounts disclosed that the contention of the contestee
(Jenks) that he received 34 votes in Newton was not correct since
the ballots cast . . . were preserved as required by law and their
integrity unimpeached.
[[Page 1153]]
The committee accepted the recount of the Newton ballots as the
best evidence of the number of votes cast, decided that Mr. Jenks was
entitled to four votes from a recount of 61 other ballots, and declared
Mr. Roy elected by a majority of 20 votes.
Mr. Charles L. Gifford, of Massachusetts, submitted the minority
report (H. Rept. No. 2255, part 2) on May 5, 1938, the minority of the
elections committee having been granted, by unanimous consent on Apr.
28, one week to file minority views. The minority declared the crucial
issue to be the number of ballots cast in Newton, and found the number
to be 458, the original number as shown by the official town returns
and as substantiated by the additional investigation conducted by the
committee as ordered by the House. They sought to substantiate this
number: (1) by evidence that 720 ballots were originally sent to Newton
as required by statute, but only 686 used and unused ballots were found
after the recount, a loss of 34 ballots; (2) by testimony of bipartisan
town election officials that 458 voters had entered the polls and been
checked on the tally sheets, and their ballots had been counted and
recorded on check lists; and (3) by the official recount record, which
showed a constant discrepancy between the ballot box and poll lists of
34 votes, and showed that each Republican candidate had lost 34 votes
by the recount, while no Democrat had lost a single vote.
The minority claimed that the ballot box, alleged to be the best
evidence, had been successfully impeached during the committee
investigation in Newton, where 436 voters had appeared before the
committee. The minority report relied on the sworn testimony of the
voters themselves and of other witnesses, including testimony to the
effect that the ballots in question had not been kept in safe custody
before the recount, and that the ballots had been left unguarded during
the recount.
The minority therefore considered that it had been conclusively
established that 458 voters did in fact enter the polls on election day
and cast ballots. ``Since only 424 of these ballots have ever been
found since the official returns in Newton were compiled--a loss of 34
used ballots--no recount of the 424 ballots can either legally or on a
basis of morality or justice be used to impeach or change the original
returns on the basis of which Mr. Jenks, the contestee, is clearly
entitled to his seat in this Congress.'' Joining Mr. Gifford in the
minority report were Mr.
[[Page 1154]]
James W. Wadsworth, of New York, and Mr. Charles A. Wolverton, of New
Jersey.
House Resolution 482 was called up as privileged (3) on
June 9, 1938, and general debate thereon limited to three hours,
equally divided between Mr. Kerr and Mr. Gifford by unanimous consent.
During the course of the debate, Mr. John J. Nichols, of Oklahoma,
called the attention of the House to the presence of the contestant,
Mr. Roy, in the gallery, and was ruled out of order by the Speaker pro
tempore. Mr. Jenks, the seated contestee, took the floor, though he
``had not intended to,'' to plead that the House take ``the sworn
testimony of 458 people in the State of New Hampshire.'' (4)
The three hours of debate were consumed and the previous question
ordered pursuant to the unanimous consent request.
---------------------------------------------------------------------------
3. 83 Cong. Rec. 8642, 75th Cong. 3d Sess.; H. Jour. 641.
4. 83 Cong. Rec. 8650, 75th Cong. 3d Sess.
---------------------------------------------------------------------------
Mr. Snell demanded a division of the two propositions in the
resolution. The yeas and nays were ordered, and on the first resolve
clause the House voted that Mr. Jenks was not entitled to a seat, 214
yeas to 122 nays. On the second resolve clause, the House voted 227 to
109 that Mr. Roy was entitled to a seat in the House of Representatives
in the 75th Congress from the First Congressional District of New
Hampshire.
Note: Syllabi for Roy v Jenks may be found herein at Sec. 36.9
(correctness of talley sheets); Sec. 37.2 (ballots as best evidence);
Sec. 40.3 (burden of showing fraud, irregularity or mistake); Sec. 41.2
(recounts permitted by state law); Sec. 42.6 (participation of parties
and debate on resolution disposing of contests); Sec. 42.9 (extension
of time for debate on resolution disposing of contests); Sec. 42.14
(demand for division on resolution disposing of contests); Sec. 42.15
(resolutions admitting neither candidate to a seat); Sec. Sec. 43.5,
43.6 (timeliness of committee report); Sec. 43.7 (minority reports);
Sec. 45.2 (payments from contingent fund).
Sec. 49.2 Rutherford v Taylor
On June 30, 1937, the Clerk of the House transmitted to the Speaker
a letter (5) concerning the contested election of J. Will
Taylor, Second Congressional District of Tennessee, in the 75th
Congress. The letter recited that on Dec. 4, 1936, Calvin Rutherford
had served notice on Mr. Taylor, the returned Member, of his pur
[[Page 1155]]
pose to contest the election of said Mr. Taylor, and that Mr. Taylor
did, on Dec. 21, 1936, answer the notice of contest served upon him.
The letter further recited that contestant had begun taking testimony
on Jan. 27, 1937, again on Jan. 29, and finally on Apr. 27, 1937, but
that no further testimony had been adduced, despite contestee's
requests that contestant complete his case within the 90 days permitted
by 2 USC Sec. 203. Contestee claimed that he was entitled to
reimbursement for legal expenses as permitted by 2 USC Sec. 226.
---------------------------------------------------------------------------
5. H. Doc. No. 282, 81 Cong. Rec. 6630, 6643, 75th Cong. 1st Sess.; H.
Jour. 675, 682.
---------------------------------------------------------------------------
Contestant claimed in his notice of contest (1) that certain
election boards had willfully refused to place his name on official
ballots; (2) that contestee had procured such conduct by the election
officials; and (3) that contestee had, during the primary election of
Aug. 6, 1936, purchased tax receipts of voters in order to influence
their vote in November. Contestee's demurrer and answer specifically
denied each allegation of the notice of contest and further
demonstrated that, even where contestant's claim that his name had been
left off ballots in four counties substantiated, and had contestant
received all the votes in those counties, contestee would nevertheless
have won the election by a majority of 11,566. The final total showed
that contestee had received 40,527 votes; his opponent, Mr. O'Conner,
39,080 votes, and Mr. Rutherford, 220 votes.
The Clerk's letter, which contained copies of the notice and
answer, as well as transcripts of all testimony, advised that the
contest had abated. This letter was referred by the Speaker to the
Committee on Elections No. 1 on June 30, 1937, and ordered printed with
accompanying papers as a House document (H. Doc. No. 282).
Note: Syllabi for Rutherford v Taylor may be found herein at
Sec. 43.11 (effect of contestant's withdrawal or abandonment of
contest); Sec. 45.6 (reimbursement request where contest has abated).
Sec. 49.3 Williams v Maas
On Mar. 30, 1937, the Clerk of the House wrote a letter
(6) to the Speaker concerning the contested election case
brought by Howard Y. Williams against Melvin J. Maas in the Fourth
Congressional District of Minnesota. The letter stated that during the
time allowed by law for the taking of testimony, the Clerk had received
a
[[Page 1156]]
statement from the contestant, Mr. Williams, dated Feb. 27, 1937,
withdrawing the contest and asking that it be dismissed. The notice of
withdrawal was referred to the Committee on Elections No. 1 on Mar. 30,
1937, and ordered printed by the Speaker as part of the Clerk's letter.
---------------------------------------------------------------------------
6. H. Doc. No. 182, 81 Cong. Rec. 2901, 75th Cong. 1st Sess.; H. Jour.
341.
---------------------------------------------------------------------------
There is no record that the House took further action in this
contest, or that the Committee on Elections No. 1 reported thereon.
Note: Syllabi for Williams v Maas may be found herein at Sec. 33.4
(manner of withdrawal from contests).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 50. Seventy-sixth Congress, 1939-40
Sec. 50.1 Neal v Kefauver
On Mar. 1, 1940, the Clerk of the House transmitted to the Speaker
a communication (7) explaining that his office had
unofficial knowledge of a contested election having been initiated as a
result of the special election held Sept. 13, 1939, to fill the vacancy
in the Third Congressional District of Tennessee. On Oct. 19, 1939,
John R. Neal had served notice on the returned Member of his purpose to
contest the election of Estes Kefauver (returned Member). Mr. Kefauver
sent a communication to the Clerk on Feb. 23, 1940, asking that the
contest be dismissed and setting forth the reasons therefor. The
Clerk's communication related that no testimony in behalf of either
party had been filed with his office, and that the time prescribed by
the law governing contested election cases for submitting such
testimony had expired.
---------------------------------------------------------------------------
7. H. Doc. No. 645, 85 Cong. Rec. 2202, 76th Cong. 2d Sess.; H. Jour.
207.
---------------------------------------------------------------------------
The communication from the Clerk and Mr. Kefauver's motion to
dismiss the contest, contained therein, were received by the Speaker
and laid before the House on Mar. 1, 1940, and referred on that date to
the Committee on Elections No. 1, and ordered printed as a House
document.
Mr. Charles J. Bell, of Missouri, submitted the unanimous report
(8) from the Committee on Elections No. 1 to accompany House
Resolution 534,(9) which--
---------------------------------------------------------------------------
8. H. Rept. No. 2609, 85 Cong. Rec. 8535, 8563, 76th Cong. 2d Sess.;
H. Jour. 684.
9. H. Jour. 684.
---------------------------------------------------------------------------
Resolved, That John R. Neal is not entitled to a seat in the
House of Representatives of the Seventy-sixth Congress from the
Third Congressional District of Tennessee.
Resolved, That Estes Kefauver is entitled to a seat in the
House of Rep
[[Page 1157]]
resentatives of the Seventy-sixth Congress from the Third
Congressional District of the State of Tennessee.
The report stated that the committee had dismissed the contest and
noted that:
[T]he contestant had failed to take the evidence, as he was
required to do by law; and there was no evidence before the
committee of the matters charged in his notice of contest, and no
briefs filed, as provided by law. The contestant was notified to
appear in person but did not do so. For these laches the committee
dismissed the contest and recommended the adoption of House
Resolution 534.
House Resolution 534 was referred to the House Calendar on June
18,1940, the same day that the above report (H. Rept. No. 2609) was
submitted. The House did not take any action on the resolution during
the 76th Congress.
Note: Syllabi for Neal v Kefauver may be found herein at Sec. 5.5
(committee power to dismiss contest); Sec. 16.1 (laches); Sec. 25.3
(failure to produce evidence); Sec. 42.19 (failure to take action on
reported resolutions).
Sec. 50.2 Scott v Eaton
On Mar. 14, 1940, Mr. Joseph A. Gavagan, of New York, submitted the
unanimous report (10) of the Committee on Elections No. 2 in
the contested election case brought by Byron N. Scott against Thomas M.
Eaton in the 18th Congressional District of California. On Jan. 3,
1940, the first day of the third session of the 76th Congress, the
Clerk of the House transmitted to the Speaker the papers and original
testimony to accompany his letter,(11) which were laid
before the House and referred by the Speaker on that day to the
Committee on Elections No. 2, and the Clerk's letter ordered printed as
a House document. The official tabulation of votes showed that
contestee Eaton had received 52,216 votes to 51,874 votes for
contestant, a majority of 342 votes. Contestant filed notice of contest
on Dec. 24, 1938 (contesting the Nov. 8, 1938, election), with timely
answer by contestee.
---------------------------------------------------------------------------
10. H. Rept. No. 1783, 86 Cong. Rec. 2915, 2916, 76th Cong. 3d Sess.;
H. Jour. 246.
11. H. Doc. No. 539, 86 Cong. Rec. 6, 76th Cong. 3d Sess.; H. Jour. 51.
---------------------------------------------------------------------------
The committee considered only three issues raised by the pleadings:
(1) Whether contestee violated the California Corrupt Practices
Act;
(2) Whether contestee violated the Federal Corrupt Practices Act;
(3) Whether any such violation directly or indirectly prevented
contestant from receiving a majority of the votes cast.
[[Page 1158]]
Without specifically setting forth the evidence and testimony as to
any of the above issues, the committee reported that contestant had not
sustained his burden of proof, which was to establish by ``a fair
preponderance of evidence the issues raised by the pleadings.''
The committee report recommended adoption of House Resolution
427,(12) which was called up as privileged by Mr. Gavagan
and agreed to by voice vote and without debate on Mar. 29, 1940. The
resolution--
---------------------------------------------------------------------------
12. 86 Cong. Rec. 3696, 76th Cong. 3d Sess., H. Jour. 290.
---------------------------------------------------------------------------
Resolved, That Byron N. Scott was not elected a Member from the
Eighteenth Congressional District of the State of California to the
House of Representatives at the general election held November 8,
1938; and
Resolved, That Thomas M. Eaton was elected a Member from the
Eighteenth Congressional District of the State of California to the
House of Representatives at the general election held on November
8, 1938.
Note: Syllabi for Scott v Eaton may be found herein at Sec. 35.2
(standard of ``fair preponderance of evidence'').
Sec. 50.3 Smith v Polk
On Mar. 15, 1939, the Speaker laid before the House a communication
(13) from the Clerk of the House informing the House that he
had, on Mar. 4, 1939, received a letter from the contestant, Emory F.
Smith, withdrawing the contest which he had instituted under the
contested election statutes against the seated Member from the Sixth
Congressional District of Ohio, James G. Polk. Contestant's letter
asked that the contest be dismissed by the House. The communication,
together with the accompanying papers, was referred to the Committee on
Elections No. 3, and ordered printed as a House document.
---------------------------------------------------------------------------
13. H. Doc. No. 207, 84 Cong. Rec. 2761, 2762, 76th Cong. 1st Sess.; H.
Jour. 341.
---------------------------------------------------------------------------
Contestant's letter to the Clerk related that contestee had been
certified as elected by 799 votes, but that contestant had filed a
petition in the Supreme Court of Ohio under sections 4785-166 to 4785-
174 of the General Code of Ohio alleging that he had received the
greater number of valid votes in the whole district (fraudulent votes
having been cast for contestee in a certain county), and asking the
court to cancel the certificate of election of contestee and to issue a
certificate to him. Contestee's demurrer to this petition was sustained
upon the grounds that the provisions of the Ohio code under which the
petition had been filed were invalid as in contravention of article I,
section 5 of the Constitution of the
[[Page 1159]]
United States which prescribed that ``Each House shall be the Judge of
the Elections, Returns and Qualifications of its own Members.''
Contestant claimed that depositions in support of his contentions were
not filed with the House for the reason that he was awaiting the
decision of the Ohio Supreme Court on the demurrer, which decision was
made on Feb. 8, 1939. After that date, contestant decided that he would
withdraw and dismiss his notice of contest due to the expense of
obtaining evidence and to the difficulty in obtaining a favorable
determination from an elections committee, the majority of which
represented members from another political party.
On Apr. 10, 1939, Mr. Albert Thomas, of Texas, submitted the
unanimous report (14) from the Committee on Elections No. 3
which recited that fact that contestant had withdrawn the contest and
which recommended the following resolution:
---------------------------------------------------------------------------
14. H. Rept. No. 392, 84 Cong. Rec. 4040, 76th Cong. 1st Sess.; H.
Jour. 437.
---------------------------------------------------------------------------
Resolved, That the Honorable James G. Polk was duly elected as
Representative from the Sixth Congressional District of the State
of Ohio to the Seventy-sixth Congress and is entitled to his seat.
On the same day, Mr. Thomas called up House Resolution 156
(15) which incorporated the language recommended in the
report. The resolution was agreed to by the House without debate and by
voice vote. Contestee was thereby held entitled to his seat.
---------------------------------------------------------------------------
15. Id.
---------------------------------------------------------------------------
Note: Syllabi for Smith v Polk may be found herein at
Sec. Sec. 33.5, 33.6 (manner of withdrawal from contests); Sec. 43.10
(effect of contestant's withdrawal or abandonment of contest).
Sec. 50.4 Swanson v Harrington
On Mar. 11, 1940, Mr. Albert Thomas, of Texas, submitted the report
(16) of the Committee on Elections No. 3 in the contested
election case of Albert F. Swanson against Vincent F. Harrington in the
Ninth Congressional District of Iowa. The Clerk of the House had, on
Jan. 3, 1940, the opening day of the third session, transmitted to the
Speaker pro tempore the papers, documents, and testimony, which were
referred to the Committee on Elections No. 3 on that day by the
Speaker, with the Clerk's letter.(17)
---------------------------------------------------------------------------
16. H. Rept. No. 1722, 86 Cong. Rec. 2689, 76th Cong. 3d Sess.; H.
Jour. 233.
17. H. Doc. No. 540, 86 Cong. Rec. 6, 76th Cong. 3d Sess.; H. Jour. 51.
---------------------------------------------------------------------------
The official tabulation of returns as certified by the state
canvassing board showed that the
[[Page 1160]]
contestee, Mr. Harrington, had received 46,705 votes and that
contestant, Mr. Swanson, had received 46,366 votes, resulting in a
majority of 339 votes for Mr. Harrington.
Contestant served notice of contest on Dec. 24, 1938, alleging, in
52 counts, misconduct, fraud, and illegality. Contestee's answer of
Jan. 23, 1939, was in the form of a 52-count general denial.
Contestant's first claim, that 70 of the 528 votes cast in a
certain precinct were illegal as they were cast by Works Progress
Administration workers only temporarily in the district, was upheld;
the committee ruled, however, that such votes if disregarded would not
affect the outcome of the election in the whole district.
Contestant also claimed that the House should require a recount of
the total vote, citing an informal recount he had taken in connection
with a state recount for a local sheriff's office which allegedly
indicated that contestant would be shown to have a plurality of five
votes. The committee found that contestant had not exhausted his remedy
of obtaining a recount through the state courts, as permitted by the
Iowa code, prior to appealing to the committee to itself order a
recount. The committee rejected contestant's argument that he had been
precluded from invoking state court aid as the state courts had not
construed the relevant state election contest laws as they applied to
House seats. Contestant, the committee reasoned, should not be
permitted to substitute his own construction of state law for that of
the state courts. The committee found that contestant had not exhausted
state court remedies while acknowledging, at the same time, the power
of the House committee to order a recount in its discretion without
reference to state proceedings.
In relation to contestant's second claim, the committee determined
the central issue to be whether the contestant could show, by a
preponderance of the evidence, that an application for a recount was
justified due to fraud or irregularity. The committee cited several
precedents to establish that an application for a recount must be
founded upon proof sufficient to raise at least a presumption of
irregularity or fraud, and that a recount will not be ordered upon the
mere suggestion of possible error.
The committee report considered the fundamental issue to be
decided:
. . . [W]hether or not contestant has borne the burden of
showing that, due
[[Page 1161]]
to fraud and irregularity, the result of the election was contrary
to the clearly defined wish of the constituency involved. The
committee is of the opinion that contestant has failed to carry
this burden.
The report cited Bailey v Walters (6 Cannon's Precedents Sec. 166)
in affirmation of the proposition that ``the House will not erect
itself nor will it erect its committees as mere boards of recount.''
The committee found that contestant had not shown fraud or
irregularity sufficient to compel a recount. The committee considered
and rejected the informal recount taken by contestant in Woodbury
County in connection with an official local election recount taken
thereby which the candidates of the opposing political party had
increased, rather than decreased, their vote totals.
Mr. Thomas called up House Resolution 419 (18) as
privileged on Mar. 11, 1940, the same day the committee submitted its
report. Without debate and by voice vote, the House agreed to the
resolution recommended in the committee report that--
---------------------------------------------------------------------------
18. 86 Cong. Rec. 2662, 76th Cong. 3d Sess.; H. Jour. 230.
---------------------------------------------------------------------------
Resolved, That Albert F. Swanson is not entitled to a seat in
the House of Representatives in the Seventy-sixth Congress from the
Ninth Congressional District of Iowa.
Resolved, That Vincent F. Harrington is entitled to a seat in
the House of Representatives in the Seventy-sixth Congress from the
Ninth Congressional District of Iowa.
Note: Syllabi for Swanson v Harrington may be found herein at
Sec. 12.3 (balloting irregularities); Sec. 13.4 (failure to exhaust
state remedy); Sec. 40.1 (justification for recount of ballots);
Sec. 41.1 (exhaustion of state remedies).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 51. Seventy-seventh Congress, 1941-42
Sec. 51.1 Miller v Kirwan
On Jan. 10, 1941, John W. McCormack, of Massachusetts, the Majority
Leader, called up as privileged the following resolution (H. Res. 54):
(19)
---------------------------------------------------------------------------
19. 87 Cong. Rec. 101, 77th Cong. 1st Sess.; H. Jour. 55.
---------------------------------------------------------------------------
Whereas Locke Miller, a resident of the city of Youngstown,
Ohio, in the Nineteenth Congressional District thereof, has served
notice of contest upon Michael J. Kirwan, the returned Member of
the House from said district of his purpose to contest the election
of said Michael J. Kirwan; and
Whereas it does not appear that said Locke Miller was a
candidate for election to the House of Representatives
[[Page 1162]]
from the Nineteenth Congressional District of the State of Ohio,
at the election held November 5, 1940, but was a candidate for the
Democratic nomination from said district at the primary election
held in said district, at which Michael J. Kirwan was chosen as the
Democratic nominee:
Therefore be it
Resolved, That the House of Representatives does not regard the
said Locke Miller as a person competent to bring a contest for a
seat in the House and his notice of contest, served upon the
sitting Member, Michael J. Kirwan, is hereby dismissed; and no
petition or other paper relating to the subject matter contained in
this resolution shall be received by the House, or entertained in
any way whatever.
The resolution was thereupon agreed to without debate and by voice
vote by the House. Thus the House dismissed the contest without the
contest having been referred to the Committee on House Administration,
and therefore without committee action and consideration.
Note: Syllabi for Miller v Kirwan may be found herein at
Sec. Sec. 4.4, 4.5 (House power of summary dismissal of election
contests); Sec. 19.4 (contestants as candidates in general election);
Sec. 42.4 (resolution disposing of contest as privileged); Sec. 44.2
(form of resolution disposing of contest).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 52. Seventy-eighth Congress, 1943-44
Sec. 52.1 Clark v Nichols
On May 11, 1943, the Speaker laid before the House a communication
from the Clerk of the House (20) which notified the House of
the pending election contest between E. O. Clark, contestant, and Jack
Nichols, contestee, from the Second Congressional District of Oklahoma.
It related that contestant had, on Dec. 5, 1942, notified contestee of
his intention to contest his election of Nov. 3, 1942, and that
contestee had filed timely answer thereto. Enclosed with it was a
letter from contestee asking the House to prevent contestant from
further proceeding in the contest, as contestant had not complied with
the requirement that testimony taken for contestant be forwarded to the
Clerk of the House within the 30 days (based on the former statute, 2
USC Sec. 223, now 2 USC Sec. 231). The Clerk's communication was
referred on May 11, 1943, to the Committee on Elections No. 3 with
accompanying papers and ordered printed as a House document.
---------------------------------------------------------------------------
20. H. Doc. No. 201, 89 Cong. Rec. 4243, 4244, 78th Cong. 1st Sess.; H.
Jour. 319.
---------------------------------------------------------------------------
[[Page 1163]]
Mr. Hugh Peterson, of Georgia, submitted the committee
report,(1) which was unanimous, on Feb. 15,
1944. The report did not consider contestee's request that contestant
be barred from continuing the contest. Rather, the committee
recommended that the contest be dismissed for failure of contestant to
bear ``the burden of showing that, due to fraud and irregularity, the
result of the election was contrary to the clearly defined wish of the
constituency involved [emphasis supplied].'' The committee determined
that no fraud had been perpetrated by any election official whereby
contestant was deprived of votes.
---------------------------------------------------------------------------
1. H. Rept. No. 1120, 90 Cong. Rec. 1675, 78th Cong. 2d Sess.; H.
Jour. 117.
---------------------------------------------------------------------------
The committee determined that contestant had proven certain
irregularities relating to the failure of local officials in certain
precincts to keep registration books and to comply with certain other
administrative requirements imposed by state law. Contestee offered no
testimony to rebut this evidence. Nevertheless, the committee
determined that such irregularities would not vitiate the election
unless the procedures involved were declared by law to be essential to
the validity of the election. As the pertinent state law did not
contain such provisions, the committee regarded the state bookkeeping
requirements as merely directory, and held that the committee could not
void what it considered the certain decision of the electorate because
of ``the failure of those responsible for the administration of the law
to do their duty.''
The committee stated in its report that ``the precedents are
uniform in holding that the returns which are made by election
officials regularly appointed by the laws of the State where the
election is held are presumed to be correct until they are impeached by
proof of irregularity and fraud.''
On Feb. 16, 1944, Mr. Peterson called up as privileged House
Resolution 440 (2) which the House agreed to without debate
and by voice vote, and which--
---------------------------------------------------------------------------
2. 90 Cong. Rec. 1761-63, 78th Cong. 2d Sess.; H. Jour. 121.
---------------------------------------------------------------------------
Resolved, That the election contest of E. O. Clark, contestant,
against, Jack Nichols, contestee, Second Congressional District of
the State of Oklahoma, be dismissed.
In his extension of remarks in the Congressional Record at that
point, Mr. Ross Rizley, of Oklahoma, discussed in detail the alleged
irregularities which contestant had referred to in the evi-
[[Page 1164]]
dence he presented. He cited two House election cases [Bisbee v
Finley (2 Hinds' Precedents Sec. 980) and Benoit v Boatner (1
Hinds' Precedents Sec. 340)] for the proposition that elections
held in disregard of registration laws are to be considered void,
regardless of whether such registration laws are to be considered
directory or are made mandatory by statute. Mr. Rizley considered
the evidence which was introduced by contestant and which as not
contradicted by contestee----
. . . [S]ufficient to warrant the investigation of an election
in which the contestee as the candidate of the political party
which had control and charge of the election, claims to have been
elected in a congressional district by only approximately 385
votes. This would seem especially true where a State election board
dominated by the same political party denied itself jurisdiction
and by so doing suggested that the House should set itself up as a
recount committee.
and where the House, in turn----
. . . [S]ays that it cannot erect itself as a recount board . .
. that there were ``gross irregularities'' and flagrant violations
of the election laws, ``fairly proven by the contestant.''
(3)
---------------------------------------------------------------------------
3. Id. at p. 1763.
---------------------------------------------------------------------------
Note: Syllabi for Clark v Nichols may be found herein at Sec. 6.1
(items transmitted by Clerk); Sec. 10.11 (distinction between mandatory
and directory state laws); Sec. 27.6 (failure to forward testimony to
Clerk); Sec. 35.4 (burden of showing results of election would be
changed); Sec. 36.3 (official returns as presumptively correct).
Sec. 52.2 McEvoy v Peterson
On May 5, 1944, Mr. Ed L. Gossett, of Texas, submitted the report
(4) from the Committee on Elections No. 2 in the contested
election case brought by Edward T. McEvoy against Hugh Peterson, from
the First Congressional District of Georgia. The case had been referred
to the committee on Sept. 20, 1943, when the Speaker laid before the
House a letter from the Clerk of the House (5) transmitting
the necessary papers and documents as required by the statute governing
contested election cases. This letter was ordered printed as a House
document.
---------------------------------------------------------------------------
4. H. Rept. No. 1423, 90 Cong. Rec. 4087, 78th Cong. 2d Sess.; H.
Jour. 288.
5. 89 Cong. Rec. 7682, 78th Cong. 1st Sess.; H. Jour. 607.
---------------------------------------------------------------------------
The unanimous committee report, which accompanied House Resolution
534, recommended that the election contest be dismissed. The report
related that contestant (Mr. McEvoy) had attempted to run for the First
Congressional District of Georgia seat as an
[[Page 1165]]
independent Republican though there was no such political party in
Georgia, and that contestant's name had not appeared on any ballots
and that he had not received any votes. The committee further found
that contestant had failed to exhaust available state legal remedies,
had not filed the election contest in good faith, and had failed
to make out a prima facie case. The committee disallowed contestant's
petition for reimbursement of expenses.
House Resolution 534 was called up as privileged (6) by
Mr. Gossett and agreed to without debate on May 5, 1944. Thereby the
House dismissed the election contest by voice vote. The resolution
provided--
---------------------------------------------------------------------------
6. 90 Cong. Rec. 4074, 78th Cong. 2d Sess.; H. Jour. 288.
---------------------------------------------------------------------------
Resolved, That the election contest of Edward T. McEvoy,
contestant, against Hugh Peterson, contestee, First Congressional
District of the State of Georgia, be dismissed.
Note: Syllabi for McEvoy v Peterson may be found herein at
Sec. 13.1 (permissible defenses to election contests); Sec. 14.1
(contestant's standing); Sec. 45.7 (payments conditioned on good faith
in filing of contest).
Sec. 52.3 Moreland v Schuetz
On Feb. 17, 1944, Mr. Hugh Peterson, of Georgia, from the Committee
on Elections No. 1 submitted the final report (7) in the
contested election case brought by James C. Moreland against Leonard W.
Schuetz from the Seventh Congressional District of Illinois. The case
had been initiated in the House on Nov. 15, 1943, at which time a
letter from the Clerk of the House (8) had been laid before
the House by the Speaker and referred by him to the committee.
---------------------------------------------------------------------------
7. H. Rept. No. 1158, 90 Cong. Rec. 1833, 1834, 78th Cong. 2d Sess.;
H. Jour. 132.
8. H. Doc. No. 357, 89 Cong. Rec. 9529, 78th Cong. 1st Sess.; H. Jour.
731.
---------------------------------------------------------------------------
On Mar. 1, 1943, the Speaker had laid before the House, during the
period permitted by statute for taking of testimony for an election
contest, a letter from the Clerk.(9) This letter conveyed
contestant's request that the House grant him additional time for
taking testimony so as to permit him to substantiate his claim of
certain voting irregularities and miscounts which would change the
1,975-vote margin of contestee to contestant's favor.
---------------------------------------------------------------------------
9. H. Doc. No. 120, 89 Cong. Rec. 1456, 78th Cong. 1st Sess.; H. Jour.
134, 136.
---------------------------------------------------------------------------
Specifically, contestant claimed that ballots which had been
counted for contestee (more than 2,000) should be totally voided, as
such
[[Page 1166]]
ballots had been illegally marked by write-in attempts to vote for
certain local judicial candidates in contravention of state law.
Contestant also alleged error by election officials in that they
failed to credit him with ``split-ticket'' ballots, bearing votes
cast for him, and that they counted such ballots as ``straight-ticket''
ballots for the Democratic party and, therefore, for contestee.
Contestant asked for an extension of time to establish these
allegations, which he could not do in the time required by law,
as the time and facilities of the responsible election officials was
then being totally consumed in preparation for local elections.
Mr. Peterson submitted House Report No. 345 (10) on Apr.
6, 1943, to accompany House Resolution 201,(11) which was
agreed to without debate on that date, and which extended time for
taking testimony for a total of 65 days. The report unanimously agreed
that the circumstances as cited above by contestant set forth ``good
cause'' as required by House precedents cited in the report.
---------------------------------------------------------------------------
10. 89 Cong. Rec. 3024, 78th Cong. 1st Sess.; H. Jour. 219.
11. Id. at p. 2982.
---------------------------------------------------------------------------
The resolution recommended in the committee report was agreed to by
the House as follows:
Resolved, That the time allowed for taking testimony in the
election contest, James C. Moreland, contestant, against Leonard W.
Schuetz, contestee, Seventh Congressional District of Illinois,
shall be extended for a period of 65 days, beginning April 12,
1943, and the testimony shall be taken in the following order:
The contestant shall take testimony during the first 30 days,
the contestee shall take the testimony during the succeeding 30
days, and the contestant shall take testimony in rebuttal only
during the remaining 5 days of said period.
After the extension of time, the final committee report related
that the parties to the contest had agreed to conduct a recount in
those wards where the vote had been questioned by contestant. This
recount, which was terminated by contestant prior to expiration of his
time for taking additional testimony, covered 42 percent of total votes
cast and included over 56 percent of the votes cast for contestee. The
committee found that the recount reduced contestee's majority by 898
votes, an insufficient number to change the outcome, and that
contestant had not sustained the burden of proving, from this partial
recount in precincts where contestee had received a heavy vote, that a
recount of all votes would establish a majority for contestant. Thus,
the committee concluded that the contestant had not introduced
sufficient evidence to warrant a complete recount.
[[Page 1167]]
The committee report made reference to such errors as improper
initialing of ballots by election holders, improper marking of ballots,
failure of election holders to initial ballots, spoilation of ballots,
etc., but said:
There is no evidence whatsoever of fraud on the part of the
election officials. So, it is evident that this condition was
general and prevailed among all of the ballots cast and it can,
therefore, be seen that the gains made by the contestant in the
partial review or recount which included only 42 percent of the
total ballots cast, but which included at the same time over 56
percent of the ballots cast for the contestee, is by no means
conclusive proof that the trend of the change as shown by the
recount in favor of the contestant would have continued throughout
the recount of all the remainder of the ballots.
[Whether] the contestant desired to recount all of the ballots
cast in this election for the purpose of securing evidence to
submit in support of his contest, he did not exhaust the remedy
afforded him for such a recount.
It is the duty of the contestant to produce evidence sufficient
to support the allegations set forth in his petition, and, as this
committee has heretofore held, it is not the duty of this committee
to take upon itself the obligation of securing evidence for either
party.
Mr. Peterson called up as privileged House Resolution
444,(12) on the same day he submitted the report of the
Committee on Elections No. 3 for printing in the Record. House
Resolution 444 was agreed to by the House without debate and by voice
vote, and it--
---------------------------------------------------------------------------
12. 90 Cong Rec. 1834, 78th Cong. 2d Sess., Feb. 17, 1944; H. Jour.
127.
---------------------------------------------------------------------------
Resolved, That the election contest of James C. Moreland,
contestant, against Leonard W. Schuetz, contestee, Seventh
Congressional District of the State of Illinois, be dismissed.
Note: Syllabi for Moreland v Schuetz may be found herein at
Sec. 6.3 (items transmitted by Clerk); Sec. 27.10 (extensions of time
for taking testimony); Sec. 27.11 (extensions of time for good cause);
Sec. 39.1 (recount by stipulation of parties); Sec. 40.5 (burden of
proving recount would change election result); Sec. 43.4 (resolution
accompanying report).
Sec. 52.4 Schafer v Wasielewski
On Mar. 29, 1944, Mr. James Domengeaux, of Louisiana, submitted the
unanimous report (13) of the Committee on Elections No. 1 in
the contested election case of John C. Schafer against Thaddeus F.
Wasielewski, from the Fourth Congressional District of Wisconsin. The
case had come to the House pursuant to the provisions of the federal
statute (see 2 USC Sec. Sec. 381 et seq.), governing election
[[Page 1168]]
contests on Sept. 20, 1943, when the Speaker laid before the House
a letter from the Clerk (14) transmitting the necessary
testimony and documents. The letter was referred to the committee on
that date and ordered printed by the Speaker.
---------------------------------------------------------------------------
13. 90 Cong. Rec. 3252, 78th Cong. 2d Sess.; H. Jour. 227.
14. H. Doc. No. 282, 89 Cong. Rec. 7682, 78th Cong. 1st Sess.; H. Jour.
607.
---------------------------------------------------------------------------
The contestant, defeated in the election by contestee by
approximately 17,000 votes, alleged that contestee had himself expended
more money during his campaign than was permitted by the Federal
Corrupt Practices Act and by the election laws of Wisconsin and that
contestee had failed to file correct reports of expenditures as
required by law. As stated in the report, ``the Wisconsin statutes
limit to $875 the amount of money that can be spent by a candidate for
Congress in the general election. The Wisconsin statutes, however,
place no limitation upon receipts and expenditures of individuals or
groups that might voluntarily interest themselves in behalf of a
candidate.''
The Federal Corrupt Practices Act (2 USC Sec. 248) requires:
(a) A candidate, in his campaign for election, shall not make
expenditures in excess of the amount which he may lawfully make
under the laws of the State in which he is a candidate, not in
excess of the amount which he may lawfully make under the
provisions of this title ($2,500).
As further stated in the report--
Thaddeus F. Wasielewski filed with the Clerk of the House of
Representatives on November 5, 1942, a statement, as required by
Federal law, showing receipts of $1,689 and total expenditures of
$1,172.
The committee determined that the expense reports filed by
contestee had disclosed on their face, figures in excess of amounts
permitted by state law and by the Federal Corrupt Practices Act. The
committee found, however, that certain sums listed actually represented
expenditures of a ``voluntary committee'' rather than expenditures of a
``personal campaign committee'' as defined by state law, and were,
therefore, not to be considered personal expenditures of contestee,
and, thus, not limited by state law.
The committee also determined that it should not deprive contestee
of his seat as a result of his negligence in preparing expenditure
accounts filed with the Clerk. The committee found no evidence of
fraud.
Immediately upon submission of the committee report (H. Rept. No.
1308), Mr. Domengeaux called up as privileged House Resolution
[[Page 1169]]
490,(15) which was agreed to by the House without debate
and by voice vote, and which--
---------------------------------------------------------------------------
15. 90 Cong. Rec. 3253, 78th Cong. 2d Sess.; H. Jour. 227.
---------------------------------------------------------------------------
Resolved, That the election contest of John C. Schafer,
contestant, against Thaddeus F. Wasielewski, contestee, Fourth
Congressional District of the State of Wisconsin, be dismissed.
Note: Syllabi for Schafer v Wasielewski may be found herein at
Sec. Sec. 10.1, 10.3 (Corrupt Practices Act).
Sec. 52.5 Sullivan v Miller
On Jan. 25, 1943, the Speaker laid before the House a letter
(16) from the Clerk of the House, relating that his office
had unofficial knowledge that the election held on Nov. 3, 1942, for a
House seat from the 11th Congressional District of Missouri was being
contested. On Dec. 9, 1942, contestant John B. Sullivan served notice
of intention to contest the election on contestee Louis E. Miller, with
answer by contestee on Dec. 28, 1942, from which date the time for
taking testimony under the statute (2 USC Sec. 203) began to run. The
Clerk's letter related that on Jan. 20, 1943, the parties had filed a
joint application proposing that the House order the Missouri Board of
Election Commissioners to conduct a recount. The Clerk's letter,
accompanied by the joint letter signed by the parties to the contest
and by drafts of resolutions ordering the recount and extending time
for taking testimony, together with depositions in support thereof
taken of members of the Board of Election Commissioners in St. Louis,
and accompanied by contestant's charts showing recapitulation of all
votes cast in the district, were referred to the Committee on Elections
No. 3 on Jan. 25 and ``ordered printed with an illustration,'' as a
House document.
---------------------------------------------------------------------------
16. H. Doc. No. 58, 89 Cong. Rec. 368, 369, 78th Cong. 1st Sess.; H.
Jour. 67.
---------------------------------------------------------------------------
The parties' application for a recount and accompanying supporting
documents alleged that a state recount which had been conducted in a
local election for Recorder, where those candidates had been on the
same ballot as the parties in this case, indicated a miscount of 1,385
votes. On Feb. 25, 1943, Mr. Hugh Peterson, of Georgia, submitted a
report,(17) which was unanimous, to accompany House
Resolution 137,(18) which Mr. Peterson called up as
[[Page 1170]]
privileged on that date. The report stated that no election contest had
been formally presented to the House at that time, and there was thus
no contest pending before the Committee on Elections, nor did this
filing of a joint application for recount constitute such a
presentation. The report recommended, therefore, that the House should
not ``intervene in an election contest that has been initiated but has
not been brought officially to the House of Representatives simply for
the purpose of procuring evidence for the use of the parties to the
contest.'' The report expressed no opinion as to whether a recount of
the ballots should be made in the event that an election contest was
properly brought before the House. The report stated--
---------------------------------------------------------------------------
17. H. Rept. No. 180 (joint application for recount not granted), 89
Cong. Rec. 1353, 78th Cong. 1st Sess.; H. Jour. 129.
18. 89 Cong. Rec. 1324, 78th Cong. 1st Sess.; H. Jour. 129.
---------------------------------------------------------------------------
It appears to the committee that the parties to this
application could bring or might have brought this election contest
to the House of Representatives in the manner prescribed by law and
the House of Representatives could then itself determine whether or
not it desired to recount the ballots.
The committee report stated that there was no precedent in the
House whereby the House had ordered a state or local board of election
commissioners to take a recount. The report distinguished cases cited
in the joint application brief where recounts were made by the House
itself through an elections committee.
In the brief debate in the House on House Resolution 137, Mr.
Charles A. Plumley, of Vermont, stated that the Committee on Elections,
by its unanimous report, would establish--
. . . [T]he fact, the law, and a precedent for all time that
jurisdiction of an alleged contested-election case cannot be
conferred on the House or on one of its committees by any joint
agreement of parties to an alleged election contest unofficially or
otherwise submitted.
House Resolution 137 was thereupon agreed to without further debate
and by voice vote, and it--
Resolved, That the joint application for order of recount of
John B. Sullivan, contestant, against Louis E. Miller, contestee,
Eleventh District of Missouri, be not granted.
On Mar. 2, 1943, the Speaker laid before the House a letter
(19) from the Clerk of the House transmitting contestant's
application for an extension of time for taking testimony, which
request was based upon time consumed by both parties in preparing their
joint application for order of recount and supporting papers thereto.
Contestant asked for 40
[[Page 1171]]
additional days in which to prepare his testimony, and for 40
days thereafter for contestee to take testimony. The Clerk's letter was
referred to the Committee on Elections No. 3 and ordered printed with
accompanying papers (contestant's application) by the Speaker as a
House document.
---------------------------------------------------------------------------
19. H. Doc. No. 122, 89 Cong. Rec. 1473, 78th Cong. 1st Sess.; H. Jour.
137, 138.
---------------------------------------------------------------------------
On May 17, 1943, Mr. Peterson submitted the unanimous committee
report (20) which recommended 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. The report reviewed
and affirmed six House contested election precedents wherein the House
had determined that extensions of time for taking testimony are to be
permitted ``for good and sufficient reason only.'' Upon submission of
the report, Mr. Peterson called up as privileged House Resolution
240,(1) which was agreed to without debate and by voice vote
and which adopted the following committee recommendation:
---------------------------------------------------------------------------
20. H. Rept. No. 454, 89 Cong. Rec. 4562, 78th Cong. 1st Sess.; H.
Jour. 328.
1. 89 Cong. Rec. 4529, 78th Cong. 1st Sess.; H. Jour. 328.
---------------------------------------------------------------------------
Resolved, That the time allowed for taking testimony in the
election contest, John B. Sullivan, contestant, against Louis E.
Miller, contestee, Eleventh Congressional District of Missouri,
shall be extended for a period of 65 days, beginning May 18, 1943,
and the testimony shall be taken in the following order:
The contestant shall take testimony during the first 30 days,
the contestee shall take testimony during the succeeding 30 days,
and the contestant shall take testimony in rebuttal only during the
remaining 5 days of said period.
On Nov. 24, 1943, Mr. Peterson submitted the unanimous final report
(2) from the Committee on Elections No. 3, which accompanied
House Resolution 368, with the recommendation that the contest be
dismissed. The report related that the parties had, between the time
their joint application for recount had been denied and the time the
House had granted the extension of time for taking testimony, agreed to
conduct their own recount. The results of this informal recount were
determined on May 4, 1943, and they showed that contestee had received
a majority of all votes cast, regardless of certain changes in the
vote. Thus, both parties had ``entered into a stipulation in which the
contestant agreed that his pending election contest be dismissed and
the contestee
[[Page 1172]]
agreed that his pending counter election contest be dismissed.''
---------------------------------------------------------------------------
2. H. Rept. No. 887, 89 Cong. Rec. 9975, 78th Cong. 1st Sess.; H.
Jour. 757.
---------------------------------------------------------------------------
House Resolution 368 (3) was called up as privileged by
Mr. Peterson on Nov. 24, 1943, and agreed to without debate and by voice
vote. The resolution provided--
---------------------------------------------------------------------------
3. 89 Cong. Rec. 9974, 78th Cong. 1st Sess.; H. Jour. 756.
---------------------------------------------------------------------------
Resolved, That the election contest of John B. Sullivan,
contestant, against Louis E. Miller, contestee, Eleventh
Congressional District of Missouri, be dismissed.
Note: Syllabi for Sullivan v Miller may be found herein at Sec. 3.1
(House lacking authority over state or local election boards); Sec. 3.2
(intervention by House in state or local elections); Sec. 4.1 (notice
of contest as basis for House jurisdiction); Sec. 6.9 (items
transmitted by Clerk); Sec. 18.2 (compliance with statutory
requisites); Sec. 27.12 (extensions of time for good cause); Sec. 39.2
(recount by stipulation of parties); Sec. 41.4 (joint applications for
recount); Sec. 42.10 (disposal by stipulation of parties).
Sec. 52.6 Thill v McMurray
On Jan. 31, 1944, Mr. Hugh Peterson, of Georgia, submitted the
unanimous report (4) of the Committee on Elections No. 3 in
the contested election case brought by Lewis D. Thill against Howard J.
McMurray from the Fifth Congressional District of Wisconsin. The
contest had been first brought to the attention of the House, when, on
Sept. 20, 1943, the Speaker laid before the House a letter from the
Clerk (5) transmitting the required testimony and documents.
The Speaker had referred the communication and accompanying papers to
the committee, and had ordered it printed as a House document.
---------------------------------------------------------------------------
4. H. Rept. No. 1032, 90 Cong. Rec. 962, 78th Cong. 2d Sess.; H. Jour.
66.
5. H. Doc. No. 284, 89 Cong. Rec. 7683, 78th Cong. 1st Sess.; H. Jour.
607.
---------------------------------------------------------------------------
Contestant claimed that contestee, who had been elected by a
majority of 6,000 votes, had received contributions and made
expenditures in violation of the Federal Corrupt Practices Act and of
Wisconsin law by filing incorrect statements of expenditures and
contributions.
Contestee had filed statements with state officials showing no
personal contributions or expenditures and showing about $8,000
``voluntary committee'' contributions. This was consistent with the
state statute. As stated in the report--
The Wisconsin statutes limit to $875 the amount of money that
can be spent
[[Page 1173]]
by a candidate for Congress in the general election. The
Wisconsin statutes, however, place no limitation upon receipts
and expenditures of individuals or groups that might voluntarily
interest themselves in behalf of a candidate.
Contestant alleged that contestee's statement filed with
the Clerk of the House as required by federal law listed sizable
personal contributions and expenditures in contradiction of his
statement filed with the state. As stated in the committee report--
(Contestee) filed with the Clerk of the House of
Representatives on December 1, 1942, a statement, as required by
Federal law, showing receipts of $8,458.78 and total expenditures
of $7,360.91. This statement . . . contradicted the statements
filed by him with the secretary of state of the State of Wisconsin
which showed ``no receipts, disbursements, or obligations.''
Contestant had filed a petition under state law challenging
contestee's expenditure statement filed with the state, which petition
had been denied.
With respect to contestee's statement filed with the Clerk of the
House pursuant to federal law, the committee considered evidence which
showed that it had been erroneously prepared by counsel and signed by
contestee without knowledge of its contents. Contestee, upon discovery
thereof, ``had contacted the Clerk of the House of Representatives
admitting the mistake and attempting to correct the same by filing an
amended statement'' showing that the expenditures had been made by two
``voluntary committees'' without his consent.
The report stated that--
The committee in this report does not attempt to express any
opinion on the laws of the State of Wisconsin which seem to limit
the personal contributions and expenditures of the candidate
himself, while placing no limit upon the contributions or
expenditures which may be made through volunteer groups. Neither
does it attempt to condone the action of the contestee, Mr.
McMurray, in signing under oath the statement filed with the Clerk
of the House of Representatives, without being familiar with the
contents of the statement or the irregularities which it contained.
The report recommended that--
Under these circumstances, the committee is of the opinion that
Mr. McMurray, who received a substantial majority of votes in the
general election of November 3, 1942, over Mr. Thill, his nearest
opponent, should not be denied his seat in the House of
Representatives on account of this error made in the statement
filed by Mr. McMurray with the Clerk of the House of
Representatives.
Mr. Peterson called up as privileged House Resolution 426
(6) on
---------------------------------------------------------------------------
6. 90 Cong. Rec. 933, 78th Cong. 2d Sess.; H. Jour. 65.
---------------------------------------------------------------------------
[[Page 1174]]
Jan. 31, 1944, immediately upon submission of the
committee report. The resolution, which dismissed the contest, was
agreed to by the House by voice vote after a short debate. House
Resolution 426 provided as follows:
Resolved, That the election contest of Lewis D. Thill,
contestant, against Howard J. McMurray, contestee, Fifth
Congressional District of the State of Wisconsin, be dismissed.
Note: Syllabi for Thill v McMurray may be found herein at Sec. 10.4
(Corrupt Practices Act).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 53. Seventy-ninth Congress, 1945-46
Sec. 53.1 Hicks v Dondero
On Dec. 12, 1945, Mr. O. C. Fisher, of Texas, submitted the
unanimous report (7) of the Committee on Elections No. 3 in
the contest of John W. L. Hicks against George A. Dondero, from the
17th Congressional District of Michigan. The contest had originated in
the House on July 20, 1945, on which date the Speaker had laid before
the House a letter from the Clerk (8) 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 Clerk had also received contestee's motion to
dismiss the contest and contestant's affidavit in opposition to that
motion.
---------------------------------------------------------------------------
7. H. Rept. No. 1404, 91 Cong. Rec. 11931, 79th Cong. 1st Sess.; H.
Jour. 766.
8. H. Doc. No. 264, 91 Cong. Rec. 7877, 79th Cong. 1st Sess.; H. Jour.
542, 543.
---------------------------------------------------------------------------
The Clerk's letter related that ``since this action has not
proceeded in accordance with the provisions of the statutes, the Clerk
is transmitting all of the material received in this matter to the
House for its disposition.'' The Speaker referred the Clerk's letter to
the Committee on Elections No. 3 and ordered it printed as a House
document.
The committee's final report stated that contestant had not taken
any testimony in support of his notice of contest within the time
prescribed by law. The report then stated:
The contestant submitted two copies of transcripts of
proceedings before the Wayne County, Mich., canvassing board on
November 10, 11, and 30, 1944, which hearings were held on dates
prior to the initiation of this contest. . . .
The said transcripts of evidence were entirely ex parse insofar
as contestee was concerned, and even if properly transmitted, would
be incompetent as proof of any issues urged by contestant.
The report stated that contestee had been elected on Nov. 7, 1944,
[[Page 1175]]
by a majority of 28,475 votes over contestant, and had been properly
certified as elected.
On Dec. 12, 1945, the day of submittal of the committee report, Mr.
Fisher called up as privileged House Resolution 455 (9)
which incorporated the language recommended in the report. House
Resolution 455 was agreed to by voice vote and without debate, and it--
---------------------------------------------------------------------------
9. 91 Cong. Rec. 11922, 11923, 79th Cong. 1st Sess.; H. Jour. 766.
---------------------------------------------------------------------------
Resolved, That the election contest of John W. L. Hicks,
contestant, against George A. Dondero, contestee, Seventeenth
Congressional District of the State of Michigan, be dismissed, and
that the said George A. Dondero is entitled to his seat as a
Representative of said district and State.
Note: Syllabi for Hicks v Dondero may be found herein at Sec. 6.12
(items transmitted by Clerk); Sec. 25.1 (failure to properly forward
evidence); Sec. 27.2 (dismissal for failure to take testimony within
statutory period); Sec. 34.3 (evidence from ex parse proceedings).
Sec. 53.2 In re Plunkett
On Feb. 14, 1945, Mr. Hatton W. Sumners, of Texas, was granted
unanimous consent to address the House of Representatives for one
minute. His speech, a letter inserted in the Record by him, and the
ensuing debate, are as follows: (10)
---------------------------------------------------------------------------
10. 91 Cong. Rec. 1083, 1084, 79th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Sumners of Texas: Mr. Speaker, comparatively recently a
private citizen in Virginia has entered upon a course of conduct
claiming he is contesting the seats of, I believe, 71 Members of
the House of Representatives. A colleague of mine the other day
asked me to make some examination and write him a letter. I made
that examination and have written him the following letter:
February 12, 1945.
My Dear Colleague: Supplementing the statement made to you
over the telephone this morning with reference to notice to
appear and give testimony in proceeding by Moss A. Plunkett, of
Roanoke, Va., representing himself as contesting your right to
a seat in the House of Representatives, beg to advise that I
have looked over a copy of the paper served upon you and other
Members of the House of Representatives, including myself, and
have also made some examination of chapter 7, title 2, of the
United States Code, which deals with the subject of contested
elections.
The House of Representatives, under the Constitution, of
course, is sovereign and independent with reference to the
determination of the election and the qualification of its own
Members. No act of Congress could, in the slightest degree,
affect the exclusiveness of power of the House of
Representatives to determine with reference to those who are
entitled to be a part of its membership.
Section 7 of title 2 referred to therefore is merely an act
of comity
[[Page 1176]]
on the part of the Congress for the purpose of aiding
the House of Representatives to whatever degree the House of
Representatives may see fit to avail itself thereof. But this
alleged contestant, Moss A. Plunkett, does not even come within
the provision of this title.
Section 226, the last section of chapter 7, title 2,
referred to, contains these words as the first part of the
first sentence:
``No contestee or contestant for a seat in the House of
Representatives shall be paid exceeding $2,000 for expenses in
election contests.''
The contest contemplated by the Congress in which it sought
to give aid by statute is a contest by a ``contestant'' and
``contestee,'' ``for a seat in the House of Representatives.''
Even if this language were not incorporated in the statute,
common sense and public necessity would preclude any notion
that the Congress intended to put it within the power of any
person so disposed to institute proceedings to oust many
persons who happen to be Members of Congress, and require them
to turn aside from the discharge of their public duties to
appear and give testimony at the summons of such a person who
had not even been a candidate for Congress and who could not
therefore be a ``contestant for a seat in the Congress.''
It seems to me to be not only the right, but the duty, of
the Members of the House against whom this proceeding has been
attempted, not to turn aside from the discharge of their
official duties to give attention in the slightest degree to
that which the said Plunkett is attempting.
Sincerely yours,
Hatton W. Sumners.
Mr. [John W.] McCormack [of Massachusetts]: Mr. Speaker, will
the gentleman yield?
Mr. Sumners: I yield to the gentleman from Massachusetts.
Mr. McCormack: Will the gentleman advise the House how, in his
opinion, this unreasonable situation should be met?
Mr. Sumners: By paying no attention to it.
The Speaker: (11) The time of the gentleman from
Texas has expired.
---------------------------------------------------------------------------
11. Sam Rayburn (Tex.).
---------------------------------------------------------------------------
Mr. [John E.] Rankin [of Mississippi]: Mr. Speaker, I ask
unanimous consent to address the House for 1 minute.
The Speaker: Is there objection to the request of the gentleman
from Mississippi?
There was no objection.
Mr. Rankin: Mr. Speaker, following up what the Member from
Texas [Mr. Sumners], the very able chairman of the Committee on the
Judiciary, has said, I want to call attention to the fact these
radicals who are attempting to harass Members of Congress about
this matter [poll taxes] have not a leg to stand on. They really
are acting in contempt of the House, and in contempt of the Senate,
because they have attempted to subpena Senators, as well as Members
of the House.
This question has been thrashed out before. The fourteenth
amendment to the Constitution provided that where certain people
were denied the right to vote in any State, representation from
such State should be proportionately reduced. . . .
If there is anything wrong with the State law, the place to
contest it is in the courts. If there is anything wrong with a
Member's right to sit in this House, the place to contest it is
before a committee of the House. . . .
[[Page 1177]]
So these attempts to harass the Members of the House and Senate
are simply in contempt of both Houses, and as the chairman of the
Judiciary Committee [Mr. Sumners] said, they should be ignored.
On May 17, 1945, the Speaker laid before the House a letter from
the Clerk (12) of the House which stated that the Clerk
``does not regard the said Moss A. Plunkett as a person competent to
bring a contest for a seat in the House under the provisions of the
laws governing contested elections.'' Mr. Plunkett was attempting to
contest the election of 79 returned Members from districts of various
states, growing out of the election held Nov. 7, 1944, though it
appeared from the four sealed packages of testimony that Mr. Plunkett
had not been party to any of the elections. The Clerk's letter was
ordered printed by the Speaker as a House document, and referred to the
Committee on Elections No. 1. There is no record that the committee
submitted a report in this case, or that the House acted in any way
upon the contest.
---------------------------------------------------------------------------
12. H. Doc. No. 181, 91 Cong. Rec. 4726, 79th Cong. 1st Sess.; H. Jour.
347.
---------------------------------------------------------------------------
Note: Syllabi for In re Plunkett may be found herein at Sec. 5.1
(committee jurisdiction over contest under contested election
statutes); Sec. 6.6 (items transmitted by Clerk); Sec. 19.6
(contestants as candidates in general election).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 54. Eightieth Congress, 1947-48
Sec. 54.1 Lowe v Davis
On Apr. 27, 1948, Mr. Karl M. LeCompte, of Iowa, submitted the
unanimous report (13) of the Committee on House
Administration in the contested election case of Lowe v Davis, from the
Fifth Congressional District of Georgia.
---------------------------------------------------------------------------
13. H. Rept. No. 1823, 94 Cong. Rec. 4922, 80th Cong. 2d Sess.; H.
Jour. 377.
---------------------------------------------------------------------------
On July 25, 1947, the House had considered by unanimous consent and
agreed to a resolution (H. Res. 337) (14) as follows:
---------------------------------------------------------------------------
14. 93 Cong. Rec. 10210, 80th Cong. 1st Sess.; H. Jour. 698.
---------------------------------------------------------------------------
Resolved, That notwithstanding any adjournment or recess of the
Eightieth Congress, testimony and papers received by the Clerk of
the House in any contested-election case shall be transmitted by
the Clerk to the Speaker for reference to the Committee on House
Administration in the same manner as though such adjournment or
recess had not occurred: Provided, That any such testimony and
papers referred by the Speaker shall be printed as House documents
of the next succeeding session of the Congress. (Emphasis
supplied.)
[[Page 1178]]
On July 25, 1947, Mr. Ralph A. Gamble, of New York, by unanimous
consent offered another resolution by direction of the Committee on
House Administration (H. Res. 338): (15)
---------------------------------------------------------------------------
15. Id.
---------------------------------------------------------------------------
Resolved, That notwithstanding any adjournments or recesses of
the first session of the Eightieth Congress, the Committee on House
Administration is authorized to continue its investigation in the
contested-election cases of Mankin against Davis, Lowe against
Davis, and Wilson against Granger. For the purpose of making such
investigations the committee, or any subcommittee thereof, is
authorized to sit and act during the present Congress at such times
and places within the United States, whether the House is in
session, has recesses, or has adjourned, to hold such hearings,
and to require, by subpena or otherwise, the attendance and
testimony of such witnesses and the production of such books,
record, correspondence, memoranda, papers, and documents, as
it deems necessary. Subpenas may be issued under the signature
of the chairman of the committee or any member of the committee
designated by him, and may be served by any person designated by
such chairman or member.
House Resolution 338 was agreed to by voice vote and without
debate.
Thereupon, Mr. LeCompte offered the following privileged resolution
(16) from the Committee on House Administration (H. Res.
339) to implement House Resolution 338, which had previously been
agreed to:
---------------------------------------------------------------------------
16. Id.
---------------------------------------------------------------------------
Resolved, That the expenses of the investigations to be
conducted pursuant to House Resolution 338, by the Committee on
House Administration, acting as a whole or by subcommittee, not to
exceed $5,000, including expenditures for the employment of
investigators, attorneys, and clerical, stenographic, and other
assistants, shall be paid out of the contingent fund of the House
on vouchers authorized by such committee or subcommittee, signed by
the chairman of such committee, or subcommittee, and approved by
the Committee on House Administration.
House Resolution 339 was agreed to by voice vote and without
debate.
On July 26, 1947, the House had adjourned to Jan. 6, 1948, but had
been convened by proclamation of the President on Nov. 17, 1947, a
continuation of the first session of the 80th Congress. The question of
whether this reconvening of the Congress was to be considered a
continuation of the existing session or a special or additional session
arose in connection with the effective date of certain amendments to
the rules of civil procedure in the courts, which amendments were to
take effect three months subsequent to the adjournment of the first
regular session of the Congress. The
[[Page 1179]]
Senate adopted as controlling a memorandum of the Federal Law Section,
Library of Congress, to the effect that where Congress adjourns to a
day certain--not sine die--and is convened earlier by proclamation of
the President, such convening is a continuation of the existing
session and not a special or additional session.
On Nov. 17, the Speaker took from the Speaker's table and referred
to the Committee on House Administration a letter from the Clerk
(17) transmitting the required papers (absent contestee's
brief). The Speaker did not lay the communication before the House, but
did order it printed as a House document (H. Doc. No. 434) of the first
session of the 80th Congress. (Neither the Congressional Record, p.
10613, nor the Journal, p. 771, indicate, however, that the
communication had been ordered printed by the Speaker.)
---------------------------------------------------------------------------
17. H. Doc. No. 434, 93 Cong. Rec. 10613, 80th Cong. 1st Sess.; H.
Jour. 771.
---------------------------------------------------------------------------
The committee report indicated that the committee had held full
hearings on Mar. 17, 1948, and had given consideration to contestee's
brief, which had not been filed within 30 days after reception of a
copy of contestant's brief, as required by 2 USC Sec. 223. The summary
report recommended that the contest be dismissed ``as lacking in
merit.''
The debate on House Resolution 552,(18) which dismissed
the accompanying contest of Mankin v Davis on Apr. 27, 1948, indicated
that contestant was disputing the method by which contestee had been
nominated in the primary election. Contestee had been selected as his
party's nominee under Georgia state law, which prescribed use of the
``county unit system.'' Contestant in this case had not been a
candidate in the general election. Presumably, as in the later case of
Lowe v Davis (Sec. 56.3, infra) in the 82d Congress, contestant had
been a candidate for the Democratic nomination in the primary election.
---------------------------------------------------------------------------
18. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.; H. Jour. 374.
---------------------------------------------------------------------------
On Apr. 27, 1948, Mr. LeCompte called up House Resolution 553
(19) as privileged, which provided as follows:
---------------------------------------------------------------------------
19. Id.
---------------------------------------------------------------------------
Resolved, That the election contest of Wyman C. Lowe,
contestant, against James C. Davis, contestee, Fifth Congressional
District of Georgia, be dismissed and that the said James C. Davis
is entitled to his seat as a Representative of said District and
State.
Whereupon the resolution was agreed to without debate and without a
record vote, thereby dis-
[[Page 1180]]
missing the contest and holding contestee entitled to his seat.
Sec. 54.2 Mankin v Davis
On July 25, 1947, the House, in the first session of the 80th
Congress, considered by unanimous consent and agreed to the following
resolution (H. Res. 337),(20) offered by Mr. Ralph A.
Gamble, of New York:
---------------------------------------------------------------------------
20. 93 Cong. Rec. 10210, 80th Cong. 1st Sess.; H. Jour. 698.
---------------------------------------------------------------------------
Resolved, That notwithstanding any adjournment or recess of the
Eightieth Congress, testimony and papers received by the Clerk of
the House in any contested-election case shall be transmitted by
the Clerk to the Speaker for reference to the Committee on House
Administration in the same manner as though such adjournment or
recess had not occurred: Provided, That any such testimony and
papers referred by the Speaker shall be printed as House documents
of the next succeeding session of the Congress. [Emphasis
supplied.]
On July 25, 1947, Mr. Gamble, by unanimous consent offered another
resolution by direction of the Committee on House Administration (H.
Res. 338): (1)
---------------------------------------------------------------------------
1. Id.
---------------------------------------------------------------------------
Resolved, That notwithstanding any adjournments or recesses of
the first session of the Eightieth Congress, the Committee on House
Administration is authorized to continue its investigation in the
contested-election cases of Mankin against Davis, Lowe against
Davis, and Wilson against Granger. For the purpose of making such
investigations the committee, or any subcommittee thereof, is
authorized to sit and act during the present Congress at such times
and places within the United States, whether the House is in
session, has recesses, or has adjourned, to hold such hearings, and
to require, by subpena or otherwise, the attendance and testimony
of such witnesses and the production of such books, records,
correspondence, memoranda, papers, and documents, as it deems
necessary. Subpenas may be issued under the signature of the
chairman of the committee or any member of the committee designated
by him, and may be served by any person designated by such chairman
or member.
House Resolution 338 was agreed to by voice vote and without debate.
Thereupon, Mr. LeCompte offered the following privileged resolution
from the Committee on House Administration (H. Res. 339) (2)
to implement House Resolution 338 which had previously been agreed to:
---------------------------------------------------------------------------
2. Id.
---------------------------------------------------------------------------
Resolved, That the expenses of the investigations to be
conducted pursuant to House Resolution 338, by the Committee on
House Administration, acting as a whole or by subcommittee, not to
exceed $5,000, including expenditures for the employment of
investigators, attorneys, and clerical, stenographic, and other
assistants, shall be
[[Page 1181]]
paid out of the contingent fund of the House on vouchers
authorized by such committee or subcommittee, signed by the
chairman of such committee, or subcommittee, and approved by
the Committee on House Administration.
On July 26, 1947, the House had adjourned to Jan. 6, 1948, but had
been convened by proclamation of the President on Nov. 17, 1947, which
session was consid
ered a continuation of the first session of the 80th Congress.
The question of whether this reconvening of the Congress resulting
from the Presidential proclamation was to be considered a continuation
of the existing session or a special or additional session arose in
connection with the effective date of certain amendments to the rules
of civil procedure in the courts, which amendments were to take effect
three months subsequent to the adjournment of the first regular session
of the Congress. The Senate adopted as controlling a memorandum of the
Federal Law Section, Library of Congress, to the effect that where
Congress adjourns to a day certain--not sine die--and is convened
earlier by proclamation of the President, such convening is a
continuation of the existing session and not a special or additional
session.
On Nov. 17, the Speaker took from the Speaker's table and referred
to the Committee on House Administration a letter from the Clerk
(3) transmitting the required papers (absent contestee's
brief). The Speaker did not lay the communication before the House, but
did order it printed as a House document (H. Doc. No. 433) of the first
session of the 80th Congress. (Neither the Congressional Record, p.
10613, nor the Journal, p. 771, indicate, however, that the
communication had been ordered printed by the Speaker.)
---------------------------------------------------------------------------
3. H. Doc. No. 443, 93 Cong. Rec. 10613, 80th Cong. 1st Sess.; H.
Jour. 771.
---------------------------------------------------------------------------
The committee report indicated that the committee had held full
hearings in the contest, and had given consideration to contestee's
brief, which had not been filed within 30 days after reception of a
copy of contestant's brief, as required by 2 USC Sec. 223. The summary
report recommended that the contest be dismissed ``as lacking in
merit.''
House Resolution 552 (4) was called up as privileged by
Mr. Karl M. LeCompte, of Iowa, on Apr. 27, 1948, accompanied by the
unanimous reports (5) of the Committee on House
Administration
---------------------------------------------------------------------------
4. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.; H. Jour. 374.
5. H. Rept. No. 1823, 94 Cong. Rec. 4922, 80th Cong. 2d Sess.; H.
Jour. 377.
---------------------------------------------------------------------------
[[Page 1182]]
submitted by Mr. LeCompte on that date. The debate which
ensued indicated that contestant was disputing the method by which
contestee had been nominated in the primary election. Contestant had
not herself been a candidate in the general election. Contestee had
been selected as his party's nominee under Georgia State law which
required use of the ``county unit system'' (6) (presumably
whereby each county of the district was accorded one vote,
determined by the majority of votes cast therein, and the nominee is
thereafter determined by the majority of the county votes cast). Mr.
LeCompte contended that unless the House desired to invalidate the
state election laws as they pertained to this election, the House
should adopt House Resolution 552. Accordingly the House agreed to
House Resolution 552 without further debate and without a record
vote and thereby dismissed the contest and declared contestee
entitled to his seat:
---------------------------------------------------------------------------
6. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
---------------------------------------------------------------------------
Resolved, That the election contest of Helen Douglas Mankin,
contestant, against James C. Davis, contestee, Fifth Congressional
District of Georgia, be dismissed and that the said James C. Davis
is entitled to his seat as a Representative of said District and
State.
Note: Syllabi for Mankin v Davis may be found herein at Sec. 6.11
(items transmitted by Clerk); Sec. 24.1 (contestee's failure to make
timely answer); Sec. 43.2 (form of report).
Sec. 54.3 Michael v Smith
On Apr. 22, 1947, the Speaker laid before the House a letter from
the Clerk (7) of the House transmitting copies of the notice
of contestant and the reply thereto in the contest of Michael v Smith
from the Eighth Congressional District of Virginia. The Clerk's letter
stated that no testimony had been taken by either party within the time
permitted by law. The contestant had filed with his notice of contest a
copy of the court record of a suit which had been initiated by
contestant in the United States District Court for the Eastern District
of Virginia to determine certain legal issues raised by the election of
Nov. 5, 1946. On Apr. 22, 1947, the Speaker referred to the Committee
on House Administration the Clerk's letter, and ordered it printed,
together with the accompanying papers mentioned above, as a House
document.
---------------------------------------------------------------------------
7. H. Doc. No. 213, 93 Cong. Rec. 3800, 3827, 80th Cong. 1st Sess.; H.
Jour. 281, 282.
---------------------------------------------------------------------------
Contestant alleged in his brief that the election had not been
[[Page 1183]]
conducted in conformity with the 14th and 15th amendments to the United
States Constitution, in that state law imposed a poll tax and required
certain registration forms in violation thereof, which requirements,
furthermore, were not applied uniformly to all citizens. Contestee in
his answer alleged that contestant had no standing to contest the
election, as he conceded having been defeated by 7,513 votes and
that his only contention presented strictly a legal question to be
decided in court, which question had been decided contrary to
contestant's position. No testimony was transmitted to the House.
On July 26, 1947, the Clerk transmitted contestee's motion to
dismiss (8) the contest to the Speaker, who laid the Clerk's
communication before the House, referred it to the Committee on House
Administration, and ordered it printed with the accompanying motion to
dismiss. On that same day Mr. Ralph A. Gamble, of New York, submitted
the unanimous report (9) from the Committee on House
Administration, which summary report also provided for disposition of
the election contests of Roberts v Douglas (14th Congressional District
of California) and Woodward v O'Brien (Sixth Congressional District of
Illinois). The report recited that no testimony in behalf of
contestants had been taken during the time prescribed by law in any of
the contests, and recommended that notices of intention to contest the
elections of contestees be dismissed.
---------------------------------------------------------------------------
8. H. Doc. No. 418, 93 Cong. Rec. 10522, 80th Cong. 1st Sess.; H.
Jour. 714.
9. H. Rept. No. 1106, 93 Cong. Rec. 10523, 80th Cong. 1st Sess.; H.
Jour. 716, 746.
---------------------------------------------------------------------------
Mr. Gamble called up House Resolution 345 (10) on July
26, 1947, which was agreed to by the House without debate and by voice
vote, and which--
---------------------------------------------------------------------------
10. 93 Cong. Rec. 10445, 80th Cong. 1st Sess.; H. Jour. 716.
---------------------------------------------------------------------------
Resolved, That the election contest of Harold C. Woodward,
contestant, against Thomas J. O'Brien, contestee, Sixth
Congressional District of Illinois, be dismissed, and that the said
Thomas J. O'Brien is entitled to his seat as a Representative of
said district and State; and be it further
Resolved, That the election contest of Frederick M. Roberts,
contestant, against Helen Gahagan Douglas, contestee, Fourteenth
Congressional District of California, be dismissed and that the
said Helen Gahagan Douglas is entitled to her seat as a
Representative of said district and State; and be it further
Resolved, That the election contest of Lawrence Michael,
contestant, against
[[Page 1184]]
Howard W. Smith, contestee, Eighth Congressional District of the
State of Virginia, be dismissed, and that the said Howard W. Smith
is entitled to his seat as a Representative of said district and
State.
Sec. 54.4 Roberts v Douglas
On July 25, 1947, the Speaker laid before the House a letter from
the Clerk (11) which related that neither party had taken
testimony during the time prescribed by law and that the contest of
Roberts v Douglas, from the 14th Congressional District of California,
appeared abated. The Clerk's letter, together with copies of
contestant's notice of contest and contestee's motion to dismiss with a
copy of her attorney's letter in support thereof, were referred to the
Committee on House Administration by the Speaker and ordered printed
with those accompanying papers as a House document.
---------------------------------------------------------------------------
11. H. Doc. No. 416, 93 Cong. Rec. 10211, 80th Cong. 1st Sess.; H.
Jour. 710, 711.
---------------------------------------------------------------------------
Contestant's notice recited only that--
Contest of your right to hold said seat is entered upon the
grounds of failure to meet residence requirements under both the
Constitution of the United States and of the State of California.
Additional grounds for contest of your right to hold said
congressional seat is to be found in many fraudulent practices
alleged in the election of November 5, 1946, which justify
congressional investigation.
Contestee in her motion to dismiss claimed (1) that contestant had
not instituted a valid contest, as the statute (2 USC Sec. 201) and
House precedents required contestant to ``specify particularly the
grounds upon which he relies in the contest,'' i.e., the notice stated
no facts which contestee could either admit or deny in an answer; and
(2) contestant had taken no testimony within the 90 days permitted to
support his notice of contest.
On the following day, July 26, 1947, Mr. Ralph A. Gamble, of New
York, submitted the unanimous report (12) from the Committee
on House Administration, which summary report also provided for
disposition of the election contests of Woodward v O'Brien (Sixth
Congressional District of Illinois) and Michael v Smith (Eighth
Congressional District of Virginia). [H. Rept. No. 11061.] The report
stated that no testimony in behalf of contestants had been taken during
the time prescribed by law in any of the contests, and recommended that
notices of intention to contest the
---------------------------------------------------------------------------
12. 93 Cong. Rec. 10523, 80th Cong. 1st Sess.; H. Jour. 716, 746.
---------------------------------------------------------------------------
[[Page 1185]]
elections of contestees be dismissed.
Mr. Gamble called up House Resolution 345 (13) on July
26, 1947, which was agreed to by the House without debate and by voice
vote, and which----
---------------------------------------------------------------------------
13. 93 Cong. Rec. 10445, 80th Cong. 1st Sess.; H. Jour. 716.
---------------------------------------------------------------------------
Resolved, That the election contest of Harold C. Woodward,
contestant,
against Thomas J. O'Brien, contestee, Sixth Congressional District
of Illinois, be dismissed, and that the said Thomas J. O'Brien is
entitled to his seat as a Representative of said district and
State; and be it further
Resolved, That the election contest of Frederick M. Roberts,
contestant, against Helen Gahagan Douglas, contestee, Fourteenth
Congressional District of California, be dismissed and that the
said Helen Gahagan Douglas is entitled to her seat as a
Representative of said district and State; and be it further
Resolved, That the election contest of Lawrence Michael,
contestant, against Howard W. Smith, contestee, Eighth
Congressional District of the State of Virginia, be dismissed, and
that the said Howard W. Smith is entitled to his seat as a
Representative of said district and State.
Note: Syllabi for Roberts v Douglas may be found herein at Sec. 6.7
(items transmitted by Clerk); Sec. 13.8 (failure to specify grounds
relied upon by contestant); Sec. 22.3 (failure to state grounds with
particularity); Sec. 27.4 (dismissal for failure to take testimony
within statutory period); Sec. 44.3 (form of resolution disposing of
contest).
Sec. 54.5 Wilson v Granger
On June 17, 1948 (Calendar Day June 18), Mr. Karl M. LeCompte, of
Iowa, submitted the report (14) to accompany House
Resolution 692 from the (Committee on House Administration in the
contested election case of Wilson v Granger from the First
Congressional District of Utah. The contest had been presented to the
House on Feb. 12, 1948, when the Clerk had transmitted to the Speaker a
letter (15) accompanied by the required testimony and
papers, which letter the Speaker pro tempore (16) had on
that date ]aid before the House and referred to the committee. The
Clerk's letter, which was not ordered printed as a House document,
provided:
---------------------------------------------------------------------------
14. H. Rept. No. 2418, 94 Cong. Rec. 8964, 80th Cong. 2d Sess.; H.
Jour. 709, 713.
15. 94 Cong. Rec. 1276, 80th Cong. 2d Sess.; H. Jour. 118.
16. Earl C. Michener (Mich.).
---------------------------------------------------------------------------
Sir: The Clerk has received from Frank W. Otterstrom, the
officer before whom testimony was taken in the contested-election
case of David J. Wilson against Walter K. Granger, for a seat in
the Eightieth Congress from the First Congressional District of the
State of Utah, letters dated January
[[Page 1186]]
10, February 3, and February 6, 1948, with reference to the
transmission of testimony and exhibits in the aforesaid case.
The letters from this officer, together with the two express
packages, the airmail package, and exhibit No. 109 referred to
therein, as well as copies of all other papers heretofore filed
with the Clerk relating to this case, are transmitted to the House
for its action.
On July 25, 1947, Mr. Ralph A. Gamble, of New York, offered two
privileged resolutions by direction of the Committee on House
Administration.(17) The first, House Resolution 337 which
was agreed to by voice vote and without debate, provided:
---------------------------------------------------------------------------
17. 93 Cong. Rec. 10210, 80th Cong. 1st Sess.; H. Jour. 698.
---------------------------------------------------------------------------
Resolved, That notwithstanding any adjournment or recess of the
Eightieth Congress, testimony and papers received by the Clerk of
the House in any contested-election case shall be transmitted by
the Clerk to the Speaker for reference to the Committee on House
Administration in the same manner as though such adjournment or
recess had not occurred: Provided, That, any such testimony and
papers referred by the Speaker shall be printed as House documents
of the next succeeding session of the Congress.
Mr. Gamble then offered House Resolution 338 which was also agreed to
by voice vote and without debate, and which provided:
Resolved, That notwithstanding any adjournments or recesses of
the first session of the Eightieth Congress, the Committee on House
Administration is authorized to continue its investigation in the
contested-election cases of Mankin against Davis, Lowe against
Davis, and Wilson against Granger. For the purpose of making such
investigations the committee, or any subcommittee thereof, is
authorized to sit and act during the present Congress at such times
and places within the United States, whether the House is in
session, has recessed, or has adjourned, to hold such hearings, and
to require, by subpena or otherwise, the attendance and testimony
of such witnesses and the production of such books, records,
correspondence, memoranda, papers, and documents, as it deems
necessary. Subpenas may be issued under the signature of the
chairman of the committee or any member of the committee designated
by him, and may be served by any person designated by such chairman
or member.
Thereupon, Mr. LeCompte reported (18) and called up the
following privileged resolution (19) from the Committee on
House Administration (H. Res. 339) to implement House Resolution 338,
which had previously been agreed to:
---------------------------------------------------------------------------
18. H. Rept. No. 1089, 93 Cong. Rec. 10283, 80th Cong. 1st Sess.; H.
Jour. 698.
19. 93 Cong. Rec. 10210, 80th Cong. 1st Sess.; H. Jour. 698.
---------------------------------------------------------------------------
Resolved, That the expenses of the investigations to be
conducted pursuant to House Resolution 338, by the
[[Page 1187]]
Committee on House Administration, acting as a whole or by
subcommittee, not to exceed $5,000, including expenditures for
the employment of investigators, attorneys, and clerical,
stenographic, and other assistants, shall be paid out of the
contingent fund of the House on vouchers authorized by such
committee or subcommittee, signed by the chairman of such
committee, or subcommittee, and approved by the Committee on
House Administration.
House Resolution 339 was agreed to by voice vote and without debate.
The committee report acknowledged ``numerous and widespread errors
and irregularities in many parts of the district, which revealed a lack
of knowledge of the law and a failure to enforce properly the
registration and election statutes by those charged with that duty.''
The committee found that the correct result of the election was not
affected by the irregularities shown. The minority report, signed by
four members of the committee, claimed that contestant should be
seated, due to various voting-law violations, which would nullify the
total votes of various precincts and thereby overturn the 104-vote
majority received by contestee. Specifically, the minority claimed that
state laws prohibiting transportation of voters to places of
registration and confining registration to certain hours and by certain
officials were violated ``in all of the populous counties in the
district.''
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.''
House Resolution 692 (20) was called up as privileged by
Mr. LeCompte and agreed to after a short statement by him, without
further debate, on June 19, 1948. The resolution, adopted by voice
vote, provided as follows:
---------------------------------------------------------------------------
20. 94 Cong. Rec. 9184, 80th Cong. 2d Sess.; H. Jour. 770.
---------------------------------------------------------------------------
Resolved, That the election contest of David J. Wilson,
contestant, against Walter K. Granger, contestee, First
Congressional District of Utah, be dismissed, and that the said
Walter K. Granger is entitled to his seat as a Representative of
said district and State.
Note: Syllabi for Wilson v Granger may be found herein at Sec. 5.12
(continuing investigations by elections committee); Sec. 10.12
(distinction between mandatory and directory laws); Sec. 27.14
(subsequent authorization for informal extension of time); Sec. 35.3
(burden
[[Page 1188]]
of showing results of election would be changed); Sec. 45.1
(payments from contingent fund).
Sec. 54.6 Woodward v O'Brien
On Feb. 27, 1947, the Speaker laid before the House a letter from
the Clerk (1) of the House transmitting (1) a copy of the
notice of contest growing out of the election held Nov. 5, 1946, in the
Sixth Congressional District of Illinois, and (2) a letter from the
contestant, Harold C. Woodward, stating that contestee had not answered
the notice of contest filed with him within the time prescribed by 2
USC Sec. 202, and requesting that all allegations contained in the
notice be considered as admitted by contestee and that a default be
entered against contestee by the House. As stated in the Clerk's
letter--
---------------------------------------------------------------------------
1. H. Doc. No. 156, 93 Cong. Rec. 1517, 80th Cong. 1st Sess.; H. Jour.
159.
---------------------------------------------------------------------------
Since the letter of the contestant (item 2) requests the Clerk
to refer this matter to the House of Representatives for
appropriate action, and further, since the question raised by the
contestant in this communication will have to be decided by the
House itself, the Clerk is transmitting these communications
herewith for consideration by the appropriate committee.
The Clerk's letter was referred by the Speaker to the Committee on
House Administration on Feb. 28, 1947, and ordered printed as a House
document to contain the papers itemized above.
Contestant's notice recited that the 13,076-vote majority which had
been certified for contestee had been determined by election judges and
clerks who improperly counted and reported the votes, or improperly
certified the election results. Contestant's notice set forth 17
particular forms of error which he alleged would, if corrected,
establish 20,000 votes for him.
On July 11, 1947, the Speaker laid before the House a letter
(2) from the Clerk transmitting a motion by contestee to
dismiss the contest, which motion recited that contestee had, on Mar.
5, filed an answer to contestant's notice (though not within the time
required by statute), that more than 90 days had elapsed since such
answer, during which time no testimony had been taken by contestant.
The Speaker referred the Clerk's letter to the committee and ordered it
printed to include the motion to dismiss.
---------------------------------------------------------------------------
2. H. Doc. No. 400, 93 Cong. Rec. 8756, 80th Cong. 1st Sess.; H. Jour.
575.
---------------------------------------------------------------------------
On July 26, 1947, Mr. Ralph A. Gamble, of New York, submitted the
unanimous report (3) from the
---------------------------------------------------------------------------
3. 93 Cong. Rec. 10523, 80th Cong. 1st Sess.; H. Jour. 716, 746.
---------------------------------------------------------------------------
[[Page 1189]]
Committee on House Administration in the contests of Woodward v
O'Brien, which summary report also provided for disposition of
the election contests of Roberts v Douglas (14th Congressional
District of California), and Michael v Smith (Eighth Congressional
District of Virginia). [H. Rept. No. 1106.] The report recited
that no testimony in behalf of contestants had been taken during the
time prescribed by law in any of the contests, and recommended that
notices of intention to contest the elections of contestees be dismissed.
Mr. Gamble called up House Resolution 345 (4) on July
26, 1947, which was agreed to by the House without debate and by voice
vote, and which--
---------------------------------------------------------------------------
4. 93 Cong. Rec. 10445, 80th Cong. 1st Sess.; H. Jour. 716.
---------------------------------------------------------------------------
Resolved, That the election contest of Harold C. Woodward,
contestant, against Thomas J. O'Brien, contestee, Sixth
Congressional District of Illinois, be dismissed, and that the said
Thomas J. O'Brien is entitled to his seat as a Representative of
said district and State; and be it further
Resolved, That the election contest of Frederick M. Roberts,
contestant, against Helen Gahagan Douglas, contestee, Fourteenth
Congressional District of California, be dismissed and that the
said Helen Gahagan Douglas is entitled to her seat as a
Representative of said district and State; and be it further
Resolved, That the election contest of Lawrence Michael,
contestant, against Howard W. Smith, contestee, Eighth
Congressional District of the State of Virginia, be dismissed, and
that the said Howard W. Smith is entitled to his seat as a
Representative of said district and State.
Note: Syllabi for Woodward v O'Brien may be found herein at
Sec. 5.6 (committee power to dismiss election contests); Sec. 23.2
(motion for default judgment); Sec. 27.5 (dismissal of contests for
failure to take testimony within statutory period); Sec. 43.1 (form of
committee report).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 55. Eighty-first Congress, 1949-50
Sec. 55.1 Browner v Cunningham
Mr. Thomas B. Stanley, of Virginia, submitted the unanimous report
(5) of the Committee on House Administration on Aug. 11,
1949, in the contested election case of Browner v Cunningham from the
Fifth Congressional District of Iowa. (The report also contained
committee recommendations in the contested election cases of Fuller v
Davies, 35th Congressional District of New York, and of Thierry v
Feighan,
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5. H. Rept. No. 1252, 95 Cong. Rec. 11316, 81st Cong. 1st Sess.; H.
Jour. 831.
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[[Page 1190]]
20th Congressional District of Ohio.) The case had come to the
House (along with the other two cases above mentioned) on July 26,
1949, when the Speaker had laid before the House a letter from the
Clerk (6) transmitting a copy of contestee's answer (filed
for information only) and relating that no testimony had been received,
the time for such having long since expired. The letter, containing
as well the Clerk's opinion that the contest had abated, was referred
by the Speaker on July 26 to the committee, and ordered printed with
accompanying papers as a House document.
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6. H. Doc. No. 277, 95 Cong. Rec. 10248, 10249, 81st Cong. 1st Sess.;
H. Jour. 751.
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Contestee's answer filed with the Clerk alleged among other things
that contestant had not filed notice of intention to contest the
election within 30 days after determination of the result thereof as
required by statute, and that the 30-day state law requirement for
impounding election machines had expired, thus rendering the machines
themselves incompetent as evidence.
The summary and unanimous report from the Committee on House
Administration stated that:
Under the laws and committee rules governing contested-election
cases in the House of Representatives, more than 90 days elapsed
since the filing of notice to contest the elections of the
respective contestees in the above-entitled contested-election
cases, and no testimony of any character, kind, or nature of the
parties in the said contests having been received by the Clerk of
the House of Representatives in behalf of the contestants in
support of the allegations set forth in their notice of intention
to contest said election.
It is hereby respectfully submitted that notice of intention to
contest the election in the afore-mentioned cases be dismissed by
reason of failure to comply with the laws and committee rules
governing contested-election cases in the House of Representatives.
Accordingly, House Resolution 324 (7) was called up as
privileged by Mr. Stanley and agreed to without debate and by voice
vote on Aug. 11, 1949. House Resolution 324 provided:
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7. 95 Cong. Rec. 11294, 81st Cong. 1st Sess.; H. Jour. 830.
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Resolved, That the election contest of Vincent L. Browner,
contestant, against Paul Cunningham, contestee, Fifth Congressional
District of the State of Iowa, be dismissed, and that the said Paul
Cunningham is entitled to his seat as a Representative of said
district and State; be it further
Resolved, That the election contest of Hadwen C. Fuller,
contestant, against John C. Davies, contestee, Thirty-fifth
Congressional District of the State of New York, be dismissed and
that the said John C. Davies is entitled to his seat as a
Representative of said district and State; and be it further
[[Page 1191]]
Resolved, That the election contest of James F. Thierry,
contestant, against Michael A. Feighan, contestee, Twentieth
Congressional District of the State of Ohio, be dismissed and that
the said Michael A. Feighan is entitled to his seat as a
Representative of said district and State.
Note: Syllabi for Browner v Cunningham may be found herein at
Sec. 6.8 (items transmitted by Clerk); Sec. 24.2 (answer filed for in-
formation only); Sec. 27.1 (dismissal for failure to take testimony
within statutory period).
Sec. 55.2 Fuller v Davies
On Aug. 11, 1949, Mr. Thomas B. Stanley, of Virginia, submitted the
unanimous report (8) of the Committee on House
Administration in the contested election case of Fuller v Davies from
the 35th Congressional District of New York. The report also contained
committee recommendations in the contested election cases of Thierry v
Feighan, 20th Congressional District of Ohio, and Browner v Cunningham,
Fifth Congressional District of Iowa. The case had been presented to
the House (with the two other cases above mentioned) on July 26, 1949,
at which time the Speaker had laid before the House a letter from the
Clerk (9~) transmitting copies of contestant's notice and of
contestee's answer thereto, and containing the Clerk's statement that
the contest had abated, as no testimony had been received within the
time required by law. The Clerk's letter was referred to the Committee
on House Administration and ordered printed with accompanying papers.
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8. H. Rept. No. 1252, 95 Cong. Rec. 11316, 81st Cong. 1st Sess.; H.
Jour. 831.
9. H. Doc. No. 278, 95 Cong. Rec. 10249, 81st Cong. 1st Sess.; H.
Jour. 751.
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Contestant's notice contained 11 forms of fraud, irregularity, and
discrepancy alleged to have occurred in certain wards within the
district, sufficient to annul the 138-vote majority received by
contestee. Contestee's answer denied these allegations severally.
The summary and unanimous report from the Committee on House
Administration stated that:
Under the laws and committee rules governing contested-election
cases in the House of Representatives, more than 90 days elapsed
since the filing of notice to contest the elections of the
respective contestees in the above-entitled contested-election
cases, and no testimony of any character, kind, or nature of the
parties in the said contests having been received by the Clerk of
the House of Representatives in behalf of the contestants in
support of the allegations set forth in their notice of intention
to contest said election.
[[Page 1192]]
It is hereby respectfully submitted that notice of intention to
contest the election in the afore-mentioned cases be dismissed by
reason of failure to comply with the laws and committee rules
governing contested-election cases in the House of Representatives.
Accordingly, House Resolution 324 (10) was called up as
privileged by Mr. Stanley and agreed to without debate and by voice vote
on Aug. 11, 1949. House Resolution 324 declared:
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10. 95 Cong. Rec. 11294, 81st Cong. 1st Sess.; H. Jour. 830.
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Resolved, That the election contest of Vincent L. Browner,
contestant, against Paul Cunningham, contestee, Fifth Congressional
District of the State of Iowa, be dismissed, and that the said Paul
Cunningham is entitled to his seat as a Representative of said
district and State; be it further
Resolved, That the election contest of Hadwen C. Fuller,
contestant, against John C. Davies, contestee, Thirty-fifth
Congressional District of the State of New York, be dismissed and
that the said John C. Davies is entitled to his seat as a
Representative of said district and State; and be it further
Resolved, That the election contest of James F. Thierry,
contestant, against Michael A. Feighan, contestee, Twentieth
Congressional District of the State of Ohio, be dismissed and that
the said Michael A. Feighan is entitled to his seat as a
Representative of said district and State.
Sec. 55.3 Stevens v Blackney
The contested election case of Stevens v Blackney, from the Sixth
Congressional District of Michigan, was presented to the House on Sept.
22, 1949, at which time the Speaker laid before the House and referred
to the Committee on House Administration a letter from the
Clerk.(11) The Clerk's letter, which was ordered printed by
the Speaker as a House document, recited that, agreed upon or proper
testimony had been ordered printed by the Clerk, and, together with
notice of contest and answer, and briefs, had been sealed and was ready
for referral to the Committee on House Administration.
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11. H. Doc. No. 336, 95 Cong. Rec. 13177, 81st Cong. 1st Sess.; H.
Jour. 917.
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On Mar. 6, 1950, Mr. Burr P. Harrison, of Virginia, submitted the
committee report (12) to accompany the recommended committee
resolution declaring contestee entitled to his seat. Part II of the
report contained the views of Mr. Wayne L. Hays, of Ohio, and of Mr.
Anthony Cavalcante, of Pennsylvania.
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12. H. Rept. No. 1735, 96 Cong. Rec. 2898, 81st Cong. 2d Sess.; H.
Jour. 186.
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The majority report set forth three issues in the contest as
follows:
(1) Whether contestant without evidence is entitled to a recount
[[Page 1193]]
under the supervision of the House committee?
The report indicated that the contestant had, on Feb. 10, 1949,
applied to the Committee on House Administration to send its agents to
conduct a recount, prior to contestant's taking of any testimony during
the time prescribed by statute. On Feb. 15, 1949, the
Subcommittee on Elections informed contestant that the House could,
``on recommendation from the committee, order a recount after all
testimony had been taken, in precincts where the official returns were
impugned by such evidence'' (citing House precedents). The committee
rationale in support of this unanimous subcommittee recommendation was
that the probability of error should first be shown, that a Member
whose election has been certified should not be subjected to ``fishing
expeditions,'' that the committee would be overburdened with
``frivolous contests,'' that an unwise precedent would be set, and that
there is no proof that a House-conducted recount would be more
accurate. The minority report did not contest this conclusion, but did
point out in connection with another communication that on the date of
the communication (Mar. 2, 1949) ``there was nothing before the
subcommittee or the House except contestant's notice and contestee's
answer thereto.'' These papers and all testimony were in the custody of
the Clerk until Sept. 22, 1949, on which date the contest was presented
to the House.
(2) Whether contestant, of his own accord and without evidence, is
entitled to conduct a recount without any supervision?
The facts as presented in the ``chronological chart of events''
contained in the minority report, indicate that contestant did on two
separate occasions cause a subpena duces tecum to be issued directing
the election officials to deliver up the original ballots and voting
machines to a notary public of contestant's own selection. On Feb. 3,
1949, the contestant had caused such subpena duces tecum to be issued,
and on Feb. 10, contestee had obtained a restraining order against such
subpena from a local chancery court. On Feb. 14, a local election
official appeared before the notary public but refused to bring with
him the ballots, etc., on the basis of the restraining order, which the
chancery court had issued based on contestee's argument that such a
recount had not been ordered by the House or by its committee. On Feb.
25, on removal to the United States district court, the contest-
[[Page 1194]]
ant succeeded in obtaining an order dissolving the chancery court
restraining order.
On Mar. 2, 1949, contestant again caused to be served a subpena
duces tecum on the local election official, who, on Mar. 8, again
refused to produce the requested ballots, tally sheets, and statements.
The election official based this second refusal on a
communication, dated Mar. 2, which he had received from the
Subcommittee on Elections of the Committee on House Administration.
Signed by Burr P. Harrison, of Virginia, its Chairman, the
communication read as follows:
The Subcommittee on Elections has ruled that a recount of the
ballots at this time is premature and irrelevant. There is no
process under Federal law whereby a notary public can be directed
to take possession of ballots in an election contest.
I do not know whether under the law of your State a notary
public has the power to issue a subpoena duces tecum and as to
this, and as to whether the subpoena has been issued in accordance
with the law of the State, you are referred to your own attorney.
Precedents of the House of Representatives clearly establish
that in a contested election case ballots should be inspected and
preserved in strict conformity with State law so that their
inviolability is unquestioned. No action should be taken by either
contestant or contestee with reference to ballots that does not
follow the law of the State.
The official count of the ballots is presumed correct, and I am
certain that this presumption will not be brought into question by
any unauthorized recount which is made contrary to State law or
under circumstances which do not give full protection to both
contestant and contestee.
On Mar. 15, 1949, the Subcommittee on Elections ``sustained the
action of the election official who had refused to comply with such
subpena duces tecum.'' To this decision and to the communication above,
the minority report took strong exception. The minority contended that
the notary public was an ``officer'' of the House by virtue of 2 USC
Sec. 206 and the Supreme Court case of In re Loney (1890), 134 U.S.
372, which stated that ``any one of the officers designated by Congress
to take the depositions of such witnesses (whether he is appointed by
the United States . . . Or by a State, such as a . . . notary public)
performs this function, not under any authority derived from the State,
but solely under the authority conferred upon him by Congress. . . .''
The minority again pointed out that at the time of the
communication from the chairman of the subcommittee, the election
contest had not been presented to the House. The minority cited several
[[Page 1195]]
House election cases wherein it had been held that a notary public was
a proper official of the House before whom testimony could be taken,
and before whom ballots may be examined and a report submitted to the
House. Taking further exception to Mr. Harrison's communication, the
minority contended that a notary public acting in such capacity derived
his authority from the federal election laws and the rules of the House,
and that a notary public so appointed need not inspect the ballots in
strict conformity with state law, as the power to examine ballots
vested in the House is infinite.
The majority report, however, resolved issue (2) by deciding that
the power of an officer (notary public) to require the production of
``papers'' (under 2 USC Sec. 219) pertaining to the election did not
require the production of ``ballots.'' This decision of the majority of
the committee was contrary to previous precedents of the House, i.e.,
Greevy v Scull (2 Hinds' Precedents Sec. 1044) and Kunz v Granata (6
Cannon's Precedents Sec. 186) which held that ballots are among the
``papers'' of which the officer taking testimony in an election case
may demand the production. The minority also cited Rinaker v Downing (2
Hinds' Precedents Sec. 1070), in which the majority report coincided
with the above precedents, but where ``the majority report referred to
was rejected by the House and the resolution of the minority
substituted.'' The majority report in Stevens v Blackney stated that
the accepted procedure was that the House itself should order a
recount, and provide the subpena power and payment of the expenses
thereof.
The majority rationale for their construction of the word
``papers'' 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, inclusion of
voting machines as official papers. Further, the majority cited the
problem of deciding which count would be accepted by the House, that of
contestant's notary public or that of the bipartisan officials who
first conducted the count, should contestant be permitted to conduct a
recount on his own motion. The alternative that the House could then
conduct a third count, related the majority, would not overcome the
dilemma, as the inviolability of the ballots would then have been
destroyed. The option of authorizing the contestee to name a second
notary to attend
[[Page 1196]]
the hearings would not resolve the question of which notary would
have custody of the ballots overnight.
Citing early cases, the majority report quoted the ``accepted
uniform rule'' in holding that a magistrate taking testimony ``was not
a person or a tribunal authorized to try the merits of the election and
had no authority under the
law of Pennsylvania or of Congress to order those boxes to be broken
open. . . . The committee were of the opinion that such an application
should be founded upon some proof sufficient at least to raise a
presumption of mistake, irregularity, or fraud in the original count,
and ought not to be granted upon the mere suggestion of possible error.
The contestant failed to furnish such proof.''
(3) Did the evidence in this case justify a recount of the ballots?
Of the 207 precincts in the congressional district, the evidence
showed, according to the majority report, that election officials in
four of those precincts had erroneously counted ballots, which had been
marked as straight party ballots and also marked for the congressional
candidate of another party, as votes for both candidates. Those errors
were corrected by the official canvassers and were not reflected in the
official returns. The report related that from the statement of one of
the election officials that the same erroneous method of counting could
have been followed in other precincts, contestant was urging that a
total recount be conducted. Contestant accompanied this contention with
evidence attacking the returns of three precincts. Contestant submitted
no evidence, however, that the law of Michigan had been violated either
in the appointment of bipartisan election officials or in allowing
challengers of contestant's party to be present in any of the remaining
200 precincts. Thus, the majority of the committee applied a principle
of evidence to presume that the failure of contestant to produce party
election officials and challengers from any of the 200 precincts as
witnesses must have been ``because their testimony would show an honest
and fair count.''
On this issue, the minority report contended that, as the recount
in seven precincts had reduced contestee's plurality from 1,217 votes
to 784 votes, that it was reasonable to assume that a complete recount
would overcome contestee's plurality. Citing Galvin v O'Connell (6
Cannon's Precedents Sec. 126) the minority contended that ``if it is
reasonable to suppose there was error in
[[Page 1197]]
judgment in counting ballots cast in a portion of the precincts in
the district, it is equally reasonable to assume there was error in
judgment in counting the ballots in the remaining precincts.''
On May 23, 1950, Mr. Harrison called up as privileged House
Resolution 503,(13) and immediately
yielded to Mr. Cavalcante, who offered a substitute (14)
resolution which:
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13. 96 Cong. Rec. 7544, 81st Cong. 2d Sess.; H. Jour. 434, 435.
14. Id.
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Resolved, That the contested-election case of George D. Stevens
v. William W. Blackney from the Sixth Michigan Congressional
District (Eighty-first Congress, election of November 2, 1948) be
recommitted to the Committee on House Administration with
instructions (1) to allow, under the rules of the subcommittee on
elections and the precedents established by the House of
Representatives, the contestant and his attorney to inspect the
poll lists, registration books, ballot boxes, ballots, tally
sheets, and statements of returns pertaining to this contested
election, and (2) that after said inspection, to direct the parties
to this contest, under such rules as the committee may determine,
to take testimony and return the same, as required by the rules of
the subcommittee on elections and laws (2 U.S. Code 201-226)
governing contested-election cases and the precedents established
by the House of Representatives (Stolbrand v. Aiken (Hinds' I,
719); Goodwyn v. Cobb (Hinds' I, 720); Greevy v. Scull (Hinds' II,
1044); Steele v. Scott (Cannon's VI, 126); Galvin v. O'Connell
(Cannon's VI, 146); Kunz v. Granata (Cannon's VI, 186)).
Mr. Cavalcante thereupon yielded to Mr. Harrison, who immediately moved
the previous question on the substitute resolution, which was rejected
by voice vote.
House Resolution 503 was then agreed to without debate and by voice
vote. House Resolution 503 declared:
Resolved, That William W. Blackney was elected a Representative
in the Eighty-first Congress from the Sixth Congressional District
of the State of Michigan and is entitled to a seat as such
Representative.
Note: Syllabi for Stevens v Blackney may be found herein at
Sec. 7.7 (magistrates' authority to open ballot boxes); Sec. 29.3
(ballots as ``papers'' required to be produced); Sec. 34.2 (necessity
of producing evidence); Sec. 36.8 (effect of absence of witnesses for
contestant); Sec. 39.3 (unsupervised recount); Sec. 40.2 (justification
for recount); Sec. 40.4 (burden of showing fraud, irregularity or
mistake); Sec. 41.3 (production of evidence justifying a recount as
prerequisite) Sec. 42.18 (substitute resolutions); Sec. 43.9 (minority
reports).
Sec. 55.4 Thierry v Feighan
On Aug. 11, 1949, Mr. Thomas B. Stanley, of Virginia, submitted
[[Page 1198]]
the unanimous report (15) of the Committee on House
Administration in the contested election case of Thierry v Feighan from
the 20th Congressional District of Ohio. The report also contained
committee recommendations in the contested election cases of Browner v
Cunningham, Fifth Congressional District of Iowa, and of Fuller v
Davies, 35th Congressional District of New York. Contestee's answer,
filed with the Clerk for information only, had been contained in the
Clerk's letter (16) transmitted to the Speaker on July 26,
1949, and laid before the House on that date. The letter recited that
no testimony had been received during the period required by statute,
and that the contest appeared abated. The Clerk's letter, upon being
referred, was ordered printed with accompanying papers.
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15. H. Rept. No. 1252, 95 Cong. Rec. 11316, 81st Cong. 1st Sess.; H.
Jour. 831.
16. H. Doc. No. 279, 95 Cong. Rec. 10248, 81st Cong. 1st Sess.; H.
Jour. 751.
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The summary and unanimous report from the Committee on House
Administration stated that:
Under the laws and committee rules governing contested-election
cases in the House of Representatives, more than 90 days elapsed
since the filing of notice to contest the elections of the
respective contestees in the above-entitled contested-election
cases, and no testimony of any character, kind, or nature of the
parties in the said contests having been received by the Clerk of
the House of Representatives in behalf of the contestants in
support of the allegations set forth in their notice of intention
to contest said election.
It is hereby respectfully submitted that notice of intention to
contest the election in the afore-mentioned cases be dismissed by
reason of failure to comply with the laws and committee rules
governing contested-election cases in the House of Representatives.
Accordingly, House Resolution 324 (17) was called up as
privileged by Mr. Stanley and agreed to without debate and by voice
vote on Aug. 11, 1949. House Resolution 324 declared:
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17. 95 Cong. Rec. 11294, 81st Cong. 1st Sess.; H. Jour. 830.
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Resolved, That the election contest of Vincent L. Browner,
contestant, against Paul Cunningham, contestee, Fifth Congressional
District of the State of Iowa, be dismissed, and that the said Paul
Cunningham is entitled to his seat as a Representative of said
district and State; be it further
Resolved, That the election contest of Hadwen C. Fuller,
contestant, against John C. Davies, contestee, Thirty-fifth
Congressional District of the State of New York, be dismissed and
that the said John C. Davies is entitled to his seat as a
Representative of said district and State; and be it further
Resolved, That the election contest of James F. Thierry,
contestant, against
[[Page 1199]]
Michael A. Feighan, contestee, Twentieth
Congressional District of the State of Ohio, be dismissed and that
the said Michael A. Feighan is entitled to his seat as a
Representative of said district and State.
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 56. Eighty-second Congress, 1951-52
Sec. 56.1 Huber v Ayres
Mr. Omar T. Burleson, of Texas, submitted the majority report
(18) on Aug. 21, 1951, in the contested election case of
Huber v Ayres, from the 14th Congressional District of Ohio. The case
had been presented to the House on July 11, 1951, on which date the
Speaker had referred to the Committee on House Administration and
ordered printed a letter from the Clerk (19) transmitting
the required papers and testimony pursuant to 2 USC Sec. Sec. 201 et
seq. The record showed that there had been three candidates in the
election held Nov. 7, 1950, and that contestee (Mr. Ayres) had received
a plurality of 1,921 votes over the contestant (102,868 to 100,947, the
independent candidate having received 7,246 votes).
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18. H. Rept. No. 906, 97 Cong. Rec. 10494, 82d Cong. 1st Sess.; H.
Jour. 645.
19. H. Doc. No. 189, 97 Cong. Rec. 8015, 82d Cong. 1st Sess.; H. Jour.
479.
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The contestant ``alleged a failure on the part of the county boards
of elections to rotate properly the names of the three candidates on
the general election ballot as required by section 2 (a) of article V
of the Ohio Constitution.'' As a result of this failure contestant
requested that the election be declared void or that he be seated as
the elected member. The committee ruled that ``the matter of rotating
the names on the ballot is a procedural requirement of the State
election process and a matter which Congress has consistently left for
the States to determine.'' Under section 4 of article I of the United
States Constitution, state legislatures are left free to determine
times, places, and manner of elections for Congress, subject to
alteration by congressional regulation. As Congress had only seen fit
to regulate the date on which congressional elections were to be held,
and to regulate the form of the ballots to be used (2 USC Sec. Sec. 7,
9), the majority proceeded to apply state law, namely the
constitutional provision which:
. . . [R]equires that the names of all candidates shall be so
alternated that each name shall appear (insofar as may be
reasonably possible) substantially an equal number of times at the
beginning, at the end, and in each intermediate place, if any, of
the group in which such name belongs (Ohio Constitution, art. V,
Sec. 2a, adopted Nov. 8, 1949).
[[Page 1200]]
The committee majority then ruled that the contestant had not
exhausted the remedies available
to him under state law, as he had not requested remedial action by
protesting the form of the ballots to the board of elections. The
majority report cited state law requirements which provided for the
publication and display of ballots for a 24-hour period before the
election, with notice to committees representing each party on the
ballot to permit them to inspect the ballots for irregularities. The
report then stated:
Apparently, if objections were entertained by the contestant to
errors in the form of the ballots or ballot labels, he had adequate
recourse under Ohio law to request remedial action by protesting to
the board of elections. In event he failed to secure satisfaction
from the boards, he had recourse to the State courts. Failing to
exhaust the remedies available to him under State law, the final
election having been held, with no allegations or evidence of
fraud, and the results proclaimed, the committee is of the opinion
that the results of that election cannot be overturned because of
some preelection irregularity.
Thus, the majority noted that there had been discrimination against
contestant in the rotation method employed, but that contestant had not
exhausted his state remedies, and that the discrimination may have been
due to the failure of the Ohio legislature to implement the
constitutional provision.
The dissenting views were signed by Mr. Wayne L. Hays, of Ohio, Mr.
Charles R. Howell, of New Jersey, Mr. Edward A. Garmatz, of Maryland,
Mr. Reva Beck Bosone, of Utah, and Mr. Victor L. Anfuso, of New York.
These members of the committee first pointed out that the
constitutional provision needed no new implementing legislation to be
fully effective, nor had its adoption effected the repeal of a state
law which required voting machine rotation of ballots. These dissenting
members then argued that contestant had not been granted a fair chance
by state law to discover the mistake of the election officials in time
to assure correction by the officials or by state courts. The minority
took particular exception to the adequacies of state remedial
procedures as they were interpreted by the majority. The majority, in
taking the position that the Ohio law requirements, as to the
alternation of names on ballots and as to publication of ballots and
display for 24 hours, were mandatory before the election but only
directory afterward, was unsound, contended the minority, as it was
impossible for the contestant to ascertain the unequal method of
ro-
[[Page 1201]]
tation in advance of the election in time to invoke state law
remedies. The minority then cited the
Ohio Supreme Court decision of Otworth v Bays (1951), 155 Ohio 366, 98
N.E.2d 812, for the proposition that the irregularities in the instant
case would render the election invalid because such irregularities
``affect the result of the election or render it uncertain.'' The
minority also cited the Kentucky Supreme Court case of Lakes v Estridge
(1943), 294 Kentucky 655, 172 S.W.2d 454, which invalidated an election
for failure, among other reasons, to rotate the names of candidates on
the ballots as required by state law. Thus, the minority claimed that
evidence had been produced which gave contestant a substantial
plurality, assuming a correct rotation of names on ballots.
Nevertheless, Mr. Burleson called up as privileged House Resolution
400 (20) on Aug. 21, 1951, which the House agreed to without
debate by voice vote. House Resolution 400 provided as follows:
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20. 97 Cong. Rec. 10479, 82d Cong. 1st Sess.; H. Jour. 644.
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Resolved, That William H. Ayres was duly elected as
Representative from the Fourteenth Congressional District of the
State of Ohio to the Eighty-second Congress and is entitled to his
seat.
Note: Syllabi for Huber v Ayres may be found herein at Sec. 7.1
(appeal to state court regarding preelection irregularities); Sec. 10.9
(distinction between mandatory and directory laws); Sec. 12.8
(balloting irregularities) .
Sec. 56.2 Karst v Curtis
On Aug. 21, 1951, the unanimous report (1) from the
Committee on House Administration in the contested election case of
Karst v Curtis, from the 12th Congressional District of Missouri, was
submitted by Mr. Omar T. Burleson, of Texas. The contest had been
presented to the House on Apr. 12, 1951, when the Speaker laid before
the House a letter from the Clerk (2) of the House
transmitting communications relative to the contest. The Clerk's letter
related that time for taking testimony appeared expired and that no
testimony had been received by his office. The Speaker referred the
communication to the Committee on House Administration and ordered it
printed as a House document to include the following material: (1)
contestant's notice of contest filed with the
[[Page 1202]]
Clerk for information only; (2) contestee's answer to said notice filed
for information only; (3) contestee's motion to dismiss for
failure of contestant to take testimony within 40 days after service of
answer; (4) a memorandum from contestant explaining his failure to take
testimony within the 40 days; and (5) contestee's renewed motion to
dismiss for failure of contestant to take testimony during the 90-day
statutory period.
---------------------------------------------------------------------------
1. H. Rept. No. 905, 97 Cong. Rec. 10494, 82d Cong. 1st Sess.; H.
Jour. 645.
2. H. Doc. No. 111, 97 Cong. Rec. 3800, 3801, 82d Cong. 1st Sess.; H.
Jour. 256.
---------------------------------------------------------------------------
On June 7, 1951, the Speaker laid before the House a further
communication (3) from the contestant, which related that he
had been requested by a unanimous vote of the County Democratic
Committee of St. Louis County, based on charges of improper tallying of
ballots in a local election, to file his notice of recount of votes
cast for a Member of Congress in the same election. Based upon the
recount of votes in the local election which failed to disclose the
irregularities suggested by the county committee, contestant informed
the House of his decision to discontinue any further action in the
contest for the seat from the 12th Congressional District. The alleged
discrepancy had represented 15 percent of the total votes cast in the
congressional election, of which contestee had received 110,992 votes
to 106,935 for contestant. The Speaker referred this communication to
the Committee on House Administration and ordered it printed.
---------------------------------------------------------------------------
3. H. Doc. No. 160, 97 Cong. Rec. 6241, 82d Cong. 1st Sess.; H. Jour.
388.
---------------------------------------------------------------------------
The committee report related that ``no testimony was taken or
forwarded to the Clerk of the House in this case as required by
sections 203, 223, of title 2, United States Code.''
Accordingly, the committee recommended the adoption of House
Resolution 399,(4) which was called up as privileged by Mr.
Burleson and agreed to without debate and by voice vote on Aug. 21,
1951. House Resolution 399 stated:
---------------------------------------------------------------------------
4. 97 Cong. Rec. 10479, 82d Cong. 1st Sess.; H. Jour. 644.
---------------------------------------------------------------------------
Resolved, That the election contest of Raymond W. Karst,
contestant, against Thomas B. Curtis, contestee, Twelfth
Congressional District of the State of Missouri, be dismissed.
Note: Syllabi for Karst v Curtis may be found herein at Sec. 6.4
(items transmitted by Clerk); Sec. 25.4 failure to produce evidence);
Sec. 33.3 (withdrawal of contests).
Sec. 56.3 Lowe v Davis
Mr. Omar T. Burleson, of Texas, submitted the unanimous re-
[[Page 1203]]
port (5) of the Committee on House Administration on Aug.
21, 1951, in the contested election case of Lowe v Davis, from the Fifth
Congressional District of Georgia. The report
indicated that contestant had been defeated by contestee in the primary
election, and had not been a candidate and had not received any votes
in the general election. The report stated that:
---------------------------------------------------------------------------
5. H. Rept. No. 904, 97 Cong. Rec. 10494, 82d Cong. 1st Sess.; H.
Jour. 645.
---------------------------------------------------------------------------
Nothing in the record indicates that the contestee was guilty
of any acts in connection with that primary which would disqualify
him for office of United States Representative in Congress. [Citing
the contest of Miller v. Kirwan, 77th Congress (H. Res. 54).]
The report indicated that contestant had filed a record in the
contest with the Clerk, but that contestant had not taken testimony
within the time prescribed by 2 USC Sec. 203.
There was no record of referral of a letter from the Clerk
transmitting the contest to the committee, nor did the House adopt a
resolution referring the contest to the committee. As well, there is no
record that the contestant petitioned the Congress to take action in
this matter.
House Resolution 398 (6) was called up as privileged by
Mr. Burleson and agreed to without debate and by voice vote on Aug. 21,
1951. House Resolution 398 stated:
---------------------------------------------------------------------------
6. 97 Cong. Rec. 10479, 82d Cong. 1st Sess.; H. Jour. 644.
---------------------------------------------------------------------------
Resolved, That the election contest of Wyman C. Lowe,
contestant, against James C. Davis, contestee, Fifth Congressional
District of the State of Georgia, be dismissed.
Note: Syllabi for Lowe v Davis may be found herein at Sec. 19.5
(contestants as candidates in general election); Sec. 27.3 (dismissal
for failure to take testimony within statutory period); Sec. 43.3 (form
of report).
Sec. 56.4 Macy v Greenwood
On Apr. 2, 1951, the Speaker laid before the House, ordered
printed, and referred to the Committee on House Administration a letter
from the Clerk of the House (7) transmitting a stipulation
signed by attorneys for the contestant and the contestee in the contest
of Macy v Greenwood, from the First Congressional District of New York.
The stipulation related that the contestant had, at the contestee's
request, adjourned the calling of two witnesses for six days during the
40-day period allotted contestant for the taking of testimony under 2
USC Sec. 201 et
[[Page 1204]]
seq. Both parties had thus agreed to a compensatory extension of six
days subsequent to the 40-day period, subject to approval of the House.
That approval was granted by the House, when, on Apr. 12, 1951, Mr.
Thomas B. Stanley, of Virginia, submitted the committee report
(8) and called up House Resolution 184 (9) as
privileged. The resolution was agreed to upon assurance by Mr. Stanley
that there would be no further extensions of time. House Resolution
184, having been agreed to by voice vote, provided as follows:
---------------------------------------------------------------------------
7. H. Doc. No. 104, 97 Cong. Rec. 3123, 82d Cong. 1st Sess.; H. Jour.
227.
8. H. Rept. No. 315, 97 Cong. Rec. 3807, 82d Cong. 1st Sess.; H. Jour.
254.
9. 97 Cong. Rec. 3751, 82d Cong. 1st Sess.; H. Jour. 254.
---------------------------------------------------------------------------
Resolved, That the time allowed for taking testimony in the
election contest, W. Kingsland Macy, contestant, against Ernest
Greenwood, contestee, First Congressional District of the State of
New York, shall be extended for a period of 6 days.
That the time allowed for taking of testimony by the contestant
shall be extended for a period of 6 days beginning April 16, 1951,
and ending April 21, 1951.
During the time permitted by statute for contestee to take
testimony, the contestee transmitted to the Clerk his motion to ``close
the hearing and print the record.'' The Speaker laid the Clerk's letter
(10) before the House on May 17, 1951, and had ordered it
printed to include contestee's motion. The motion was based upon
contestee's assertion that he would rely on the testimony adduced by
contestant, thereby obviating the need to take testimony of his own.
Contestee also desired to have the contest resolved during the first
session of the 82d Congress, prior to the July 31 adjournment date
provided in the Legislative Reorganization Act. The Committee on House
Administration did not, however, act upon this motion of contestee.
---------------------------------------------------------------------------
10. H. Doc. No. 135, 97 Cong. Rec. 5483, 82d Cong. 1st Sess.; H. Jour.
341, 343.
---------------------------------------------------------------------------
On Mar. 19, 1952, Mr. Omar T. Burleson, of Texas, submitted the
unanimous committee report (11) recommending adoption of
House Resolution 580.(12) Contestee (Mr. Greenwood), had
received 76,375 votes to 76,240 for the contestant (Mr. Macy), a
plurality of 135 votes, in the Nov. 7, 1950, election. In addition to
contestant's notice of contest filed under the laws governing contested
election cases, contestant had filed a sworn complaint with the
``Special
[[Page 1205]]
Committee to Investigate Campaign Expenditures for the House of
Representatives, 1950,'' which
committee had been created by the 81st Congress and had been directed
to report to the House by Jan. 3, 1951, concerning the campaigns. That
committee (the ``Mansfield Committee'') found that the votes in this
election had been fairly tabulated. The committee report and files were
given to the Committee on House Administration in the event that a
contest was filed.
---------------------------------------------------------------------------
11. H. Rept. No. 1599, 98 Cong. Rec. 2545, 82d Cong. 2d Sess.; H. Jour.
187.
12. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.; H. Jour. 186.
---------------------------------------------------------------------------
The contestant alleged that 2,790 illegal votes had been cast and
counted. He claimed that 932 voters were not qualified as to residence,
for the reason that they had entered the district and had voted
although they had not been ``for the last four months a resident of the
county . . . in which he . . . may vote'' (as required by state law).
Contestant argued that the four-month period for residence began to run
on the date when the voter actually moved into the district rather than
on the date of the signing of the contract to purchase the house. The
committee found that the board of election commissioners had relied on
a court case handed down by a county court within the election
district, which had construed the term ``residence'' to begin to run on
the date of the contract for purchase of the home, rather than on the
date the voter moved into the premises. The committee report could not
cite a case:
. . . [W]herein the House had rejected votes as illegal for the
reason that the voter had not resided in the county for the
statutory period of time, although votes have been rejected where
voters voted in the wrong district. It is apparently the settled
law of elections that where persons vote without challenge they are
presumed to be entitled to vote and that the election officers
receiving the votes did their duty properly and honestly. [Citing
the election contest of Finley v. Bisbee (2 Hinds' Precedents
Sec. 933).]
The committee further found that no challenges were made under
provisions of New York law which permitted challenging of voters at
time of registration or of voting. Contestant's only efforts to
ascertain discrepancies involved a recanvass of the vote under the
supervision of the ``Mansfield Committee'' referred to above, and a
summary proceeding brought in state court, both of which had failed to
disclose any irregularities in the official tabulation, but which had
not passed upon the allegations and issues raised in this contest.
The committee did state that had it found ``the 932 votes illegally
cast, the votes presumably would be deducted proportionally
[[Page 1206]]
from both candidates, according to the entire vote returned for each.
This is the general rule when it cannot be ascertained for which
candidate the illegal votes were cast.''
The contestant further alleged that 841 voters voted when the
registration books showed only 684 names entered as registered on
election day; 79 names entered below the red line signifying entry
after the end of registration; 45 names entered without any date; 13
voters having higher numbers than the highest number certified for that
district; 20 voters having subdivided registration numbers. The
committee found that as for the 79 persons whose names were entered
under the red line, it is presumed that these persons were properly
registered on election day (rather than on either of two earlier
registration days), as permitted by state law. The committee further
found that ``in the absence of fraud, the remaining charges of
irregularities as to registration and the failure of election officials
to assign ballot numbers to electors will not invalidate the votes
cast.''
Regarding contestant's allegation that contestee had violated the
Federal and State Corrupt Practices Acts, the committee found no
evidence that the extra editions of ``Newsday'' which had been devoted
exclusively to the defeat of the contestant, had been financed or
inspired by conduct of contestee.
On Mar. 19, 1952, Mr. Burleson called up House Resolution 580 as
privileged. The House agreed to the resolution without debate and by
voice vote, as follows:
Resolved, That Ernest Greenwood was duly elected as
Representative from the First Congressional District of the State
of New York to the Eighty-second Congress and is entitled to his
seat.
Note: Syllabi for Macy v Greenwood may be found herein at Sec. 7.4
(state court determinations as controlling); Sec. 10.16 (violations and
errors by election officials); Sec. 11 2 (financing extra editions of
magazines); Sec. 27.15 (stipulation by parties for extension of time);
Sec. 34.1 (collecting evidence for future use); Sec. 36.10 (effect of
failure to challenge voter); Sec. 37.5 (method of proportionate
deduction).
Sec. 56.5 Osser v Scott
In the election for United States Representative from the Third
Congressional District of Pennsylvania, held on Nov. 7, 1950, the
contestee, Hardie Scott, received 68,217 votes to 67,286 votes for the
contestant, Maurice S. Osser, a plurality of 931 votes. Contestant
filed timely notice of his in-
[[Page 1207]]
tention to contest the election, claiming that ``fraud, and
irregularities were committed both before the election by permitting
persons to register or failing to cancel the registration for persons
not qualified and on election day by permitting unregistered persons
to vote and through other irregularities.'' Contestant claimed that such
irregularities were
caused by failure of a ``Republican dominated Philadelphia County Board
of Elections'' and a similarly constituted registration commission to
perform their duties, i.e., to cancel the registrations of persons who
did not actually reside in the precincts involved. Contestant also
complained that he was unable to secure watchers and overseers who
truly represented his party and who resided in the districts wherein
they acted.
The contest was presented to the House on Oct. 10, 1951, on which
date the letter from the Clerk of the House (13)
transmitting the relevant papers was referred to the committee and
ordered printed. Contestant's testimony enumerated instances where
persons had registered, giving fictitious addresses as residences, and
against which registrants contestant had filed ``strike off petitions''
(some 2,000 in number). The committee, in its unanimous report
(14) submitted by Mr. Omar T. Burleson, of Texas, on Mar.
19, 1952, found that ``no direct testimony was presented to the
committee showing that any of the persons claimed to have been
illegally registered and to have voted had been actually interrogated
by the contestant or his counsel.'' The committee found that no
evidence had been presented to show that any of the illegal registrants
had voted for the contestee. The committee concluded that the
contestant had not presented sufficient evidence to impeach the
returns, stating in its report as follows:
---------------------------------------------------------------------------
13. H. Doc. No. 253, 97 Cong. Rec. 12908, 82d Cong. 1st Sess.; H. Jour.
772.
14. H. Rept. No. 1598, 98 Cong. Rec. 2544, 82d Cong. 2d Sess.; H. Jour.
187.
---------------------------------------------------------------------------
[W]here contestant asks the committee to reject votes for the
reason that they were illegally cast by persons not residing where
they claimed to reside, the committee requires such evidence as to
leave no doubt.
The committee found that contestant had not presented any evidence
to establish misconduct on the part of the election officials. The
committee report cited provisions of state law which established
district election boards con-
[[Page 1208]]
sisting of three elected members, two from the majority party in the
district, and which established registration commissions of equal party
affiliation. The report further
related that contestant did not take advantage of a remedy provided by
state law in addition to the ``strike-off petition,'' namely, petition
by five voters in a district to a county court for the appointment of
``overseers'' to supervise the election officials and to report to the
court. Such overseers were distinguished from ``watchers'' appointed by
political parties, who, contestant claimed, were not ``honest-to-
goodness Democratic.''
As to contestant's claim regarding failure of the Democratic Party
to appoint suitable watchers and to present suitable candidates for
election board member, the committee would not decide, ``the general
maxim (being) that every official is presumed to do his duty.''
Accordingly, Mr. Burleson called up House Resolution 579
(15) as privileged on Mar. 19, 1952. Upon adoption of the
resolution without debate and by voice vote, the contestee, Mr. Scott,
was held entitled to his seat. House Resolution 579 provided that:
---------------------------------------------------------------------------
15. 98 Cong. Rec. 2517, 82d Cong. 2d Sess.; H. Jour. 186.
---------------------------------------------------------------------------
Resolved, That Hardie Scott was duly elected as Representative
from the Third Congressional District of the State of Pennsylvania
to the Eighty-second Congress and is entitled to his seat.
Note: Syllabi for Osser v Scott may be found herein at
Sec. Sec. 35.5, 35.6 (burden of showing results of election would be
changed); Sec. 36.2 (official returns as presumptively correct).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 57. Eighty-fifth Congress, 1957-58
Sec. 57.1 Carter v LeCompte
Mr. Karl LeCompte was reelected as Representative from the Fourth
Congressional District of Iowa at the election held Nov. 6, 1956,
having received, according to the official state canvass, 58,024 votes
to 56,406 votes for Steven V. Carter, a plurality of 1,618 votes. This
result was officially ``determined'' on Dec. 10, 1956. Contestant
personally served contestee with notice of contest on Dec. 17, though
he had on Nov. 24 served contestee by ``substituted service'' prior to
``determination'' of the result. The committee in its majority report
decided that the subsequent personal service ``rendered moot any
question as to sufficiency of the service contemplated by 2 USC
Sec. 201,'' and that it was served on
[[Page 1209]]
contestee on the 10th day following the official declaration of the
results of the election. Contestee filed timely answer on Dec. 20,
1956.
On Jan. 24, 1957, the contestant petitioned the House requesting an
additional 20 days in which to take testimony. The petition was
transmitted in a letter from the Clerk which the Speaker laid before
the House, ordered printed as a House document to include contestant's
petition, and which the Speaker referred to the Committee on House
Administration on Jan. 29,(16) and was considered by its
Subcommittee on Elections on Feb. 5, 1957. The subcommittee considered
several House precedents (cited in the final report of the full
committee) in which an extension of time had been granted after a
showing of reasonable diligence, and no laches, by either the
contestant or the contestee. The subcommittee also noted, however, that
for insufficient reasons shown, a party to a contest had been denied a
requested extension of time. The subcommittee recommended denial in
this instance. The unanimous subcommittee opinion was unanimously
adopted by the full committee on Feb. 6, 1957, and, being negative, no
formal report was made to the House.
---------------------------------------------------------------------------
16. H. Doc. No. 84, 103 Cong. Rec. 1217, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
On Apr. 17, 1957, contestant filed three motions which were
included in a letter from the Clerk which the Speaker ]aid before the
House, ordered printed, and referred to the Committee on House
Administration.(17) The Subcommittee on Elections
recommended that they be denied on May 7, and approval by the full
committee of the subcommittee action followed on May 8.
---------------------------------------------------------------------------
17. H. Doc. No. 153, 103 Cong. Rec. 5941, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
(1) The committee determined that contestant's motion to ``amend
the pleadings to make them conform to the proof'' was premature, as the
testimony had not yet been printed and referred to the committee.
(2) The committee ruled that contestant's motion for a ``directed
verdict'' was also premature, as a contrary ruling would be in
violation of the rules of the House [Rule XI clause 9(k), House Rules
and Manual (1973)] which requires contested elections to be referred to
the Committee on House Administration, and in violation of 2 USC
Sec. Sec. 201 et seq., which requires testimony to be collected by the
Clerk, printed, and laid before the House for reference.
(3) Contestant's motion asking the Committee on House
Adminis-
[[Page 1210]]
tration to assume custody of the ballots was also denied. The
subcommittee felt that the responsibility for the preservation of
ballots, in congressional contests as
well as in state or local elections, was with the state. However, the
laws of Iowa afforded no mode of preserving ballots cast, as county
auditors were required to destroy congressional ballots six months
after the election. Thus the committee, while recognizing contestant's
right under 2 USC Sec. Sec. 206, 219 to use the subpena duces tecum
``acting through a Federal District Judge or even a notary to require
the production and preservation of ballots and other pertinent
paraphernalia,'' directed its chairman to telegraph all county auditors
requesting them to preserve all ballots and other papers for possible
use by the committee. The request was honored in each county.
The contest was not presented to the House until Aug. 26, 1957,
four days prior to adjournment of the first session of the 85th
Congress. On that date the letter from the Clerk transmitting the
testimony and required papers was referred by the Speaker to the
committee, having been laid before the House and ordered printed by the
Speaker.(18)
---------------------------------------------------------------------------
18. H. Doc. No. 235, 103 Cong. Rec. 15968, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Robert T. Ashmore, of South Carolina, submitted the report of
the majority of the Committee on House Administration on Apr. 22,
1958.(19) The committee first determined that contestant had
properly invoked the jurisdiction of the committee, as there was no
remedy available to him for either a recount or a contest under state
law. Contestee had served copies of his notice of contest on state
officials to challenge the applicability of state laws to a
congressional contested election. In a written opinion dated Dec. 3,
1956, the Attorney General of Iowa had advised the Governor and
Secretary of State that the laws of Iowa contained no provision for
contesting a House seat.
---------------------------------------------------------------------------
19. H. Rept. No. 1626, 104 Cong. Rec. 6939, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
The committee, therefore, agreed with the contestant that there was
not available to him any forum or tribunal in his state to hear this
contest and that he had appropriately presented his case to this
committee, through its elections subcommittee, pursuant to Rule XI of
the House of Representatives and sections 101-130 of the Revised
Statutes of the United States. The committee, in adopting this view,
expressly rejected the view of the committee
[[Page 1211]]
in the contest of Swanson v Harrington in the 76th Congress,
which had required the contestant there to show that the Iowa election
laws did not permit him a recount when he had not sought recourse to
the highest state court regarding the application of state laws to a
House contest.
The committee took ``judicial notice of the complaints filed by the
contestant with the Special House Committee to Investigate Campaign
Expenditures, 84th Congress, and the failure of that committee to draw
any conclusions whatever as to the allegations of his complaint or to
otherwise grant him any relief.''
Contestant's major complaints concerned irregularities in the
casting of absentee ballots and the use of certain designated voting
machines. Contestant alleged widespread miscounting and incorrect
tallying of absentee ballots, several fraudulent practices regarding
the casting and preservation and delivery of absentee ballots by
voters, party workers, and election officials alike throughout the
Fourth Congressional District. The majority of the committee found,
with respect to the disputed absentee ballots, that violations of the
state laws governing absentee voting had been committed by election
officials throughout the district, but that contestee had not
fraudulently participated in those violations. The majority found that
contestant had not shown that he had exhausted his state remedies to
prevent improper absentee ballots from being cast or to punish those
responsible. As contestant had not proven fraud by contestee and had
not challenged absentee ballots under state law, he had not sustained
his burden of proving that the election results would have been
different. Citing the contest of Huber v Ayres (Sec. 56.1, supra) in
the 82d Congress, the majority determined that contestant had not
properly entered objections to errors in 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 preelection irregularity.''
The minority report of the Committee on House Administration was
signed by Mr. George S. Long, of Louisiana, and Mr. John Lesinski, of
Michigan. They cited several provisions of the election laws which
imposed mandatory duties and criminal sanctions on the election
officials, violations of which they contended should void certain
absentee ballots or all ballots in counties where ballots had
[[Page 1212]]
been commingled and were inseparable. The minority 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 absent fraud, was the basis for a recount, which in
this contest would show contestant (Mr. Carter) the winner by 1,260
votes.
Contestant alleged that the voting machines in a certain county
were not set up to permit voting a straight party ticket by a party
lever. The committee could not determine, however, whether any votes
had been lost by the contestant because straight party voting was not
permitted. The committee decided that contestant had not properly filed
his objections to errors as provided by state law, and that the voting
machines in question had been used in the fourth congressional district
for many years. Contestant had challenged neither the machines nor the
tickets used therein.
Finally, the committee pointed out that contestant had not sought a
legal opinion from the state attorney general regarding administration
of the election laws, which opinion would have been binding on the
local election officers. Thus the committee recommended the adoption of
House Resolution 533, which declared contestee entitled to his seat.
Mr. Lesinski in his additional dissenting views proposed that the
House should consider declaring the seat vacant, which would require
the Iowa Governor to call a special election. He cited several
precedents of the House to support the proposition that where
irregularities make it impossible to determine who has been elected,
the seat is declared vacant.
Mr. Ashmore called up as privileged House Resolution 533 on June
17, 1958. Mr. Lesinski took the floor to recommend the minority report
to the House and to call attention to the fact that Iowa, as well as
Missouri, Maine, and Minnesota, had no legal apparatus for determining
the prima facie right of a Member-elect to his seat. Subsequently,
House Resolution 533 was agreed to without further debate, and thereby
the contestee was held entitled to his seat. House Resolution 533
Provided: (20)
---------------------------------------------------------------------------
20. 104 Cong. Rec. 11512, 85th Cong. 2d Sess.
---------------------------------------------------------------------------
Resolved, That Karl M. LeCompte was duly elected as
Representative from the 4th Congressional District of the state of
Iowa in the 85th Congress and is entitled to his seat.
Note: Syllabi for Carter v LeCompte may be found herein at
[[Page 1213]]
Sec. 5.7 (actions by election committee to preserve evidence);
Sec. 5.13 (advisory opinions on state law); Sec. 7.2 (appeal to state
court regarding preelection irregularities); Sec. 10.15 (violations and
errors by officials as grounds for contest); Sec. 13.5 (failure to
exhaust state remedy); Sec. Sec. 13.6, 13.7 (preelection
irregularities); Sec. 18.3 (compliance with statutory requisites for
commencing the contest); Sec. 21.1 (substituted service of notice of
contest); Sec. 23.1 (motion for directed verdict); Sec. 27.13
(extension of time to take testimony for good cause).
Sec. 57.2 Dolliver v Coad
On Jan. 16, 1957, the Speaker referred to the Committee on House
Administration a letter from the Clerk relating to an election contest
and transmitting a communication from the contestee, Merwin Coad. The
communication related that Mr. Coad had been certified as
Representative from the Sixth Congressional District of Iowa as a
result of the election held Nov. 6, 1956, and had been sworn in as a
Member of the 85th Congress, and that Mr. Coad had not received written
notice of his opponent's intention to contest the election within 30
days after the result had been officially determined. The Clerk's
letter was ordered printed to include contestee's
communication.(1)
---------------------------------------------------------------------------
1. H. Doc. No. 53, 103 Cong. Rec. 604, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Mr. Robert T. Ashmore, of South Carolina, submitted the unanimous
committee report (2) on Apr. 11, 1957, to accompany House
Resolution 230. The report stated that the Subcommittee on Elections
had met in executive session on Feb. 5, 1957, to consider the
sufficiency of both the service of the notice and of the notice itself.
No decision being then made, public hearings were held on Feb. 11.
Counsel for Mr. Dolliver contended that 2 USC Sec. 201 governing the
notice of contest was complied with by leaving a copy of the notice
with the wife of the contestee at his home. Counsel argued that Rules
4(d)1 and 56(a) of the Federal Rules of Civil Procedure, which permit
such substituted service, should control the question of proper service
under 2 USC Sec. 201. The subcommittee, however, did not decide this
issue, as they agreed that if the notice were found defective for the
reason that it was not signed by contestant, then the question of the
sufficiency of the service would become moot.
---------------------------------------------------------------------------
2. H. Rept. No. 343, 103 Cong. Rec. 5549, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
On Mar. 11, 1957, the Subcommittee on Elections unani-
[[Page 1214]]
mously decided that notice of contest was not sufficient, as it did
not bear the original signature of
the contestant. Therefore the subcommittee did not determine whether
personal service was required under 2 USC Sec. 201.
Mr. Ashmore called up House Resolution 230 as privileged on Apr.
11, 1957. By agreeing to the resolution without debate,(3)
the House (1) resolved that it should not recognize an unsigned paper
as valid notice of contest; and (2) resolved that in this case the
unsigned notice of contest was not in the form required by 2 USC
Sec. 201. House Resolution 230 provided as follows:
---------------------------------------------------------------------------
3. 103 Cong. Rec. 5501, 5502, 85th Cong. 1st Sess.
---------------------------------------------------------------------------
Resolved, That it would be unwise and dangerous for the House
of Representatives to recognize an unsigned paper as being a valid
and proper instrument with which notice may be given to contest the
seat of a returned Member. . . . That the unsigned paper by which
attempt was made to give notice to contest the election of the
returned Member from the Sixth Congressional District of the State
of Iowa to the 85th Congress is not the notice required by the
Revised Statutes of the United States, title II, chapter 8, section
105.
Note: Syllabi for Dolliver v Coad may be found herein at Sec. 22.4
(necessity of signature on notice of contest).
Sec. 57.3 Oliver v Hale
On Aug. 6, 1958, Mr. Robert T. Ashmore, of South Carolina,
submitted the unanimous committee report (4) from the
Committee on House Administration in the contested election case of
Oliver v Hale, from the First Congressional District of Maine. The
contest had come to the House on Aug. 29, 1957, when the letter from
the Clerk of the House (5) transmitting the required papers
was laid before the House, referred by the Speaker to the committee,
and ordered printed.
---------------------------------------------------------------------------
4. H. Rept. No. 2482, 104 Cong. Rec. 16481, 85th Cong. 2d Sess.; H.
Jour. 838.
5. H. Doc. No. 237, 103 Cong. Rec. 16516, 85th Cong. 1st Sess.; H.
Jour. 872.
---------------------------------------------------------------------------
The record showed that the original canvass of votes disclosed a
29-vote plurality for Robert Hale, the contestee, in the election held
Sept. 10, 1956. As permitted by state law, the contestant asked for an
inspection and recount of all votes cast, which was conducted under the
supervision of five two-man teams (with each party represented on each
team) and with representatives of the ``Special Committee to
Investigate Campaign Expenditures of the House of Representatives''
present at the recount. At the conclusion
[[Page 1215]]
of the recount, contestee requested that a certificate of election
be issued to him, to which request the contestant objected. The
Governor declined to issue such certificate pending an advisory
opinion from the Supreme Court of Maine as to the authority of the
Governor to determine the validity of the disputed ballots, and,
lacking such authority, whether a certificate should be issued to
the apparent winner as determined by the canvass.
The Supreme Court advised the Governor that he had no authority to
determine validity of disputed ballots, but that he should issue a
certificate based on the canvass. Accordingly, the Governor issued the
certificate of election to contestee on Dec. 5, 1956.
In contestee's answer to contestant's notice of contest, which
notice had been filed on Jan. 2, 1957, contestee claimed that the
service of such notice was not timely, i.e., not ``within thirty days
after the result of such election shall have been determined . . .'' as
required by 2 USC Sec. 201. In deciding against 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 above cited until the actual
issuance of the certificate to contestee on Dec. 5, 1956.
The report of the ``Special Committee to Investigate Campaign
Expenditures,'' referred to above, was submitted Dec. 22, 1956. The
majority of that committee recommended that the Committee on House
Administration of the 85th Congress immediately investigate the
disputed ballots (about 4,000) and report to the House by Mar. 15,
1957. The minority contended that a committee of the 85th Congress
should not ``purport to dictate to the Committee on House
Administration of the 85th Congress how it shall conduct its operations
or when it shall file its report.''
The Committee on House Administration, on Apr. 30, 1958, adopted a
motion to conduct an examination and recount of the disputed ballots,
as well as a motion to request counsel for both parties to reduce
further, if possible, the number of ballots in dispute. Accordingly,
counsel reduced the number to 142 regular ballots and 3,626 absentee
ballots in dispute, thus giving contestee a stipulated plurality of 174
votes. The committee first considered the disputed 142 regular ballots.
By examining each ballot, and by applying state law which required that
a ballot not be counted ``if for any
[[Page 1216]]
reason it is impossible to determine the voter's choice,'' the
committee determined that 57 votes had been cast for each candidate
and that 28 votes could not be ascertained. Thus contestee's plurality
remained at 174.
With respect to the 3,626 absentee and physical incapacity ballots,
questions arose as to the proper completion of the application and/or
envelope by the voter prior to the casting of his ballot, or with
subsequent disposition of such material by the election officials. The
ballots themselves were in proper form and could be counted for one or
the other candidate. Thus, the committee divided contestant's
allegations into two classes: (1) alleged violations by the election
officials, and (2) alleged violations by the voter.
(1) Alleged violations by election officials consisted of failures
of the board of registration to retain the application and/or envelope,
or failure of various clerks to send in the application and envelopes
along with the absentee ballots. State law required officials at the
polls to compare signatures on the envelopes containing the ballots
with signatures on the applications attached thereto, and, after a
favorable comparison, to deposit the ballots with the regular ballots,
and then to preserve the applications and envelopes as the ballots were
preserved. The committee proceeded to cite state court opinions which
construed similar violations of Maine election laws. The report quoted
at length an advisory opinion, Opinion of the Justices (1956), 152 Me.
219, 130 A.2d 526, as follows:
We conclude that the provisions of the statute touching the
procedure to be employed at the polls and the disposition of
applications and envelopes following an election are directory and
not mandatory in nature. In other words, violation of the statute
by election officials in the situations here under consideration,
at least in the absence of fraud, is not a sufficient ground for
invalidating ballots.
The committee applied such construction and did not invalidate those
ballots which had been improperly handled due to actions by election
officials.
(2) The contestant alleged nine separate types of violations by
voters themselves in complying with the state absentee voting laws
(including unsigned ballots, physical incapacity ballots not certified
by physicians, envelopes not signed or notarized, jurats not in proper
form, identical names of voter and official giving oath, variance in
signatures on application and on envelope, voters either not registered
or not qualified to vote, and failure of voters to specify
[[Page 1217]]
reason for absentee voting on envelope).
Following a discussion of the required procedure for absentee voting
in Maine, the committee cited state court decisions which
distinguished between acts of the voter and acts of election officials,
and which required the voter to substantially comply with the statute
in order for his vote to be considered as properly cast. [Opinion of
the Justices (1956), 152 Me. 219, 130 A.2d 526; Miller v Hutchinson
(1954), 150 Me. 279, 110 A.2d 577.] Thus, the committee determined that
109 absentee and physical disability ballots should be rejected, but
that there was no possible way of relating the invalid absentee voting
material to the particular ballots cast by those voters. The committee,
therefore, sought an equitable method of deducting 109 absentee ballots
from the totals of the contestant and contestee.
The committee applied the test prescribed in the election contest
of Macy v Greenwood (Sec. 56.4, supra) in the 82d Congress, which
method presupposes that each candidate received invalid ballots in the
same proportion that he received his total vote in the election
precinct. Thus, by dividing the number of absentee votes received by a
candidate in a precinct by the total number of absentee votes cast in
that precinct, and by then multiplying the fraction thereby obtained,
by the number of absentee votes rejected in the precinct, the committee
determined that 86 votes should be deducted from contestee's total, and
23 votes from contestant's total. The final result showed a 111-vote
plurality for the contestee.
Accordingly, on Aug. 12, 1958, Mr. Ashmore called up as privileged
House Resolution 676,(6) which the House agreed to without
debate. Thereby, the contestee, was held entitled to his seat. House
Resolution 676 provided as follows:
---------------------------------------------------------------------------
6. 104 Cong. Rec. 17119, 85th Cong. 2d Sess.; H. Jour. 858.
---------------------------------------------------------------------------
Resolved, That Robert Hale was duly elected as Representative
from the First Congressional District of the State of Maine in the
Eighty-fifth Congress and is entitled to his seat.
Note: Syllabi for Oliver v Hale may be found herein at Sec. 5.3
(overlapping jurisdiction of committee); Sec. 5.10 (committee power to
examine and recount disputed ballots); Sec. 7.3 (advisory opinions by
state courts); Sec. Sec. 10.7, 10.8 (distinction between mandatory and
directory laws); Sec. 12.7 (balloting irregularities); Sec. 20.5
(commencement of statutory 30-day period); Sec. 37.4 (method of
proportionate
[[Page 1218]]
deduction); Sec. 38.2 (voter intention as paramount concern in
interpreting ballot); Sec. 39.4 (recount pursuant to state law,
with House supervision).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 58. Eighty-sixth Congress, 1959-60
Sec. 58.1 Investigation of right of Dale Alford to a seat.
During the organization of the House of Representatives of the 86th
Congress on Jan. 7, 1959, a single objection having been made to the
oath being administered to the Member-elect, Dale Alford from the Fifth
Congressional District of Arkansas, Mr. Alford was asked by the
Speaker, under the precedents, to stand aside while the other Members
and Delegates-elect were sworn. Thereupon the House agreed to House
Resolution 1.(7) House Resolution 1 provided as follows:
---------------------------------------------------------------------------
7. 105 Cong. Rec. 14, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
Resolved, That the Speaker is hereby authorized and directed to
administer the oath of office to the gentleman from Arkansas, Mr.
Dale Alford.
Resolved, That the question of the final right of Dale Alford
to a seat in the 86th Congress be referred to the Committee on
House Administration, when elected, and said committee shall have
the power to send for persons and papers and examine witnesses on
oath in relation to the subject matter of this resolution.
The previous question was immediately ordered on the resolution, at
which time Mr. Thomas P. O'Neill, Jr., of Massachusetts, propounded a
parliamentary inquiry as to whether 40 minutes of debate would be
permitted on the resolution, there having been no debate prior to the
adoption of the previous question. Speaker Sam Rayburn, of Texas,
replied that ``under the precedents, the 40-minute rule does not app]y
before the adoption of the rules.'' The resolution was thereupon agreed
to by voice vote and without further debate which authorized the
Speaker to administer the oath to Mr. Alford, and which referred to the
Committee on House Administration the question of the final right of
Dale Alford to the seat. The committee was authorized to send for
persons and papers and to examine witnesses under oath.
On Apr. 15, 1959, the committee adopted a motion making it
mandatory for the committee to investigate the election, and requesting
the federal authorities in possession of the ballots and other
documents to release them to the committee. To facilitate the
investigation, the Subcommittee on Elections traveled to Little Rock,
Arkansas, to take physical cus-
[[Page 1219]]
tody of the ballots and other materials.
The subcommittee examined all ballots cast in the election, as a
result of which 3,409 ballots were isolated as ``questionable'' and
were sent to Washington, D.C., for examination by the full committee.
Prior to consideration of the questionable ballots, the subcommittee
considered the issue of the validity of write-in votes and determined
that all ballots would be considered as valid where the name of the
write-in candidate had been properly written in or placed on the ballot
by sticker. (Mr. Alford had been elected as a ``Democratic write-in
candidate'' over Brooks Hays, the nominee of the Democratic Party.) The
subcommittee disregarded an uncertainty which existed in state law with
respect to write-in votes in general elections, and decided that the
will of the voters should not be invalidated by an uncertainty in state
law. The committee noted that it had been the custom in Arkansas to
accept write-in votes, that spaces had been provided on the ballots for
write-in votes, and that the House of Representatives had always
recognized the right of a voter to write in the name of his choice.
Regarding the use of stickers bearing Dale Alford's name in lieu of
the write-in vote, the subcommittee determined that an opinion of the
state attorney general, issued on Oct. 30, 1958, to the effect that
stickers are legal, was binding on the clerks and judges and that they
were required to count the sticker votes. Neither Mr. Hays nor any
voter had appealed from the opinion of the attorney general. The
subcommittee further determined that it should not void ballots in
those precincts where stickers were distributed at the polls, since the
state did not have a law prohibiting such distribution and in view of
the fact that the Arkansas Supreme Court had ruled in 1932 that ballots
bearing stickers distributed at the polls were legal. The report cited
the Massachusetts contest in the 66th Congress of Tague v Fitzgerald (6
Cannon's Precedents Sec. 96), in support of the proposition that the
use of stickers in balloting should not void the ballots involved. The
subcommittee unanimously recommended, however, that the Arkansas
legislature should clarify the use of stickers and write-in voting in
general.
The subcommittee investigation was conducted as a result of charges
made by a single voter from the district, many of the charges made on
the basis of
[[Page 1220]]
hearsay. The losing candidate, Brooks Hays, offered to
assist in an investigation, although he did not file a contest under
the statute governing contested elections (2 USC Sec. Sec. 201 et seq
). The committee report (8~) expressed its strong preference for
contesting congressional elections by following the procedures outlined
in the statute cited above.
---------------------------------------------------------------------------
8. H. Rept. No. 1172 submitted Sept. 8, 1959, 105 Cong. Rec. 18610,
18611, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
As the result of the subcommittee investigation conducted in
Arkansas, the subcommittee determined that the questionable ballots
presented 16 distinct categories. The subcommittee considered
separately the issues raised by each of the 16 categories.
(1) The subcommittee ruled that each of the 48 ballots which did
not have stubs detached were invalid. Citing the Arkansas statute which
required the voter to detach the stub from the ballot and to deposit it
separately, the subcommittee cited a Kentucky case [State Board of
Election, Commissioners v Coleman (1930), 235 Ky. 24, 295 S.W.2d 619]
in which the court ruled that the ``depositing of the ballot without
first detaching the stub would destroy the constitutional requirement
for secrecy of the ballot if such ballot is counted, and such
requirement is mandatory.''
(2) The subcommittee ruled that the 415 ballots which had the name
of a write-in candidate written in, or placed on the ballot by sticker,
but which did not contain any mark in the box opposite the name, were
valid. The report cited the contest of Tague v Fitzgerald (6 Cannon's
Precedents Sec. 96) as the only case in which the Committee on House
Elections had ever ruled on disputed ballots of this type. In that case
the committee had ruled that a cross was not necessary to the validity
of the ballots, stating (as quoted by the subcommittee in the instant
case):
No other candidate for Congress was voted for on such ballots.
In the absence of a provision expressly rendering such a ballot
void in the (state) and in the absence of a reported state case on
that point, the committee held that the intention of the voter to
vote for (Tague) was manifest by affixing a sticker or writing a
name, notwithstanding that the act had not been completed by the
making of a cross thereafter.
The subcommittee cited several subsequent cases from courts of
other states [Rollyson v Summers County Court (1932), 113 W. Va. 167,
167 S.E. 83; Sawyer v Hart (1916), 194 Mich. 399, 160 N.W. 572; Burns v
Rodman (1955), 342
[[Page 1221]]
Mich. 410, 70 N.W.2d 793] to substantiate the
``general rule'' that the intent of the voter can be ascertained and a
vote is valid even though the voter fails to mark a cross in the square
provided.
(3) The subcommittee ruled that 28 ballots which had the name of a
write-in candidate written in, or placed on the ballot by sticker, and
which had the box opposite the name of the other candidate marked were
invalid, as such a ballot denoted in effect that the voter had voted
twice for the same office.
(4) The subcommittee determined that 236 ballots which had the name
of the write-in candidate written in and the box opposite checked
rather than ``Xed'' were valid, as the intention of the voter was
clear.
(5) The subcommittee ruled that 52 ballots upon which the wrong end
of the sticker had been placed were invalid as if not voted at all for
either candidate.
(6) The subcommittee considered 88 ballots on which the name of the
write-in candidate was either written or placed by sticker in some
place on the ballot other than on the write-in line. The subcommittee
first determined that 37 ballots, on which the name of the write-in
candidate had been written or placed by sticker either in or partially
in the congressional box, were valid, but that four ballots which had
been voted by scratching or marking a line through the name of Brooks
Hays and writing Alford's name on the Hays line were invalid. Of the 47
ballots upon which the write-in name or sticker appeared outside the
congressional box, 46 ballots were considered invalid.
(7) There were 1,097 ballots on which the name of the write-in
candidate was misspelled or only the last name used. The subcommittee
validated all ballots on which the surname had been properly spelled or
nearly correctly spelled (1,035) but invalidated those on which the
wrong given name was written or the surname too incorrectly spelled to
show definite intent of the voter (62).
(8) There were 190 ballots apparently intended for the write-in
candidate, but containing erasures or other markings. The subcommittee
(a) validated 28 ballots apparently voted for the write-in candidate
but with Hays' name stricken through (such practice being in accordance
with a prior law); (b) invalidated 73 ballots containing write-in votes
but also marks in the Hays box which had then been scratched through or
[[Page 1222]]
erased; and (c) validated 89 votes where the ballots had additional
information such as ``5th District'' written after the name or sticker.
(9) The subcommittee invalidated 357 ballots on which the box
opposite the write-in line was marked by an ``X'' or check but contained
nothing written in or placed
on the write-in line. The National Bureau of Standards had reported to
the subcommittee that there was ``no evidence of any adhesive particles
or torn fibers,'' thus no evidence of fraud.
(10) The subcommittee invalidated seven ballots upon which stickers
had been placed over or partially over marks for the other candidate.
(11) The subcommittee validated two ballots on which the voter had
written in the name of Brooks Hays, but had not marked an ``X'' in the
box opposite his name. The subcommittee cited a Pennsylvania Supreme
Court case (no Arkansas case being in point), which validated ballots
similarly cast, the name of the person written in being identical to
the name printed on the ballot. In that case, the court had
distinguished between such ballots and ballots containing marks beside
the printed name as well as write-in votes for the same candidate,
which the court considered invalid as a double vote. James' Appeal
(1954), 377 Pa. 405, 105 A.2d 64.
(12) There were 584 ballots on which the voter had placed a
checkmark rather than the ``X'' prescribed by law, opposite the name of
Brooks Hays. As the subcommittee had done in category (4) above,
regarding votes cast for the write-in candidate, it ruled these ballots
valid, as the intention of the voter was clear.
(13) The subcommittee validated 42 of the 43 ballots on which the
voters had placed some mark other than an ``X'' or check in the square
opposite Brooks Hays' name, as the intention of the voter was clear.
(14) 175 ballots contained erasures or other markings which
apparently had been counted for Brooks Hays. The subcommittee found
that all of these ballots should be invalidated, either on the grounds
of potential fraud (erasures of the write-in name and ``X''s marked for
Brooks Hays, or ``X''s for Hays in different form from the other ``X''s
on the ballot), or due to irregular markings on ballots and failure of
voters to avail themselves of new ballots under the ``spoiled ballot''
provisions of state law.
(15) 74 ballots either were not marked for either candidate, or
contained names of persons other
[[Page 1223]]
than the write-in candidate. The subcommittee invalidated each of these
ballots, as the persons written
in had not declared themselves to be write-in candidates within 48
hours before opening of the polls, as required by state law.
(16) The subcommittee invalidated seven ballots which had
previously been voided.
(17) Finally, the subcommittee invalidated three ballots where a
voter had placed a mark across the entire congressional box, or had
torn the top off a ballot, or had torn Mr. Hays' name from the marked
ballot.
The subcommittee investigated certain other phases of the campaign
and election. It found nothing irregular regarding expenditures by the
write-in candidate. It condemned the use of an unsigned pre-election
circular by an individual who had distributed information in Mr.
A1ford's behalf, apparently without the candidate's knowledge. The
subcommittee 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 subcommittee refused to consider charges against officials of
the Democratic party that they conspired to nullify the will of voters
in the Democratic primary, there being no evidence to substantiate the
involvement of Mr. Alford in a conspiracy. By the terms of House
Resolution 1, the committee was limited in the scope of its
investigation to the question of the final right of Dale Alford to his
seat in Congress.
The subcommittee disregarded charges that the write-in candidate
had represented himself to be a ``Democratic'' candidate in order to
deceive voters. The ballot itself showed that Mr. Hays was the
nominated party candidate and that Mr. Alford was a Democrat running as
a write-in candidate, his name not being printed thereon.
The subcommittee finally considered and recapitulated alleged
errors in tally sheets of various precincts. Thereupon, the final count
showed that of the 3,408 questionable ballots, 937 were invalid and not
counted. Of the remaining validated ballots, Mr. Alford was credited
with 1,843 and Mr. Hays with 628. Dale Alford's final plurality,
therefore, was 1,498, having received 30,247 votes to 28,749 for Brooks
Hays.
On Sept. 8, 1959, Mr. Ashmore called up as privileged House
Resolution 380.(9) Following remarks by the Chairman of the
---------------------------------------------------------------------------
9. 105 Cong. Rec. 18610, 18611, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 1224]]
Committee on House Administration and by its ranking minority member,
the resolution was agreed to on a division vote--ayes 245, noes 5.
Thereby, Dale Alford was held entitled to his seat in the 86th
Congress. House Resolution 380 provided as follows:
Whereas the Committee on House Administration has concluded its
investigation of the election of November 4, 1958, in the Fifth
Congressional District of Arkansas pursuant to House Resolution 1;
and
Whereas such investigation reveals no cause to question the
right of Dale Alford to his seat in the Eighty-sixth Congress;
Therefore be it
Resolved, That Dale Alford was duly elected a Representative to
the Eighty-sixth Congress from the Fifth Congressional District of
Arkansas, and is entitled to a seat therein.
Note: Syllabi for the proceedings involving Mr. Alford may be found
herein at Sec. 5.9 (actions by election committee to preserve
evidence); Sec. 13.2 (candidate's participation in irregularities);
Sec. Sec. 17.1, 17.4 (alternatives to filing election contests);
Sec. Sec. 37.9-37.17 (validity of ballots); Sec. 38.5 (state law as
related to voter intention).
Sec. 58.2 Mahoney v Smith
Mr. Robert T. Ashmore, of South Carolina, submitted the unanimous
report of the Committee on House Administration in the contested
election case of Mahoney v Smith, Sixth Congressional District of
Kansas, on Mar. 21, 1960.(10) The contest had come to the
House on June 30, 1959, on which date the Speaker had referred to the
committee a communication from the Clerk transmitting the required
papers and testimony.(11) Prior to June 30, 1959, the Clerk
had transmitted on May 6, 1959, contestee's motion to dismiss the
contest,(12) accompanied by contestant's objection thereto
and on June 2, 1959, contestant's motion that the House direct the
impounding and preservation of all ballots.(13) These
communications had been referred by the Speaker on those dates to the
Committee on House Administration, and had been ordered printed to
include the motions of the parties.
---------------------------------------------------------------------------
10. H. Rept. No. 1409, 106 Cong. Rec. 6195, 86th Cong. 2d Sess.
11. H. Doc. No. 190, 105 Cong. Rec. 12330, 12331, 86th Cong. 1st Sess.
12. H. Doc. No. 129, 105 Cong. Rec. 7530, 86th Cong. 1st Sess.
13. H. Doc. No. 167, 105 Cong. Rec. 9571, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
The official abstract showed that contestee had received a
plurality of 233 votes, 43,782 to 43,549 for contestant in the election
held Nov. 4, 1958. Contestant alleged voting irregularities in four
election precincts and irregular casting of within-state absen-
[[Page 1225]]
tee ballots in a certain county which he contended should void the total
votes in those precincts, resulting in a 56-vote plurality for
contestant. Specifically contestant alleged that an election official
had incorrectly marked and counted ballots and that in certain pre-
cincts the number of votes cast was greater than the number of voters
listed as having voted.
The committee first considered the actions taken by its
Subcommittee on Elections regarding contestee's motion to dismiss. The
committee concurred in the subcommittee's denial of the motion ``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
actually then before the committee because the testimony adduced under
the contest statute had not yet been printed or transmitted by the
Clerk to the committee.'' The subcommittee did, however, act upon
contestant's motion for preservation of the ballots by notifying state
officials to preserve ballots despite state law which required their
destruction six months after the election. The committee found,
however, that certain county clerks had not been officially notified of
the pending contest and had destroyed ballots prior to filing of
contestant's motion.
The committee ruled that contestant had not proven fraud or
irregularities on the part of any election official from the evidence
produced nor had he proven that the votes in the election were greater
than the number of listed voters. Finally, the committee ruled, with
respect to the ``within-state absentee ballots,'' that the witnesses
adduced in contestant's behalf were prohibited by state law from being
present at the counting of the votes and had no standing to contest the
ballot counting.
On Mar. 24, 1960, Mr. Ashmore called up as privileged House
Resolution 482 which was agreed to by the House without debate and by
voice vote.(14) Thereby the contestee was held entitled to
his seat. House Resolution 482 provided as follows:
---------------------------------------------------------------------------
14. 106 Cong. Rec. 6523, 86th Cong. 2d Sess.
---------------------------------------------------------------------------
Resolved, That Wint Smith was duly elected as Representative
from the Sixth Congressional District of the State of Kansas in the
Eighty-Sixth Congress and is entitled to his seat.
Note: Syllabi for Mahoney v Smith may be found herein at Sec. 5.8
(actions by election committee to preserve evidence); Sec. 25.6 (motion
to dismiss as premature).
Sec. 58.3 Myers v Springer
On Apr. 30, 1959, the Speaker laid before the House and referred
[[Page 1226]]
to the Committee on House Administration a letter from the Clerk
transmitting a communication from Carlton H. Myers which
complained about the conduct of the election held Nov. 4, 1958, for
Representative from the 22d Congressional District of Illinois. In that
communication, Mr. Myers, the defeated Democratic candidate, claimed
that his opponent had appointed the editor and owner of a local paper,
which paper later supported his opponent and refused Mr. Myers
coverage, to a position as acting postmaster, in violation of the
Federal Corrupt Practices Act. Mr. Myers also alleged attempts of
bribery and coercion against him by representatives of the opposing
political party. The Clerk's letter was ordered printed to include the
notice of contest copy, which had been filed with that
office.(15)
---------------------------------------------------------------------------
15. H. Doc. No. 123, 105 Cong. Rec. 7242, 7265, 86th Cong. 1st Sess.
---------------------------------------------------------------------------
There was no record in the proceedings of the 86th Congress to
indicate that contestant complied with the requirements of the laws
regulating contested election cases (2 USC Sec. Sec. 201 et seq.), and
no record that the Committee on House Administration had taken action
in this contest.
Note: Syllabi for Myers v Springer may be found herein at Sec. 18.1
(compliance with statutory requisites).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 59. Eighty-seventh Congress, 1961-62
Sec. 59.1 Roush or Chambers
In 1961, the House conducted an investigation of the question of
the right of J. Edward Roush or George O. Chambers, from the Fifth
Congressional District of Indiana, to a seat in the 87th Congress,
although the case was not one that had been brought pursuant to the
contested election statute.
On the organization of the House of Representatives of the 87th
Congress on Jan. 3, 1961, Mr. Clifford Davis, of Tennessee, objected to
the oath being administered to the Member-elect, George O. Chambers,
from the Fifth Congressional District of Indiana, who was then asked by
the Chair, under the precedents, to stand aside while other Members-
elect and the Resident Commissioner-elect were sworn.
Mr. Davis then submitted the following resolution: (16)
---------------------------------------------------------------------------
16. 107 Cong. Rec. 23-25, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Resolved, That the question of the right of J. Edward Roush or
George O.
[[Page 1227]]
Chambers, from the Fifth Congressional District of
Indiana, to a seat in the Eighty-seventh Congress be referred to
the Committee on House Administration, when elected, and said
committee shall have the power to send for persons and papers and
examine witnesses on oath in relation to the subject matter of this
resolution; and be it further
Resolved, That until such committee shall report upon and the
House decide the question of the right of either J. Edward Roush or
George O. Chambers to a seat in the Eighty-seventh Congress,
neither shall be sworn.
Mr. Davis immediately moved the previous question on the
resolution, which was ordered by a roll call vote of 252 yeas to 166
nays. The House then agreed to the resolution by division, 205 yeas to
95 nays. Thus the adoption of House Resolution 1 automatically
nullified the certificate of election which had been issued by the
Governor of Indiana on Nov. 15, 1960, which certified that Mr. Chambers
had been elected by a 12-vote majority out of 214,615 ballots cast.
Upon election and organization of the Committee on House
Administration, its Subcommittee on Elections, acting pursuant to a
motion adopted by the full committee to conduct a complete recount of
ballots, proceeded to the Fifth Congressional District of Indiana to
conduct the required investigation and recount. The actual counting of
ballots and auditing of returns was accomplished by 13 auditors of the
General Accounting Office assigned to the committee. The counting
procedures as prescribed by the committee were as follows: (1)
examination and removal of all material pertinent to the congressional
election; (2) separation of materials by category; (3) counting of
ballots by categories; (4) recorded count by category for each
precinct; (5) packaging and labelling all materials to be retained and
removed from counties by committee; (6) recording data from precinct
audit sheets on summary analysis sheets for each county; (7)
summarizing county totals on analysis; and (8) returning remaining
material to precinct container.
Prior to the counting by the committee auditors, the subcommittee
had met in executive session to establish the following criteria for
classifying ballots examined and categorized by the auditors:
A. Regular ballots:
1. Paper ballots were considered regular if, among other
requirements, they were (a) marked with a blue pencil for
``nonabsentee'' ballots; (b) marked by a clearly defined ``X''--two
discernible lines
[[Page 1228]]
crossing at any angle; (c) and marked by two initials
on the lower left of the reverse side.
2. All machine ballots, determined from reading the voting
machine registers assigned to the respective candidate, were classified
as regular.
B. Questionable ballots (all ballots not meeting the criteria
established for regular ballots) were characterized by:
1. Any mark other than an acceptable mark.
2. Any apparently distinguishing mark, erasure, or strikeover.
3. A mark made other than with blue pencil for nonabsentee ballots.
4. A mark not in the proper place, as lines not crossing within a
box.
5. Multiple markings for the same office.
6. Ballots without proper markings on the reverse side, lower left
corner.
C. Absentee ballots, regular or questionable: the same criteria as
above were applied except:
1. Marking was permissible with any color ink or pencil, and
2. Ballots were examined for seal and signature or initials of
county clerk on reverse side in lower left corner.
D. Ballots with no votes for Congressman.
In its initial investigation conducted in the Fifth Congressional
District of Indiana, the subcommittee also examined and retained
absentee and nonabsentee ballots which had not been counted by precinct
officials, as well as all other materials relevant to the congressional
election. Voters' poll lists and tally sheets were compared with
certificates of total votes cast, and discrepancies noted.
The Subcommittee on Elections, meeting in executive session on Mar.
15, 1961, in Washington, directed that ballots classified as
questionable or questionable absentee ballots or ballots not counted by
precinct officials, be held by the committee for further review.
(Regular ballots, determined as such during the first investigation,
were not held for further review.) The above categories were further
classified into 30 subcategories. The subcommittee, considering the
lack of uniformity in the interpretation of the Indiana election laws
by various local officials, adopted, on Apr. 12, 1961, a motion
designed to achieve uniformity. The adoption of such motion resulted in
several actions taken by the Subcommittee on Elections which were not
consistent with Indiana statutes and court opinions in point. One
effect
[[Page 1229]]
of the adoption of these rules was validation of the ballots
marked with some instrument other than a blue pencil, some of which had
been counted and some of which had been rejected by the precinct
officials. There were 436 such ballots, 10 of which had been rejected
by local officials. The subcommittee ruled that all 436 ballots were
valid, despite Indiana court opinions which had invalidated ballots
(nonabsentee paper ballots) marked with ink or lead pencil. With
respect to absentee ballots either marked and then retraced with red
lead pencil, or marked with black lead pencil but having one line of
the ``X'' retraced and crossing two parallel lines at least one-
sixteenth of an inch apart, the subcommittees disregarded state court
opinions which had ruled such ballots invalid. The subcommittee cited
instances [Goodich v Bullock (2 Hinds' Precedents Sec. 1038) and Kearby
v Abbott (2 Hinds' Precedents Sec. 1076)] in which the House had held
that state statutory requirements that ballots be marked with
designated instruments were directory and not mandatory, particularly
where the proper instrument was not available to the voter. [See also
Denny, Jr. v Owens (2 Hinds' Precedents Sec. 1088).] Further, the
subcommittee ruled that where state law does not declare ballots void
when an improper instrument is used, as was the case under Indiana
``Rules for Counting Votes,'' which were silent on the matter, the law
designating use of certain instruments was merely directory.
In adopting as valid the distinction between mandatory and
directory provisions of state law pertaining to elections, the
subcommittee cited the Nebraska case of Waggonner v Russell, 34 Neb.
116, 51 N.W. 465 (1892), which had incorporated language from Paines'
treatise on elections as follows:
In general, those statutory provisions which fix the day and
the place of the election and the qualifications of the voters are
substantial and mandatory, while those which relate to the mode of
procedure in the election, and to the record and the return of the
results, are formal and directory. Statutory provisions relating to
elections are not rendered mandatory, as to the people, by the
circumstance that the officers of the election are subjected to
criminal liability for their violation.
Adoption by the subcommittee of the motion referred to above also
had the effect of validating all regular ballots and absentee ballots
not properly initialed on the back by the precinct clerks. Absentee
ballots were accepted where the county clerk's initials
[[Page 1230]]
or signature appeared on the back so long as there also appeared on
the back the seal of the county clerk. Thus, 2,492 ballots consid-
ered questionable were validated under this rule, though 562 of those
ballots were reconsidered under other questionable categories. In
resolving that the initialing requirements of state law were directory
rather than mandatory, provided that the clerk's seal was affixed and
his initials were upon absentee ballots, the subcommittee obviated
state law requiring that two precinct clerks initial in ink the backs
of nonabsentee ballots in the lower left corner and that the voter fold
the ballot to expose the initials, and stating that ballots not bearing
clerk's initials were void. The subcommittee agreed with an Indiana
Supreme Court opinion which had held that a precinct clerk's initials
need not be in ink. The subcommittee, however, overruled state court
decisions that ballots which did bear two sets of initials were void.
The subcommittee did accept state law that the clerk's seal was
mandatory on the absent voter's ballot, as well as state court opinions
that absentee ballots were valid without the initials of the precinct
or poll clerks, but with the initials (not necessarily the signature)
of the county clerk. The subcommittee then considered precedents of the
House, citing Moss v Rhea (2 Hinds' Precedents Sec. 1120) for the
proposition that ``the failure of the clerks to initial the ballots was
a mistake of which the voter himself was not a participant and the
ballots should be counted.'' Citing McCrary, A Treatise on the Law of
Elections (1897 ed., 522, 523) the committee report affirmed the
proposition that the ``acts of election officials are merely directory
and the voter will not be disfranchised for failure of these officials
to perform their duty.''
The committee report then distinguished two House election contests
[Steward v Childs (2 Hinds' Precedents Sec. 1056) and Belknap v
Richardson (2 Hinds' Precedents Sec. 1042)] in which the Committee on
House Elections in its report had rejected ballots which did not bear
initials of precinct clerks as required by state law, but upon which
reports the House did not act. The committee report then cited the
contest of Taylor v England (6 Cannon's Precedents Sec. 177) in which
case the Committee on House Elections had unanimously agreed that:
The House of Representatives should not consider itself
obligated to follow the drastic statute of the State of West
Virginia, under the provisions of which
[[Page 1231]]
all ballots not personally signed by the clerks of election in
strict compliance with the manner prescribed had been rejected,
but should retain the discretionary right to follow the rule of en-
deavoring to discover the clear intention of the voter.
As part of the motion described above, the Subcommittee on
Elections had agreed to accept as valid those ballots so marked as to
indicate the clear intention of the voter, provided that the ballots
did not bear any distinguishing mark, that is, a mark which would
enable a person to single out and separate the particular ballot from
others cast, thereby evading the law insuring the secrecy of the
ballot. The committee report cited the provisions of state law which
governed the form of county ballots to be used and the way they were to
be marked, as well as the statutory rules for counting votes, as
interpreted by the Indiana Supreme Court. The subcommittee found that
there had been no uniform application of the counting rules by precinct
officials. The subcommittee also found that there was no provision of
state law authorizing a state recount for a legislative offlce.
Consequently, by the adoption of its ground rules, the Subcommittee on
Elections took the following initial action before ruling on the
counting of ballots marked apparently not in strict conformity with
what the subcommittee deemed very narrow court interpretations of very
strict statutory rules for marking of a ballot:
Resolved, That the Subcommittee on Elections hereby agrees that
it will accept the precedents of the House of Representatives as
binding in reaching its decision to the extent that the power to
examine ballots and to correct both deliberate and inadvertent
mistakes be vested in the subcommittee, the decisions of the
Indiana courts being not necessarily conclusive but guiding and
controlling only when such decisions commend themselves to the
subcommittee's consideration.
The committee report posed as the central issue to be decided, the
question of whether the ``House will necessarily follow state court
decisions in ruling on validity of questionable ballots, particularly
when those decisions seem to be contrary to the intention of the voter
in honestly trying to indicate a choice between candidates.'' The
report then cited several ``instances in which the House, through its
Committee on Elections, has held that decisions of a state court are
not binding on the House in the examination of ballots to correct
deliberate or inadvertent mistakes and errors.'' [Brown v Hicks (6
Cannon's Precedents Sec. 143) and Carney v Smith (6 Cannon's Precedents
[[Page 1232]]
Sec. 146).] The committee report then stated as follows:
Although the House of Representatives generally follows State
law and the rulings of State courts in resolving election contests,
this is not necessarily so with respect to the validity of ballots
where the intention of the voter is clear and there is no evidence
of fraud.
The committee report then cited precedents of the House in which
the Committee on House Elections (1) had declined to reject ballots
because not marked strictly within the square as required by state law
[Moss v Rhea (2 Hinds' Precedents Sec. 1121), H. Rept. No. 1959, 57th
Cong.]; (2) had gone behind the ballot to ascertain the intent of the
voter by bringing in evidence of circumstances surrounding the election
so as to explain ambiguities (not to contradict ballots) [Lee v Rainey
(1 Hinds' Precedents Sec. 641), H. Rept. No. 578, 44th Cong.]; (3) had
held that ``there being no doubt of the intent of the voter, the wrong
spelling of a candidate's name does not vitiate the ballot'' [Stroback
v Herbert (2 Hinds' Precedents Sec. 966), H. Rept. No. 1521, 47th
Cong.]; and (4) where there was no ambiguity, had declined to go beyond
the ballots to derive intention of voters [Wallace v McKinley (2 Hinds'
Precedents Sec. 987), H. Rept. No. 1548, 48th Cong.].
Having cited these precedents, the subcommittee proceeded to
evaluate the various categories of questionable ballots to determine
``whether the intent of the voter was clear from the markings on the
ballots and whether the ballots were cast by properly registered
voters.''
With respect to sustaining the intention of the voter in judging
many ballots irregularly marked, certain members of the subcommittee
voted against validating many such ballots, contending that the motion
adopted by the subcommittee regarding intention of the voter was being
too liberally construed by the subcommittee, in contradiction to
precedents which had voided similar ballots. Mr. John Lesinski, Jr., of
Michigan, ``felt that the intention of the voter was not sufficiently
clear . . . where the party was marked and the voter also marked the
square for individual candidates for other offices in the same party
column but did not mark the square opposite the congressional
candidate.''
The subcommittee evaluated the validity of 85 absentee servicemen's
ballots, or ballots of dependents of servicemen, which had been
rejected, 28 of them having been marked ``not registered'' by local
election officials. In 1953 the
[[Page 1233]]
Indiana legislature had adopted a general absentee registration law
which made it mandatory for the clerk of the circuit court or the
board of registration of a county to register without further
application any member of the armed forces upon application, properly
executed, for an absentee ballot. In 1957 the legislature attempted to
repeal that provision making a member of the armed forces application
for an absentee ballot sufficient to constitute registration.
The committee elicited and accepted as binding opinions from the
bipartisan state election board, all of which construed the above
statute to require that if such an application be received by the
county clerk, that an application for registration shall be sent to the
serviceman so applying and that an absentee ballot sent to a serviceman
not registered as provided by law could not be counted because there
was no automatic system of registration under state law.
The subcommittee found that 918 more ballots had been voted than
the total number of persons who had signed voters' poll lists or whose
names were written in as absentee voters. The subcommittee
investigation disclosed no evidence of fraud, but numerous instances
wherein precinct election officials had not required voters to sign
poll lists, although affidavits of registration were marked to reflect
that only eligible voters had voted. Thus the subcommittee validated
all ballots cast by persons who had not signed poll lists, which were
otherwise valid.
Following the election in November 1960, two candidates filed
affidavits with the Special Campaign Expenditures Committee of the 86th
Congress. Mr. Roush alleged that more absentee ballots had been
recorded as cast than had been cast, and the special committee, upon
conducting an investigation, reported that Mr. Chambers had been
incorrectly credited with 11 too many absentee votes, and that Mr.
Roush had incorrectly received four too many, a net loss of seven votes
to Chambers. Mr. Chambers alleged that a tally sheet error in another
precinct would add five votes to his total, and would thereby re-
establish his overall majority at three votes. The special committee
did not investigate Mr. Chambers' petition. This action by the Special
Campaign Expenditures Committee prompted Mr. Glenard P. Lipscomb, of
California, Mr. John B. Anderson, of Illinois, Mr. Charles E.
Chamberlain, of Michigan, and Mr. Charles E. Goodell,
[[Page 1234]]
of New York, to file additional views to the final report of the
Committee on House Administration in this contest. These minor-
ity members of the committee objected to the action taken by the House
in the adoption of House Resolution 1, whereby the House had declared
the seat from the Fifth Congressional District of Indiana vacant
pending final report of the committee. These members in their
additional views cited the House Rules and Manual, Sec. 236 as follows:
[B]ut the House admits on his prima facie showing and without
regard to final right a Member-elect from a recognized constituency
whose credentials are in due form and whose qualifications are
unquestioned (1 Hinds' Precedents Sec. Sec. 528-534).
These members claimed that a document circulated by the Clerk of
the House, containing a compilation purporting to certify that Mr.
Roush had been elected by two votes, but which had taken cognizance
only of the claims made by the Special Committee on Campaign
Expenditures, was partially instrumental in denying Mr. Chambers the
prima facie right to his seat.
In its investigation of the question of the final right to the
congressional seat from the Fifth Congressional District of Indiana,
the Subcommittee on Elections considered both petitions filed by the
candidates with the Special Committee on Campaign Expenditures of the
86th Congress, though that special committee had only investigated Mr.
Roush's petition. The subcommittee found that Mr. Chambers had not been
denied five votes due to failure to count five tally marks in
unnumbered blanks. The subcommittee ruled that only one of the two
tally sheets from the precinct in question showed these five tally
marks, but that this tally sheet had not been filed with the precinct
material, and that ``the congressional ballots counted by the auditors
for the entire precinct total agreed with the total vote for both
congressional candidates as shown on the precinct certification.'' The
subcommittee investigation confirmed the report of the special
committee with respect to the petition filed by Mr. Roush, which
claimed that 15 more absentee ballots had been recorded as cast than
had been cast. The subcommittee therefore ruled that in Jefferson
Precinct No. 1, Mr. Chambers had suffered a net loss of seven votes.
The subcommittee found that in Precinct No. 4 of Madison County, 42
absentee ballots had been illegally procured and cast, though there was
no proof as to the per-
[[Page 1235]]
son for whom they were cast. The subcommittee applied the ``general
rule followed in the House for deduction of illegal votes where it is
impossible to determine for which candidate they were counted.''
Thus the subcommittee first determined the total votes cast for
each candidate in the precinct (615 for Mr. Roush and 352 for Mr.
Chambers), then determined the number of absentee votes counted for
each candidate in the precinct (20 for Mr. Roush and 42 for Mr.
Chambers), a total of 62 absentee ballots counted, 68 percent of which
were cast for Mr. Chambers and 32 percent for Mr. Roush. Applying these
percentages to the 42 votes to be deducted, the subcommittee deducted
29 votes from Mr. Chambers' total and 13 votes from Mr. Roush's total.
The committee report then proceeded to cite precedents of the House in
which the proportionate deduction method had been followed [for
example, Oliver v Hale, H. Rept. No. 2482, 85th Cong.; Macy v
Greenwood, H. Rept. No. 1599, 82d Cong.; Finley v Walls (2 Hinds'
Precedents Sec. 903); Platt v Goode (2 Hinds' Precedents Sec. 923);
Finley v Bisbee (2 Hinds' Precedents Sec. 934); Wickersham v Sulzer and
Grigsby (6 Cannon's Precedents Sec. 113); Chandler v Bloom (6 Cannon's
Precedents Sec. 160); Bailey v Walters (6 Cannon's Precedents
Sec. 166); and Paul v Harrison (6 Cannon's Precedents Sec. 158)].
The subcommittee took special precautions to insure the integrity
of the questionable ballots by adopting a motion requiring the
separation and sealing of all ballots ruled valid or invalid, without
having been counted, and then requiring all previously sealed ballots
to be opened and the final results of the election determined by two
teams composed of a subcommittee member and a staff auditor. The count
of the 6,072 questionable ballots was then rechecked by the audit
staff, and no differences were noted. Thus the recount conducted by the
Subcommittee on Elections showed Mr. Roush to have received a majority
of 99 votes.
The additional views cited above expressed concern over what
appeared to be inconsistent positions taken by the subcommittee, which
had validated nonabsentee ballots in disregard of previous decisions of
local precinct boards, but which had invalidated absentee ballots by
adopting a policy of accepting the decisions of the local authorities,
particularly with respect to servicemen's ballots, rather than
``persisting in its liberal interpretation
[[Page 1236]]
of the law when the servicemen's ballots were before us.'' The
members signing the additional views also expressed a hope that future
contests would be decided according to statutes governing contested
election cases, at a greatly reduced cost. These members advocated new
federal legislation.
Robert T. Ashmore, of South Carolina, Chairman of the Subcommittee
on Elections, submitted the unanimous report from the Committee on
House Administration, which report had been unanimously recommended by
the subcommittee, on June 13, 1961. This report (H. Rept. No. 513)
accompanied House Resolution 339,(17) which was referred to
the House Calendar and ordered printed as follows:
---------------------------------------------------------------------------
17. 107 Cong. Rec. 10186, 87th Cong. 1st Sess.
---------------------------------------------------------------------------
Whereas the Committee on House Administration has concluded its
investigation, including a recount of the ballots cast at the
election of November 8, 1960, in the Fifth Congressional District
of Indiana, pursuant to House Resolution 1; and
Whereas such investigation and recount reveals that J. Edward
Roush received a majority of the votes cast in said district for
Representative in Congress: Therefore, be it
Resolved, That J. Edward Roush was duly elected as a
Representative to the Eighty-seventh Congress from the Fifth
Congressional District of Indiana, and is entitled to a seat
therein.
On June 14, 1961, preceding debate in the House on the above
resolution, John W. McCormack, of Massachusetts, the Majority Leader,
requested:
Mr. Speaker, in connection with the debate on the Roush-
Chambers election matter today, I ask unanimous consent that
general debate may continue for not longer than two hours; in other
words, to provide an additional hour of general debate. That time,
under my unanimous-consent request, is to be equally divided
between the chairman of the subcommittee and the ranking minority
member, the gentleman from Ohio [Mr. Schenck]; also, that upon the
termination of debate, the previous question shall be considered as
ordered.
During the debate which ensued, Mr. Ashmore, the subcommittee
chairman, emphasized that ``the intention of the voter was usually the
controlling factor in passing upon these questionable ballots by your
committee.'' He then pointed to the practice adopted by the
subcommittee of separating and sealing ballots by category, and then
examined and either validated or invalidated by the subcommittee by
groups, without the subcommittee knowing for whom they had been cast.
Mr. Paul F. Schenck, of Ohio, the ranking minority member of the
full committee, questioned ``the possible overlap of jurisdiction of a
special committee ap-
[[Page 1237]]
pointed each two years for the purpose of studying campaign
expenditures . . . that the special
committee in this past 86th Congress went too far and went beyond its
proper jurisdiction in the actions recommended by its chairman on
January 3 of this year.''
Mr. Charles A. Halleck, Mr. E. Ross Adair, Mr. Richard L.
Roudebush, Mr. William G. Bray, Mr. Earl Wilson, Mr. Ralph Harvey, and
Mr. Donald C. Bruce, Members of the 87th Congress from Indiana, all
joined with Mr. William C. Cramer, of Florida, ranking minority member
of the Special Committee on Campaign Expenditures of the 86th Congress,
to (1) dispute the initial need for a recount contrary to the three
certifications of the Indiana secretary of state that Mr. Chambers had
been duly elected, which fact was not understood by many majority
members who were led to believe by the document circulated by the Clerk
that both candidates had been certified; (2) to protest the action by
the House in declaring the seat vacant with out permitting debate; and
(3) to dispute the uniform ``ground rules'' adopted by the
subcommittee, which did not follow the laws of the State of Indiana, to
determine the validity of questionable ballots. They contended that the
fact that local officials had not uniformly applied state election laws
was no reason for the subcommittee to prescribe new rules, but rather
that the subcommittee should better have uniformly applied State law.
In response to (3) above, Mr. Ashmore stated that the Committee on
House Elections has always been reluctant to refuse to follow state
elections laws, but that, under the Constitution which makes each House
the final judge of the elections and returns of its members, the House
is free to regard state law when it so desires.
Mr. McCormack argued that the House was fully justified in
declaring the seat vacant, as the certificates of election, being
merely prima facie evidence of election, had been sufficiently
contradicted by certificates of error filed by county clerks and by the
facts found by the Special Committee to Investigate Campaign
Expenditures.
All time having expired for general debate on the resolution, the
resolution was agreed to by a division vote demanded by Mr. Wilson, of
Indiana, of 138 yeas to 51 nays. Mr. Roush was thereby declared
entitled to the seat from the Fifth Congressional District of Indiana,
and immediately ap-
[[Page 1238]]
peared at the bar of the House and took the oath of office.
On June 13, 1961, Mr. Ashmore had also submitted the unanimous
committee report (H. Rept. No. 514) to accompany House Resolution
540,(18) which provided:
---------------------------------------------------------------------------
18. Id. at p. 10391.
---------------------------------------------------------------------------
Resolved, That the House of Representatives having considered
the question of the right of J. Edward Roush or George O. Chambers,
from the Fifth Congressional District of Indiana, to a seat in the
House in the Eighty-seventh Congress, House Resolution 1, Eighty-
seventh Congress, and having decided that the said J. Edward Roush
is entitled to a seat in the House in such Congress with the result
that the said J. Edward Roush is entitled to receive and will be
paid the compensation, mileage, allowances, and other emoluments of
a Member of the House from and after January 3, 1961, there shall
be paid out of the contingent fund of the House such amounts as are
necessary to carry out the provisions of this resolution in
connection with such decision of the House, as follows:
(1) The said George O. Chambers shall be paid an amount equal
to compensation at the rate provided by law for Members of the
House for the period beginning January 3, 1961, and ending on the
date of such decision of the House.
(2) The said J. Edward Roush and the said George O. Chambers
each shall be paid an amount equal to the mileage at the rate of 10
cents per mile, on the same basis as now provided by law for
Members of the House, for each round-trip between his home in the
Fifth Congressional District of Indiana and Washington, District of
Columbia, in response to the request of the Committee on House
Administration for his appearance between the committee in
connection with the investigation authorized by House Resolution 1,
Eighty-seventh Congress.
(3) The said J. Edward Roush and the said George O. Chambers
each shall be reimbursed for those expenses actually incurred by
him in connection with the investigation by the Committee on House
Administration authorized by House Resolution 1. Eighty-seventh
Congress, in accordance with that part of the first section of the
Act of March 3, 1879 (20 stat. 400; 2 USC 226), which provides for
payment of expenses in election contests.
The resolution was agreed to without debate and by voice vote. The
committee report reasoned that ``had the investigation . . . been an
actual 'election contest,' both the contestant and contestee would have
been authorized to [claim] reimbursement of those expenses actually
incurred in connection with the investigation conducted by the
committee.''
Note: Syllabi for Roush or Chambers may be found herein at Sec. 9.3
(certificates of election); Sec. 10.6 (distinction between mandatory
and directory laws); Sec. 17.2 (alternatives to election contests);
[[Page 1239]]
Sec. 37.3 (method of proportionate deduction); Sec. 37.18 (marking
ballot with improper instrument); Sec. 38.4 (state law as an aid in
interpreting voter intention); Sec. 41.5
(use of auditors); Sec. 45.4 (payments to candidates involved in
alternatives to statutory election contests); Sec. 45.5 (retroactive
payments).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 60. Eighty-eighth Congress, 1963-64
Sec. 60.1 Odegard v Olson
On Feb. 7, 1963, the Speaker laid before the House a communication
from the Clerk of the House, which contained contestant's notice of
intention to contest the election held Nov. 6, 1962, in the Sixth
Congressional District of Minnesota, contestee's answer thereto, and
contestee's subsequent motion to dismiss the contest, with supporting
brief. The Clerk's letter was read, and, together with the accompanying
papers, referred on Feb. 7, to the Committee on House Administration
and ordered printed as a House document.(l9)
---------------------------------------------------------------------------
19. H. Doc. No. 62.
---------------------------------------------------------------------------
In his notice of contest, contestant alleged general irregularities
on the part of election clerks and judges with respect to the counting
of ballots, and requested the House to order a recount. Contestant had
received 76,962 votes to 77,310 votes for contestee, a margin of only
348 votes. Contestee in his answer included a motion to dismiss the
contest for failure of contestant to specify particular grounds in his
notice of contest, thereby depriving the House of jurisdiction under 2
USC Sec. 201, which requires contestant to ``specify particularly the
grounds upon which he relied in the contest.'' Contestee claimed that
contestant had further attempted to ``cloud his valid election'' by
obtaining a restraining order from the state supreme court, which,
after a court hearing, had been vacated, thereby permitting the
secretary of state to issue to contestee his certificate of election.
Contestee further requested the House to require contestant to submit a
bill of particulars setting out specific precincts and specific
instances of error, irregularity, and failure to conform to law.
In his subsequent motion to dismiss the contest, contestee claimed
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 by 2 USC Sec. Sec. 203, 223, and therefore that no contest
existed. In his supporting
[[Page 1240]]
brief, contestee referred to evidence submitted by contestant to
the Special Committee to Investigate Campaign Expenditures of the
87th Congress and printed as
House Report No. 2570 of the 87th Congress, and referred to the
Committee on House Administration of the 88th Congress with-
out recommendation. Contestee claimed this was not proper evidence to
be considered by the Committee on House Administration, as it had not
been served on contestee or his counsel, and was in the form of unsworn
allegations.
The Subcommittee on Elections held public hearings on Feb. 26,
1963, at which both parties and counsel were present. The central issue
was the ordering of a recount, or of an investigation to justify a
recount, by the committee. The Subcommittee on Elections found that
contestant ``had abandoned the statutory procedure which established a
specified time within which to develop evidence. . . . [B]y majority
vote, the subcommittee concluded that the petition submitted by Mr.
Olson 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.''
The subcommittee thereby affirmed the ruling in Gorman v Buckley (6
Cannon's Precedents Sec. 162), in which the Committee on House
Elections adopted contestee's motion to strike contestant's deposition
from the record on the grounds that the testimony was not supplied to
the House in time, and then dismissed the contest as not being a case
that could be legally considered by the committee.
Four minority members of the Subcommittee on Elections filed
additional views to accompany the subcommittee report to the full
committee. Mr. Charles E. Chamberlain, of Michigan, Mr. Charles E.
Goodell, of New York, Mr. Willard S. Curtin, of Pennsylvania, and Mr.
Samuel L. Devine, of Ohio, agreed with the contestant that the
subcommittee should follow the precedent set by the Subcommittee on
Elections in the 85th Congress. In that instance, following the special
election of Feb. 18, 1958, of Mr. Albert Quie by 602 votes over Mr.
Eugene P. Foley, the defeated candidate wired the Subcommittee on
Elections of the House Administration Committee requesting an
examination and recount of the ballots. In their additional views, the
minority members pointed out that:
The basis for this request was given as the closeness of the
vote and allega-
[[Page 1241]]
tion that an unofficial and partial examination
revealed several errors which were indicative that clerical errors
and omissions had been made which, if corrected, could change the
result of the election. In response the Elections Subcommittee sent
a group comprised of three members and counsel to Minnesota on
February 27, 1958, for the purpose of conducting a spot check of
ballots in various precincts in the counties of the district.
This action was taken in the absence of a formal election
contest. . . . It was taken on the basis of a telegram from the
defeated candidate citing the closeness of the vote and alleging
clerical errors. . . .
. . . The minority members of the committee are unanimous in
their opinion that if a spot check of ballots was justified in the
1958 Foley v. Quie case, with a margin of 602 ballots out of
87,950, based upon the telegraphic request of the defeated
Democratic candidate, then a spot check of ballots in the current
case where the difference is less, 348 ballots out of 154,272, is
more than justified.
These members in their additional views also pointed to the
``confusion which may be created during the period surrounding a
general election by the existence of two separate committees of the
House having parallel and overlapping jurisdiction.''
The report of the Subcommittee on Elections was printed for use by
the full Committee on House Administration. The report was adopted by
the full committee on Nov. 20, 1963, but was not submitted to the
House. Neither was any resolution dismissing the contest or declaring
contestee entitled to his seat reported to the House from the Committee
on House Administration.
Note: Syllabi for Odegard v Olson may be found herein at Sec. 5.2
(overlapping jurisdiction of committees); Sec. 25.5 (failure to produce
evidence); Sec. 43.14 (failure of committee to submit report).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 61. Eighty-ninth Congress, 1965-66
Sec. 61.1 Frankenberry v Ottinger
On the organization of the House of Representatives of the 89th
Congress on Jan. 4, 1965, Mr. James C. Cleveland, of New Hampshire,
objected to the oath being administered to the Member-elect, Richard L.
Ottinger, from the 25th Congressional District of New York, who was
then asked by the Chair not to rise while other Members-elect and the
Resident Commissioner-elect were sworn. Carl Albert, of Oklahoma, the
Majority Leader, thereupon offered the following resolution (H. Res.
2): (20)
---------------------------------------------------------------------------
20. 111 Cong. Rec. 20, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
Resolved, That the Speaker is hereby authorized and directed to
administer
[[Page 1242]]
the oath of office to the gentleman from New York, Mr.
Richard L. Ottinger.
The rules of the 89th Congress not having been adopted, Mr. Albert
was recognized for debate on his resolution under general parliamentary
rules. Mr. Albert yielded to Mr. Cleveland for a parliamentary inquiry
as to whether it would be in order for Mr. Cleveland to offer a
substitute resolution or an amendment, particularly should the previous
question be ordered. The Speaker replied that Mr. Albert controlled all
time and would have to yield for that purpose, which Mr. Albert refused
to do. Mr. Albert then refused to yield for further parliamentary
inquiries and moved the previous question, which was ordered by voice
vote. The resolution was then agreed to by voice vote. Mr. Ottinger
thereupon appeared at the bar of the House and took the oath of office.
On Jan. 4, 1965, Mr. Cleveland explained the reasons for his
objection to Mr. Ottinger being administered the oath of office; in an
extension of remarks in the Congressional Record,(1) Mr.
Cleveland alleged that at least $187,000 had been spent in the Ottinger
campaign, of which $167,000 had been contributed by the Member's
family, in violation of 18 USC Sec. 608, which limits to $5,000 the
amount any one person may contribute either directly or indirectly to
any candidate for federal office. Mr. Cleveland also stated that Mr.
Ottinger established at least 34 committees, and that two members of
his family made $3,000 contributions to each of 22 committees, in order
to avoid gift tax payments and to avoid making the contributions
directly to the candidate.
---------------------------------------------------------------------------
1. Id. at pp. 41-45.
---------------------------------------------------------------------------
On Jan. 18, 1965, Mr. Albert informed the House that on the
following day he would call up a privileged resolution to dismiss the
Frankenberry v Ottinger contest, which had been initiated by notice of
contest delivered by contestant on Dec. 19, 1964, as required by 2 USC
Sec. 201. Mr. Albert obtained unanimous consent to insert in the
Congressional Record a letter from H. Newlin Megill, assistant clerk of
the House, addressed to the Speaker and advising him that persons
permitted to bring contests under 2 USC Sec. Sec. 201-226 ``should be a
party to the election and have the expectation that as a `contestant'
he would be able to establish `his right to the seat'.'' The full text
of the letter was as follows:
January 14, 1965.
The Honorable the Speaker,
House of Representatives.
Dear Mr. Speaker: Following the suggestion made by you in our
tele-
[[Page 1243]]
phone conversation, just prior to the
convening of this session of the Congress, I received the Honorable
Richard L. Ottinger, and discussed with him the matter of the
attempt by James R. Frankenberry to challenge his right to a seat
in the 89th Congress, under the provisions of Revised Statutes 105-
130, as amended (2 U.S.C. 201-226).
An examination of the questions raised by Representative
Ottinger and his counsel led me to the following conclusions which
were conveyed to him orally, together with the copy of a draft of a
resolution, which you may possibly hold to be privileged, for
action by the House:
1. James R. Frankenberry is not a competent person to bring
such action under this statute.
2. The said James R. Frankenberry was not a party to the
election held November 3, 1964, in the 25th Congressional District
of the State of New York, at which the Honorable Richard L.
Ottinger was elected. It would appear that Frankenberry is merely
the campaign manager of former Representative Robert R. Barry, who
was, in fact, the defeated candidate in this district. (See records
of the secretary of state, State of New York, and the Clerk of the
U.S. House of Representatives.)
3. A reading of the fact of the statute which has been provided
by the House of Representatives as ``a good and sufficient rule to
be followed and not to be departed from except for cause'' merely
leads to the conclusion that a person availing himself of the
provisions of this act should be a party to the election and have
the expectation that as a ``contestant'' he would be able to
establish ``his right to the seat.'' Among the clear expressions in
this act, as amended, there appears this language, ``No contestee
and contestant for a seat in the House of Representatives. . . .''
(2 U.S.C. 226.)
4. An examination of the various digests of all contest
election cases in the House of Representatives fails to show that a
single person has been permitted to use the statute in the manner
proposed by Mr. Frankenberry in the matter at point.
5. The House of Representatives has decided that such an
attempted action is not proper and that such a person is not
competent to avail himself of the provisions of this act. (See H.
Res. 54, agreed to January 10, 1941, In re Locke Miller v. Michael
J. Kirwan, 19th Congressional District of Ohio.)
The House of Representatives may adjudicate the questions of
the right to a seat in either of the following cases:
First. In the case of a contest between the ``contestant'' and
the ``returned member'' of the House instituted in accordance with
the provisions of the act of 1851, as amended.
Second. In the case of a ``protest'' or ``memorial'' filed by
an elector of the district concerned.
Third. In the case of the ``protest'' or ``memorial'' filed by
any other person.
Fourth. On motion of a Member of the House.
Every avenue of approach, cited above, is available to Mr.
Frankenberry in his attempt to question the right of the Member to
a seat, but the first case.
For the reasons heretofore cited, supported by other actions of
the House in
[[Page 1244]]
such matters, I have supplied a draft
of the following language for the possible consideration, and such
action as the House in its wisdom may take:
``Whereas James R. Frankenberry, a resident of the city of
Bronxville, N.Y., in the Twenty-fifth Congressional District
thereof, has served notice of contest upon Richard L. Ottinger, the
returned Member of the House from said district, of his purpose to
contest the election of said Richard L. Ottinger; and
``Whereas it does not appear that said James R. Frankenberry
was a candidate for election to the House of Representatives from
the Twenty-fifth Congressional District of the State of New York,
at the election held November 3, 1964; nor was he a candidate for
the nomination from said district at the primary election held in
said district, at which Richard L. Ottinger was chosen the
Democratic nominee: Therefore be it
``Resolved, That the House of Representatives does not regard
the said James R. Frankenberry as a person competent to bring a
contest for a seat in the House and his notice of contest, served
upon the sitting Member, Richard L. Ottinger, is hereby dismissed;
and no petition or other paper relating to the subject matter
contained in this resolution shall be received by the House, or
entertained in any way whatever.''
It would appear that the House should desire to take this
action since:
(a) Mr. Frankenberry is attempting to misuse the statute
provided by the House of Representatives.
(b) The House of Representatives has the responsibility of
relieving the sitting Member from the burden of defending himself
in this improper action, under the cumbersome statute, for a period
of more than 10 months, so that he may participate fully in his
constitutional duties of representing his congressional district.
(c) The courts held that questions as to the application of the
statute are justifiable by the House and by the House alone. (See
In re Voorhis (S.D. N.Y. 1923), 291 F. 673).
(d) Mr. Frankenberry has at least three other ways, which are
proper, to proceed in this matter.
Such an action by the House of Representatives would put the
question in proper perspective and preserve the rights of all
parties.
Your interest prompted me to make this written report to you.
I am, Mr. Speaker,
Respectfully yours,
H. Newlin Megill.
On Jan. 19, 1965, Mr. Albert called up the following privileged
resolution: (2)
---------------------------------------------------------------------------
2. 111 Cong. Rec. 810, 811, 951, 89th Cong. 1st Sess. [H. Res. 126].
---------------------------------------------------------------------------
Whereas James R. Frankenberry, a resident of the city of
Bronxville, New York, in the Twenty-Fifth Congressional District
thereof, has served notice of contest upon Richard L. Ottinger, the
returned Member of the House from said district, of his purpose to
contest the election of said Richard L. Ottinger; and
Whereas it does not appear that said James R. Frankenberry was
a candidate for election to the House of Representatives from the
Twenty-Fifth
[[Page 1245]]
Congressional District of the State of
New York, at the election held November 3, 1964; Therefore be it
Resolved, That the House of Representatives does not regard the
said James R. Frankenberry as a person competent to bring a contest
for a seat in the House and his notice of contest, served upon the
sitting Member Richard L. Ottinger, is hereby dismissed.
Mr. Albert was recognized for one hour under the rules of the
House, and he proceeded to cite the case of In re Voorhis (S.D.N.Y.
1923), 291 F 673, which held that the application of the statutes in
question is justifiable by the House and by the House alone. Mr. Albert
then cited the contest of Miller v Kirwan (77th Cong. 1st Sess.), in
which the House had agreed to a resolution dismissing the contest, as
contestant there had not been a proper party within the applicable
statute because he could not, if he were successful, establish his
right to a seat in the House. Contestant in that case had been
candidate for the disputed office in the primary, but was not a
candidate in the general election. In that case the resolution
dismissing the contest had been called up on the floor for direct
action by the House, without having been referred to or reported from
the Committee on House Elections. Mr. Albert then stated that ``there
is no case on record that we have been able to find to the contrary,
that a person not a party to an election contest is eligible to
challenge an election under these statutes.''
Mr. Charles E. Goodell, of New York, claimed that House Resolution
126 had been called up on that day (Jan. 16, 1965) in order to obviate
the proceedings which had been instituted by contestant under 2 USC
Sec. 206 in the New York State Supreme Court for the taking of
depositions and testimony on that date, which the contestee had not
attended, in disregard of a court subpena. Claiming that there were
many precedents of the House which denied a Member a seat due to
excessive contributions and expenditures, Mr. Goodell asked that the
matter be referred to the Committee on House Administration under the
contested election statutes for full investigation.
Mr. Cleveland then cited the language of 2 USC Sec. 201, as
follows:
Whenever any person intends to contest an election of any
Member of the House of Representatives of the United States he
shall--(``It does not say a candidate only.'')
Mr. Cleveland then cited the final report of the Special Committee
to Investigate Campaign Expenditures of the 88th Congress (H. Rept. No.
1946) as ``the policy
[[Page 1246]]
established by the House Committee on Administration'':
In order to avoid the useless expenditures of funds and the
loss of time by the committee and the staff, it has been decided by
the committee to conduct investigations of particular campaigns
only upon receipt of a complaint in writing and under oath by any
person, candidate, or political committee, containing sufficient
and definite allegations of fact to establish a prima facie case
requiring investigation by the committee. (Emphasis added.)
This statement represented the policy of the special committee, and
not the construction of the statute by the Committee on House
Administration. The special committee report was transmitted by its
chairman to the Clerk of the House for the 89th Congress, with the
request that it be referred by the House to the Committee on House
Administration. The Clerk did not transmit this report to the House for
referral.
Mr. Goodell proceeded to cite the 89th Congress investigation of
the question of the final right of Dale Alford to his seat as ``a
precedent in which noncandidates have contested House seats, in which
full investigations have been had by the House Committee on
Administration.'' Mr. Eugene J. Keogh, of New York, questioned Mr.
Goodell as to whether ``that was an investigation that was under a
special resolution of the House Committee on Administration and not
under the general law regarding the matter of elections.'' Mr.
Cleveland refused to yield for an answer, but proceeded to insert in
the Record two briefs prepared by the American Law Division of the
Library of Congress on the question of ``whether a noncandidate must
proceed under 2 USC Sec. 201,'' in support of his opposition to the
adoption of House Resolution 126.(3)
---------------------------------------------------------------------------
3. Id. at pp. 953, 954.
---------------------------------------------------------------------------
Mr. Cleveland then stated:
[U]nder the contested election law the contestant bears the
expense of the whole matter of taking depositions and gathering
testimony. This is the reasoning behind it. That reasoning clearly
specifies the fact that this law not only can be used by a
noncontestant but it indeed must be used.
Mr. Albert replied that, if the House were to follow the
recommendations of the gentleman from New Hampshire (Mr. Cleveland)--
[W]e would be opening up to anybody or to any number of
individuals, for valid or for spurious reasons, the right to
proceed under these statutes, to contest the election of any Member
of the House. These statutes place burdensome obligations on any
contestee and should not be construed to open up the opportunity
for just anyone to harass a Member of Congress or to impede the
operations of the House.
[[Page 1247]]
Other remedies are available to the public generally and to
Members of the House. Any individual or any group of individuals
has a right to introduce a resolution at any time, calling for the
investigation of any election. In the ordinary course of events,
such a resolution would be referred to the Committee on House
Administration, and thereafter to the Subcommittee on Elections,
for investigation or hearings, as that committee or as the House
might deem necessary under the circumstances.
If the contention of the gentleman is correct, there is no
limit to the number of individuals who could contest any seat in
this House, if the contest were brought in due time.
Mr. Albert then proceeded to cite other sections of 2 USC
Sec. Sec. 201-226, the statutes governing contested election cases, in
order to show that Congress intended to limit the language ``any
person'' in section 201 to a contestant for a seat in the House. He
cited section 226 as follows:
No contestee or contestant for a seat in the House of
Representatives shall be paid exceeding $2,000 for expenses in
election contests.
Mr. Cleveland replied, in further opposition to the adoption of
House Resolution 126, that:
[T]he intent of that is clearly that any reimbursement will be
confined either to a seated or to a defeated Member. It simply
limits the amount of reimbursement of expenses to these two
classes. It does not govern the first section that specifically
says any person can contest an election. . . .
The purpose of this law is to safeguard the people of the
United States against a situation where the defeated candidate
might not either have the heart or the will or the desire to
contest an election which clearly should be contested for the
common good and for the cause of good government.
Omar T. Burleson, Chairman of the Committee on House Administration
and a Member from Texas, reminded the House that ``he who seeks equity
must do so with clean hands. This is a unilateral action. How could
this House in its collective judgment determine whether or not equity
is being done when the other party to the election is not a party to
this attempt at contest?''
Mr. Albert moved the previous question, which was ordered by voice
vote. Mr. Goodell demanded the yeas and nays on the resolution and the
yeas and nays were ordered. By a vote of 245 yeas to 102 nays with 3
``present,'' the House agreed to House Resolution 126, thereby holding
contestant not competent to bring a contest under 2 USC Sec. 201, and
dismissing the notice of contest served upon the sitting Member.
Note: Syllabi for Frankenberry v Ottinger may be found herein at
Sec. 19.2 (contestants as candidates in general election).
[[Page 1248]]
Sec. 61.2 Wheadon et al. v Abernethy et al.
On Sept. 17, 1965, Mr. Omar T. Burleson, of Texas, by direction of
the Committee on House Administration, called up House Resolution
585,(4) dismissing the five Mississippi election contests
arising from the November 1964, congressional elections. The cases were
the election contests of Augusta Wheadon against Thomas G. Abernethy in
the First Congressional District; Fannie Lou Hamer against Jamie L.
Whitten in the Second; Mildred Cosey, Evelyn Nelson, and Allen Johnson
against John Bell Williams in the Third; Annie DeVine against Prentiss
Walker in the Fourth; and Victoria Jackson Gray against William M.
Colmer in the Fifth Congressional District in the State of Mississippi.
---------------------------------------------------------------------------
4. 111 Cong. Rec. 24263, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
The questions presented in these contests were considered
simultaneously. The questions involved the failure of the contestants
to avail themselves of the legal steps to challenge alleged
discrimination among voters prior to the elections and to challenge the
issuance of the certificates of election to the contestees after the
elections were held. The denial of seats to Members-elect because of
the alleged discriminatory practices involving disenfranchising groups
of voters, and the standing of the contestants to proceed under the
contested elections statute, were also at issue.
The contestees had been elected at the November 1964, general
election. The contestants had been selected at an unofficial
``election'' held by persons in Mississippi from Oct. 30 through Nov.
2, 1964, in which, it was alleged, ``all citizens qualified were
permitted to vote.'' The latter ``election'' was held without any
authority of law in the state. The contestants were all citizens, none
of whom had been candidates in the November elections. They alleged
that disenfranchisement of Negroes in Mississippi violated the
Constitution and laws of the United States and that the House had the
authority to consider the contests and unseat the contestees; that the
House had a duty to guarantee that the election of its Members be in
accordance with the requirements of the Constitution, and that where
large numbers of Negroes had been excluded from the electoral process,
where intimidation and violence had been utilized to further such
exclusion, and where the free will of the voters had been prevented
from being expressed, the House should
[[Page 1249]]
unseat the contestee, vacate the elections and order new elections.
Hearings were held by the Subcommittee on Elections of the
Committee on House Administration, on Sept. 13 and 14, 1965. The
committee issued a report, House Report No. 1008, 89th Congress, first
session, on Sept. 15, 1965.
The report noted that the contestees had been sworn in by vote of
the House 276 to 149 on Jan. 4, 1965,(5) after they had been
asked to step aside.(6) This established the prima facie
right of each contestee to his seat.
---------------------------------------------------------------------------
5. 111 Cong. Rec. 19, 89th Cong. 1st Sess. [H. Res. 1].
6. Id. at p. 18.
---------------------------------------------------------------------------
The report noted that the contestants had not availed themselves of
legal steps to challenge, in the courts, the alleged exclusion of
Negroes from the ballot or the issuance of the certificates of election
to the contestees.
It noted that the contestants had not been candidates at the
election and thus, under House precedents, had no standing to invoke
the House contested election statute.
It noted that there had been an election in Mississippi, in
November 1964, for Members of the U.S. House of Representatives under
statutes which had not been set aside by a court of competent
jurisdiction; that, at the same election, Presidential electors and a
U.S. Senator had been elected without question.
It noted, however, that a case challenging the Mississippi
registration and voter laws was progressing through the United States
courts and that the question of the constitutionality of the statutes
was a proper one for the courts. The report noted also that the House
was the judge of the elections of its Members and it was doubtful that
any disenfranchisement, even if proven, would have actually affected
the outcome of the November 1964, Mississippi congressional elections
in any district.
The House, in following its rules and procedures should dismiss the
cases, the report concluded, because the contestants did not qualify to
utilize the House contested elections statute, and because the
contestees had been elected under laws that had not been set aside at
the time of the election.
The report did state, however, that in arriving at such
conclusions, the committee did not condone disenfranchisement of voters
in the 1964 or previous elections, nor was a precedent being
established to the effect that the House
[[Page 1250]]
would not take action, in the future, to vacate seats of sitting
Members. It noted that the Federal Voting Rights Act of 1965 had been
enacted in the interim and that if evidence of its violation were
presented to the House in the future, appropriate action would be
taken.
The report recommended dismissing the cases.
A minority view recommended consideration of the cases on their
merits rather than on the grounds of status of the contestants,
because, under the laws in the state in 1964, the claimants could not
have become candidates to avail themselves of the contested elections
act.
After extensive debate,(7) the House, by a vote of 228
to 143, agreed to House Resolution 585, which provided: (8)
---------------------------------------------------------------------------
7. 111 Cong. Rec. 24263-92, 89th Cong. 1st Sess.
8. Id. at p. 24263.
---------------------------------------------------------------------------
Resolved, That the election contests of Augusta Wheadon,
contestant, against Thomas G. Abernethy, contestee, First
Congressional District of the State of Mississippi; Fannie Lou
Hamer, contestant, against Jamie L. Whitten, contestee, Second
Congressional District of the State of Mississippi; Mildred Cosey,
Evelyn Nelson, and Allen Johnson, contestants, against John Bell
Williams, contestee, Third Congressional District of the State of
Mississippi; Annie DeVine, contestant, against Prentiss Walker,
contestee, Fourth Congressional District of the State of
Mississippi; and Victoria Jackson Gray, contestant, against William
M. Colmer, contestee, Fifth Congressional District of the State of
Mississippi, be dismissed and that the said Thomas G. Abernethy,
Jamie L. Whitten, John Bell Williams, Prentiss Walker, and William
M. Colmer are entitled to their seats as Representatives of said
districts and State.
An amendment was adopted striking out the phraseology entitling the
contestees to their seats, as language inappropriate in a procedural
matter.(9)
---------------------------------------------------------------------------
9. Id. at p. 24292.
---------------------------------------------------------------------------
Note: Syllabi for Wheadon v Abernethy may be found herein at
Sec. 11.3 (racial discrimination as grounds for bringing contest);
Sec. 14.2 (invalid elections); Sec. 19.3 (contestants as candidates in
general election); Sec. 35.1 (administration of oath as prima facie
evidence of right to seat); Sec. 44.1 (form of resolution disposing of
contest).
Sec. 61.3 Peterson v Gross
On Oct. 11, 1965, Mr. Omar T. Burleson, of Texas, at the direction
of the Committee on House Administration, called up a resolution (H.
Res. 602) (10) dismissing
[[Page 1251]]
the election contest of Stephen M. Peterson against Harold R. Gross in
the Third Congressional District in the State of Iowa. The committee
report, House Report No. 1127, had been issued on Oct. 8, 1965, after
hearings had been conducted on the case on Sept. 28, 1965.
---------------------------------------------------------------------------
10. 111 Cong. Rec. 26499, 89th Cong. 1st Sess.
---------------------------------------------------------------------------
The contestee was certified to have received 83,455 votes, and the
contestant 83,036 votes at the Nov. 3, 1964, election. Contestee took
the oath on Jan. 4, 1965, without objection and was
sworn.(11) The contestant filed a notice of contest on Dec.
31, 1964, and requested a recount. The contestant alleged violations of
the laws of Iowa, including burning of some ballots the day after the
election, the casting of more ballots than there were names listed on
the polls, the recording of absentee ballots in a back room by one
person, and disappearance of a tally sheet.
---------------------------------------------------------------------------
11. Id. at p. 19.
---------------------------------------------------------------------------
The committee found that the proof presented did not sustain the
charges brought and recommended dismissal of the contest.
The committee found that although there may have been human errors
committed at the polls on election day, there was no evidence of fraud
or willful misconduct. It found that the burned ballots were unused
ballots and the practice of burning such ballots had been a uniform one
for numerous years. The allegation of more ballots cast than names
listed on the polls was discharged by the conclusion 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. The charge respecting the counting of absentee
ballots was found to apply to one polling place and the circumstances
were such as to make it inadequate as a charge.
The missing tally sheet was located and the disappearance found to
be due to factors involving technical operation of a voting machine,
not the counting of the results.
It was further disclosed that the request for a recount was in the
nature of a ``fishing expedition'' and that the contestant knew of no
fraud by which to substantiate it.
The committee acknowledged that Iowa had no recount statute
applicable to a U.S. House election but held that the absence of such a
statute had no effect on the jurisdiction of the committee; that the
committee would proceed to a recount if some substantial allega
[[Page 1252]]
tions of irregularity or fraud were alleged and if the likelihood
existed that the result of the election would be different were it not
for such irregularity or fraud.
Under the circumstances of the case, it declared, the evidence did
not justify a recount since the contestant had not clearly presented
proof sufficient to overcome the presumption that the returns of the
returning officers were correct.
In the debate on Oct. 11, 1965, on House Resolution 602, Robert T.
Ashmore, of South Carolina, Chairman of the Subcommittee on Elections
of the Committee on House Administration, spoke in favor of adopting
the resolution dismissing the contest. Mr. Ashmore observed that the
contestee had been issued a certificate of election by the Governor of
Iowa, administered the oath of office by the Speaker, and performed his
duties as required under his oath of office, ``So, as a result of these
events, he has established a prima facie right to the office.'' Mr.
Ashmore recounted some of the alleged errors recited by the contestant
that the committee had found to be unsubstantiated, and stated:
Moreover, Mr. Speaker, the evidence in this case shows that
such errors were wholly insufficient to change the results of the
election, even if the excess ballots about which we speak here in
this particular instance should all be added to the total of the
contestant. . . . In this case the committee is of the opinion that
no alleged misconduct or error on the part of the election judges,
nor a combination of all such errors by any and all officials in
the entire Third Congressional District of the State of Iowa, would
be sufficient to change the results of this
election.(l2)
---------------------------------------------------------------------------
12. Id. at p. 26499.
Mr. Ashmore then cited the election case of Eggleston v Strader (2
Hinds' Precedents Sec. 878) on the point.
Mr. Ashmore also pointed out that the evidence showed that no one
protested any of the election proceedings during election day and there
was ``nobody who testified on election day that the results were
anything but proper.'' Reminding the House that there is a presumption
of regularity--that the election officials have done their duty and
their returns are correct--Mr. Ashmore then stated:
The burden of proof, my friends, let us not forget, rests upon
the contestant. It is squarely on his shoulders to show sufficient
grounds to justify a recount or to unseat a Member of this House.
He must meet his obligation. It is not the committee's duty to
prove his case for him. The contestant must prove not just
irregularities--and not just violations of the Iowa election
[[Page 1253]]
laws, but also that if such irregularities had not existed the
results of the election would have been different.(13)
---------------------------------------------------------------------------
13. Id. at p. 26500.
---------------------------------------------------------------------------
Mr. Willard S. Curtin, of Pennsylvania, also spoke in favor of the
resolution, remarking that the contestant had sent a letter to many
Members, in which letter the contestant admitted that he was not
alleging fraud on the part of anyone. Mr. Curtin repeated that the
committee investigation had revealed no substance to the contestant's
allegations of error.
In opposition to the resolution, Mr. Frank Thompson, Jr., of New
Jersey, argued that fraud was not necessarily a condition precedent for
an election contest. The following colloquy took place:
(14~)
---------------------------------------------------------------------------
14. Id. at p. 26501.
---------------------------------------------------------------------------
Mr. Thompson of New Jersey: I do not mean to bicker with the
distinguished chairman of the subcommittee. I just wanted to
emphasize that in his remarks, as in the remarks of our colleague
from Pennsylvania, there was some emphasis on the absence of fraud.
We acknowledged the absence of fraud, but in no circumstances
should we establish as a condition precedent to a contest that
there be fraud.
Mr. Ashmore: I mentioned that there was no fraud because of its
absence, which I believe is worth noting--the fact that there was
no fraud.
Mr. Thompson of New Jersey: We will concede there was no fraud.
Will the gentleman concede that it is not a condition precedent to
an election contest for a House seat?
Mr. Ashmore: Absolutely it is not.
Mr. Thompson of New Jersey: I thank the gentleman.
Thereafter, Mr. Thompson, Mr. Ashmore, and other Members lamented the
absence of state procedures in Iowa for contesting elections and
conducting recounts. After more discussion by Mr. Samuel L. Devine, of
Ohio, in favor of the resolution, Mr. Neal Smith, of Iowa, made
reference to the inequities involved in contested elections, and
commented on the election case, the costs of proceeding under the
committee rules and the composition of the committee: (15)
---------------------------------------------------------------------------
15. Id. at pp. 26502, 26503.
---------------------------------------------------------------------------
Mr. Smith of Iowa: Mr. Speaker, I have not been a direct
participant in any way in this contest. I considered it to be a
contest between Mr. Peterson and Mr. Gross. I am not a member of
the committee. But, after all, I am from Iowa and so I have been
interested in following the procedures very carefully in this case.
I would vote in any election contest to seat whoever I believe
actually received the most votes. Unfortunately, we cannot vote on
that basis on this resolution today because I do not and other
members do not know who received the most votes in the Third
Congressional District of Iowa in 1964. . . .
[[Page 1254]]
Because evidence was being hidden and the attitude of election
officials in some counties indicated they would destroy more
evidence, the contestant went to both the State and Federal courts.
In each case the contestee claimed the courts did not have
jurisdiction and the courts said the jurisdiction is in the House
of Representatives except that the State supreme court did order
the voting records held until the 89th Congress had a chance to
convene and organize. I do not criticize those court opinions but
they do completely undercut the claim of some that the committee
should not assume full jurisdiction. . . .
When the 89th Congress convened and organized, and the contest
had been filed, the chairman of the subcommittee [Mr. Ashmore]
properly sent a telegram asking election officials to hold election
material. Some of them used this telegram as an excuse not to
permit inspection of it subsequently at a time when they could be
put under oath and examined concerning it.
When election officials resist producing pertinent documents
upon which they should be examined, it would take more time to go
through court procedures for each official involved than is allowed
under committee rules to complete discovery and anyway court
opinions have indicated lack of jurisdiction for supervision. Under
these procedures, it costs a contestant from $10,000 to $30,000 to
run through the obstacle course. Few, if any Democratic candidates
for Congress in Iowa have ever had $10,000 available to spend in a
general election campaign, let alone a contest, and to force a
contestant to raise that amount of money for a contest while the
contestee is drawing his salary and furnished a staff and office is
in and of itself a very unfair practice. . . .
In one county, absentee ballots were burned. The county
election official naturally said they were unused ones and that he
had done that before. The fact that someone has broken the law
before does not make him immune thereafter. The only way anyone
could know whether they substituted ballots and burned the ballots
that were replaced would be for the committee to have a handwriting
expert look at those ballots that were left.
With the adoption of this report, without pertinent records
having been inspected, the officials who committed irregularities
will be free to finish destroying evidence without anyone but those
election officials knowing whether irregularities were committed
for the purpose of stealing votes.
Following more discussion focusing on the contestant's failure to
prove his case, Mr. Omar T. Burleson, of Texas, stated that members on
the committee were chosen because they were lawyers and because of
their experience and that objectivity was characteristic of the
committee:
Mr. Burleson: Mr. Speaker, I am sure that the gentleman from
Iowa did not intend to infer that by design the people of, we will
say for the lack of a better word, conservative persuasion or from
the South, have intentionally been assigned to the Subcommittee on
Elections. As a matter of fact, the members of this subcommittee
have been chosen because they are lawyers.
[[Page 1255]]
Or like myself--they were lawyers. I usually speak of myself in
that respect in the past tense. But they were put on that committee
for that reason. Also they were recognized according to seniority,
a consideration which is always given in these things.
There has never been any attempt to stack the committee and I
am sure the gentleman would not intentionally make that as an
accusation, but I think he did infer it.
Mr. Smith of Iowa: I did not intend to reflect upon any one
section of the country. I just want to say, if any one section of
this country has every member on an election subcommittee, it gives
a general image that is not good, no matter what section of the
country they are from.
Mr. Burleson: It may appear that way but the subcommittee and
the full committee in handling these matters, during the 19 years
that I have served in this capacity, have always tried to be as
judicial and as analytical and objective in these matters as it is
possible to be and as our capacities permit us to be. I have never
seen a partisanship angle which I thought overcame or prejudiced an
objective decision in these matters.
The House, by voice vote, agreed to House Resolution 602 and a
motion to reconsider was laid on the table.(6~)
---------------------------------------------------------------------------
16. Id. at p. 26504.
---------------------------------------------------------------------------
Note: Syllabi for Peterson v Gross may be found herein at Sec. 5.4
(qualifications of Members on Subcommittee on Elections); Sec. 13.3
(alleged error insufficient to change result); Sec. 36.6 (official
returns as presumptively correct); Sec. 40.6 (burden of proving recount
would change election result).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 62. Ninetieth Congress, 1967-68
Sec. 62.1 Lowe v. Thompson
The report (No. 365, submitted June 14,1967) of the committee on
elections in the case of Lowe v Thompson showed that Fletcher Thompson,
the Republican nominee, was elected to the office of Representative
from the Fifth Congressional District of Georgia in the general
election held on November 8, 1966. The only names on the ballot were
those of Mr. Thompson and his Democratic opponent, Archie Lindsey. His
credentials having been presented to the Clerk of the House, Mr.
Thompson appeared, took the oath of office, and was seated on January
10, 1967.
The contest of Mr. Thompson's election was initiated by Mr. Wyman
C. Lowe by service upon the then Member-elect on December 12, 1966, of
a notice of contest pursuant to the Federal contested election law,
Revised Statutes, title II, chapter 8, section 105; title 2, United
States Code, section 201, claiming that contestee's
[[Page 1256]]
election was null and void and that his seat should be declared vacant
because the manner in which the Democratic candidate, Archie Lindsey,
had been nominated was contrary to the Georgia Election Code.
Contestant charged that the Fulton County Democratic Executive
Committee, which had substituted Lindsey for the primary election
winner, Charles L. Weltner, upon Weltner's withdrawal, was without
lawful authority to make such substitution since the Georgia Election
Code and the state Democratic Party rules authorized a county committee
to fill a vacancy in a party nomination only when the vacancy occurred
after the nomination had been made by the state Democratic Party
convention. Contestant argued that if the vacancy arose prior to the
convention, it had to be filled by special primary election. Mr.
Weltner's withdrawal had preceded the convention. It was contestant's
conclusion that the general election was voided by the defective
nomination of the Democratic candidate.
The committee on elections concluded that Mr. Lowe had no standing
to bring an election contest under the federal contested election law,
because contestant was not a candidate in the general election. The
committee noted that recent precedents involving contests brought
against Members-elect by persons who were not candidates in the general
election were to the effect that such persons lacked standing to bring
such a contest.
The committee, however, agreed to consider the petition Mr. Lowe
presented to the House of Representatives, praying for an investigation
of the right of Representative Thompson to his seat. The committee
noted the constitutional derivation of the power of the House to judge
the election and qualifications of its Members, and stated that the
House is not confined to deciding election contests brought under the
statute:
[The House] may adjudicate the question of the right to a seat
in any of the following cases:
(1) In the case of a contest between the contestee and the
returned Member of the House instituted in accordance with the
provisions of Law.
(2) In the case of a protest or memorial filed by an elector of
the district concerned.
(3) In the case of the protest or memorial filed by any other
person.
(4) On motion of a Member of the House (Contested election case
of Richard S. Whaley, 63d, Cong., Cannon's Precedents of the House
of Representatives, vol. 6, sec. 78, p. 111.)
After considering Mr. Lowe's petition, however, the committee
[[Page 1257]]
concluded that the petition should be denied:
The committee is unaware of any precedent for depriving a
Member of his seat solely on the basis of the irregularity of the
nomination of his opponent in the general election and, indeed, no
such precedent is cited by petitioner either in his petition or in
his brief filed in the contested election case. It should be borne
in mind that this is not a case where fraud or irregularity in the
returned Member's nomination is charged.
The committee report also stated:
Nor is the committee inclined in this case to ignore the State
court's ruling against petitioner who filed suit against Archie
Lindsey and certain election officials seeking to enjoin Lindsey's
candidacy and to require the call of a special Democratic primary
election. According to petitioner, the grounds of his lawsuit were
those asserted here. The suit was dismissed by the trial court on
demurrer on November 1, 1966. Where, as here, petitioner's case is
built on technicalities of State law and party rules respecting the
method of nominating party candidates, there being no charge of
fraud or corrupt practices on the part of the party officials or
the party's nominee, the committee believes that disposition of the
case by a State court should be left undisturbed.
Subsequently, Mr. Robert T. Ashmore, of South Carolina, by
direction of the Committee on House Administration, called up the
following resolution as privileged on July 11, 1967:
Resolved, That the election contest of Wyman C. Lowe,
contestant, against Fletcher Thompson, contestee, Fifth
Congressional District of the State of Georgia, be dismissed, and
that the petition (numbered 75) of Wyman C. Lowe relative to the
general election on November 8, 1966, in the Fifth Congressional
District of the State of Georgia be denied.
The reported privileged resolution, House Resolution 541, was
agreed to by voice vote after debate.(7)
---------------------------------------------------------------------------
17. 113 Cong. Rec. 18290, 18291, 90th Cong. 1st Sess., July 11, 1967.
---------------------------------------------------------------------------
Note: Syllabi for Lowe v Thompson may be found herein at Sec. 7.6
(adoption of state court's views); Sec. 10.21 (illegal nominating
procedure); and Sec. 17.5 (investigation initiated by petition). See
also Sec. 19.1 (parties to contest).
Sec. 62.2 Mackay Blackburn
On July 11, 1967, Mr. Robert T. Ashmore, of South Carolina, at the
direction of the Committee on House Administration, called up House
Resolution 542,(18) which had been recommended by the
committee in its report, House Report No. 366, on the contested
election of James A. Mackay against Benjamin B. Blackburn in the Fourth
Congressional District of the State of Georgia in the 90th
[[Page 1258]]
Congress. At the swearing in of Members-elect to the 90th Congress on
Jan. 10, 1967, the contestee had been asked to step aside. The House
then proceeded to adopt a resolution authorizing the oath to be
administered to the contestee and providing that the question of the
final right of the contestee to the seat be referred to the Committee
on House Administration.(19)
---------------------------------------------------------------------------
18. 113 Cong. Rec. 18291, 90th Cong. 1st Sess.
19. 113 Cong. Rec. 27, 90th Cong. let Sess. [H. Res. 2].
---------------------------------------------------------------------------
The issue involved the counting of so-called ``overvotes'' on punch
card voting machines during the November 1966 election. Contestant
alleged that the computers that tallied the votes erroneously failed to
count about 7,000 votes, and that the procedures for duplicating
defective ballots were improper. Election officials, acting in
accordance with what they construed to be Georgia law, had programed
the computing machines that counted the ballots to reject those cards
where a voter had punched a straight party ticket and then also punched
out the scored block for the congressional candidate of the opposing
party. While the contested election case was under consideration, a
lawsuit was instituted in the Georgia courts concerning the
interpretation of the Georgia statutes relating to the canvassing of
punch card votes. The litigation was terminated on Mar. 30, 1967, by
the Georgia Supreme Court's denial of a writ of certiorari to the
Georgia Court of Appeals which, on Jan. 25, 1967, had held in favor of
the interpretation by the election officials [Blackburn v Hall (1967),
115 Ga. App. 235, 154 S.E.2d 392].
On Apr. 13, 1967, contestant notified the House of the withdrawal
of his notice of contest.
The Committee on House Administration issued a report on June 14,
1967 (H. Rept. No. 366), which provided that the contestee was the duly
elected Representative from the Fourth Congressional District of
Georgia and was entitled to his seat.
During debate, the fact was brought out that some difficulties had
occurred in counting and handling the punch card ballots, and in the
voters' use of them in the ``automatic'' voting machines. This was not,
however, a crucial matter in the determination of the case. The
contestee himself participated in the debate, although it was only to
express gratitude to his colleagues for their consideration during the
time of the election contest.
The House agreed on July 11, 1967, to House Resolution 542, which
provided: (1)
---------------------------------------------------------------------------
1. 113 Cong. Rec. 18291, 90th Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 1259]]
Resolved, That Benjamin B. Blackburn was duly elected as
Representative from the Fourth Congressional District of the State
of Georgia to the Ninetieth Congress and is entitled to his seat.
A motion to reconsider was laid on the table.(2)
---------------------------------------------------------------------------
2. Id. at p. 18292.
---------------------------------------------------------------------------
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 63. Ninety-first Congress, 1969-70
Sec. 63.1 Lowe v Thompson
On Apr. 23, 1969, Mr. Watkins M. Abbitt, of Virginia, submitted the
unanimous report of the Commmittee on House Administration (H. Rept.
No. 91-157) on House Resolution 364, dismissing the contested election
case of Wyman C. Lowe v Fletcher Thompson from the Fifth Congressional
District of Georgia. Mr. Thompson, the Republican nominee, was re-
elected to the office of Representative from the district in the
general election held on Nov. 5, 1968. His Democratic opponent was
Charles L. Weltner. The result of the election was officially certified
in accordance with the laws of Georgia. His credentials having been
presented to the Clerk of the House, Mr. Thompson appeared, took the
oath of office, and was seated on Jan. 3, 1969.(3) Regarding
the election contest, the committee report states:
---------------------------------------------------------------------------
3. 115 Cong. Rec. 15, 91st Cong. 1st Sess.
---------------------------------------------------------------------------
The contest of Mr. Thompson's election was initiated by Mr.
Lowe, an unsuccessful candidate in the Democratic primary, by
service upon the Member on December 18, 1968, of a notice of
contest pursuant to the Federal contested election law, Revised
Statute, title I, chapter 8, section 105; title 2, United States
Code, section 201, claiming that contestee's election was null and
void and that his seat should be declared vacant. The ground of the
contest asserted in the notice of contest are then that the general
election was invalid because the Democratic candidate, Mr. Weltner,
had not been lawfully nominated or that there are such grounds as
to raise grave doubts that he had been lawfully nominated. Mr.
Weltner won the nomination from Mr. Lowe, his only opponent, in the
Democratic primary election on September 11, 1968. Contestant
claims that Mr. Weltner's victory in the primary election was the
result of certain specified ``malconduct, fraud, and/or
irregularity'' on the part of poll officers in 40 of the 155
precincts of the Fifth District. There is no allegation of wrongful
conduct on Mr. Weltner's part or any attribution to him of the
alleged misconduct of the poll officers. Nor is it contended that
contestee engaged in any wrongful conduct in the general election.
The sole basis for attacking contestee's election is the alleged
invalidity of his Democratic opponent's nomination.
In submitting the committee report, Mr. Abbitt made the following
remarks,(4) which further summarize the election contest:
---------------------------------------------------------------------------
4. 115 Cong. Rec. 10040, 10041, 91st Cong. 1st Sess., Apr. 23, 1969.
---------------------------------------------------------------------------
[[Page 1260]]
Mr. Abbitt: Mr. Speaker, only one election contest evolved from
the 1968 general election and that was in the Fifth Congressional
District of the State of Georgia. For the third time in recent
years Wyman C. Lowe has initiated a contest.(5) In 1951
and again in 1967 the House dismissed contests brought by Mr. Lowe
on the basis that he lacked standing to bring a contest under the
contested-election statute. That is the basis for recommending
dismissal of the current contest. In none of the contests was Mr.
Lowe a candidate in the general election for the congressional
seat.
---------------------------------------------------------------------------
5. See Lowe v Davis, 1948 (Sec. 54.1, supra); Lowe v Davis, 1951
(Sec. 56.3, supra); and Lowe v Thompson, 1967 (Sec. 62.1,
supra).
---------------------------------------------------------------------------
Fletcher Thompson, the Republican nominee, was reelected to the
office of Representative from the Fifth Congressional District of
Georgia in the general election held on November 5, 1968. His
Democratic opponent was Charles L. Weltner. The result of the
election was officially certified in accordance with the laws of
Georgia. His credentials having been presented to the Clerk of the
House, Mr. Thompson appeared, took the oath of office, and was
seated on January 3, 1969.
The contest of Mr. Thompson's election was initiated by Mr.
Lowe, an unsuccessful candidate in the Democratic primary, by
service upon the Member on December 18, 1968, of a notice of
contest pursuant to the Federal contested election law claiming
that the contestee's election was null and void and that his seat
should be declared vacant. The grounds of the contest asserted in
the notice of contest are that the general election was invalid
because the Democratic candidate Mr. Weltner had not been lawfully
nominated or that there are such grounds as to raise grave doubts
that he had been lawfully nominated. Mr. Weltner won the nomination
from Mr. Lowe, his only opponent, in the Democratic primary
election on September 11, 1968. Contestant claims that Mr.
Weltner's victory in the primary election was the result of certain
specified ``malconduct, fraud and/or irregularity'' on the part of
poll officers in 40 of the 155 precincts of the fifth district.
There is no allegation of wrongful conduct on Mr. Weltner's part or
any attribution to him of the alleged misconduct of the poll
officers. Nor is it contended that contestee engaged in any
wrongful conduct in the general election. The sole basis for
attacking contestee's election is the alleged invalidity of his
Democratic opponent's nomination.
The record before the committee reveals that contestant brought
an action against Mr. Weltner in the superior court of Fulton
County, Ga., to set aside his nomination under the Georgia Election
Code. This suit was dismissed on September 20, 1968. On appeal to
the Georgia Court of Appeals, the lower court's ruling was affirmed
and a subsequent petition for certiorari filed with the Supreme
Court of Georgia was denied.
The contest came before the Subcommittee on Elections on
contestee's request that the notice of contest be dismissed for
failure to state a cause of action. Having considered the oral
arguments of the parties and the brief filed by contestant, the
committee concludes that contestant has no standing to bring the
contest and that the notice
[[Page 1261]]
of contest does not state grounds sufficient to change the result
of the general election. Contestant, an unsuccessful candidate in
the Democratic primary, was not a candidate for the Fifth
Congressional District seat in the general election and does not
claim any right to the seat. There are a number of recent
precedents from 1941 to 1967 involving contests brought by persons
who were not candidates in the general election indicating that the
House of Representatives regards such persons as lacking standing
to bring an election contest under the statute. [Citing Miller v
Kirwan (Sec. 51, supra); McEvoy v Peterson (Sec. 52.2, supra);
Woodward v O'Brien (Sec. 54.6, supra); Lowe v Davis (Sec. 56.3);
Frankenberry v Ottinger (Sec. 61.1, supra); and Five Mississippi
Cases of 1965 (Sec. 61.2, supra).]
The committee ultimately concluded:
The committee, after careful consideration of the notice of
contest, the oral arguments, and the brief filed by contestant,
concludes that contestant Wyman C. Lowe, not being a candidate in
the general election, has no standing to bring a contest under the
contested election law and that he has failed to state sufficient
grounds to change the result of said election. It is recommended
that House Resolution 364 be adopted dismissing the contested
election case.
The House agreed to House Resolution 364,(6) which
provided: (7)
---------------------------------------------------------------------------
6. 115 Cong. Rec. 10041, 91st Cong. 1st Sess., Apr. 23, 1969.
7. Id. at p. 10040.
---------------------------------------------------------------------------
Resolved, That the election contest of Wyman C. Lowe,
contestant against Fletcher Thompson, contestee, Fifth
Congressional District of the State of Georgia, be dismissed.
A motion to reconsider was laid on the table.
Note: Syllabi for Lowe v Thompson may be found herein at Sec. 19.1
(contestants as candidates in general election).
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 64. Ninety-second Congress, 1971-72
Sec. 64.1 Tunno v Veysey
On Nov. 9, 1971, Mr. Watkins W. Abbitt, of Virginia, from the
Committee on House Administration, submitted the committee report,
House Report No. 626, on the contested election case of David A. Tunno
v Victor V. Veysey from the 38th Congressional District of California.
Mr. Veysey was certified on Dec. 17, 1970, by the secretary of the
State of California as elected to the office of U.S. Representative in
Congress from the district at the general election held on Nov. 3,
1970. The credentials of Mr. Veysey were presented to the House of
Representatives and he appeared, took the oath of office, and was
seated without objection, on Jan. 21, 1971.(8)
---------------------------------------------------------------------------
8. 117 Cong. Rec. 13, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
[[Page 1262]]
The official canvass of the district showed that a total number of
173,163 votes were cast in the congressional election in the district.
Of this total number of votes cast, Mr. Veysey received 87,479 votes
and Mr. Tunno, the contestant, received 85,684 votes. Mr. Veysey's
majority consisted then of 1,795 votes.
The contestant served notice of contest on the contestee by mail on
Dec. 14, 1970. At the same time a notice of intent to contest was filed
by the contestant's representative with the Clerk of the House for
delivery to the Committee on House Administration.
While the contestant claimed the seat as required by 2 USC
Sec. Sec. 382 and 383,(9) in his notice of contest, the
relief sought by the contestant, as set forth in his notice, was that
the seat be declared vacant. The notice stated:
---------------------------------------------------------------------------
9. Pub. L. No. 91-138, Sec. Sec. 3, 4; 83 Stat. 284 (Dec. 5, 1969).
This was the first case arising under the Federal Contested
Elections Act of 1969.
---------------------------------------------------------------------------
Contestant requests the House of Representatives of the United
States, 92d Congress, first session, declare a vacancy in the
office of Member of the House of Representatives, U.S., 38th
Congressional District, State of California, and direct the proper
executive authority of the State of California to issue a writ of
election ordering a new election to fill said vacancy of said
office of Member, House of Representatives of the United States,
38th Congressional District, State of California.
The contestant claimed that the affidavits of registration of some
11,137 voters in Riverside County, California, had been wrongfully and
illegally canceled, depriving approximately 10,600 qualified voters of
the right to vote. The notice stated: (10)
---------------------------------------------------------------------------
10. H. Rept. No. 92-626, submitted Nov. 9, 1971.
---------------------------------------------------------------------------
1. On or about August 15, 1970, the elections supervisor,
Riverside County, State of California (hereinafter referred to as
``supervisor'') wrongfully and illegally canceled the affidavits of
registration of approximately 11,137 voters of Riverside County,
State of California. As a result of said illegal and wrongful
cancellation of said affidavits of registration, approximately
10,616 qualified voters of Riverside County, State of California,
were precluded from voting at said last preceding general election
for Member of the U.S. House of Representatives from the 38th
district.
From facts set out in the committee report, it appeared that local
California election officials may have misinterpreted a state election
statute, a mistake which may have disenfranchised approximately 10,600
voters. There were no facts indicating how many, if any, of these
voters would have voted, had they not been disenfranchised, nor was
[[Page 1263]]
there any indication, of course, of how they would have voted. The
report declared:
On Tuesday, May 11, 1971, the Subcommittee on Elections met to
hear arguments on the motion to dismiss the contest submitted by
the contestee, Victor V. Veysey. Opening statements and rebuttal
statements were given by the attorney for the contestant, Mr.
Robert J. Timlin and the attorney for the contestee, James H.
Kreiger. The contestant, Mr. David Tunno, and the contestee,
Congressman Victor V. Veysey, also submitted statements.
The new Federal Contested Election Act, Public Law 91-138, 83
Stat. 284, provides in section 4(b)(3) this defense to the
contestee, ``Failure of notice of contest to state grounds
sufficient to change result of election.'' This defense was raised
by the present contestee by way of a motion to dismiss. This
provision was included in the new act because it has been the
experience of Congress that exhaustive hearings and investigations
have, in the past, been conducted only to find that if the
contestant had been required at the outset to make proper
allegations with sufficient supportive evidence that could most
readily have been garnered at the time of the election such further
investigation would have been unnecessary and unwarranted.
Under the new law then the present contestant, and any future
contestant, when challenged by motion to dismiss, must have
presented, in the first instance, sufficient allegations and
evidence to justify his claim to the seat in order to overcome the
motion to dismiss.
The major problem raised is, on the basis of the contestant's
allegations and evidence, are a sufficient number of potential
votes in actual contention to warrant the committee granting the
relief sought and declaring the seat vacant and calling for a new
election? This may be restated as, what standards has the House of
Representatives applied in contests wherein declaring a vacancy was
either contemplated or actually done where registration
irregularities were alleged.
With regard to the problem, the contested election case of
Carney v. Smith [6 Cannon's Precedents 911 in the 63d Congress
considered a request that the seat be declared vacant and in
response to the request set forth the following standards as a
criteria for taking such action.
We do not believe that a committee of this House, looking for
the truth to determine who in fact was elected by the voters,
should, on account of this irregularity, disfranchise the electors
of this township. No question is made but that the ballots cast in
this precinct were cast by legal voters and in good faith. Nor is
it claimed that the contestee received a single vote more than was
intended to be cast for him, or that the contestant lost a single
vote. We do not believe that the facts warrant the rejection of the
entire poll of this township, nor does the law as practiced in
almost every jurisdiction warrant such a result. McCrary on
Elections [George McCrary, A Treatise on the American Law of
Elections, Chicago, Callaghan & Co., 1897] section 488, says:
The power to reject an entire poll is certainly a dangerous
power, and, though it belongs to whatever tribunal has
jurisdiction to pass upon the merits of a contested-election
[[Page 1264]]
case, it should be exercised only in an extreme case; that is
to say, where it is impossible to ascertain with reasonable
certainty the true vote.
Paine's Treatise on the Law of Elections [Halbert Paine, A
Treatise on the Law of Elections, Boston, Little, Brown & Co.,
1890] section 497, says:
Ignorance, inadvertence, mistake, or even intentional wrong
on the part of the local officers should not be permitted to
disfranchise a district.
Section 498 says:
The rules prescribed by the law for conducting an election
are designed chiefly to afford an opportunity for the free and
fair exercise of the elective franchise, to prevent illegal
votes, and to ascertain with certainty the result.
The departure from the mode prescribed will not vitiate an
election, if the irregularity does not deprive any legal voter
of his vote, or admit an illegal vote, or cast uncertainty on
the result and has not been occasioned by the agency of a party
seeking to derive a benefit from them.
Power to throw out the vote of an entire precinct should be
exercised only under circumstances which demonstrate beyond a
reasonable doubt that there has been such a disregard of law or
such fraud that it is impossible to determine what votes were
lawful or unlawful, or to arrive at any result whatever, or
whether a great body of voters have been prevented from
exercising their rights by violence or intimidation. (Case of
Daley v. Petroff, 10 Philadelphia Rep., 289.)
There is nothing which will justify the striking out of an
entire division but an inability to decipher the returns or a
showing that not a single legal vote was polled or that no
election was legally held. (In Chadwick v. Melvin, Bright's
Election Cases, 489.)
Nothing short of an impossibility of ascertaining for whom
the majority of votes were given ought to vacate an election,
especially if by such decision the people must, on account of
their distant and dispersed situation, necessarily go
unrepresented for a long period of time. [McCrary, A Treatise
on the Law of Elections, 489.]
If there has been a fair vote and an honest count, the election
is not to be declared void because the force conducting it were not
duly chosen or sworn or qualified. [6 Cannon's Precedents Sec. 91.]
In the contested election case of Reid v. Julian [2 Hinds'
Precedents Sec. Sec. 881, 882], 41st Congress the committee in its
report, House Report 116 stated that:
It has long been held by all the judicial tribunals of the
country, as well as by the decisions of Congress and the
legislatures of the several States, that an entire poll should
always be rejected for any one of the three following reasons:
1. Want of authority in the election board.
2. Fraud in conducting the election.
3. Such irregularities or misconduct as rendered the result
uncertain. [2 Hinds' Precedents Sec. 881].
In the Michigan election case of Beakes v. Bacon in the 65th
Congress [6 Cannon's Precedents Sec. 144], the same standards were
reiterated.
Because the contestant's allegations and the relief he seeks
fall under No. 3, ``Such irregularities or misconduct as render the
result uncertain,'' it is necessary to survey those instances in
contested election cases wherein ``such
[[Page 1265]]
irregularities or misconduct . . .'' involved registration
procedures. Consideration of the above-mentioned cases will, of
necessity, involve an ancillary problem, the problem of the
potential voter, because the House in its consideration of
irregularities and misconduct has traditionally dealt not only with
such irregularities and misconduct in a vacuum but also with their
effect on the election, the effect of the irregularities on the
potential voter, and the amount of proof necessary to overcome the
regular election returns as a result of such irregularities.
It should be noted as a preface to the contests involving
registration procedures that in these the contestant had made an
attempt to show with a great deal of specificity how those who were
disfranchised by the irregularities in registration would have
voted had they been given the opportunity and that, in general, the
contests revolved around this point rather than around the mere
fact of irregularity or misconduct on the part of the registration
officials. The fact that the contestant in the present case makes
absolutely no attempt to make such a showing as to how those who
were disfranchised by being stricken from the registration lists
would have voted had they been given the opportunity thus removes
his case somewhat from the scope of the precedents. The problem
lies basically in the fact that the contestant does not carry
forward his claim to the seat.
One contest which concerns itself with almost the same issues
that are involved in the present contest is Wilson v. McLaurin [2
Hinds' Precedents Sec. 1075] which arose out of an election in
South Carolina for a seat in the 54th Congress. In the Wilson case
the committee found that a South Carolina registration law
needlessly disfranchised a significant number of otherwise
qualified voters. The problems that the committee was then
confronted with were (1) should the seat be declared vacant because
of irregularities and (2) how to treat the potential vote of these
individuals who should have been allowed to vote. In the following
passage which is taken from the committee report, House Report
1566, 54th Congress first sess., particular attention should be
paid to the manner in which the contestant attempted to prove that
his claim to the seat was justified and the standards which the
committee adopted in regard to such offers of proof.
A majority of this committee has reached the conclusion
that the voters of the district now in consideration, who were
qualified under the constitution of South Carolina and who were
rejected under color of the enforcement of the registration
law, are entitled to be heard in this contest.
In this conclusion no violence is done to the doctrine that
``where the proper authorities of a State have given a
construction to their own statutes that construction will be
followed by the Federal authorities.'' While the supreme court
of South Carolina has not passed decisively upon the statute in
question the people themselves, the highest authority in that
State have decreed its disappearance from the statute book.
From this standpoint we look for the course to be followed.
Shall the election be set aside and the seat in question
vacated? Under the authorities we think not.
Beyond doubt the usual formalities of an election were for
the most part observed. No substantial miscount of
[[Page 1266]]
votes actually cast is alleged. There are no charges of
violence or intimidation seriously affecting the result which
have been verified. If fraud be alleged, under sanction of
legislative enactment, it was a general fraud and the returns
are in general unchallenged for correctness. The votes actually
cast are not in controversy; the votes not cast are the ones
presented for computation.
[McCrary], Treatise on the American Law of Elections, in
section 483, says--
``The election is only to be set aside when it is
impossible from any evidence within reach to ascertain the true
result--when neither from the returns, nor from other proof,
nor from all together can the truth be determined.''
The same authority quotes the following (sec. 489):
``Nothing short of the impossibility of ascertaining for
whom the majority of votes were given ought to vacate an
election.''
It is a matter of serious import and precedent to introduce
into an election the count of a large disfranchised class. But
if the principle is good as to 4 or 40 or 400 it should
certainly be no less available for a large number; or, briefly,
the number is immaterial if capable of correct computation.
In the case of Waddill v. Wise, [2 Hinds' Precedents
Sec. 1026] reported by the Committee on Elections to the House
in the 51st Congress, the doctrine is discussed, the authority
is collated, and the opinion adopted by the House expressed in
these words ( p. 224):
``If the fraudulent exclusion of votes would, if
successful, secure to the party of the wrongdoer a temporary
seat in Congress, and the only penalty for detection in the
wrong would be merely a new election, giving another chance for
the exercise of similar tactics, such practices would be at a
great premium and an election indefinitely prevented. But if
where such acts are done the votes are counted upon clear proof
aliunde the wrong is at once corrected in this House and no
encouragement is given to such dangerous and disgraceful
methods.''
In following this opinion the testimony is presented for
scrutiny.
A careful examination has been made of a record which
covers 683 closely printed pages. The contestant claims to be
allowed the votes of several thousand alleged voters, whose
names are given, but whose qualifications rest upon varying
testimony. These names of voters appear in lists executed in
most of the election precincts on the day of the election,
signed by the parties or by authorization, and (with few
exceptions) are appended to a form of petition, which is as
follows:
``To the Honorable Senate and House of Representatives of
the United States in Congress assembled:
``The petition of the subscribers, citizens of the State of
South Carolina, respectfully sheweth:
``That your petitioners are over the age of twenty-one (21)
years and male residents of the county of __________, and the
voting precinct of __________, in the county and State
aforesaid, and are legally qualified to register and vote.
``That on this the sixth day of November eighteen hundred
and ninety four, they did present themselves at said voting
precinct in order to vote for Member of Congress, and that they
were denied the right to vote.
``That your petitioners have made every reasonable effort
to become qualified to vote according to the registration law
of this State, but have been denied an equal chance and the
same opportunity to register as are accorded to others of their
fellow-citizens.
[[Page 1267]]
``Your petitioners desired and intended to vote for Joshua
E. Wilson for Member of Congress.
``Wherefore your petitioners pray that you investigate the
facts herein stated and the practical workings of the
registration and election laws of this State and devise some
means to secure to us the free exercise of the rights
guaranteed to us by the constitution of this State and the laws
and Constitution of the United States, and your petitioners
will ever pray, etc., etc.''
These petitions are not usually verified by affidavit, but
are generally supplemented by testimony of those who had them
in charge, with such explanations and corroborations as the
witnesses could give.
It is considered by a majority of this committee that these
lists are not per se evidence in the pending contest. They are
declarations, important parts of which should be proven in
accordance with usual legal forms. It is not impossible so to
do, and consequently we think it is necessary for reaching
trustworthy results.
Under the authority of Vallandigham v. Campbell (1
Bartlett, p. 31) these declarations might serve a use beyond a
mere list for verification. For it was there held--
``The law is settled that the declaration of a voter as to
how he voted or intended to vote, made at the time, is
competent testimony on the point.''
We propose to compute the ballots of those who were
entitled to cast them, and there is ample support in a line of
authorities and precedents. A few only are selected.
Delano v. Morgan (2 Bartlett, 170), Hogan v. Pile (20
Bartlett, 285), Niblack v. Walls (Forty-second Congress, 104,
January, 1873), Bell v. Snyder (Smith's Rep., 251), are
uniformly for--
``the rule, which is well settled, that where a legal voter
offers to vote for a particular candidate, and uses due
diligence in endeavoring to do so, and is prevented by fraud,
violence, or intimidation from depositing his ballot, his vote
shall be counted.''
In Bisbee, Jr. v. Finley [2 Hinds' Precedents
Sec. Sec. 977-981], it was stated--
``as a question of law we do not understand it to be
controverted that a vote offered by an elector and illegally
rejected should be counted as if cast.''
In Waddill v. Wise (supra) the same doctrine was
elaborately discussed and a further step taken by holding--
``That the ability to reach the window and actually tender
the ticket to the judges is not essential in all cases to
constitute a good offer to vote.''
Referring to the evidence given in connection with the
lists in this record it seems proper to adopt some general
principles as a standard for the examination, and the following
have been used as suitable and in accord with the precedents
quoted:
First. The evidence should establish that the persons named
in the lists as excluded voters were voters according to the
requisites of the constitution of South Carolina.
Second. The proof should show that said persons were
present at or near the Congressional voting place of their
respective precincts, for the purpose of voting and would have
voted but for unlawful rejection or obstruction.
Third. That said excluded voters would have voted for the
contestant.
Another election contest which involved irregularities in the
application of a registration law resulting in the disfranchisement
of a number of otherwise qualified voters was Buchanan v. Manning
[2 Hinds' Precedents Sec. 972] in the 47th Congress. In this
contest the
[[Page 1268]]
evidence of a disqualification of potential voters was somewhat
stronger than in the present case because it appears that the
registrars unlawfully refused to register ``many electors.'' In
regard to such action by the registrars, its effect on the
election, and the efforts which are necessary for a potential voter
to undertake in order that his vote may be counted the committee
investigating the matter held:
It appears in the evidence that very many electors in the
various counties of this district were deprived of the right of
voting because they were not registered. The registry law of
Mississippi provides the manner in which registration shall be
made. An unlawful refusal on the part of the registration
officers to register a qualified elector is a good ground for
contest; but in order to make it available the proof should
clearly show the name of the elector who offered to register;
that he was a duly qualified voter, and the reason why the
officer refused to register him, and, under the statutes of the
United States, if he offered to perform all that was necessary
to be done by him to register, and was refused, and afterwards
presented himself at the proper voting place and offered to
vote and again offered to perform everything required of him
under the law, and his vote was still refused, it would be the
duty of the House to see to it that he is not deprived of his
right to participate in the choice of his officers.
Unfortunately, in this case the proof falls far short of that
which is required to enable the House to apply the proper
remedy. That there were many instances in which the officers of
the registration arbitrarily refused to do their duty is
apparent. That many electors were deprived of their right to
vote in consequence of this action is also apparent; but in
going through the testimony in this case the number thus
refused registration and refused the right to vote if added to
contestant's vote would not elect him. Neither is it shown
sufficiently for whom the nonregistered voters would have voted
had they been allowed that right.
As can be seen from the above mentioned cases the problem
involved not so much the registration irregularities themselves
but, rather, conceding the irregularities, the amount of and nature
of the proof required of the contestant to substantiate his claim
of a right to the seat in question. Where the proof offered by the
contestant shows how those who were not permitted to vote would
have voted and that they tendered a vote and were wrongfully
rejected, the House has generally found that this is sufficient to
warrant counting the votes as cast. Then if in counting these votes
the contestant receives more votes than the contestee he gets the
seat. This line of reasoning conforms with the earlier stated
standard of preserving and correcting the return if it is at all
possible, and with the concept that contestant bears the burden of
proof in seeking to have certified returns rejected.
The House of Representatives has rather consistently been
hesitant in declaring a seat vacant preferring rather to measure
the wrong and correct the returns, if this is at all possible.
This preference for protecting the initial returns and
correcting them if the evidence shows that they are incorrect is
amply illustrated in the contests wherein fraud has been proven,
and in contests involving possible rejection of returns. In fact in
the index to Hinds and Cannon under Election of Rep
[[Page 1269]]
resentatives, section 376 is entitled ``Returns, Purging of.--Not
To Be Rejected If Corrections May Be Made'' and section 377 is
entitled ``Returns, Purging of.--Not To Be Rejected Even for Fraud
If Correction May Be Made.'' Under these two headings are three
full pages of citations.
Considering the above precedents along with the statement from
the committee report in the election contest of Gormley v. Goss
[Sec. 47.9, supra], House Report No. 893, 73d Congress, second
session wherein it was held that:
. . . your committee has been guided by the following
postulates deemed established by law and the rules and
precedents of the House of Representatives:
1. The official returns are prima facie evidence of the
regularity and correctness of official action.
2. That election officials are presumed to have performed
their duties loyally and honestly.
3. The burden of coming forward with evidence to meet or
resist these presumptions rests with the contestants. It is
clear that the contestant in this case has failed to meet these
presumptions and requirements.
The major flaw in the contestant's case is that he fails to
carry forward with his claim to the seat as required by the
precedents of the House of Representatives and the Federal
Contested Election Act. A bare claim to the seat as the
contestant makes in his notice of contest without
substantiating evidence ignores the impact of this requirement
and any contest based on this coupled with a request for the
seat to be declared vacant must under the precedents fail. The
requirement that the contestant make a claim to the seat is not
a hollow one. It is rather the very substance of any contest.
Such a requirement carries with it the implication that the
contestant will offer proof of such nature that the House of
Representatives acting on his allegations alone could seat the
contestant.
That the contestant in the present case fails to do this is
quite clear. If all of his allegations were found to be correct
he would still not be entitled to the seat. It is perhaps
stating the obvious but a contest for a seat in the House of
Representatives is a matter of most serious import and not
something to be undertaken lightly. It involves the possibility
of rejecting the certified returns of a state and calling into
doubt the entire electoral process. Thus the burden of proof
placed on the contestant is necessarily substantial.
In this case the contestant has not met this burden of
proof. He makes no substantial offer to show any of the
following elements, much less all of them which are necessary
to his case: (1) that those whose names were stricken from the
registration list were, at the time of the election, qualified
resident voters of the 38th Congressional District of
California; (2) that those whose names were so stricken offered
to vote; and (3) that a sufficient number to change the result
offered to vote and were denied by election officials because
their names had been stricken from the registration lists would
have voted for the contestant had they not been so denied. Had
all of the criteria been met then it would have been incumbent
upon the committee to pass, in the first instance, on the
actions of the registrars in Riverside County and then on the
validity of the evidence offered, but such is not the ease
here.
The type of relief that the contestant seeks is not a
proper one. The contestant is limited, as was noted above, to
claiming the seat in question and offering proof to
substantiate that claim. Declaring a vacancy in the seat is one
of the options
[[Page 1270]]
available to the House of Representatives and is generally
exercised when the House decides that the contestant, while he
has failed to justify his claim to the seat, has succeeded in
so impeaching the returns that the House believes that the only
alternative available to determine the will of the electorate
is to hold a new election.
The committee also takes note of the time factor involved
in the contest. It appears from the record available to the
committee that the contestant had, at the very minimum, three
months notice in advance of the election of the actions here
protested of the registrars. It would seem that if the
contestant had any reservations about such actions the proper
forum in which to test such reservations would have been the
California courts. In election matters the courts have
generally been inclined to expedite the case and we feel
certain that such would have been the case in California had
the contestant chosen to so act. From the record it appears
rather that the contestant decided to take his chances and we
feel constrained to abide by that decision.
On Nov. 9, 1971, Mr. Abbitt, by direction of the Committee on House
Administration, called up House Resolution 507 (accompanying H. Rept.
No. 92-626) which provided:
H. Res. 507
Resolved, That the election contest of David A. Tunno,
contestant, against Victor V. Veysey, contestee, Thirty-eighth
Congressional District of the State of California, be dismissed.
The resolution dismissing the contest was agreed to by the House
and a motion to reconsider was laid on the table.(11)
---------------------------------------------------------------------------
11. 117 Cong. Rec. 40017, 92d Cong. 1st Sess.
---------------------------------------------------------------------------
Note: Syllabi for Tunno v Veysey may be found herein at Sec. 35.7
(burden of showing results of election would be changed); Sec. 35.8
(burden of establishing claim to seat); Sec. 42.11 (disposal by
resolution declaring seat vacant).
ELECTION CONTESTS--APPENDIX
DESCHLER'S PRECEDENTS
[[Page 1271]]
APPENDIX TO CHAPTER 9
Note.--Chapter 9 discusses contested election cases in the House of
Representatives beginning with the year 1931. This appendix to Chapter
9 contains a digest of contested election cases for the years 1917
through 1931 (the 65th through the 71st Congresses), arranged by
Congress and case name. It was thought necessary to include this
material in an appendix to provide a more comprehensive coverage than
now exists of election cases for the years cited.
Contested election cases from the first 64 Congresses have been
presented in other works. In 1901, Mr. Chester H. Rowell completed
preparation of a digest of all contested election cases in the House of
Representatives from the 1st through the 56th Congresses. Mr. Rowell's
intention was to summarize earlier compilations of such cases. As he
stated in a preface to his work:
Most of the reports in the first fifty-two Congresses are included
in the nine volumes known from the name of their compilers as: (1)
Clarke and Hall (First to Twenty-third Congress), (2) 1 Bartlett
(Twenty-fourth to Thirty-eighth Congress), (3) 2 Bartlett (Thirty-ninth
to Forty-first Congress), (4) Smith (Forty-second to Forty-fourth
Congress), (5) 1 Ellsworth (Forty-fifth and Forty-sixth Congresses),
(6) 2 Ellsworth (Forty-seventh Congress), (7) Mobley (Forty-eighth to
Fiftieth Congress), (8) Rowell (Fifty-first Congress), and (9) Stofer
(Fifty-second Congress).
---------------------------------------------------------------------------
Commentary and editing by Assistant Parliamentarian Charles W. Johnson.
---------------------------------------------------------------------------
The volumes referred to, he noted, were largely unedited and in
some degree incomplete. To correct these deficiencies, Mr. Rowell
compiled his one-volume digest, the first half of which contained
condensations of case reports arranged chronologically by Congress,
with headnotes and a summary of actions taken by the House. The second
part of Mr. Rowell's work consisted of a digest of the law and
precedents established by the cases.
In 1919, Mr. Merrill Moores continued the presentation of contested
election cases by compiling a digest of such cases in the House arising
from the 57th through the 64th Congresses (1901-1917). (See H. Doc. No.
2052, 64th Cong.)
It is hoped that Chapter 9 and this appendix thereto, together with
the above-mentioned works, will provide a sufficiently comprehensive
treatment of all precedents arising from contested election cases.
[[Page 1273]]
CHAPTER 9
Election Contests
ELECTION CONTESTS--APPENDIX
DESCHLER'S PRECEDENTS
Election Contests, 1917-31
Sec. 1. Sixty-fifth Congress, 1917-19
Sec. 2. Sixty-sixth Congress, 1919-21
Sec. 3. Sixty-seventh Congress, 1921-23
Sec. 4. Sixty-eighth Congress, 1923-25
Sec. 5. Sixty-ninth Congress, 1925-27
Sec. 6. Seventieth Congress, 1927-29
Sec. 7. Seventy-first Congress, 1929-31
INDEX TO APPENDIX
Abatement of contest
failure of House to act upon elections committee report
report in contestee's favor, Sec. 3.5
report recommending unseating of contestee, Sec. 7.4
neglect of contestant to take testimony within legal time
no committee or House disposition, Sec. 6.1
withdrawal of contestant, Sec. Sec. 5.1, 6.2, 6.3
withdrawal of contestant presumed where brief not filed,
Sec. 5.3
Ansorge v Weller (N.Y.), Sec. 4.6
Answer to notice of contest
late filing not grounds for unseating contestee, where not
prejudicial to contestant, Sec. 3.4
Apportionment
time of decennial reapportionment under Constitution held
discretionary; Member-elect denied seat where state's
representation would otherwise exceed that permitted
by existing law, Sec. 4.4
Bailey v Walters (Pa.), Sec. 5.4
Ballot box, custody of
failure to observe directory state law regulating custody of
ballots held not to void recount where evidence
overcame presumption of tampering, Sec. 5.4
improper commingling of boxes between precincts after election
as not affecting validity of ballots therein that had
been counted in the official return, Sec. 1.1
recount denied by committee where ballots improperly preserved
after election, Sec. 3.7
resolution adopted by House authorizing committee to subpena
election officials, ballots, and ballot boxes,
Sec. Sec. 7.3, 7.4
temporary loss of boxes rendered ballots not counted in
official return void for lack of proper preservation,
but loss held not grounds for rejection of total
returns, Sec. 1.1
Ballots (see also Fraud, marking and custody of ballots; Evidence,
sufficiency of proof)
absentee ballots invalid where lack of voter domicile not
proven, Sec. 3.5
arrangement and printing
party designations, allegations of impropriety of, not
sustained, Sec. 5.3
custody and preservation by local election officials
absentee ballots not rejected absent fraud where state law
reasonably interpreted not to require
preservation by officials, Sec. 3.5
[[Page 1274]]
recount not conducted by committee where ballots not
properly preserved after election, Sec. 3.7
state law regulating custody of ballot box held directory;
where evidence overcame presumption of
tampering, noncompliance held not to void
recount, Sec. 5.4
state law requiring sealed ballot box held directory;
ballots in unsealed box remained best evidence
and may be recounted by officer appointed to
take testimony, Sec. 1.1
valid, ballots held to be, where contained in commingled
boxes counted in official returns and verified
by recount, Sec. 1.1
void, ballots held to be, where contained in mislaid
unsealed boxes not counted in official returns,
Sec. 1.1
evidence, obtaining ballots as (see also Evidence)
resolution authorizing committee to subpena disputed
ballots, Sec. 4.6
resolution authorizing committee to subpena officials and
disputed ballots, Sec. Sec. 2.1, 4.2, 5.4
resolution authorizing committee to subpena officials,
ballots, and ballot boxes, Sec. Sec. 7.3, 7.4
resolution in part requiring territory Governor to forward
returns and ballots to House for examination,
Sec. 2.6
machines, voting, as not conforming to requirements of state
law, Sec. 1.5
marking by voter
ballots written by voter, though unavailability of official
ballot was not properly certified by election
officials, held valid, Sec. 1.4
examination and recount by committee where ballots marked
by someone other than voter, Sec. 5.4
irregularities in marking for candidates for other offices
held not to be identifying marks prohibited by
law, and ballots held valid where voter intent
clear, Sec. 1.2
single name written ballots not also marked with ``X'' as
required by mandatory state law voided by
House, overruling majority report, Sec. 1.6
write-in or sticker votes for contestant properly placed on
ballot but absent the corresponding crossmark
required by state law to be placed opposite
such name, were held valid as voter intent was
clear, Sec. 2.1
recount, complete, by committee
denied by committee where no evidence impeached correctness
of official returns in undisputed precincts,
Sec. 5.4
general election, recount of ballots cast in, to determine
whether deceased predecessor or contestee
seated as result of special election had been
elected, Sec. 2.6
not ordered by committee where all ballots and ballot boxes
shown improperly preserved, Sec. 3.7
recount, complete, by official appointed to take testimony
recount upon stipulation of parties changed official
election result, Sec. 1.1
recount, complete, by parties
followed by partial recount by committee of ballots
remaining in dispute, Sec. Sec. 4.2, 4.6
recount, complete, by state election officials
[[Page 1275]]
result of recount conducted upon stipulation of parties
held binding on contestant and considered
grounds for denying application for partial
committee recount, Sec. 3.2
recount, partial, by committee
absentee ballots of military personnel not recounted where
remaining committee recount would not be
affected, Sec. 2.7
authorized to be conducted upon adoption by House of
resolution authorizing subpena of officials and
disputed ballots, Sec. 5.4
authorized to be conducted upon adoption by House of
resolution authorizing subpena of officials,
ballots, and ballot boxes, Sec. Sec. 7.3, 7.4
conducted as to ballots fraudulently marked by person other
than voter, Sec. 5.4
conducted as to ballots still disputed after complete
recount by parties, Sec. Sec. 4.2, 4.6
conducted in all precincts where fraud or irregularities
alleged, Sec. 2.7
conducted upon adoption by House of resolution authorizing
subpena of officials and disputed ballots,
Sec. 5.4
conducted where ballot box was improperly preserved but
evidence overcame presumption of tampering,
Sec. 5.4
denied by committee after parties conducted complete
recount and stipulated that results would not
be changed, Sec. 5.2
denied by committee, as only a complete recount should be
ordered where some error in official returns is
shown, Sec. 3.7
denied by committee where complete recount conducted by
state election officials was held binding on
parties, where results would not be changed,
and where fraud was not proven, Sec. 3.2
denied by committee where contestant delayed submission of
evidence and offered insufficient proof of
allegations of fraud and irregularities to
change election results, Sec. 4.7
denied by committee where contestant did not prove that
results would be changed by counting ballots
wrongfully rejected by election officials,
Sec. 6.5
motion, recount conducted on, after House had authorized
subpena of ballots, Sec. 7.3
secondary evidence used where ballots not available as best
evidence, Sec. 2.4
tie, recount conducted after separate recounts by parties
resulted in, Sec. 1.2
write-in and sticker votes disputed at state recount or
during taking of evidence, recount of, upon
adoption of resolution authorizing subpena of
officials and disputed ballots, Sec. 2.1
recount, partial, by official appointed to take testimony
followed by partial committee recount of ballots remaining
in dispute, Sec. 5.4
insufficient evidence, considered to be, where the election
result was not changed, Sec. 3.8
recount, partial, by parties
tie, separate recounts resulting in, followed by committee
recount, Sec. 1.2
recount, partial, by state election officials
denied for want of state law authority, Sec. 5.4
error in official returns, recount conducted upon
stipulation of parties as disclosing, Sec. 1.1
secrecy of
[[Page 1276]]
irregularities in marking for candidates for other offices
held not to be identifying marks prohibited by
law, and ballots held valid where voter intent
clear, Sec. 1.2
violations by election officials of state constitution and
statutes requiring preservation of secrecy of
ballots were held to void ballots cast in
affected precincts, Sec. 3.6
Beakes v Bacon (Mich.), Sec. 1.1
Beck, investigation of qualifications of (Pa.), Sec. 6.4
Bodenstab v Berger (Wis.), Sec. 2.5
Bogy v Hawes (Mo.), Sec. 3.2
Bracken, memorial of (Pa.), Sec. 3.1
Britt v Weaver (N.C.), Sec. 1.6
Brown v Green (Fla.), Sec. 5.1
Campbell v Doughton (N.C.), Sec. 3.5
Carney v Berger (Wis.), Sec. 2.2
Chandler v Bloom (N.Y.), Sec. 4.2
Clark v Edwards (Ga.), Sec. 5.3
Clark v Moore (Ga.), Sec. 4.3
Clark v White (Kans.), Sec. 6.2
Cole, claim of, to seat (Tex.), Sec. 4.4
Contestant
not entitled to seat upon exclusion of contestee where not
receiving plurality of votes cast, Sec. 2.2
not entitled to seat upon exclusion of contestee where not
receiving plurality of votes cast, though voters had
notice of contestee's ineligibility, Sec. 2.5
petitioner (memorialist), unsuccessful candidate receiving
highest number of votes of all candidates not elected
at large, held not entitled to seat upon death of
Member-elect at-large, Sec. 3.1
standing, lack of, to institute contest where evidence not
forwarded to House within legal time, Sec. 4.5
standing, lack of, to institute contest where evidence not
taken within legal time (although extensions
stipulated by parties), where delay not excusable,
Sec. 3.8
unsuccessful candidate in general election not entitled to seat
where ballots cast for contestee with questionable
qualifications are not clearly void, Sec. 7.2
Contestee
admission by contestee of fraud sufficient to change results;
contestee unseated, Sec. 7.1
committee majority finding that contestee had knowledge that
certain relatives were unqualified voters, and that
he sanctioned frauds by party workers, considered
grounds for recommendation of unseating, though such
recommendation was not acted upon by House, Sec. 7.4
death of, prior to certification; new Delegate-elect
substituted as contestee after his election to fill
vacancy, Sec. 2.6
unethical actions by counsel for, held not attributable to,
Sec. 4.7
Corrupt Practices Act, Federal
alleged violations by candidate during primary election held
insufficient, based on advisory opinion of Attorney
General construing Supreme Court opinion holding act
invalid with respect to nominations, Sec. 3.4
[[Page 1277]]
limitation on expenditures by candidate-resolution proposing
special investigation of seated Member's expenditures
reported adversely by elections committee and laid on
table by House, Sec. 4.1
limitations on contributions to candidate, violation by
contestee's committee of, held grounds for unseating
contestee, Sec. 2.7
timely filing of statements of receipts and expenditures in
general election, provisions requiring, held
directory; noncompliance held not grounds for
unseating contestee where attempted compliance shown,
Sec. 3.4
unethical campaign practices held not prejudicial to contestant
where committed against another candidate and not
attributable to contestee, Sec. 3.5
Davenport v Chandler (Okla.), Sec. 1.3
Decisions by the House (see also Qualifications of Member;
Elections committee, investigations by, Abatement of
contest)
generally
candidate elected to seat in excess of state seat
entitlement in House held not entitled to seat,
Sec. 4.4
discharge of elections committee from further consideration
of contest, as per committee's reported
recommendation, where contestant guilty of
laches in offering evidence and where evidence
was insufficient to justify recount of disputed
ballots, Sec. 4.7
Member-elect permitted to be sworn pending election
committee determination of final right based on
inhabitancy qualification, Sec. 6.4
memorialist receiving most votes of those candidates not
elected at-large held not elected as
Representative at-large where Member-elect had
died prior to certification, Sec. 3.1
recommendations of elections committee adopted by House
report for contestee (or seated Member), who was held
entitled to seat by House, Sec. Sec. 1.2, 1.3,
1.5, 2.4, 3.2-3.4, 3.7-3.9, 4.3, 4.5, 4.6, 5.1-
5.4, 6.2 6.5, 7.2, 7.3, 7.5
report of majority for contestant, who was seated,
Sec. Sec. 2.1, 2.6, 3.6
report, unanimous, for contestant, who was seated,
Sec. Sec. 1.1 1.4, 2.7, 7.1
resolution providing for referral to select committee of
question of final right of Member to seat
reported adversely by elections committee, and
laid on table by House, Member retaining seat,
Sec. 4.1
seated Member held entitled to retain seat, Sec. 2.3
recommendations of elections committee rejected by House
majority report for contestant rejecting precinct returns
for violation of mandatory state law and for
officials' fraud, overruled by House, which
adopted minority report validating returns
where election officials acted under color of
authority and where fraud not proven by
contestant, Sec. 4.2
majority report for contestee overruled by House seating of
contestant, Sec. 1.6
vacancy, declaration of (see also Vacancy)
death of Member-elect at-large prior to certification;
unsuccessful candidate receiving most votes of
all candidates not elected at-large held not
entitled to seat, and seat therefore declared
vacant, Sec. 3.1
incidents of persons fraudulently claiming domicile in
certain precincts were held sufficient grounds
for rejection of entire returns from such
precincts, though insufficient to justify
declaration of vacancy, Sec. 2.1
seat declared vacant upon exclusion of contestee and upon
declaration that contestant as unsuccessful
candidate was not entitled to seat, Sec. 2.2
[[Page 1278]]
Elections committee (Committee on House Administration)
investigations by
House adopted privileged resolution authorizing subpoena of
returns and election officials, Sec. 7.1
House adopted resolution authorizing subpoena of election
officials, ballots, and ballot boxes,
Sec. Sec. 7.3, 7.4
House adopted resolution reported by elections committee
authorizing subpoena of election officials and
disputed ballots by that committee,
Sec. Sec. 4.6, 5.4
inhabitancy qualification of Member-elect, investigation
of, instituted by resolution referring question
of Member's final right to seat to the
committee, Sec. 6.4
procedures of
established categories of disputed ballots, Sec. 4.6
filing of brief after legal time with consent of contestee
permitted, Sec. 6.5
reports of (see also Decisions of the House)
adverse--of resolution proposing special committee
investigation of alleged violation of Corrupt
Practices Act by Member, Sec. 4.1
committee members split on legal bases for unanimous
recommendation that seven-year citizenship
requirement was fulfilled by woman Member-
elect, Sec. 7.2
findings of other elections committees in contests
considered concurrently were incorporated by
reference, Sec. 3.9
instance of summary disposition of resolution without
accompanying printed report, Sec. 1.3
majority recommendation that contestee be unseated was not
accompanied by a resolution, Sec. 7.4
minority recommended resolution that contestant be held not
entitled to seat and that contestee retain
seat, Sec. 7.4
minority views against validity of majority report,
Sec. 7.4
point of order that report not authorized, due to
inconsistent actions taken in committee, was
reserved, Sec. 7.4
point of order that report not timely filed was reserved,
Sec. 7.4
summary report recommending the unseating of contestee and
seating of contestant did not detail the
election official frauds conceded by contestee
to have prevented contestant's election where
such facts were undisputed and were available
in committee records, Sec. 7.1
time for filing extended by House, Sec. 7.5
Election laws: federal (see also Corrupt Practices Act)
governing contested elections
statute requiring submission of evidence within certain
period held mandatory as to parties who could
not stipulate to extensions, Sec. 4.7
mandatory or directory; precedence over state action
held to invalidate territory legislature act repealing
precinct residence requirement of federal
organic law, Sec. 2.6
setting time for opening and closing polls in territory
held mandatory, Sec. 2.6
statute requiring submission of evidence within certain
period held mandatory as to parties who could
not stipulate to extensions, Sec. 4.7
U.S. constitutional provision requiring decennial
reapportionment by Congress held discretionary
as to time of enactment, and to preclude House
from itself increasing total membership; and
thereby to deny Member-elect with regular
credentials a seat in excess of state
entitlement under existing law, Sec. 4.4
[[Page 1279]]
where organic law required notice before changing polling
places in territory, violation by election
officials' order held to void returns from
precinct, Sec. 2.6
Election laws: state
directory or mandatory
construed by election officials to deny them authority to
conduct partial recount, Sec. 5.4
prescribing ballot form and permitting written ballots when
official formsunavailable held directory,
Sec. 1.4
regulating custody of ballot boxes held directory, Sec. 5.4
regulating custody of ballot boxes held directory and not
to prevent recount of ballots therein, where
evidence overcame presumption of tampering,
Sec. 5.4
requiring registration numbers on ballots held mandatory,
but rejection of returns mooted as result not
changed by such violation, Sec. 2.4
requiring sealing of ballot boxes held directory, Sec. 1.1
requiring ``X'' marking of ballots containing single
written name held mandatory by House, Sec. 1.6
state constitutional requirement of unassisted handwritten
application for registration held mandatory,
Sec. 3.6
state law requiring bipartisan judges, prohibiting
assistance to voters and requiring proper
custody of ballots held mandatory, Sec. 3.6
state law requiring rejection of ballots not signed by
election officials held not binding on House
where voter intent clear, Sec. 6.5
interpretation and applicability of
allegation that statute requiring numbering of ballots
violated state constitution was considered by
an elections committee, Sec. 2.4
allegation that statutes governing balloting by machines
violated state constitution was not considered
by an elections committee where basic issues
involved policy questions determinable by state
legislature and courts, Sec. 1.5
construed by election officials to deny them authority to
conduct partial recount, Sec. 5.4
state law requiring rejection of ballots not signed by
election officials held not binding on House
where voter intent clear, Sec. 6.5
poll tax and literacy requirement of state constitution
general failure to observe statutory requirements by
election and party officials censured but held
not to void election, absent fraud, where
election result not affected, Sec. 3.5
Evidence
best evidence
ballots are, and testimony of witness making tally at
partial recount conducted by official appointed
to take testimony is inadmissible where ballots
are not offered in evidence before the
committee, Sec. 3.7
ballots in unsealed boxes remain, and may be counted absent
evidence of tampering, Sec. 1.1
burden of proof on contestant to show voters unqualified,
Sec. 2.7
ex parte evidence taken by contestant held inadmissible,
Sec. Sec. 2.6, 3.2
prima facie evidence, official returns are, of correctness of
election. Sec. 3.7
sufficiency of proof
allegations by both parties of fraud not sustained,
Sec. 6.5
alphabetical listing of names in poll books established
fraud by election officials, Sec. 2.7
[[Page 1280]]
ballots cast by Indians validated upon failure to show
specific voters not qualified, Sec. 1.4
committee minority findings that contestant had proven
voter disqualification irregularities
sufficient to change election results were
accepted by House despite committee majority
findings of insufficiency, Sec. 1.6
contestant failed to support allegations of fraudulent and
irregular partisan registration activities,
Sec. 3.3
contestant failed to support allegations of registration
and voting frauds, Sec. 3.2
contestant failed to support allegations where proffered
recount conducted by official taking testimony
did not change results, Sec. 3.8
contestant failed to sustain allegations of fraud and
conspiracy to defraud by election officials,
Sec. 5.2
contestant failed to sustain allegations of fraud and
irregularities sufficient to change election
results by showing disputed ballots irregularly
marked by voters; partial recount therefore
denied, Sec. 4.7
contestant failed to sustain allegations of fraud by
election officials, Sec. 4.3
contestant's allegations of fraud and irregularities in
machine balloting not sustained where basic
issues involved questions of state law policy
determinable by state legislature and courts,
Sec. 1.5
evidence of fraudulent marking of ballots after cast held
insufficient where an insignificant number of
ballots were challenged, Sec. 3.9
time for taking
contest abated where contestant failed to take within legal
time, Sec. 6.1
extension of, denied by committee where delay not
excusable, Sec. 5.2
House authorized extension, where contestee's death
prevented timely taking, Sec. 2.6
not forwarded to House by designated official within legal
time, contestant held without standing to
institute contest, Sec. 4.5
not taken by contestant within legal time, held to
discharge elections committee from contest,
though parties agreed to extensions, where
delay not excusable and where law and committee
rules violated, Sec. 4.7
not taken by contestant within legal time held inadmissible
though parties stipulated to extensions, where
delay not excusable, Sec. 3.8
not taken by contestant within legal time inadmissible
where extension not sought and parties'
stipulations not binding on House, Sec. 3.7
Expenses of contest
denied to contestant by elections committee, Sec. 5.3
elections committee has discretion in awarding, Sec. 6.2
Farr v McLane (Pa.), Sec. 2.7
Frank v LaGuardia (N.Y.), Sec. 4.7
Fraud (see also Evidence, sufficiency of proof)
by contestee
improper preservation and counting of ballots by election
officials and party workers and sanction
thereof by contestee, and knowledge of
contestee that certain voters were unqualified,
considered grounds by committee majority for
recommendation that contestee be unseated,
where frauds were sufficient to change election
results; no House disposition. Sec. 7.4
by election officials
ballots marked by officials or east by nonqualified voters
upon inducement of election officials,
invalidated, Sec. 2.7
[[Page 1281]]
contestant's allegation of fraudulent remarking of small
number of cast ballots did not show sufficient
official corruption for rejection of entire
returns, Sec. 3.9
contestant's allegations of conspiracies, of destruction of
ballots, and of acts by unqualified officials
not substantiated, Sec. 4.3
improper preservation and counting of ballots by election
officials and party workers and sanction
thereof by contestee, and knowledge of
contestee that certain voters were unqualified,
considered grounds by committee majority for
recommendation that contestee be unseated,
where sufficient to change election results; no
House disposition, Sec. 7.4
in precincts where one-third of voters were fictitiously
registered, where other illegal acts were
committed by party workers for contestee, and
where contestee failed to prove that remaining
qualified voters therein had voted for him,
resulted in total rather than proportional
rejection of returns, as elections committee
considered the frauds more prevalent than those
proven, Sec. 2.1
instance where unfair counting and forgery practices
sufficient to change the election result were
needed by contestee, who was unseated and
contestant seated, Sec. 7.1
majority finding of fraud in casting, counting, and custody
of ballots and of intimidation at polls,
overruled by House where allegations were not
proven by contestant, Sec. 4.2
not proven by contestant's receiving fewer ballots than
candidates of his party for other offices,
Sec. 3.2
conspiracy to defraud
contestant's allegations of conspiracies, destruction of
ballots, and acts by unqualified officials not
substantiated, Sec. 4.3
not proven by evidence of election official's inefficiency
in respect of timely opening of polls, Sec. 3.5
marking and custody of ballots (see also Evidence, sufficiency
of; Ballots, marking of by voter)
ballots marked by election officials or by unqualified
voters upon inducement of officials held
invalid, Sec. 2.7
ballots were examined and recounted by committee where
marked by person other than the voter, Sec. 5.4
contestant's allegation of fraudulent remarking of small
number of ballots already cast did not show
sufficient official corruption to justify
rejection of entire returns, Sec. 3.9
Gartenstein v Sabath (Ill.), Sec. 3.7
Gerling v Dunn (N.Y.), Sec. 1.5
Golombiewski v Rainey (Ill.), Sec. 3.9
Gorman v Buckley (Ill.), Sec. 4.5
Hill v Palmisano (Md.), Sec. 7.4
Hubbard v LaGuardia (N.Y.), Sec. 6.3
Kennamer v Rainey (Ala.), Sec. 3.3
Lawrence v Milligan (Mo.), Sec. 7.3
Lawson v Owen (Fla.), Sec. 7.2
Miller, eligibility of (Ill.), Sec. 4.1
Notice of contest
sufficiency of
[[Page 1282]]
lack of particular specifications did not prevent decision
by committee on merits, Sec. 1.5
time and manner of serving
not served upon contestee within legal time, held grounds
for dismissal of contest, Sec. 6.2
where not served in required time and delay not excusable,
contestant enjoined by federal court from
proceeding with contest, and petition denied by
committee, Sec. 2.3
Officials of elections
irregularities by (see also Registration; Fraud)
alteration of tally sheets to correct error, absent fraud,
held no grounds for rejection of returns,
Sec. 2.4
assisting voters at registration and at polls, and failure
to maintain proper custody and secrecy of
ballots, held violative of mandatory state law,
Sec. 3.6
committee majority recommended partial rejection of returns
on grounds of election official fraud and
irregularities sufficient to change results; no
House disposition, Sec. 7.4
failure to certify unavailability of official ballots held
not to invalidate written ballots under
directory state law, Sec. 1.4
in counting ballots, resulted in separate recounts by
parties and then in partial committee recount,
Sec. 1.2
permitting unregistered voters to east ballots held not to
have materially affected election result,
Sec. 3.3
relation of oath and qualifications to acts of
returns not rejected by House where improperly qualified or
unsworn officials acted under color of
authority, Sec. 4.2
Parillo v Kunz (III.), Sec. 3.8
Paul v Harrison (Va.), Sec. 3.6
Pleadings (see also Elections committee, procedures of)
failure of contestant to file brief presumed a withdrawal of
contest, Sec. 5.3
filing of brief by contestant after legal time with consent of
contestee permitted by committee, Sec. 6.5
noncompliance with committee rule requiring filing of pertinent
evidence with brief and contestant's refusal to
attend hearings held grounds for dismissal, Sec. 3.9
questions raised in, were mooted by committee recount, Sec. 1.2
though committee rule requiring filing of abstract of evidence
with brief not complied with by contestant, committee
considered merits, Sec. 3.2
Qualifications of Member
citizenship qualification
majority of elections committee considered years of
citizenship requirement to be cumulative;
remaining Members construed ``Cable Act'' to
reestablish contestee's consecutive
citizenship, Sec. 7.2
seven-year U.S. citizenship requirement, of woman Member-
elect who had forfeited citizenship by marriage
to alien and who had then been naturalized less
than seven years before election, held
fulfilled, Sec. 7.2
inhabitancy in state when elected
requirement held fulfilled where Member maintained
``ideal'' or intended residence when elected,
as evidenced by voting and tax payments, though
actual residence was in another jurisdiction,
Sec. 7.5
[[Page 1283]]
requirement held satisfied where Member lived in leased
apartment in state for part of each week and
belonged to ``body politic'' of state, though
owning residences in other jurisdictions,
Sec. 6.4
loyalty
elections committee concurred in House finding of
disqualification of Member-elect, elected to
fill vacancy caused by his initial exclusion,
for having given aid or comfort to enemy,
Sec. 2.5
elections committee concurred in special committee findings
of disqualification of Member-elect for having
given aid or comfort to U.S. enemy, Sec. 2.2
Rainey v Shaw (Ill.), Sec. 3.4
Recount, see Ballots
Reeves, memorial (Mo.), Sec. 2.3
Registration
ballots cast by transient voters not properly registered in new
precincts held invalid, Sec. 4.2
contestant not prejudiced by denial of access to registration
books by election officials, Sec. 3.5
contestant not prejudiced where officials registered voters of
contestee's party in addition to mandatory bipartisan
registration, where such partiality was permitted by
state law, Sec. 3.5
contestant's allegations of illegal partisan registration
practices by officials of contestee's party held not
to have materially affected election result, Sec. 3.3
numerous incidents of merchants' and municipal employees'
fraudulently claiming domicile to participate in
local elections were held sufficient grounds for
rejection of entire returns in certain precincts,
though insufficient to justify declaration of
vacancy, Sec. 2.1
state constitution requiring unassisted handwritten
applications by voters, held mandatory, voiding
ballots cast by voters not so registered but not
voiding ballots of voters filing defective unassisted
written ballots supported by oral examination under
oath, Sec. 3.6
where committee divided on question of sufficiency of proof of
registration, ballots allegedly cast by unregistered
voters were not voided where election result not
changed, Sec. 5.4
Returns (see also Ballots, generally)
in general
prima facie evidence of correctness of returns only
overcome by recount of all ballots as best
evidence, Sec. 3.7
recount of ballots denied where no evidence offered to
overcome presumption of correctness in
undisputed precincts, Sec. 5.4
custody of, taken by House
House adopted privileged resolution authorizing committee
to subpena returns and election officials,
Sec. 7.1
not rejected
by House where election officials acted under color of
authority and where contestant did not sustain
allegations of fraud, thereby overruling
majority committee report, Sec. 4.2
where contestant's evidence of fraudulent markings of
ballots was held insufficient, Sec. 3.9
where election officials altered tally sheets to correct
errors, absent fraud, Sec. 2.4
where election officials were negligent in signing
certificates, Sec. 2.6
[[Page 1284]]
where one ballot box not properly preserved, Sec. 1.1
where polls remained open after legal time, absent fraud,
Sec. 2.7
rejection of (entire or partial)
ballots cast by aliens who would not testify for which
candidate they had voted were invalidated by
the proportional deduction method, Sec. 5.4
based on recount by official appointed to receive
testimony, confirmed by committee, Sec. 1.1
based on recount by parties, accepted by committee,
Sec. 1.1
by proportional deduction method, where nonregistered
voters cast unidentified ballots absent
official fraud, Sec. 2.7
by proportional deduction method, where not determinable
for whom invalid ballots were cast,
Sec. Sec. 1.4, 2.6, 2.7, 5.4
entire precincts rather than by proportional deduction
where one-third of voters were fraudulently
registered, where additional frauds were
suggested, where contestee failed to prove that
remaining valid votes had been cast for him,
and where illegal votes were not cast pro rata
between parties, Sec. 2.1
entire precincts, rejection in, where election officials'
fraud or irregularities violated mandatory
state registration law; by proportional
deduction in other precincts where not
determinable for whom illegal votes cast; or to
extent of proven illegal votes, Sec. 3.6
entire precincts, rejection in, where official misconduct
and unqualified voters proven, Sec. 2.7
from precincts in territory where organic law setting time
for opening and closing polls was violated,
Sec. 2.6
from precincts where polling places were improperly
changed, Sec. 2.6
recommended by committee majority on grounds of fraud and
irregularities by election officials and party
workers sufficient to change results and fraud
(insufficient to change results) by contestee,
Sec. 7.4
where ballots cast without registration numbers as required
by mandatory state law, question moot as not
changing total result, Sec. 2.4
where ballots marked by election officials, Sec. 2.7
where ballots were cast by various types of unqualified
voters, Sec. 2.7
where polling places illegally changed, Sec. 2.7
where voters cast more than one ballot, Sec. 2.7
tally sheets
altered to correct errors by election officials, absent
fraud, held not grounds for rejection of
returns, Sec. 2.4
Salts v Major (Mo.), Sec. 2.4
Sirovich v Perlman (N.Y.), Sec. 5.2
Steele v Scott (Iowa), Sec. 1.2
Suffrage (see also Registration)
Indians
born in territory and severed from tribe, permitted to vote
as citizens, Sec. Sec. 1.4, 2.6
military
ballots cast by personnel involuntarily stationed in
territory, rejected, Sec. Sec. 1.4, 2.6
noncitizens
ballots cast by aliens who refused to testify for which
candidate they had voted were invalidated by
proportional deduction method, Sec. 5.4
[[Page 1285]]
ballots cast by women citizens married to aliens prior to
passage of ``Cable Act'' held void based on
Supreme Court decision upholding loss of
citizenship as the result of such marriage
prior to passage of the act, Sec. 5.4
nonresidents
ballots cast by nonresidents of precinct or territory were
rejected, Sec. Sec. 1.4, 2.6
poll tax
ballots cast by voters not paying were rejected, Sec. 3.6
poll tax and literacy requirement of state constitution
general failure to observe state requirements by election
and party officials condemned but held not to
void election, absent fraud, where election
result not changed, Sec. 3.5
right of, generally
held not denied by election officials, Sec. 3.3
women voters
ballots cast by women citizens married to aliens prior to
passage of ``Cable Act'' held void based on
Supreme Court decision upholding loss of
citizenship as result of such marriage prior to
passage of act, Sec. 5.4
not denied right to register or vote by conspiracy of state
legislature, Sec. 3.3
Tague v Fitzgerald (Mass.), Sec. 2.1
Taylor v England (W. Va.), Sec. 6.5
Updike v Ludlow (Ind.), Sec. 7.5
Vacancies (see also Decisions of the House)
death of contestee prior to certification, territory Governor
called special election to fill vacancy caused by;
new Delegate-elect seated but finally unseated when
House determined that deceased predecessor had not
been elected at general election, Sec. 2.6
death of Member-elect at-large prior to certification;
unsuccessful candidate receiving most votes of all
candidates not elected at-large held not entitled to
seat, Sec. 3.1
declared upon exclusion of contestee and upon declaration that
contestant as unsuccessful candidate was not entitled
to seat, Sec. 2.2
fraudulent registrations in certain precincts were held grounds
for rejection of entire returns from such precincts,
but insufficient to justify declaration of vacancy,
Sec. 2.1
special election to fill
death of contestee prior to certification, territory
Governor called special election to fill
vacancy caused by; new Delegate-elect seated
but finally unseated when determined that
predecessor had not been elected at general
election, Sec. 2.6
Wefald v Selvig (Minn.), Sec. 6.1
Wickersham v Sulzer (Alaska), Sec. 1.4
Wickersham v Sulzer and Grigsby (Alaska), Sec. 2.6
Wurzbach v McCloskey (Tex.), Sec. 7.1
ELECTION CONTESTS--APPENDIX
DESCHLER'S PRECEDENTS
[[Page 1287]]
Sec. 1. Sixty-fifth Congress, 1917-19
Sec. 1.1 Beakes v Bacon, 2d Congressional District of Michigan.
Ballots.--A partial recount unofficially conducted by local
election board upon agreement of parties having disclosed error in
official returns, parties stipulated that notary conduct complete
recount and conceded new results.
Returns were partially rejected by the committee on elections based
on recount by notary.
Report of Committee on Elections No. 3 submitted by Mr. Walter A.
Watson, of Virginia, on Oct. 5, 1917, follows:
Report No. 194
Contested Election Case, Beakes v Bacon
The record in this case is unique in some respects and is in rather
marked contrast with the generality of election cases.
First. No unworthy motive is ascribed to the principals concerned,
and intentional wrong is not shown to have been done by any of the
officials charged with the conduct of the election.
Second. There is little or no conflict of evidence respecting the
material facts in issue, and the only question for decision is one of
law and justice as applied to a conceded state of facts.
Third. While the controversy originally embraced the canvass and
counting of over 50,000 ballots cast in the election, in the end the
issue is narrowed to the proper disposition of the returns from only
two precincts.
When it is recalled with what partisan bias contests of this sort
have sometimes been wont to be waged in the past, and how frequently
your body has had to deal with records of mutual reproach and even
crime, the committee deems itself fortunate to be able to say, at the
outset, that this contest has, on the whole, been conducted with
admirable spirit, and with the desire to elucidate the real merits of
the case. Where the electors were so numerous and the ballot
complicated, mistakes and irregularities were inevitable and to be
anticipated; but the irregularities shown here are mostly formal, and
in the aggregate the mistakes comparatively few.
how the contest arose
The official returns of the election for Congress, November 7,
1916, gave Bacon 27,182, Beakes 27,133--a majority of 49 for Bacon.
Reviewing the returns from the various precincts, contestant
discovered that at first precinct, second ward, city of Jackson, he had
run far behind the other candidates of his party, State and Federal;
and unaware of any local sentiment or condition to produce such a
result, he instituted unofficial inquiries to ascertain the cause. As
the returns did not indicate that the contestee had polled any more
votes there than the rest of his party ticket, it was obvious that the
lost votes had not gone to his competitor. The matter
[[Page 1288]]
became the subject of public discussion and of press comment, and a
very general impression got abroad that a mistake had been made in the
official count. Some of the election inspectors themselves concluded
they had made a mistake. And when, two weeks later, the board of county
canvassers met to canvass the returns, four of the inspectors who held
this election sent to the board a written statement saying that, in
compiling the vote for Congress, they had inadvertently failed to
include 70 or more votes, and that therefore their return was wrong and
did not reflect the true state of that poll.
Contestant, from this disclosure, believing a mistake had been made
large enough to affect the result in the whole district, thereupon
retained counsel to appear before the board and obtain a correction of
the error, or, if this were not possible, a recount of the vote. In
these proceedings contestee was likewise represented by counsel.
At this juncture the board, on the application of one of the
candidates for the office of coroner, voted for at same election,
opened the boxes of this precinct and directed a recount of the
ballots. Counsel for both of the parties to this contest being present,
they concluded to examine unofficially the vote for Congress as the
recount for coroner progressed, and in this way it was ascertained
that, as the ballots then stood, the contestant was entitled to 87
votes more than the official returns had given him.
Application was then made to the board on the part of the
contestant to correct the error, or award a recount. That a mistake had
been made was openly acknowledged by counsel for contestee and conceded
by the board (Rec., 50-62); but, deeming its functions to be only
ministerial, the board felt unable to correct the returns and found no
provision in the statute authorizing itself to hold a recount in case
of a Federal office. Application was then made to the State board of
canvassers for a recount of the vote, but with like result. The supreme
court was then asked for a mandamus, compelling a recount, but refused
to award the writ. The laws of his State seeming to afford no remedy
for a situation like this, contestant then determined to bring the
matter before this House for decision upon its merits. . . . Apparently
the State law made no provision for such a proceeding in case of a
Federal office; but, by agreement of counsel, the ballot boxes were
produced by the clerk before a notary and in this way, first and last,
the vote of practically the entire district was recounted--three
precincts at the instance of contestant and the rest on behalf of the
contestee. This agreement was productive of highly satisfactory
results, and has spared your committee an immense amount of difficult
and tedious labor.
The sum of the respective concessions stands therefore as follows:
Votes conceded to Beakes....................................... 26, 530
Votes conceded to Bacon........................................ 26, 484
--------
Majority for Beakes.................................... 46
------------------------------------------------------------------------
The foregoing figures cover the entire congressional district
except the returns from two precincts--first precinct, second ward, and
second precinct,
[[Page 1289]]
sixth ward, Jackson city--and they present the only subjects of dispute
left in the record.
I
first precinct, second ward, of jackson city
The sole issue raised in regard to this precinct is whether the
official returns shall stand, or whether they should be corrected in
accordance with the recount.
Contestant contends that, as the return is conceded to be
erroneous, they should be set aside and a recount of the ballots had;
while contestee insists either that the failure of the election
officers in the first instance to seal the ballot boxes properly, or
the failure of the clerk thereafter to keep them in safe custody
discredited the ballots to such an extent as to make a recount
unlawful, and hence that the official return must stand.
So the question is a mixed one of law and fact; but as there is not
much conflict of evidence respecting the physical facts in the case,
the question, in the last analysis, is one of law.
error in the official returns conceded
That a mistake of material size was made in compiling the returns
for Congress at this precinct is obvious from the record, and the fact
was conceded by everybody who had to deal with the subject in any
official or representative way.
The inspectors summoned before the board to see if the error might
be corrected, all admitted the error, but not being able to agree,
without a recount of the ballots, upon its precise terms; and the
board, deeming itself unauthorized to allow a recount, made a separate
statement in its certificate to the State board, calling special
attention to the situation of this precinct (Rec., pp. 42-43.)
The inaccuracy in the return being conceded by everybody, the only
question remaining is whether the ballots in controversy had been so
preserved as to justify the recount subsequently made by counsel for
both sides, February 22, 1917, before the notary, the result of which
is not disputed. (Rec., p. 23.)
Ballots remain best evidence and may be recounted where no evidence
of tampering with unsealed ballot boxes was found, as State law
prescribing sealing of ballot boxes was held directory and not
mandatory.
Ballots, in ballot boxes improperly commingled between two
precincts but counted in the official return, verified that return and
were held valid; those in box temporarily misplaced and therefore not
included in the official return were conceded void as not properly
preserved, but held insufficient grounds for rejection of entire
official returns.
Report for contestant, who was seated. Contestee unseated.
[[Page 1290]]
sealing and custody of the ballot boxes
The only complaint raised on this head relates to the manner in
which the boxes were sealed by the inspectors and the custody bestowed
upon them by the clerk after they were delivered to his office.
The Michigan statute pertaining to the subject is:
After the ballots are counted they shall, together with
one tally sheet, be placed in the ballot box, which shall be
securely sealed in such a manner that it can not be opened
without breaking such seal. The ballot box shall then be
placed in charge of the township or city clerk, but the keys
of said ballot box shall be held by the chairman of the board
and the election seal in the hands of one or the other
inspectors of election. (See 37, Elec. Laws Mich., revision
1913.)
As to whether this provision regulating the sealing of the ballot
box is mandatory or merely directory, there is nothing in the statute
to determine.
But statutory provisions regulating the conduct of elections and
the preservation of the returns are, after all, only a means to an end,
and that end is to secure a true expression of the will of the
electors--a free ballot and a fair count. To this end all merely formal
legal requirements must bend, and, if the returns are so made and
preserved as to furnish satisfactory evidence of the will of the
voters, that will must prevail. Upon that proposition, said the Supreme
Court of Kansas in the great ease of Guileland v. Schuyler (1 Kan.,
569), ``hangs our experiment in self-government.''
The real question to be answered in this ease is not whether the
precise form of the statute was observed, but whether the ballots
recounted were the identical ballots cast at the election, and if their
condition had remained unchanged. If so, their value as evidence is
unimpaired, and in the absence of statutory restraint, there can be no
legal objection to their being recounted.
From the standpoint of precedent, also, we reach the same
conclusions. On several occasions the House of Representatives has
found it necessary, in the interest of justice, to set aside official
returns and resort to a recount of the ballots.
In the Indiana ease of English v. Peele, in the Forty-eighth
Congress, an unofficial recount of the ballots was accepted in lieu of
the official return for the vote of a whole county; and in the Iowa
case of Frederick v. Wilson, of the same Congress, a recount was
permitted to supersede the official returns from 10 different election
precincts.
Having fully considered, as we think, the legal principles
applicable to such cases, we may turn now to the facts of this case as
disclosed by the record.
[[Page 1291]]
Facts concerning the sealing and custody of the ballot boxes at the
first precinct, sixth ward
It is conceded that when the inspectors finished their work at the
election and deposited the ballots in the boxes they locked them
properly and sealed them in some manner; that they were delivered to
the patrol wagon accompanied by two of the inspectors and delivered
promptly by them to the city clerk at his office; that they were placed
along with the boxes from other precincts, as they came in, in the
outer office or lobby of the clerk's office in front of the clerk's
desk through which the public passed during office hours, and where
they remained until the next day, until stored away for final keeping
in another room under lock and key; that when produced by the clerk
before the county board of canvassers on November 23, 1916, and again
before the notary on February 22, 1917, they were properly locked, and
sealed over the openings left in the tops for the reception of the
ballots, but not sealed otherwise; that they could not be opened or
their contents removed without being unlocked, but being unlocked they
could be opened without breaking any seal; that the total number of
ballots in the box corresponded with the number called for by the poll
book, and they were all regularly initialed by the inspectors; and that
the unused ballots returned therewith were regularly numbered from 704
(inclusive) upward.
In addition to the facts conceded, the clerk testified that the key
was delivered to him at the same time as the boxes, and that key and
boxes had remained continuously in his possession ever since, except
when before the county board and notary, and that he felt sure they had
been tampered with in no way. (Rec., 14-15 and 74-75.)
Contestee's brief asserts that there is evidence in the record to
show that the boxes, when they left the polling place, were probably
sealed over the locks, and advances the theory that these seals were
broken after the boxes reached the clerk's office, and hence draws the
inference that the ballots had been tampered with. We can find no
satisfactory evidence in the record to show that the boxes ever
contained any other seals than those which appeared when they were
produced before the county board, and therefore can find no warrant for
the inference of fraud based upon the assumption that the boxes had
before borne a different seal. The theory that the boxes were tampered
with after delivery to the clerk seems to us not only most improbable
but inconsistent with all the known facts of the case.
Our conclusion, therefore, is that there is no proof or reasonable
suspicion of fraud connected with these returns, that they have at all
times remained in safe and legal custody, and that their value as
evidence was nowise impaired by the failure of the inspectors to seal
the boxes in the precise manner required by the statute.
To sum up the whole matter: The official return is conceded by
everybody to be wrong; it ought not therefore to be made the basis of
title to anybody's seat in Congress. If it can not be corrected, it
ought to be rejected entirely. But we think the means are at hand
whereby this error may be legally corrected. In the presence of a sworn
officer of the law, counsel for both parties recounted these ballots
and reached a result which is not in dispute; they
[[Page 1292]]
found Bacon had received 352 votes and Beakes 320. We think that
recount should stand in place of the original return as the true vote
of the first precinct, second ward, city of Jackson.
II
second precinct, sixth ward, city of jackson
By official return the total number of electors at this precinct
were 577, and the vote for Congress was:
Bacon.......................................................... 211
Beakes......................................................... 329
------------------------------------------------------------------------
The evidence shows a chapter of accidents at this and the third
precinct in the same ward, which resulted in the admixture of the
ballots of the two precincts in well nigh hopeless confusion, and
ultimately created a situation very hard to entangle. It will,
therefore, be necessary for a while to consider the returns from these
precincts together.
By the returns the electors at the third precinct were 247, and the
vote for Congress:
Bacon.......................................................... 93
Beakes......................................................... 138
------------------------------------------------------------------------
There were no irregularities in the conduct of the election at
either of these places, nor in the count and canvass of the vote, nor
in the sealing and delivery of the ballot boxes (with one exception to
be noted presently). No trouble of any kind was experienced with these
returns until the attempt was made by the contestee to recount the
vote, when great confusion ensued. The trouble arose over an
unintentional mixing of the ballot boxes of the two precincts at the
time of the election. It must have happened in this way, as was shown
by subsequent events:
The ballot boxes for the city were all labeled with the numbers of
their respective precincts and wards, but by mistake on election
morning one box labeled ``third precinct'' was delivered at second
precinct, and one box labeled ``second precinct'' was delivered at the
third precinct. At the close of the election the canvassed returns at
the second precinct were placed in three boxes--two belonging to the
precinct and properly labeled, and one, the box labeled ``third
precinct'' already described; while at the third precinct all the
ballots were put in the box labeled ``second precinct'' aforesaid, and
delivered to the clerk's office.
The situation was still further complicated by the fact that when
the work of the election ended at the second precinct the inspectors
failed to return to the clerk's office along with the rest of the
returns one of the ballot boxes containing a considerable number of the
ballots, and left it in the polling booth uncovered and unlocked
(though the polling booth was locked), where it remained until it was
discovered by the clerk four months afterward, when he went to prepare
for another election. He, of course, covered and locked the box, and
carried it to the clerk's office for safe keeping.
[[Page 1293]]
attempted recount
So when contestee reached these returns in the prosecution of his
recount on March 28, 1917, when the second precinct was called for, the
clerk, not knowing of the mixing of the boxes on election day, produced
three boxes labeled with the precinct number, one of them being the box
he had found open in the polling booth. The place and condition in
which this box was found being made known, it was agreed by counsel for
both sides that it would be improper to recount the ballots of this
precinct as all of them had not been preserved as required by law.
(Rec. 169-170.)
A recount was actually made, however, with results widely differing
from the official returns from the precinct.
The third precinct being called for the only box labeled with that
number was produced, and a recount of its contents disclosed, likewise,
large variance from the official return. (Rec., 169-170.)
On April 30 following contestant entered upon his rebuttal
testimony, and the inspectors of the two precincts were summoned to
explain if they could the discrepancy disclosed between these ballots
and their returns. As the ballots were all regularly marked with the
initial letters of the inspectors' names, there was no difficulty in
identifying the precinct in which they were cast; and in this way it
was discovered that of the 535 ballots recounted on March 28 for second
precinct returns, only 288 of the number were cast at that poll, and
that the residue 247 belonged to the second precinct. Likewise it was
found that the 289 ballots recounted at the same time for the third
precinct were in fact voted at the second.
The ballots for each precinct having thus been identified, the
total number in each was found to correspond with the number called for
by the official returns. Hence was reconciled the discrepancy between
the ballots and the returns. (Rec., 91-112 )
The former recount of the ballots of the two precincts, while they
were commingled, when combined into one whole showed the following
results:
Total number of electors by official returns................... 824
Total number of ballots found in boxes......................... 824
Total number of votes for Bacon by official returns............ 304
Total number of ballots for Bacon found in boxes............... 303
Total number of votes for Beakes by official returns........... 467
Total number of ballots for Beakes found in boxes.............. 467
------------------------------------------------------------------------
--(Rec., 169-170.)
The results, therefore, so far from casting suspicion upon the
returns, afforded rather confirmation of their accuracy; and,
incidentally, tended to show that the contents of the box left open in
the polling place had not been disturbed.
In addition to these facts the unused ballots, numbered
consecutively and returned with the ballots from these precincts, were
found to show in both instances the number next in order to the last
ballot voted.
[[Page 1294]]
precise issue as to this precinct
Both sides agree that they could not have a lawful recount of that
portion of the ballots of the second precinct (and being mingled with
those of other boxes they could not be separately identified) which
were left in the voting booth after the election. And in that view we
concur; for, though the ballots bore every internal evidence of not
having been disturbed, yet would it be a hazardous experiment and
dangerous precedent to permit a recount of returns unsecured and
without lawful custody for four months.
Contestant holds the official returns should stand; contestee
contends that the failure of the officers to preserve a portion of the
ballots, as required by law, so discredits their conduct and official
character as to invalidate their whole return, and that it should be
set aside in toto; and, that being done, that a recount should be had
of the ballots which were properly preserved and they be accepted for
the vote of the whole precinct. (It will be remembered that 289 of the
577 ballots cast at the precinct were found in a box labeled ``3rd
precinct,'' which has been properly cared for and in which the recount
showed Bacon 172, Beakes 111.)
legal principles applicable to the question
The presumption is that officers of the law charged with the duty
of ascertaining and declaring the result [of an election] have
discharged that duty faithfully. (McCrary, sec. 459.)
The rule is that the returns must stand until impeached, i.e.,
until shown to be worthless as evidence, so worthless that the truth
cannot be deduced from it. (McCrary, sec. 515. Also Loyd v. Sullivan, 9
Mont. 577; and McDuffie v. Davidson, Mob., 577.)
The return must stand until such facts are proven as to clearly
show it is not true. (Idem, sec. 571; Blair v. Barrett, 1 Bart., 308;
Knox v. Blair, 1 Bart., 521; Washburn v. Voorhees, 2 Bart., 54; State
v. Comrs., 35 Kans., 640.)
Upon these principles our courts have acted from the earliest time,
and in contested-election cases Congress has often had occasion to
apply them.
The only known fact upon which it is asked to impeach this return
is that one of the four ballot boxes in use on election day (for there
was a larger box for the reception of ballots during the day in
addition to the three in which the returns were placed) was left open
in the polling booth by the inspectors after the election, and not
delivered to the clerk as required by law. From this single act of
omission we are asked to infer a willful violation of the law on the
part of the inspectors, and contestee's brief charges it was
perpetrated with intent to commit a fraud. Is this so? We are
constrained to feel otherwise, and that such harsh conclusion is
inconsistent with the other known facts and all the probabilities of
the case.
1. There is nothing else in the record reflecting upon the
character of any of the officers who held the election. One of them at
least had long been a resident of the community. No citizen complained
of their conduct during or after the election. There is nothing to show
that any one of them had any personal or political interest in the
election of the contestant. It is not
[[Page 1295]]
known that any of them even voted for him. Indeed it was asserted by
counsel in oral argument before the committee (committee hearing) that
nearly all the inspectors in the city were Republicans in politics, and
the statement was not denied. If this be true, even barring the
question of personal character, it is inconceivable they would
perpetrate a fraud to elect the Democratic candidate.
2. It is difficult to imagine how it was possible to consummate a
fraud by the method chosen in this case. The poll book showing the
identity and number of electors and the formal certificate showing the
votes for the candidates having been returned to the clerk along with
the other ballot boxes, it is not seen how the result could have been
affected by anything done to the ballots in the box that was left. The
only theory, consistent with crime under the circumstances, would seem
to be that the officers had all conspired in advance to frame up a
false return, and had retained this box with enough ballots to be
altered so as to sustain the return. How this could have been
accomplished where the vote was canvassed in public as required by the
Michigan law, is not attempted to be explained. But if such a scheme
had been executed, surely such wary criminals would have contrived in
some way to ``deliver the goods,'' and not have left the highly
finished work of their hands exposed to the uncertainties of fortune in
a remote corner of the city. With an official ballot in use and no
extra ballots obtainable, it is not probable that outsiders could have
been expected to aid materially in ``doctoring the returns.''
3. The facts that the total number of ballots collected from this
and three other boxes (one of which was from another precinct)
corresponded with the number called for by the poll books; that they
were all properly initialed by the inspectors; that the unused ballots
returned bore the right serial numbers; and that the vote of the
candidates for Congress shown by the ballots was substantially the same
as that polled for the other candidates of their respective parties are
all strong internal marks to show that no fraud had been practiced upon
those returns.
4. The record shows that it was 3 o'clock in the afternoon of the
second day before the inspectors finished their work; they had been
continuously on duty thirty-odd hours; under such conditions, is it not
reasonable to suppose that the box was inadvertently left behind and
without thought of wrong?
precedents in the house of representatives
In the precedents of the House we have found no case in which the
official returns have been set aside except for one or more of the
following causes:
1. Want of authority in the election board.
2. Fraud in conducting the election.
3. Such irregularities or misconduct as render the result
uncertain.
In the Missouri contested-election case of Lindsay v. Scott,
Thirty-eighth Congress, a case arose resting, we apprehend, upon the
same legal grounds as obtain here. An official return was sought to be
set aside because of the subsequent destruction of the ballots; but the
ballots having been regularly numbered and counted, and the vote
entered on the poll book, in the absence
[[Page 1296]]
of any other proof of fraud, the Election Committee reported
unanimously in favor of the return, and the House sustained the report
without a division. (2 Hinds' Precedents, 21.)
In the long line of cases, embracing nearly every variety,
adjudicated by the House, we can find no precedent for the contestee's
proposal that the official return in this case be set aside, and the
portion of the ballots preserved be counted for the vote of the whole
precinct. Regarding certificates of election, based on partial returns
of an election district--a somewhat analogous question--the House in
the case of Niblock v. Walls (42d Cong.), rejected a county return
because the county canvassers did not include all the precincts in the
county.
If a part of the vote is omitted and the certificate does
no more than show the canvass of part of the vote cast * * *
it is not even prima facie evidence, because non constat that
a canvass of the whole vote would produce the same result.
(McCrary, see. 272).
At the precinct in question 577 duly qualified voters participated
in the election; 289 of these were so fortunate as to have their
ballots properly preserved; 288--the other half--without any fault on
their part were so unfortunate as to have their ballots left or to
become mixed with others that were left at the polls and not preserved
according to law. Under these conditions we know of no principle of law
or of morals that would justify us in disfranchising one-half the
electors of that precinct and substituting the will of the other half
for that of the whole. The very statement of the proposition carries
its own reputation.
We find no sufficient cause why the official return from the second
precinct, sixth ward of the city of Jackson should be rejected, and are
of opinion it should be accepted as a true record of the vote cast for
Congress at that poll.
resume
Votes conceded to Beakes (see ante)................... 26,530
Votes awarded Beakes on recount of vote first 320
precinct, second ward, Jackson (see ante)............
Votes accorded Beakes by official returns, second 329
precinct, sixth ward, Jackson (see ante).............
---------
27,179
Votes conceded Bacon (see ante)....................... 26,484
Votes accorded Bacon on recount, first precinct, 352
second ward, Jackson (see ante)......................
Votes accorded Bacon on official returns, second 211
precinct, sixth ward, Jackson........................
---------
27,047
--------
Majority for Beakes............................. 132
------------------------------------------------------------------------
[[Page 1297]]
conclusion
For the reasons named, though imperfectly stated, your committee
respectfully recommends to the House the adoption of the following
resolutions:
1. That Mark R. Bacon was not elected a Representative to this
Congress in the second district of the State of Michigan, and is not
entitled to retain a seat herein.
2. That Samuel W. Beakes was duly elected a Representative in this
Congress for the second district, State of Michigan, and is entitled to
a seat herein.
Privileged resolution (H. Res. 195) agreed to by voice vote after
brief debate [56 Cong. Rec. 246, 65th Cong. 2d Sess., Dec. 12, 1917; H.
Jour. 43].
Sec. 1.2 Steele v. Scott, 11th Congressional District of Iowa.
Ballots.--Separate partial recounts conducted by parties having
resulted in tie vote, the committee on elections conducted a more
extensive partial recount of ballots improperly counted by election
officials.
Report of Committee on Elections No. 1 submitted by Mr. Riley J.
Wilson, of Louisiana, on May 22, 1918, follows:
Report No. 595
Contested Election Case, Steele v Scott
Upon a canvass of the official returns, certified to it by the
various county canvassing boards of the 13 counties composing the
eleventh congressional district of Iowa, and the report made by the
commissioners appointed to take the vote of the Iowa National Guard,
then on the Texas border, the State Board of Canvassers of the State of
Iowa found and promulgated the result of the vote cast for Member of
Congress from that district at the election held November 7, 1916, as
follows:
------------------------------------------------------------------------
Scott Steele
------------------------------------------------------------------------
Official returns...................................... 25,947 25,796
National Guard vote cast in Texas..................... 119 139
-----------------
Total......................................... 26,066 25,935
=================
Plurality (40)(1)..................................... 131
------------------------------------------------------------------------
Upon this result the certificate of election was issued to the
contestee.
[[Page 1298]]
testimony
Upon the issues thus made an officer was appointed and agreed upon
to receive depositions and take testimony in the State of Iowa.
The contestant in taking his testimony caused a recount to be made
of the ballots cast in the second precinct of Sioux City, Woodbury
County. The contestee also had a recount of the same ballots. The
recount made on behalf of the contestant at this precinct showed a loss
for Scott of 111 and a gain for Steele of 108, making a net gain for
Steele of 219.
The recount made on behalf of the contestee showed a loss for Scott
of 107, and a gain for Steele of 98, making a net gain for Steele of
205.
The contestant then identified and placed in evidence all the
official returns in the other and remaining precincts of Woodbury
County, and also all the official returns as certified by the various
canvassing boards, including the State board of canvassers, in the
other 12 counties of the eleventh congressional district, together with
the official canvass of the votes cast by the Iowa National Guard on
the Texas border.
The condition established at this stage of the proceedings which
marked the close of contestant's testimony in chief, may be stated by
taking into consideration only contestee's original majority of 131 and
the result of the recount made on behalf of both parties at the second
precinct of Sioux City, as follows:
Contestant's recount at second precinct:
Gain for Steele............................................ 219
Less Scott's original majority............................. 131
--------
Majority for Steele.................................... 88
========
Contestee's recount of second precinct:........................
Gain for Steele............................................ 205
Less Scott's original majority............................. 131
Majority for Steele.................................... 74
--------
------------------------------------------------------------------------
In taking testimony by the contestee a recount was made by both
contestant and contestee of the ballots in all the remaining precincts
in Woodbury County and also of each and every precinct in the counties
of Buena Vista, Clay, Dickinson, and Monona.
The only very striking change from the official canvass shown by
this recount was at Nokomis precinct, in Buena Vista County. Here the
result was, according to contestee's recount, a loss of 44 for Steele
and a gain of 36 for Scott, making a net gain for Scott of 80 votes.
According to contestant's recount at the same precinct the result was a
loss of 47 for Steele and a gain of 27 for Scott, making a net gain for
Scott of 74 votes.
The evidence and hearings disclosed that the contestant and
contestee had made a complete recount of 5 of the 13 counties composing
the eleventh district, and that no recount had been made by either
party as to any of the other 8 counties and that each had tabulated the
result of his recount of
[[Page 1299]]
these 5 counties with the official returns of the remaining 8 counties
which returns had already been identified and offered as evidence by
the contestant, and that according to the results thus established the
contestant claimed a majority in his favor of 94 votes on his recount,
while the contestee claimed, according to his recount and tabulation in
the same counties, a majority in his favor of 133 votes.
In the hearings before your committee the argument of counsel for
contestant and contestee in respect to the recount centered principally
around these two precincts. It was admitted on both sides that
conditions had been shown authorizing a recount at each of these
precincts, and it was suggested that the committee might settle the
contest and reach a correct result and satisfactory conclusion by
taking into consideration these two precincts only.
A comparison of the results of the recounts made by the contestant
and contestee at these two precincts will serve to illustrate the very
difficult and singular position in which your committee found itself in
that respect. For instance, taking--
Contestant's recount at second precinct, Sioux City, and
Nokomis Townships:
Gain for Steele at second precinct......................... 219
Less Scott's original majority............................. 131
--------
Majority for Steele........................................ 88
Deduct Scott's net gain at Nokomis......................... 74
--------
Majority for Steele.................................... 14
Contestee's recount at second precinct, Sioux City, and Nokomis
Townships:
Gain for Steele at second precinct......................... 205
Less Scott's original majority............................. 131
Majority for Steele.................................... 74
Net gain for Scott at Nokomis.................................. 80
Less majority for Steele at second precinct.................... 74
Majority for Scott..................................... 6
Now, taking contestant's recount at Nokomis, where contestee gained, and
contestee's recount at second precinct, where contestant gained, we
have the following result:
Original majority for Scott.................................... 131
Gain at Nokomis on contestant's recount........................ 74
Majority for Scott..................................... 205
Deduct gain for Steele on contestee's recount of second 205
precinct......................................................
------------------------------------------------------------------------
On this latter comparison the vote would be a tie.
If the entire vote in the district were used in connection with
these comparisons the result would be the same.
While, as formerly stated, the result of this recount in the five
counties referred to indicated no very striking changes except in the
second precinct of Sioux City, Woodbury County, and Nokomis Precinct in
Buena Vista
[[Page 1300]]
County, yet in other precincts results were found that showed
discrepancies from the official returns somewhat unusual. For instance,
in the twelfth precinct of Sioux City the contestant lost on recount 36
votes, while in the fourteenth precinct he gained on recount 31 votes.
These losses and gains were shown by the recount of each of the
parties, the results being undisputed and in fact conceded by both
sides. In the recount by the contestant and the contestee of the five
counties above referred to there were some 72 precincts in which they
failed to agree as to results, that is, as to the number of votes that
each had received.
work of the committee
Under the conditions heretofore stated and in view of facts
admittedly established by the evidence, your committee did not feel
that it would be proper, fair, or just to settle the result of the
contest or undertake to do so by recount and consideration only of the
two precincts where the principal changes were shown in the recount by
the parties to the contest.
It is satisfactorily established by the evidence that the unusual
errors shown to have been made by the precinct election officers in
counting and returning the votes at a number of precincts in this
district were due to and occasioned by the careless and loose method
adopted in counting and canvassing the vote, a method entirely at
variance with the election laws of the State of Iowa. The Australian
ballot law, with its most modern provisions, is the law controlling
elections in that State. It has been amended and perfected so as to
throw every safeguard around the casting and counting of ballots; but
the evidence in this case indicates very clearly that these salutary
provisions were not observed at a number of places in canvassing and
returning the votes cast at this election. The statement was made
before this committee that the method of counting ballots, which in its
opinion has caused the chief difficulties here, has practically become
a custom at large voting precincts in the State of Iowa, and from which
it may be concluded that, while the method is illegal and calculated to
lead to incorrect results and in close elections possibly to thwart the
will of the majority, no fraud has been intended thereby.
Section 1138 of the Iowa Code provides:
When the poll is closed the judges shall forthwith and
without adjournment canvass the vote and ascertain the result
of it, comparing the poll lists and correcting errors
therein. Each clerk shall keep a tally list of the count. The
canvass shall be public and each candidate shall receive
credit for the number of votes counted for him.
There are three judges of election and two clerks at each precinct.
Under the provisions of this statute the judges should examine each
ballot and the same should be called to the clerks, whose duty it is to
keep separately and simultaneously a record of the count. Instead of
this, and under the method to which we have referred, it appeared that
after the polls had closed the ballots were separated into lots or
piles and that one of the judges called
[[Page 1301]]
to one of the clerks from one of the piles of ballots while at the same
time another of the judges called to the other clerk from another pile
of ballots. In this way it is evident that all the judges did not see
any one ballot and that no one judge saw all the ballots and that no
one clerk recorded or tallied them all. At the close of the count the
results were combined. This method is not only irregular but contrary
to law.
Although no fraud may be intended by thus disregarding the
provisions of the statute, yet in the judgment of your committee proof
showing that the law has been so entirely disregarded and in effect
violated in the manner of counting and calling ballots, just as
effectually opens the door to a recount as though deliberate fraud had
actually been proven. (See Frederick v. Wilson, Iowa; 48th Cong.,
Mobley, 401.)
Hence in view of the entire record and evidence, your committee
concluded that in so far as a recount was concerned, it could not do
less than examine the returns and ballots at each and all of the
respective precincts in which there had been disagreement in the
recount made by the parties to the contest before the special officer
appointed to take testimony in this case.
For the purposes of this recount, it was assumed that the
contestant and contestee had accepted the official canvass in the eight
counties in which neither had attempted to have a recount during the
taking of testimony in Iowa. The official returns of each of said
counties had been adopted in showing the vote and results which each
claimed to be correct at the close of taking testimony.
It was evident that in the recount made by the contestant and
contestee ballots had been rejected pro and con which should have been
counted, and which under the laws of Iowa, as construed by its supreme
court, were ballots legally cast.
A subcommittee was appointed to make this examination and recount.
The work of this subcommittee involved the examination of some 20,000
ballots, after which a report in detail was made to the full committee.
It should be said here that absolute harmony prevailed in this work and
that the full committee was unanimous in adopting the findings of the
subcommittee on the facts. The committee recount of the five counties
which had been recounted by contestant and contestee, when taken and
tabulated with the official returns of the other eight counties of the
district and the National Guard vote, showed the following results:
Scott.......................................................... 26,033
Steele......................................................... 26,029
Plurality for Scott.................................... 4
------------------------------------------------------------------------
Ballots irregularly marked by voters for candidates for another
office but properly marked for Representative did not contain
distinguishing marks violating secrecy and were held valid, as voter
intent was clear.
Pleadings.--Legal questions presented therein were mooted by
committee recount.
[[Page 1302]]
Report for contestee, who retained seat.
With very few exceptions the differences as shown by the recount of
the contestant and contestee resulted from either including or
excluding from the count, by one or the other, ballots which has been
marked by placing a cross by the names of the presidential and vice
presidential candidates, no squares being placed opposite their names
on the ticket, but opposite the names of the presidential electors. In
some instances the voter would place an X by the name of the candidate
for President and Vice President on the Democratic or Republican ticket
as the case might be, and then proceed on down the column and place an
X by the name of each presidential elector, and then an X opposite the
name of the congressional candidate for whom he desired to vote. In
other instances the voter would place an X by the name of the candidate
for President and Vice President, then skip the presidential electors
and mark the square opposite his choice for Congressman. While this
manner of marking the ballots was not strictly in accordance with the
provisions of the law, yet, in the judgment of your committee, the
intentions of the voters were entirely clear and these votes were
counted.
The rejection of these ballots in the former count appeared to have
been based upon the belief that the manner of marking the ballots as
above set out made them subject to the objection that they contained
identifying marks.
It would be difficult to find a clearer and more satisfactory
exposition of the Australian ballot law in respect to questions of this
character than is contained in the opinion of the Supreme Court of the
State of Iowa in the cases of Fullarton v. McCaffrey (158 N. W. Rep.,
506) and Kelso v. Wright (110 Iowa, 560). In the former case the court
said:
The distinguishing mark prohibited by law is one which
will enable a person to single out and separate the ballots
from others cast at the election. It is something done to the
ballot by the elector designedly and for the purpose of
indicating who cast it, thereby evading the law insuring the
secrecy of the ballot. In order to reject it the court should
be able to say, from the appearance of the ballot itself,
that the voter likely changed it from its condition when
handed him by the judges of election, otherwise than
authorized, for the purpose of enabling another to
distinguish it from others.
In distinguishing between the former strict construction placed
upon the Australian ballot law and the modern view now taken by nearly
all the courts, the Iowa court, in its opinion, further says:
Some of the earlier decisions rendered shortly after the
enactment of the Australian ballot law in the several States
are somewhat extreme in applying that portion relating to
identifying marks, going, as we think, to the verge of
infringing on the free exercise of the voting franchise, but
these may be explained, if not justified, by the supposed
prevalence of corrupt practices at
[[Page 1303]]
elections prior to such enactment and the laudable purpose of
efficiently applying the remedy.
Subsequent experience has disclosed how the ordinary
voter proceeds under regulations in preparing his ballot, and
many of the marks at first denounced as evidencing a corrupt
purpose are now thought to be due to carelessness, accident,
or inadvertence. What is an identifying mark is not defined
in our statute, and whether any mark on a ballot other than
the cross authorized to be placed thereon was intended as a
means of identifying such ballot must be determined from the
consideration of its adaptability for that purpose, its
relation to other marks thereon, whether it may have resulted
from accident, inadvertence, or carelessness or evidenced
designed and the similarity of the ballot with others and the
like.
Electors are not presumed to have acted corruptly, and
identifications only which may fairly be said to be
reasonably suited for such purpose, and likely to have been
so intended, will justify the rejection of the ballot.
Applying the law as thus construed, practically all the disputed
and -rejected ballots coming under the consideration of the committee
in its recount, where the voter had indicated his choice for
Congressman, were accordingly counted and credited.
Some very interesting legal questions growing out of this contest
were submitted to us which may be stated as follows:
shifting of the burden of proof
It was contended for the contestant that upon the recount of the
second precinct of Sioux City and by placing in evidence the official
returns from the remaining precincts of Woodbury County, the official
returns from the other counties in the district, together with the
official count of the National Guard vote, and thus having established
a majority in favor of the contestant, the burden of proof then shifted
to the contestee to show by competent evidence a majority in his favor,
although each and every precinct of the district had been brought in
question and the correctness of the official count denied in the notice
of contest; while, on the other hand, it was contended on behalf of the
contestee that the contestant must make out his case by a recount of
the entire district, and that since all the ballots had not been
preserved and transmitted to the House of Representatives it was
manifest that only a partial recount could be had.
apportionment of lost ballots
It was contended on behalf of the contestee that the committee
should apportion between him and the contestant in proportion to the
number of votes each had actually received 39 ballots proven to have
been lost in Spirit Lake precinct, Center Grove Township, Dickinson
County, insisting that commit
[[Page 1304]]
tees of Congress had established a rule by which this could be legally
done and by which contestee would make a net gain of 13 votes.
the soldier vote
Contestee further contended that the law of 1862, as amended in
1864, under which the vote of the Iowa National Guard on the Texas
border was taken and counted, had been repealed by the adoption of the
Iowa Codes of 1873 and 1897. The contestant had 20 majority in the
National Guard vote.
These legal questions are exceedingly interesting and were
presented to the committee with unusual ability, yet in view of the
facts that the entire record as presented has been considered, waiving
for the purposes of our investigation the question of the burden of
proof; that the vote of the Iowa National Guard cast on the Texas
border has been counted and is included in the committee recount; that
the 39 lost ballots in Dickinson County were eliminated from
consideration and not included; and in view of the further fact that
notwithstanding this there is still a legal majority of the votes found
to be in favor of the contestee, it therefore becomes unnecessary to
pass upon these legal questions.
Your committee, for the reasons herein stated, very respectfully
recommends to the House of Representatives the adoption of the
following resolution:
First. That T. J. Steele was not elected a Representative in this
Congress from the eleventh district of the State of Iowa and is not
entitled to a seat herein.
Second. That George C. Scott was duly elected a Representative in
this Congress from the eleventh district of the State of Iowa and is
entitled to retain a seat herein.
Privileged resolution (H. Res. 386) agreed to by voice vote after
brief debate [56 Cong. Rec. 7354, 65th Cong. 2d Sess., June 4, 1918; H.
Jour. 425].
Sec. 1.3 Davenport v Chandler, 1st Congressional District of Oklahoma.
Elections committee report.--Instance of summary disposition of
resolution reported without accompanying printed report. Seated Member
retained seat.
On Jan. 27, 1919, Mr. John N. Tillman, of Arkansas, introduced
House Resolution 523 which was referred to the Committee on Elections
No. 2. Then, on Feb. 5, 1919, Mr. Tillman called up the resolution as
the report of the Committee on Elections No. 2:
Resolved, First. That James S. Davenport was not elected to the
House of Representatives from the first district of the State of
Oklahoma in this Congress and is not entitled to a seat herein.
Second. That T. A. Chandler was duly elected to the House of
Representatives from the first district of the State of Oklahoma in
this Congress and is entitled to a seat therein.
[[Page 1305]]
Reported privileged resolution (H. Res. 523) agreed to by voice
vote without debate [57 Cong. Rec. 2757, 65th Cong. 3d Sess., Feb. 5,
1919; H. Jour. 152].
Sec. 1.4 Wickersham v Sulzer, Territory of Alaska.
Ballots held valid where written by voters, though unavailability
of official ballots had not been certified by election officials as
required by Territory election law, where evidence showed
unavailability of official forms and where law placed no penalty of
voter for negligence of officials.
Territory election law prescribing form of ballot and permitting
written ballots upon official certification of unavailability of
required form was construed as directory, thereby overruling federal
court order.
Returns were improperly rejected in a precinct where officials had
failed to sign one of two duplicate certificates of results.
Report of Committee on Elections No. 1 submitted by Mr. Riley J.
Wilson, of Louisiana, on Dec. 4, 1918, follows:
Report No. 839
Contested Election Case, Wickersham v Sulzer
The final conclusion of the committee is that the merits of the
case are confined to matters involved in:
First. Certain proceedings had before the judge of the United
States District Court of Alaska, first divisor.
Second. The legality of the votes cast by native Indians in certain
sections of the Territory.
Third. The legality of the votes of soldiers of the United States
Army stationed at Fort Gibbon and who voted there, and the votes of
other soldiers in the Army who voted at Eagle precinct.
matters involved in the court proceedings
The subject matter effecting the vital issues in this connection
can only be well understood by a full statement of the facts as to how
the contest arose.
In the act of Congress of March 7, 1906, making provision for the
election of Delegate to the House of Representatives from the Territory
of Alaska prescribed generally for election machinery for that purpose.
In relation to the form of ballot is found the following provision:
The voting at said elections shall be by printed or
written ballot.
Section 12 provided as follows:
[[Page 1306]]
That the governor, the surveyor general, and the
collector of customs for Alaska shall constitute a canvassing
board for the Territory of Alaska, to canvass and compile in
writing the vote specified in the certificates of election
returned to the governor from all the several election
precincts as aforesaid.
In 1915 the Territorial Legislature of Alaska passed an act
adopting the Australian ballot system for that Territory, providing for
an official form of ballot. No change was made as to the Territorial
canvassing board. The act of the legislature providing for the
Australian ballot system contains an unusual exception as to the use of
the official ballots, known as section 21, which reads as follows:
That in any precinct where the election has been legally
called and no official ballots have been received the voters
are permitted to write or print their ballots, but the judges
of election shall in this event certify to the facts which
prevented the use of the official ballots, which certificate
must accompany and be made a part of the election returns.
The board whose duty it was to canvass and certify to the result of
the election of November 7, 1916, was composed of J. F. A. Strong,
governor; Charles E. Davidson, surveyor general; and John F. Pugh,
collector of customs. The canvassing of the votes cast at this election
was completed March 1, 1917, showing the following result:
Charles A. Sulzer ............................................. 6,459
James Wickersham............................................... 6,490
Lena Morrow Lewis.............................................. 1,346
--------
Plurality for Wickersham............................... 31
------------------------------------------------------------------------
Upon the completion of this canvass the said board was preparing to
issue certificates in accordance with the result indicated by its
canvass and tabulation of the vote. Before any certificate was issued
to the Delegate to the House of Representatives, Mr. Sulzer, the
contestee herein, presented a petition to Hon. Robert W. Jennings,
judge of the United States District Court of Alaska, first division,
praying for a writ of mandamus directed to the Territorial canvassing
board, commanding said board to reject and not count the vote returned
from seven precincts in said Territory, with name and vote cast, as
follows: . . . .
In the petition it was charged that the vote at each and all of the
above-named precincts except Vault and Nizina should be rejected and
not counted for the reason that the form of official ballot prescribed
by the Territorial legislature had not been used and that no
certificate explaining the facts which prevented the use of the
official ballots had accompanied the election returns as a part thereof
and as required by the laws of Alaska. In other words, that the
election officials had not complied with the provisions of section 21
of the act of 1915 in that no official ballots were used at either of
the said precincts and no certificates explaining the facts which
prevented
[[Page 1307]]
the use of the official ballots accompanied the returns. As to Vault
precinct, it was charged that no certificate of the result of the
election in this precinct specifying the number of votes cast for each
candidate accompanied or was included in the returns. At Nizina it was
claimed that the judges of election were not sworn. This petition was
presented to the court on the 2d day of March, 1917. On the same day
Judge Jennings issued an alternative writ of mandamus directed to the
canvassing board, and commanding that in the canvass of the vote cast
for Delegate for Congress from the Territory the vote at the above-
named precincts be rejected and not counted and that the certificate of
election be issued to the petitioner, Charles A. Sulzer, as having
received the greatest number of votes for that office at said election,
and commanding that the board make due returns, and so on.
These answers to the alternative writ of mandamus were filed March
6, 1917. On March 23 the alternative writ of mandamus was made
preemptory directing the rejection of the votes cast at each of the
above-named precincts, except Nizina, and the issuance of the
certificate of election to Mr. Sulzer, the contestee herein. The effect
of this judgment was to establish as between the contestant and
contestee for Delegate to the House of Representatives the following
result:
Sulzer......................................................... 6,440
Wiekersham..................................................... 6,421
--------
Plurality for Sulzer................................... 19
------------------------------------------------------------------------
In accordance with this decree, the canvassing board reassembled on
March 24 and issued the certificate of election to Mr. Sulzer.
The contest was begun April 10, 1917, and was heard before the
committee March 19, 1918.
The thing important in this phase of the case is the proper
construction of the Alaska election law, and particularly section 21.
Judge Jennings held the law mandatory, and specifically the proviso
in section 21, and that the failure of the judges of election to place
with and make as a part of the returns a certificate showing the facts
which prevented the use of official ballots vitiated the returns from
five of the six precincts named, and ordered the vote thereat rejected
and not counted for Delegate to Congress.
Your committee has found itself unable to agree with that
construction of the law, and herewith submits the facts and legal
considerations which have impelled that conclusion. We readily admit as
a general proposition that under the Australian ballot law the
provisions requiring the use of an official ballot must be followed,
and that no other form of ballot can be used without some special
provision of the law authorizing its use.
The statute under consideration authorized the electors in event
they were not supplied with official ballots to write or print their
ballots, that is, to use a ballot that was not official, and imposed
upon the judges of election the duty of certifying to the facts which
prevented the use of official ballots.
[[Page 1308]]
The conditions in Alaska were such that the Territorial legislature
wrote into the law this exception for the use of nonofficial ballots.
The question now is to determine whether or not this section of the
Alaska election law is mandatory or is it merely directory.
The question of mandatory and directory statutes as applied to
elections has been discussed before the House of Representatives more
often than any other legal question pertaining to contested-election
cases. The precedents indicate that the rulings here have been quite as
uniform as in the courts. Each case has some peculiar distinctive
features of its own, and after the facts have developed the task
becomes one of correct application of the law as established by the
many precedents here as well as the decisions of the courts.
The following authorities are submitted as establishing a correct
interpretation of the law applicable to the issues in this case:
Those provisions of a statute which affect the time and
place of the election, and the legal qualifications of the
electors, are generally of the substance of the election,
while those touching the recording and return of the legal
votes received and the mode and manner of conducting the mere
details of the election are directory. The principle is that
irregularities which do not tend to affect results are not to
defeat the will of the majority; the will of the majority is
to be respected even when irregularly expressed. The officers
of election may be liable to punishment for a violation of
the directory provisions of a statute, yet the people are not
to suffer on account of the default of their agents. (McCrary
on Elections, p. 172, sec. 228.)
This doctrine was approved by the House in the case of Arnold v.
Lee, Twenty-first Congress.
It has been repeatedly held that where the law itself forbids the
counting of ballots of certain kinds or forms that do not meet the
provisions of the statute, it is mandatory, and that it should be so
construed by the courts. This doctrine was approved by the House in the
case of Miller v. Elliot, Fifty-second Congress, Rowell's Digest, 461.
Also in the case of Thrasher v. Enloe, Fifty-third Congress, Rowell,
page 487.
Where the statute itself provides what the penalty shall be on the
failure to comply with its terms, if the law is constitutional, there
is no room left for construction. There is no provision of this
character in the Alaska election law or pertaining in any way to
section 21.
The Supreme Court of Missouri in the case of Horsefall v. School
District, One hundred and forty-third Missouri Reports, page 542, in
passing on a case where the irregularities charged were failure to
number the ballots and that the form of the ballots was not as
prescribed by the statute, said:
The decisions of the supreme court in this State have not
been altogether harmonious as to the effect of irregularities
upon the result of an election, and we shall not attempt to
review these cases, but we think that it may now be said to
be the established
[[Page 1309]]
rule in this State, as it is generally in other
jurisdictions, that when a statute expressly declares any
particular act to be essential to the validity of an
election, then the act must be performed in the manner
provided or the election will be void. Also if the statute
provides specifically that a ballot not in prescribed form
shall not be counted, then the provision is mandatory and the
courts will enforce it; but if the statute merely provides
that certain things shall be done and does not prescribe what
results shall follow if these things are not done, then the
provision is directory merely, and the final test as to the
legality of either the election or the ballot is whether or
not the voters have been given an opportunity to express, and
have fairly expressed, their will. If they have the election
will be upheld or the ballot counted, as the case may be.
This decision has been widely quoted and approved and is in our
judgment a correct statement of the law and peculiarly applicable to
the issues in this case.
We have been cited to numerous authorities, holding that the
mandatory or directory character of a statute does not always depend
upon its form or the terms used, but rather grows out of the nature of
the subject with which it deals, and the legislative intent and purpose
in framing and adopting the law. With these authorities we agree, but
they can only be applied here in so far as they are applicable to the
case under consideration.
As we understand and appreciate the facts and issues in this case
the legislative intent is very clear and the purposes and scope of the
law easily determined.
The law of Alaska providing for official ballots, in the respect
that it contains an exception authorizing the voter to use under
certain conditions a ballot of his own make, is in a class by itself.
There are a few statutes directing that in event the regular
official ballot is not supplied, certain designated officers may
prepare and furnish a ballot in the form prescribed by law. This, then,
becomes an official ballot.
Section 21 of the Alaska law says, in the event that the official
ballots are not received, ``the voters are permitted to write or print
their ballots.'' These are the methods to which they had been
accustomed under the congressional act. The ballot prepared by the
elector provided for in section 21 is not official, but it is legal. He
is doing just what the law says he may do.
The statute imposes certain duties upon the judges of election at
each precinct; that is, they receive the official ballots from the
United States commissioner, and deliver such ballots to the electors as
they appear to vote, and in the event they have no official ballots
with which to supply the voters, should they avail themselves of the
privilege given to write or print their ballots, then the said officers
shall certify to the facts which prevented the use of the official
ballots, which certificate must accompany the returns as a part
thereof.
[[Page 1310]]
The object of this certificate is to furnish an explanation by
these officers showing why they had not supplied the electors with the
official ballots and had permitted the use of those that were not
official.
Now, why should the voter who has done just what the law told him
he might do lose his vote because these officials neglected to make out
and inclose with the returns a certificate, making the proof that they
had not failed in the discharge of the duties imposed upon them. The
court held section 21 to be mandatory not only in its requirement that
this certificate be made (and we incline to agree with him in so far as
the officials were concerned), but to the extent that no proof of its
existence could be considered unless it be with and made a part of the
returns and that no manner or form of evidence as to the failure to
receive the official ballots could save the rejection of the vote.
It is with this latter strict construction we can not agree.
Neither do we find anything in the law to authorize the assumption that
the legislature intended that innocent voters might forfeit their
franchise without any fault of their own or that any man might be
deprived of his traditional day in court.
In constructing this statute and arriving at the legislative intent
the general situation in Alaska becomes important in many respects. The
extent of its territory, and the conditions prevailing in relation to
transportation and communication between its various sections are parts
of the res gestae. Alaska is in extent of territory one-fifth the size
of the United States, thinly populated, and with the exception of a few
towns and cities is composed of settlements scattered over its
extensive area. There are few railroads and the method of communication
to many points is difficult and uncertain. In all this territory at the
November election of 1916 only about fifteen thousand (15,000) ballots
were cast for the Delegate to the House of Representatives. It is only
natural that the legislature in adopting the Australian ballot should
take these facts into consideration and in order that all the people in
the Territory might have the opportunity to exercise the elective
franchise, it being evident in many instances that at precincts in
remote sections the official election supplies would not be delivered,
enacted the provision, which is such an unusual exception to the
Australian ballot law in general.
It was foreseen by the Territorial legislature that it would be
necessary, if the electors in many of the outlying precincts were to
have the opportunity to vote at all, they should be given the privilege
of either writing or printing their ballots, and the legislature's
foresight and expectations in that respect are abundantly confirmed by
the facts in this ease. This provision was enacted in the interest of
the electors in remote places in order to secure for them the exercise
of the privilege of voting, and it is not quite possible to believe
that in making it the duty of the election judges to certify to the
facts which prevented the use of the official ballots it was ever
intended that their failure to do so would vitiate the returns and
deprive the citizen of the right to have his ballot counted as cast.
According to the record in this ease, there were only eight
precincts in the entire Territory where the official ballots were not
received in the 1916 election. From five of these there were no
certificates accompanying the returns
[[Page 1311]]
showing why official ballots were not used. It is not contended that
any fraud was committed at any of these precincts, and there is no
proof in the record to that effect.
If the result of the election should be determined by the vote at
these precincts, why should not a candidate be permitted to submit
proof to a court or to the House of Representatives showing the facts
as to the presence or want of presence of the official ballots? In the
judgment of your committee, such a right existed. We are further of the
opinion that the record satisfactorily establishes the feet that
official ballots were not received at the precincts in question and
that the proof is made by legal and competent evidence.
It is contended that this conclusion could not be reached without
considering ex parte affidavits, private letters, telegrams, and
incompetent hearsay. It is true that there is much private
correspondence by letter and wire and a number of ex parte affidavits
in this record which are not evidence, and which have no place here,
and have not been considered by the committee in reaching its
conclusion.
It is important, therefore, to state the facts established by legal
proof upon which we reached the conclusion that the required official
ballots were not supplied.
. . . [I]n the judgment of your committee, from the established
facts and circumstances surrounding the voting at the Bristol Bay
precincts, the inference is clear and satisfactory that the official
ballots were not received by the judges of election in the Bristol Bay
district. These facts and circumstances may be stated as follows:
First. It was the duty of the judges of election to receive the
official ballots and to supply the electors with them as they appeared
to vote. This duty is imposed upon them by law, and the presumption is
that they would have discharged that duty. If the official ballots were
there it is not probable that all the voters and all the officials in
this district would have used and permitted the use of nonofficial
ballots.
Second. Other official election supplies, being the official
register and tally book, were used by the judges of election at each of
the precincts, and these supplies were the same at the precincts where
the majority was for Sulzer as at precincts where the vote went for
Wickersham.
Third. No reason or any cause of any character is shown or
suggested why the election officials or voters in this remote locality
should have declined to use the official ballots with the names of the
parties for whom they desired to vote printed thereon and instead
prepare with pencil, typewriter, and other means the ballots which they
cast. What reason could be given, for instance, for those who desired
to vote for Mr. Wickersham declining to use ballots upon which his name
was printed and taking ballots upon which the name of Mr. Sulzer was
printed and going to the trouble to write Wickersham's name thereon in
order to vote for him. It would not be safe or correct to assume,
without proof, that there was a conspiracy or a general understanding
to prevent the use of official ballots in this section of the
Territory.
[[Page 1312]]
In our judgment, a careful study of this record will preclude to
any unbiased mind the belief that official ballots were supplied at any
of these precincts, and it is not surprising that the election returns
sent from this isolated and remote section should be found wanting in
some formality. It is true the required certificate did not accompany
the returns from all the precincts, but this statute places no penalty
upon the voter on account of the absence of that certificate.
This is undoubtedly just such a case as the Legislature of Alaska
had in view when this exception, authorizing the voters to write or
print their ballots, was enacted as a part of the laws of that
Territory. Had it been the intention of the legislature to vitiate the
returns in the absence of this certificate as a part thereof, and to
thus deprive the voter of his ballot without any fault of his own, the
statute would have so provided.
the nome division
The two precincts here where the required certificate did not
accompany the returns are Utica and Deering.
A certified copy of the certificate . . . made by the clerk of the
United States District Court of Alaska, second division, reads as
follows:
We, the undersigned judges of election held November 7,
1916, at Utica voting precinct in the Fairhaven recording
district, hereby certify that at the time of said election
there had been no ballots received, and Mr. Ketner, of
Deering, had the form of ballots telephoned from Candle and
repeated it to Utica, and we wrote the ballots, using the
form as we received it.
The officials at this time were endeavoring to get the true facts
about the election and to supply the deficiency in returns. There
certainly could have been no design in making the statement contained
in the above certificate. When the committee examined the original
returns from Utica and Deering it was found that the ballots at Utica
were written with lead pencil and conformed in all respects with the
official ballot. The ballots used at Deering were in the same form and
prepared with typewriter. It is not probable that the election judges
at these two precincts, without having received any information as to
the form and contents of the official ballot, which was quite lengthy,
could have prepared ballots substantially in that form and containing
the information as to the candidates and subjects that were printed on
the official ballots. The one conclusion is that the information
contained in this certificate is correct. The certificate is under the
seal of the clerk of the district court, the officer with which such
certificate should be filed, and therefore legal evidence. Had these
officials at Utica and Deering received the official ballots, it is
inconceivable that they would have made with pencil and typewriter
ballots in the same form for the use of the voter.
The evidence satisfactorily establishes the fact that no official
ballots were received at either Utica or Deering precincts. Of course,
under the view taken by the court, this evidence could not be
considered, although it be of the most convincing character, but under
the view taken by the committee
[[Page 1313]]
it has been considered here, and in view of this evidence and our
appreciation of the law, the votes at Choggiung, Nushagak, Bonafield,
Utica, and Deering should not have been rejected.
vault precinct
The vote at this precinct was rejected because the judges of
election had failed to sign the certificate in the back of the register
and tally book. This same book showed that the judges of election were
duly sworn and that they compiled the count and tallied the vote and
complied with all other formalities except the signing of this
certificate, which was sent to the Territorial canvassing board. It was
also the duty of the judges of election to send a duplicate
certificate, showing the result of the election to the clerk of the
court of that division, and undisputed evidence shows that the original
duplicate certificate, dated November 7, 1916, was filed with the clerk
of the court and signed by all the judges, and that a certified copy of
that certificate, made by the clerk of the court, had been sent to and
was in the possession of the canvassing board. It is conceded that
considerable argument might be made in favor of the reasons for
rejecting the votes at the other precincts, but it is very difficult to
find any support in law for throwing out the vote at Vault. The
certified copy of the certificate, showing the vote at this precinct,
was before the canvassing board and the information conveyed to the
court that the certificate was before the board. This certificate was
under the seal of the public officer, made by law the legal custodian
of that document. The copy of this certificate is found on page 146 of
the printed record. The committee holds that the vote at the Vault
precinct should not have been rejected.
Suffrage.--Indians born in Territory and severed from tribe are
permitted to vote as citizens; ballots cast by nonresidents of precinct
or Territory are invalid, as are ballots cast by military personnel
involuntarily stationed in the Territory.
Evidence.--All ballots cast by Indians were validated for lack of
sufficient proof showing specific voters not qualified.
Returns were rejected by proportional deduction method where there
was no evidence for whom unqualified voters had cast ballots.
Report for contestant, who was seated. Contestee unseated.
Under the law of Alaska every native Indian, born within the limits
of the Territory, who has severed his tribal relationship and adopted
the habits of civilized life becomes a citizen and is entitled to vote.
The law provides methods by which he may obtain evidence showing that
he has met with the requirements of the law, but this is not
compulsory, leaving the matter a question of fact peculiar to the
individual case.
From the indefinite, conflicting, and unsatisfactory character of
the evidence in this case it is not practical or possible to say
whether or not the election officers were within the law in receiving
or rejecting the votes of Indians who voted or would have voted at this
election. With very few excep
[[Page 1314]]
tions, the evidence is of a general nature, and with respect to many
there is no evidence at all. The evidence fails to disclose any
intention or attempt to commit fraud at either of the precincts in
question and where the Indians voted. The election officers have
particular knowledge of the conditions and the people in the locality
surrounding precincts where they preside, and it is their duty to know
that each voter is duly qualified before permitting him to deposit a
ballot. These officers are presumed to have discharged this duty. The
evidence shows very clearly that many of the Indians were entitled to
vote. The Indian vote is mingled with that of other citizens, and the
record points out no intelligent way by which it may be ascertained
that any injury is actually proved to have resulted to either candidate
on account of the Indian vote. It is probable that a portion of this
vote is illegal, but the action of election officers charged with the
duty of conducting elections should not be set aside except upon
definite proof, and the votes once received by such officers should not
be rejected unless the proof establishes in some definite way that the
voters were not qualified and the number and identity of votes that
should not be counted, and especially is this true in the absence of
proof of any conspiracy to commit fraud.
The testimony shows that they were qualified electors under the
laws of Alaska, and each on being examined as a witness states that he
appeared in person and offered to vote and that he would have voted for
Sulzer, and the committee is of the opinion that their votes should be
so counted. (Printed record 335 and 338.)
While not connected with this or the other main features of the
case, are the votes of Louis Klopsch, who was not a resident of the
precinct in which he voted, and Julius Forsman, of foreign birth,
unnaturalized, both of whom, according to direct and undisputed
testimony, voted for Wickersham. These votes should not have been
received or counted, and are accordingly deducted from contestant's
vote. (Printed record 240 and 261.)
The result of the findings in these two instances is a gain for
Sulzer of 2 and a loss for Wickersham of 2, or a net gain for Sulzer of
4 votes.
soldier vote
The evidence shows conclusively that 36 soldiers in the United
States Army, stationed in Alaska, voted in this election--4 at Eagle
and 32 at Fort Gibbon. Apparently there is no difference or controversy
as to the facts in relation to these soldiers, except in respect to
their right to vote at these precincts in Alaska. Hence, the question
is purely of a legal nature. The facts may be stated as follows: . . .
Seven were honorably discharged and reenlisted in Alaska on the
following day.
Each and all of them had been in the Territory more than a year
immediately preceding the date of election and at Eagle or Fort Gibbon
more than 30 days immediately preceding election day.
If they had acquired a legal domicile in Alaska, they were entitled
to vote and the votes should be counted; otherwise not.
[[Page 1315]]
To become a citizen and a qualified elector in Alaska, a bona fide
residence of one year in the Territory and 30 days in the voting
precinct is required.
The question of domicile or place of residence of those in the
military service of the country, either as officers or as men in the
line, has been before Congress and in the courts in a number of cases,
but not of very recent date so far as Congress is concerned. The
subject is one of great importance and absorbing interest just at this
time, not only in this case and in Alaska, but throughout the country.
The soldier has an interest in knowing what construction is going
to be placed upon the law affecting his domicile with its civil and
political rights and privileges during his absence in the service of
the country, while, on the other hand, the public is equally concerned
as to the conditions under which a new domicile or residence may be
acquired by those in the military service and stationed at many places
in the several States.
Hence a very careful examination of the authorities bearing upon
this question has been made, and we submit as a correct statement of
the law the following:
(1) In the case of an officer or enlisted man in the
Military Establishment, held that his domicile during his
continuance in the service is the domicile or residence which
he had when he received his appointment as an officer or
entered into an enlistment contract with the United States.
This is true whether such a domicile was original--that is,
established by nativity--or by residence with the requisite
intention, or derivative, as that of a wife, minor, or
dependent. This residence or domicile does not change while
the officer remains in the military service, as his movements
as an officer are due to military orders; and his residence,
so long as it results from the operation of such orders, is
constrained, a form of residence that works no change in
domicile.
(I.A.) A person in the military service of the United
States is entitled to vote where he has his legal residence,
provided he has the qualifications prescribed by the laws of
the State. He does not lose such residence by reason of being
absent in the service of the United States. The laws of a
particular State in which he is stationed and has only a
temporary as distinguished from a legal residence may,
however, permit him to vote in that State after a certain
period of actual residence.
(Digest of Opinions of the Judge Advocates General of the
Army. Howland. Pages 976, 977, 978.)
Also from McCrary on Elections, page 70, sections 90 and 91:
Sec. 90. The feet that an elector is a soldier in the
Army of the United States does not disqualify him from voting
at his place of residence, but he cannot acquire a residence,
so as to qualify him as a voter, by being stationed at a
military post whilst in the service of the United States.
[[Page 1316]]
Sec. 91. Soldiers in the United States Army cannot
acquire a residence by being long quartered in a particular
place, and though upon being discharged from the service they
remain in the place where they have previously been
quartered, if a year's residence in that place is required as
a qualification for voting, they must remain there one year
from the date of discharge before acquiring the right to
vote.
See also, Hinds' Precedents, volume 2, pages 70 and 71; section 876
Taylor v. Reading, Forty-first Congress.
Also Report of Judiciary Committee of Senate in the case of
Adelbert Ames, Senator from Mississippi--Compilation of Senate Election
Cases, 375.
Applying this law to the facts here, the 36 soldiers stationed in
Alaska who voted at Eagle and Fort Gibbon were without legal domicile
there and were not in any legal sense inhabitants of the Territory, and
therefore were not qualified electors therein.
It is contended, however, that these soldiers had changed their
residence from the States where they enlisted to Alaska and had
acquired domicile there. The evidence in support of this is that they
appeared on election day, and upon their votes being challenged, took
the required oath containing the declaration of residence and voted.
Now in keeping with what was apparently the view held by some of
these officials, in the argument for the contestee, the contention is
made that the residence or domicile of a soldier is determined by his
intention; that (quoting from brief) ``these soldiers have already
shown their purpose and have established their residence in Alaska.''
This argument seems to be based upon the assumption that the
soldier or officer in the military service sent under orders away from
the State of his original domicile and stationed in another State,
while subject to the orders of his superiors, can have and exercise
voluntarily and in his own right the requisite intention necessary to
effect a change in domicile and that, after being so stationed for the
statutory period required for voting, a declaration of choice of
domicile accompanied by the act of voting constitutes sufficient
evidence that the change has been effected.
Without stopping to discuss the public policy of approving here and
establishing a rule of this kind, it is sufficient to say that the law
and authorities are in practical harmony and are all the other way.
So under the laws of Alaska, as in all the States in so far as the
committee is informed, a person to be a qualified elector must, in
legal acceptation, be an inhabitant.
Manifestly no one can become an inhabitant in Alaska or in any of
the States (at least without some provision of the law authorizing) who
does not initiate and continue his residence there voluntarily, on his
own motion and in his own right.
At Eagle and Fort Gibbon, where the 36 votes, which the committee
have found illegal, were cast, a total of 92 votes were polled, as
follows:
[[Page 1317]]
------------------------------------------------------------------------
Sulzer Wickersham
------------------------------------------------------------------------
Eagle.............................................. 33 13
Ft. Gibbon......................................... 37 9
--------------------
Total...................................... 70 22
------------------------------------------------------------------------
It is not definitely shown for whom these voters cast their
ballots, with the exception of eight voting at Fort Gibbon, seven of
whom testified they vote for Sulzer and one for Wickersham.
Of the remainder, in order to save the votes legally cast and avoid
discarding the entire poll at these precincts, a pro rata deduction
should be made in accordance with the rule established in the case of
Finley v. Walls, Forty-fourth Congress (Smith, 373, McCrary, sec. 495,
p. 364), where the principle upon which the rule is founded is thus
stated:
In purging the polls of illegal votes the general rule is
that, unless it be shown for which candidate they were cast,
they are to be deducted from the whole vote of the election
division and not from the candidate having the largest
number. Of course, in the application of this rule such
illegal votes would be deducted proportionately from both
candidates, according to the entire vote for each.
With a deduction made on this basis, and according to the testimony
of the eight who disclosed for whom they voted, the total result at
these two precincts would then stand:
Sulzer, 42; Wickersham, 14; being a loss of 28 for Sulzer
and 8 for Wickersham, or a net loss for Sulzer of 20.
Readjusting the entire vote in accordance with the findings and
conclusions of the committee, the result finally established is:
Wickersham..................................................... 6,480
Sulzer......................................................... 6,433
--------
Plurality for Wickersham............................... 47
------------------------------------------------------------------------
conclusion
Wickersham had a plurality of the vote as returned and canvassed.
There has been no serious dispute about this fact.
The certificate of election which was about to issue to him upon
the completion of the canvass was withheld and awarded to the contestee
by a judgment of the court based upon a construction of the law with
which your committee could not agree, and which was not in keeping with
the precedents established by the House of Representatives.
For the reasons assigned, your committee recommends to the House
the option of the following resolutions:
[[Page 1318]]
1. That Charles A. Sulzer was not elected a Delegate to the House
of Representatives from the Territory of Alaska in this Congress, and
is not entitled to retain a seat herein.
2. That James Wickersham was duly elected a Delegate to the House
of Representatives from the Territory of Alaska in this Congress, and
is entitled to a seat herein.
Privileged resolution (H. Res. 492) agreed to (229 yeas to 64 nays
with 13 ``present'') after debate on Jan. 3, 4, and 7, 1919, and after
rejection of motion by Mr. John L. Burnett, of Alabama (131 yeas to 187
nays with 1 ``present'') to recommit the contest to the Committee on
Elections No. 1 with instructions to report thereon by or before Feb.
10, 1919 [57 Cong. Rec. 1059, 1106, 65th Cong. 3d Sess., Jan. 7, 1919;
H. Jour. 53, 55].
Sec. 1.5 Gerling v Dunn, 38th Congressional District of New York.
Notice of contests, although found insufficient for lack of
particular specifications, did not prevent decision by committee on
election on merits of contest.
Ballots.--Committee on elections refused to consider allegations
that state statutes governing arrangement of machines violated the
state constitution.
Evidence.--Contestant failed to offer sufficient proof of fraud by
officials or irregulatories in use of machines.
Report for contestee, who retained seat.
Report of Committee on Elections No. 1 submitted by Mr. Riley J.
Wilson, of Louisiana, on Feb. 17, 1919, follows:
Report No. 1074
Contested Election Case, Gerling v Dunn
The result of the election of November 7, 1916, in the district, as
shown by the official returns and as between the contestant and
contestee, was as follows:
Thomas B. Dunn................................................. 29,894
Jacob Gerling.................................................. 13,867
--------
Majority for Dunn...................................... 16,027
------------------------------------------------------------------------
The grounds upon which the contest is based, as set forth in the
petition of the contestant, are substantially that the election held in
the thirty-eight congressional district of New York on November 7,
1916, was illegal and unconstitutional for the reasons that--
First. The voting machines used at said election did not comply
with the requirements of the election law of the State of New York and
that they
[[Page 1319]]
were not legal machines as defined by the statutes of that State and
were not so arranged for use in voting as required by the New York
election laws.
Second. That certain provisions of the constitution of the State of
New York had been violated in the manner and method of conducting the
election by the use of such voting machines and also by the enactment
of a special law by the Legislature of New York State designed
especially for Monroe County, under which law this election was
conducted.
Third. That the voting machines used at this election were prepared
and arranged by an expert and not by the proper legally constituted
authorities, and that such machines were not properly tested before use
at this election.
Fourth. That the machines used at this election did not provide a
secret method of voting as provided by the New York State constitution.
The contestant does not allege that he was elected or that the
contestee did not receive a majority of the votes cast, the contention
being that the election was illegal and void.
The notice of contest is faulty and defective in the respect that
the allegations are vague, indefinite, and general. However, the
committee considered the merits of the case.
Practically all the grounds upon which the contest is based relate
to matters of policy that should be addressed to the consideration of
the legislative department of the State government, or to questions
proper to be determined and adjudicated by the courts of New York State
and not by Congress.
It has not been and should never be the policy of the House of
Representatives to pass upon the validity of State laws under which
elections are held when the complaint is that the legislative enactment
is contrary to the provisions of the State constitution.
voting machines
Congress has authorized the use of voting machines in the States.
On February 14, 1899, section 27, Revised Statutes of 1878, was
amended and reenacted to read as follows:
All votes for Representatives in Congress must be by
written or printed ballot or voting machine, the use of which
has been duly authorized by the State law; and all votes
received or recorded contrary to this section shall be of no
effcet.
Voting machines have been in use in New York State for many years,
authorized by its constitution, provided for by its legislature, and
sanctioned by its courts.
The evidence in this case fails to support by definite proof any of
the charges made against the machines used at this election or to
disclose any fraudulent or illegal action on the part of any official
connected with the conduct of the election, or the canvass, tabulation,
and return of the vote.
[[Page 1320]]
resolution
Your committee therefore recommends to the House the adoption of
the following resolution:
That Thomas B. Dunn was duly elected a Representative in
this Congress from the thirty-eighth congressional district
of the State of New York and is entitled to retain a seat
herein.
Reported privileged resolution (H. Res. 585) agreed to by voice
vote and without debate [57 Cong. Rec. 3578, 65th Cong. 3d Sess., Feb.
17, 1919; H. Jour. 199].
Sec. 1.6 Britt v Weaver, 10th Congressional District of North Carolina.
State election law requiring ``X'' marking of ballots by voters was
construed as mandatory and applicable to written ballots containing a
single name, by committee on elections minority and by the House
(overruling majority committee report declaring contestee elected by
validating written unmarked ballots).
Report of Committee on Elections No. 3 submitted by Mr. Walter A.
Watson, of Virginia, on Feb. 21, 1919, follows.
Report No. 1115
contested election case, britt v weaver
The official returns of the election held on November 7, 1916, as
ascertained and judicially determined by the canvassing boards of the
respective counties of the district and by the State board of
canvassers, showed the following result:
Weaver......................................................... 18,023
Britt.......................................................... 18,014
--------
Majority............................................... 9
------------------------------------------------------------------------
Contestant's claim is that the official returns, properly
ascertained and determined, should have shown the following result:
Britt.......................................................... 18,008
Weaver......................................................... 17,995
--------
Majority............................................... 13
------------------------------------------------------------------------
question at issue
The question at issue is one of law, and in the view of the
committee it is decisive of the merits of the case. Its decision rests
upon the disposition to be made of certain ballots cast by voters at
the election and not marked
[[Page 1321]]
in accordance with the directions of the State law. The question arose
in this way:
The canvassing board of Buncombe County attempted and did include
as a part of the official vote ascertained some 33 of such unmarked
ballots (27 of which were counted for Weaver and 6 for Britt), thereby
making the vote of that county 4,353 for Weaver and 4,043 for Britt,
instead of 4,325 for Weaver and 4,037 for Britt as contestant claimed
it should have been. Against this action of the board contestant
protested and instituted mandamus proceedings in the superior court of
the State to compel the board to exclude the aforesaid ballots from the
official count. The court held that, under State law, the board of
canvassers possessed not only ministerial, but judicial, functions in
determining election returns, and that hence it had no power to review
its discretion, or to compel by mandamus its exercise in any particular
way. From this judgment contestant appealed and after exhaustive
argument the supreme court of the State sustained the opinion of the
court below, and thereupon the State board of canvassers directed the
certificate of election to be issued to the contestee. Thus the
contestant sought and obtained the adjudication of the State courts
upon the legal questions involved, so far as those tribunals felt they
had jurisdiction to determine them in the proceedings brought.
The Unmarked Ballot
The Australian ballot was not in use in North Carolina. The law
governing general elections as it stood prior to 1915 required that
``ballots shall be on white paper and may be printed or written, or
partly written and partly printed, and shall be without device,'' that
the size of the ballot should be prescribed by the State board of
elections; that separate ballots and separate boxes should be used for
the various Federal, State, and local offices, and that the ballots
should be given out to the voters at the polls and each voter might
deposit his own ballot if he chose. No account had to be kept of the
number of ballots issued to the voters, and after the canvass by the
election officers, which had to be in public view, the ballots voted
were not made a part of the returns or required to be preserved in any
way.
Such were the general provisions of the law in so far as they
affected the ballot at a general election prior to 1915. In that year
the State undertook to legalize its primary elections, and in section
32 of the act inadvertently, as is manifest from the context and its
subsequent repeal, incorporated the following provision:
That opposite the name of each candidate on the general
ticket to be voted at the general election shall be a small
square, and the vote for any candidate shall be indicated by
marking a cross mark, thus (X), in the square, and no voter
shall vote for more than one candidate for any office. But
there shall also be a large circle opposite the names of each
party's candidate on each ticket, and printed instructions on
said ticket that a vote in such large circle shall be a vote
for each and all of the candidates of the various officers of
the particular party, the names of whose can
[[Page 1322]]
didates are opposite said circle, and if a voter in a general
election indicates by a cross in such large circle his
purpose to vote the straight and entire ticket of any party,
his vote shall be counted for all the candidates of such
party for the offices for which they are candidates,
respectively, as indicated on such ticket.
This was the only reference to the subject in the whole act, and
the provision was obviously intended to apply to a general ticket of
some sort containing the names of several candidates among which the
voter could indicate his choice by making the cross mark. But the act
prescribed no such ballot for use in the general election; on the
contrary, the congressional ballot in this election was separate and
distinct for each political party, and each ballot contained but a
single name; it would seem, therefore, the said provision could have
had no application to a ballot of this kind, and that the deposit of a
ballot with a single name would indicate the voter's choice beyond
peradventure of doubt. . . .
Now, the evidence in the record shows that some 90 electors,
presumably qualified, cast their ballots in the election without making
a cross mark in the square opposite the candidate's name. Did their
failure to do so invalidate their ballots? Your committee thinks not.
law of the case
Assuming that the statute intended to apply to a ballot with a
single name, which it seems to us would be without reason and against
common sense, the next question is whether such provision is mandatory,
or merely directory. If mandatory, the failure of the voter to comply
would invalidate the ballot; if only directory, his failure to follow
legal forms in preparing his ballot, provided he made his intention
plain, would not deprive him of his vote. The object of all election
laws is to ascertain the will of the majority; and when ascertained the
will of the majority should prevail, even though it be sometimes
irregularly expressed.
It is hard to lay down any precise rule of construction so as to
determine in every ease what provisions of a statute are mandatory and
which directory; but it is easy to gather from the legal text writers
and from court decision what the general principle is applicable to the
case in hand.
Judge Cooley's rule:
Those directions which are not of the essence of the
thing to be done, but which are given with a view merely to
the proper, orderly, and prompt conduct of the business, and
by a failure to obey which the rights of those interested
will not be prejudiced, are not commonly to be regarded as
mandatory; and if the act is performed, but not in the time
or in the precise mode indicated, it may still be sufficient,
if that which is done accomplishes the substantial purpose of
the statute. (Constitutional limitations, p. 113, and the
following cases from State courts: Odiorne v. Rand, 59 N. H.,
504; Pond v. Negus, 3 Mass., 230; Holland v. Osgood,
[[Page 1323]]
8 Vt., 276; Colt v. Eves, 12 Conn., 243; People v. Hartwell,
12 Mich., 508; Edmonds v. James, 13 Tex., 52; People v.
Tompkins, 64 N. Y., 53; State v. Balti. Comrs., 29 Md., 516;
Fry v. Booth, 19 Ohio, 25; Slayton v. Halings, 7 Ind., 144.)
And relative to the construction of election laws in particular,
the same author says:
Every ballot should be complete in itself and ought not
to require extrinsic evidence to enable the election officers
to determine the voter's intention Perfect certainty,
however, is not required in these cases. It is sufficient if
an examination leaves no reasonable doubt upon the intention,
and technical accuracy is not required in any case. The
cardinal rule is to give effect to the intention of the
voter, wherever it is not left in uncertainty, act. . . . A
great constitutional privilege--the highest under the
Government--is not to be taken away on a mere technicality,
but the most liberal intendment should be made in support of
the elector's action wherever the application of the common-
sense rules which are applied in other cases will enable us
to understand and render it effective. (Item, pp. 914 and
920.)
McCrary, some time a representative from Iowa and a leading
authority on election cases, laid down this rule:
The language of the statute construed must be consulted
and followed. If the statute expressly declares any part of
an act to be essential to the validity of the election, or
that its omission shall render an election void, all courts
whose duty it is to enforce such statutes must so hold,
whether the particular act in question goes to the merits, or
affects the result of the election, or not. Such a statute is
imperative, and all considerations touching its policy or
impolicy must be addressed to the legislature. But if, as in
most cases, the statute simply provides that certain acts or
things shall be done, within a particular time or in a
particular manner, and does not declare that their
performance is essential to the validity of the election,
then they will be regarded as mandatory if they do, and
directory if they do not, affect the actual merits of the
election. . . . The principle is that irregularities which do
not tend to affect the results, are not to defeat the will of
the majority; the will of the majority is to be respected
even when irregularly expressed. (McCrary on Elections, pp.
93 and 94; and see to the same effect, Tucker v. Com. 20
Penn. St. R. 493).
``Where the intention of the voter is clear the ballot will not be
rejected for faulty marking by the voter, unless a law undoubtedly
mandatory so prescribes,'' was the rule formulated by Mr. McCall, of
Massachusetts, in a very able report from the Elections Committee and
adopted by the House of Rep
[[Page 1324]]
resentatives in the Fifty-fourth Congress. (See Yost v. Tucker, 2
Hinds' Prec., sec. 1077).
``Where the intention of the voter was not in doubt the House
followed the rule of the Kentucky court and declined to reject a ballot
because not marked strictly within the square required by the State
ballot law.'' (Syllabus 2 Hinds' Prec., sec. 1121, in case of Moss v.
Rhea, 57 Cong.).
In many cases the House has counted ballots rejected by the
election officers under an erroneous construction of the law, and
reference may be made particularly to the case of Sessinghaus v. Frost
in the Forty-seventh Congress where this course was pursued. (2 Hinds'
Prec., sec. 975.)
The Supreme Court of North Carolina in construing the very statute
under review said:
If the matter was properly before us and we had
jurisdiction to decide it, we would hold as to the
congressional ticket, which has only one name on it, that all
unmarked ballots ought to be counted for the respective
candidates, because the purpose of the election is to
ascertain the will of the voter, and the marking of the
ballot can only serve a useful purpose in ascertaining this
will when there are more names than one upon the ballot. (See
Britt v. Board of Canvassers, 172 N. C., p. 797.)
Applying the foregoing principles then to the question at issue, we
have these facts before us:
The statute nowhere else declares it to be mandatory to mark the
ballot in the square, nor pronounces the ballot invalid if not so
marked; the marking could serve no purpose in indicating the will of
the elector where only one name appeared, as his intention was manifest
upon the face of the ballot itself; and lastly the marking of the
ballot under such circumstances could not, by any stretch of the
imagination, be deemed of the essence of the election or to affect its
validity in any way.
For these reasons, therefore, we have no hesitancy in holding that
section 32 of the North Carolina primary law of 1915 was not mandatory;
but that its provisions were directory only, and that the failure of
the voter to comply therewith did not invalidate his ballot. All the
unmarked ballots properly cast at the election should have been
counted, and it was a mistake of law for the election officers to have
excluded them from their official returns.
. . . [I]t appears that there were 90 unmarked ballots voted at the
election, 43 of which already appear in the returns, leaving a balance
of 47 not counted by the election officers and which ought to go, 26 to
Weaver and 21 to Britt. Adding these figures to the totals for the
candidates already returned we have the true state of the poll as
follows:
Weaver, official returns (less 2 deducted as 18,047
aforementioned),18,021, plus 26 unmarked ballots not counted..
Britt, official returns, 18,014, plus 21 unmarked ballots not 18,035
counted.......................................................
--------
Majority for Weaver.................................... 12
------------------------------------------------------------------------
[[Page 1325]]
The above result we believe to be based upon clear and satisfactory
proof. We are not unmindful that there is some evidence tending to show
there was an unmarked ballot at Leicester precinct for contestant not
counted, probably 2 at Hazel for the contestee more than he is credited
with above, and a few such ballots at Peachtree not counted nor
ascertained who for; but the evidence in these cases is either
conflicting or insufficient and the number of ballots involved not
sufficient to change the result, and we therefore excluded them from
consideration.
quantity and character of evidence
The ballots not being preserved in North Carolina after being
canvassed, and a recount therefore being impracticable, the committee
has accepted none but clear and convincing testimony as to the number
and contents of these unmarked ballots. Fortunately the record
discloses very little dispute among the witnesses on the subject. Most
of the testimony presented is from the election officers representing
both political parties who were called by the contestant himself. It
may be said, therefore, that the facts adduced relative to the unmarked
ballots rests mainly upon contestant's evidence, which is practically
uncontradicted. The ballots in the controversy and embraced in the
above count were all found in the congressional boxes, kept by
bipartisan election officers against whom fraud in this respect has
neither been charged nor proven, and there is the same presumption of
their having been cast by qualified electors as exists in favor of the
other ballots which came out of the same box.
The following minority views were submitted by Mr. Cassius C.
Dowell, of Iowa; Mr. Fiorello H. LaGuardia, of New York; and Mr.
Everett Sanders, of Indiana:
Report No. 1115, Part 2
After a careful study of the statutes of the State of North
Carolina and a thorough search of adjudications and the history of
election legislation, we find that these so-called amended and
supplemental returns have no legal status. These alleged returns were
conceived and used by the board in a desperate attempt to prevent
contestant, Mr. Britt, from receiving the election certificate, which
the record shows he was clearly and legally entitled to receive.
And these pretended returns did, in fact, become the basis upon
which Mr. Weaver now is a sitting Member in this House.
In other words, the so-called amended and supplemental returns were
used by the canvassing board for the purpose of overcoming the 13
majority which contestant Britt had received in the district.
It is clear under the law that these alleged amended and
supplemental returns were not, in fact, amended or supplemental
returns, and could not legally form a part of a basis for certificate
of election.
It is, therefore, apparent that the certificate of election should
have been issued to contestant J. J. Britt, and that he was legally
entitled to same.
[[Page 1326]]
It is apparent from the above statement that the original returns
gave contestant Britt a majority of 13 votes. The question then
presented to the committee and to the House is whether or not the
evidence in this case is sufficient to overcome such original returns.
Under the precedents of the House, when it appears that contestant
(Britt) had the majority of the votes according to the original
returns, the burden of proof then devolves upon the contestee (Weaver)
to show that he received a majority of the votes cast at the election.
The law of North Carolina at the time of the election, relating to
the manner of marking the ballot, was as follows:
That opposite the name of each candidate on the general
ticket to be voted at the general election shall be a small
square, and a vote for any candidate shall be indicated by
making a cross mark thus (X) in such square, and no voter
shall vote for more than one candidate for any office; but
there shall also be a large circle opposite the names of each
party's candidates on each ticket and printed instructions on
said ticket that a vote in such large circle will be a vote
for each and all of the candidates for the various offices of
the political party the names of whose candidates are
opposite said large circle; and if a voter at the general
election indicates by a cross mark in such large circle his
purpose to vote the straight or entire ticket of any
particular party, his vote shall be counted for all the
candidates of such party for the offices for which they are
candidates, respectively, as indicated on such ticket.
The language of the above provision of the North Carolina statute
is clear, concise, and unequivocal. It is subject to one
interpretation, it wit, that a ballot must be marked. It is similar to
the provisions of the election laws of nearly every State in the Union,
and its purpose is to guard against the very thing which happened in
this case, that while the ballot is made plain and easy in order that
everyone, regardless of his education, may have an equal opportunity to
understand it and vote according to his desires, yet it requires some
affirmative act on the part of the voter to express his intention. This
act was to place a cross mark in the square in front of the name of the
candidate the voter desires to vote for.
The contestee, Mr. Weaver, contends that in a number of precincts
throughout the district, ballots bearing his name were voted without
the voter placing the cross in the square in front of his name on the
ballot, and that these ballots should be counted for him; and that by
counting these unmarked ballots he received a majority of the votes
cast at the election.
The minority of your committee believe that the law of North
Carolina, providing for the manner of voting and the manner of marking
the ballot is mandatory, and that the ballot should have been marked as
provided by this statute, in order to become a legal ballot. This is
the general rule laid down by the courts in construing similar
statutes. And it is our opinion that the unmarked ballots should not be
counted.
We call attention to a few of the cases bearing upon this question.
[[Page 1327]]
Where the law provides that the voter shall indicate the
candidates for whom he desires to vote by stamping the square
immediately preceding their names or in case he desires to
vote for all the candidates of the party, etc.; Held, that
this provision is mandatory; the stamping of the square being
the only method prescribed by which the voter can indicate
his choice. (Parvin v. Wirnberg (Ind.), 30 N. E. 790.)
From the opinion of the court in this case, on page 791, we quote:
The doctrine that it is within the power of the
legislature to prescribe the manner of holding general
elections, and to prescribe the mode in which the electors
shall express their choice, is too familiar to call for the
citation of authority. In this instance it has declared that
the mode by which the elector shall express his choice shall
be by stamping certain designated squares on the ballot.
There is nothing unreasonable in the requirement, and it is
simple and easily understood. Furthermore, if he is
illiterate or is in doubt, the law makes ample provision for
his aid. If he does not choose to indicate his choice in the
manner prescribed by law, he can not complain if his ballot
is not counted. (Kirk v. Rhoads, 46 Cal. 399.) If we hold
this statute to be directory only and not mandatory, we are
left entirely without any fixed rule by which the officers of
election are to be guided in counting the ballots.
Under a statute similar to the North Carolina statute, it was held
that a ballot on which the names of candidates were written in, but no
cross mark made after any of the names, can not be counted for any
candidate. (Riley v. Traynor (Col.), 140 Pac. 469.)
After quoting the statute, the court, on page 470 says:
There can be no mistaking this language. It requires that
in order to designate his choice, the voter must use a cross
mark, as the law requires. In this case, no cross mark was
used anywhere with reference to any of the candidates for the
particular office in question, and the ballots ought not to
have been counted.
Under a similar statute requiring the voter to make a cross
designating his choice of candidates, it has been held that a failure
to comply with this requirement invalidates the ballot. (See Vallier v.
Brakke (S. Dak.), 64 N. W. 180, at 184.)
The law has prescribed the manner in which an elector may
arrange his ticket, and what act he may do to designate the
candidates for whom he desires to vote. His act must
correspond with his intention, and unless it does the vote
can not be counted. The system devised is so simple that a
man of sufficient intelligence to know what a circle is, how
to make a cross, and left from right, can find no difficulty
in making up the ticket he desires to vote. He can have no
difficulty in expressing his intention in the man
[[Page 1328]]
ner the law has prescribed. It is not necessary, therefore,
to impose upon judges of election or courts the duty of
ascertaining the intention of the voter, except in the manner
pointed out by the statute, namely, by the marks he has
placed upon the ballot in the manner prescribed by law.
Following this construction of the law, there can be no other
conclusion but that Contestant Britt was elected and is entitled to his
seat.
Evidence of ballots cast by unqualified voters and of voters
improperly disqualified, which had been rejected by committee majority
as insufficient or hearsay, was relied upon by minority to establish
contestant as elected despite counting of written unmarked ballots.
Majority report for contestee, who was unseated. Minority report
for contestant, who was seated.
other irregularities
But for the unmarked ballots there would have been no contest in
this case. They caused the dispute before the Buncombe County
canvassing board; they were the subject of litigation in the State
courts; they were the burden of the argument before the committee; and,
in our view, they are the heart of this whole controversy. But the
contest once begun and issue joined, after the manner of ancient
lawyers, each side brought blanket charges against the other, alleging
other irregularities in the conduct of the election. Contestant claims
that 156 individuals voted for his opponent who were disqualified by
reason of nonage, or nonresidence, or nonpayment of poll tax, or
intimidation, or bribery, or crime, or insanity; and on his part
contestee contends that 200 voters disqualified for similar reasons
were allowed to vote for contestant. Contestant further claims that 21
qualified voters offering to vote for him were denied the right to cast
their ballots.
Amid the pressure of other duties and with the time at its command
it would be a physical impossibility for the committee to trace out the
details of each of these near 400 cases, each depending for solution
upon its own state of facts, and it has been able to investigate
carefully only a limited number of them. The testimony relating to
these questions is in most cases hearsay, inconclusive, and often
conflicting. Especially is this true when it comes to proof of how the
alleged disqualified voters cast their ballots. Unless the voter
himself waives the secrecy which protects his ballot, sound public
policy would seem to forbid the reception of any evidence of the
subject.
However, as far as we have been able to pursue the inquiry
concerning these alleged illegal voters, we have found that, upon the
whole, the election officers conducted the election with general
impartiality and in good faith. They represented both political
parties, were upon the ground, had knowledge both of individuals and
local conditions; and with the witnesses and public records before them
they were in a situation to pass satisfactorily upon the various
questions of nonage, nonresidence, poll taxes, etc., which arose before
them. Being laymen for the most part and sometimes unlet
[[Page 1329]]
tered men, they occasionally made mistakes of law; but we have failed
to find the number either large or very important, and these mistakes,
such as they were, seem to us to have fallen about equally on both
sides. In the absence of fraud or palpable mistake, we would not feel
justified in going behind the election returns to review the judgment
of officials exercised in good faith upon questions of fact they were
as competent to determine as ourselves.
No facts disclosed by the record would, in our judgment, warrant
the House in undertaking now to hold the election over again, and to
pass anew upon the variant qualifications of several hundred individual
voters.
This seems to have been the general view of the contestant himself,
at least as to a greater part of the district, when, appearing in his
own behalf before this committee, he said:
I ask further that you determine as to the 12 counties of
the district other than Buncombe County the acts of the
returning boards in these counties on November 9 were without
grounds sufficient under our laws and practice to warrant a
review, etc. (Committee hearing, p. 98.)
ballots in wrong box
Among other irregularities complained of by contestee was the fact
that two ballots properly marked for him and found in a wrong box at
Logan's Store precinct were rejected by the judges and not counted for
him, while ballots similarly misplaced, were counted for contestant at
other precincts. While the general rule of law undoubtedly is to count
ballots placed in the wrong box by mistake, in North Carolina this
question, under the statute, is left to the decision of the election
officers; and their decision of the question, once made, ought not it
seems to us to be subject to review.
Any ballot found in the wrong box shall not be counted,
unless the registrar and judges of election shall be
satisfied that the same was placed there by mistake. (See
section 4347, N.C. election law.)
conclusion
For the foregoing reasons the committee recommends to the House the
following:
Resolved:
First: That James J. Britt was not elected a Member of this
Congress.
Second: That Zebulon Weaver was elected a Member of this Congress
and is entitled to his seat.
On this issue the minority report stated:
The minority, however, desire to make it clear to the House that
the evidence shows that Mr. Britt was elected, if the unmarked ballots
are counted.
[[Page 1330]]
If, in counting the unmarked ballots, all the testimony in the
record is considered, contestant, Mr. Britt, has a clear majority of
the votes cast at this election.
Applying the ordinary rules laid down in contested-election cases
with reference to ballots, which your minority believe must be applied,
Contestant Britt has a much larger majority. . . .
The majority report disposes of this issue as follows:
Being laymen for the most part and sometimes unlettered
men, they [referring to the boards] occasionally made
mistakes of law; but we have failed to find the number either
large or very important, and these mistakes, such as they
were, seemed to us to have fallen about equally on both
sides.
The minority dissent from this conclusion. On the contrary, an
analysis of the evidence in respect to these votes does not show that
the list is not large nor unimportant. Neither does it show that they
have fallen about equally on both sides.
The minority find the number of illegal votes cast for Contestee
Weaver exceed any number that could possibly be claimed to have been
cast for Contestant Britt and that the excess is 24 votes, not
including the votes hereinbefore specifically referred to. . . .
After thoroughly considering the record in this case, and after
carefully reviewing the evidence, we feel confident that contestant,
Mr. Britt, has been clearly elected, and by a majority of not less than
43 votes, even if the unmarked ballots should be counted.
The undersigned minority, therefore, respectfully recommend the
adoption of the following resolutions:
Resolved, That Zebulon Weaver was not elected a
Representative in the Sixty-fifth Congress from the tenth
congressional district of North Carolina, and is not entitled
to retain his seat therein.
Resolved, That James J. Britt was duly elected a
Representative in the Sixty-fifth Congress from the tenth
congressional district of North Carolina, and is entitled to
a seat therein.
The above resolutions were offered as a substitute to the majority
resolution.
Mr. Watson called up the privileged resolution recommended by the
committee majority, on which debate was extended to five hours and
equally divided between Mr. Watson and Mr. Dowell by unanimous consent.
The substitute amendment offered by Mr. Dowell declaring contestee not
elected and not entitled to retain a seat and declaring contestant
elected and entitled to a seat was agreed to by 182 yeas to 177 nays,
which vote was then reconsidered by 180 yeas to 177 nays. The
substitute amendment was then again agreed to by 185 yeas to 183 nays
with 6 ``present.'' The resolution as thus
[[Page 1331]]
amended was agreed to (185 yeas to 182 nays with 6 ``present''), and
the motion to reconsider that vote was held not in order by the House,
thereby overruling the decision of the Chair by 173 yeas to 182 nays.
[57 Cong. Rec. 4777, 65th Cong. 3d Sess., Mar. 1, 1919; H. Jour. 272-
277.]
Sec. 2. Sixty-sixth Congress, 1919-21
Sec. 2.1 Tague v Fitzgerald, 10th Congressional District of
Massachusetts.
Ballots, disputed at state recount or during taking of evidence,
were examined and recounted by the committee on elections upon adoption
by the House of a resolution authorizing subpena of ballots and
election officials.
Ballots, containing write-in or sticker votes for contestant but
absent the corresponding crossmark required by state law, were held
valid, thereby overruling decision of state officials, where voter
intent was clear.
On Sept. 4, 1919, Mr. Frederick R. Lehlbach, of New Jersey, by
direction of the Committee on Elections No. 2 obtained unanimous
consent for the immediate consideration of the following resolution (H.
Res. 280):
Resolved, That M. W. Burlen, Edward P. Murphy, Frederick J.
Finnegan and Jacob Wasserman, the members of the board of election
commissioners of the city of Boston, or any successor of them in said
office, be, and they are hereby, ordered to be and appear before
Elections Committee No. 2 of the House of Representatives forthwith,
then and there to testify before said committee or such commission as
shall be appointed touching such matters then to be inquired of by said
committee in the contested-election case of Peter F. Tague against John
F. Fitzgerald, now before said committee for investigation and report
and that the members of the board of election commissioners of the city
of Boston bring with them all such ballots and packages of ballots cast
in every precinct in the said tenth congressional district of
Massachusetts at the general election held in said district on the 5th
day of November, 1918, as were described as challenged, disputed, or
contested ballots, either at the recount of the ballots cast at said
general election conducted by said board of election commissioners of
the city of Boston, or at the taking of depositions before notaries
public in this case; also, all ballots received from absent soldiers
and sailors and not counted; that said ballots be examined and counted
by or under the authority of such committee on elections in said case;
and to that end that proper subpoenas be issued to the Sergeant at Arms
of this House, commanding him to summon said members of the board of
election commissioners of the city of Boston, or any successor in
office of either of them to appear with such ballots as witnesses in
said case; that service of said subpoenas shall be deemed sufficient,
if
[[Page 1332]]
made by registered letter, and such service shall be so made unless
otherwise directed by said Committee on Elections No. 2; and that the
expenses of said witnesses and all other expenses under this resolution
be paid out of the contingent fund of the House; and that said
committee be, and hereby is, empowered to send for all other persons
and papers as it may find necessary for the proper determination of
said controversy; and also be, and it is, empowered to select a
subcommittee to take the evidence and count said ballots or votes, and
report same to the Committee on Elections No. 2 under such regulations
as shall be prescribed for that purpose; and that the aforesaid
expenses be paid on the requisition of the chairman of said committee
after the auditing and allowance thereof by said Elections Committee
No. 2, and when approved by the Committee on Accounts--was considered
and agreed to.
House Resolution 280 was agreed to by voice vote without debate [H.
Jour. 425, 66th Cong. 1st Sess.].
Report of Committee on Elections No. 2 submitted by Mr. Louis B.
Goodall, of Maine, on Oct. 13, 1919, follows:
Report No. 375
Contested Election Case, Tague v Fitzgerald
Your Committee on Elections No. 2, having had under consideration
the contested election case of Peter F. Tague v. John F. Fitzgerald,
tenth congressional district of Massachusetts, and having completed its
investigation and consideration of same, herewith submits its report to
the House of Representatives.
Contestant and contestee were candidates for the Democratic
nomination for Member of Congress in the primaries in the September
preceding the election. Contestee, on the face of the returns, was
declared to have received the nomination, whereupon contestant
instituted proceedings to have this result reversed, first before the
board of election commissioners of the city of Boston and subsequently
before the ballot-law commission of the State of Massachusetts. The
validity of contestee's nomination was eventually upheld, but the
decision was rendered a few days before election day, too late for
contestant to file an independent petition whereby his name could be
printed upon the ballots to be used in the general election. The method
of voting in Massachusetts is by the voter making a cross after the
name of the candidate of his choice where it appears on the ballot.
Where the name of the voter's choice is not printed on the ballot, he
is permitted to write the name thereon or affix thereto a sticker
bearing the name of his choice and then marking a cross after the name
thus written or affixed. All votes cast for contestant in the election
necessarily were of this character. On the face of the returns
contestee was declared elected by a plurality of 238 votes in a total
number of 15,293 votes cast for Member of Congress in the entire
congressional district.
One thousand three hundred and four ballots cast in said election
were disputed. Your committee carefully examined each of said disputed
ballots
[[Page 1333]]
and where possible gave to them such effect as from their examination
was obviously the intent of the voter casting the same, within such
limitations, however, as the common law and the statutes of the State
of Massachusetts prescribe. A large number of such ballots had affixed
to them stickers bearing the words ``Peter F. Tague for Congress'' or
had the name of Peter F. Tague written thereon without, however, a
cross thereafter. No other candidate for Congress was voted for on such
ballots. In the absence of a provision expressly rendering such a
ballot void in the Massachusetts statute and in the absence of a
reported case on that point in this State, the committee held that the
intention of the voter to vote for Peter F. Tague was manifest by
affixing a sticker or writing the name, notwithstanding that the act
had not been completed by the making of a cross thereafter, and counted
such vote for Tague. Various other changes in specific cases from the
determination of the local canvassers were made, the committee acting,
except in the above set forth instance, with practical unanimity. After
such reexamination of the ballots, the committee found the plurality of
contestee to be 10 without passing upon the validity of 14 ballots
challenged at the polls, all for contestee, and 6 soldier votes
received in the office of the secretary of state of Massachusetts on
days subsequent to the day of election, of which 5 were for contestee
and one for contestant.
It is but just to state that in its review of these ballots the
committee found the work of the board of election commissioners of the
city of Boston to be fair, impartial, and accurate, the difference in
its determinations and those of the committee being substantially due
to the feet that the Boston commission was guided by an opinion of the
attorney general of Massachusetts rendered some 20 years ago, which
your committee was unwilling to give the force of law in the absence of
judicial support.
On Oct. 18, 1919, the following minority views to accompany House
Report 375 were, by unanimous consent, filed by Mr. James W.
Overstreet, of Georgia, and Mr. John B. Johnston, of New York:
The contestant, Mr. Tague, in our opinion utterly failed to carry
the burden he assumed in the contest. He failed to prove the
allegations made in his case. Mr. Fitzgerald was elected on the face of
the returns and has a certificate of election from the governor of
Massachusetts and the governor's council. And he, of course, is
entitled to his seat, unless the contestant can show to the contrary.
When a Member of Congress is charged with the duty of passing upon
the title of the office of one of his colleagues he assumes a delicate
and solemn responsibility. Wholesale charges of fraud, intimidation,
bribery, and coercion were made by the contestant and his counsel, and
these charges were in no instance supported by proof.
The contestant alleged that several hundred ballots were cast for
him with stickers having his name thereon without a cross opposite his
name, and contended that if these ballots were counted for him there
would be more than enough of such ballots to change the result of the
election. The
[[Page 1334]]
committee sent for, and had brought before it, all of the contested
ballots and examined them carefully one by one,
Every ballot having a sticker with the name of Peter F. Tague
without a cross was counted for the contestant, although contrary to
the law of the State of Massachusetts. Every ballot having the name of
John F. Tague, William H. Tague, or even Tague written on it With
pencil or ink and without a cross was counted for the contestant. He
was given the benefit of every doubt in counting the contested ballots.
. . .
If certain ballots that were counted for Mr. Fitzgerald, or thrown
out by the commissioners and afterward counted for Mr. Tague by our
committee, could have changed the result by electing Mr. Tague, then
the committee would be justified by congressional precedent. But the
most liberal count of the ballots by the committee failed to change the
result.
As the case stood after an examination of the ballots after which
the committee gave Mr. Tague everything he claimed, contestee had a
plurality of 10 votes, not counting challenged votes or soldiers' votes
that came in late, which, if counted, would have given contestee a
plurality of 25. To overcome these 10 votes so that contestant could
win, it was only necessary to prove 11 cases of illegal registration.
Returns, totally rejected in precincts where one-third of voters
therein were fraudulently registered, where other frauds were committed
by party workers for contestee, and where contestee failed to prove
that remaining qualified voters had voted for him, established a
majority for contestant.
Returns in precincts containing fraudulently registered voters were
totally rejected rather than by proportional deduction method, where an
elections committee majority considered the frauds more prevalent than
those proven and where illegal votes were not cast pro rata between
parties.
Registration.--Numerous incidents of merchants' and municipal
employees' fraudulently claiming domicile in certain precincts in order
to participate in local elections were held sufficient grounds for
rejection of entire returns from such precincts, though insufficient to
justify declaration of vacancy.
Majority report for contestant, who was seated upon unseating of
contestee. Minority views recommending declaration of vacancy and
separate minority views for contestee.
The majority report continues:
Contestant, among the reasons in his notice of contest, charges the
following:
E. In ward 5 the large vote which was cast for you was
composed in great part of those who had been colonized in
said ward for the purpose of manipulation by the political
organization of
[[Page 1335]]
said ward, which colonization and illegal registration and
illegal voting was contrary to the State and Federal law.
Various other charges of frauds and irregularities at the general
election are made by the contestant. He also charges gross frauds and
irregularities in the conduct of the primary election, including the
charge of colonization and illegal registration. As these other charges
were not determining factors in the committee's conclusions, save as
they may have corroborative and cumulative effect with regard to the
charge E, your committee refrains from discussing them in this report
except as they are incidentally referred to below.
Your committee, after careful and exhaustive scrutiny of the oral
testimony taken in the ease and the exhibits filed therewith, finds and
reports the following facts.
The laws of the State of Massachusetts do not provide for an annual
personal registration of voters. Names appearing on the registry list
are carried subject to the check of a canvass made by police officers
on the 1st day of April of each year. Information not under oath
furnished the police on this occasion by a member of a household or by
an employee of a hotel or lodging house is sufficient to retain a name
on the registry list. Holders of liquor licenses must be residents of
the locality in which the license permits them to do business.
Municipal employees must be residents of the municipality upon whose
pay roll they are. There were a large number of licensed liquor places
in the fifth ward of Boston. The existence of these licenses depended
upon the city of Boston voting wet in the local-option elections.
Because of the necessity of license holders being residents of the city
of Boston and because of the desirability of the employees of these
places voting in the Boston local-option election in order to insure
the continuance of their employment, such liquor dealers, bartenders,
waiters, and porters whose homes, in fact, were elsewhere took
advantage of the laxity of the registration laws by causing their names
to be placed upon the registry lists of the fifth ward, retaining the
same year after year by the expedient of spending a few nights at some
address in the ward on or about the 1st of April and voting in the
primaries and on election day and incidentally in the local-option
election in the fifth ward of Boston. The same state of facts obtains
with regard to municipal employees, particularly with regard to those
who obtained their appointments through Martin M. Lomasney, the
acknowledged political leader of the fifth ward. This state of affairs
is particularly prevalent in precincts, 4, 8, and 9 of said ward. There
also are located in these three precincts 28 hotels or lodging houses.
From these places 230 votes were cast, 153 of which came from seven
lodging houses.
Your committee finds and reports that large numbers of names of
persons were handed in to the police by the clerks of these lodging
houses as being domiciled there, who, in fact, were not such residents
and of whom, subsequently, no trace could be found.
Your committee finds and reports that the total vote cast for all
candidates for Congress in the fourth, eighth, and ninth precincts of
the fifth ward was 906. As a result of an investigation a list of 316
names of persons
[[Page 1336]]
who had voted in the election in these three districts was compiled,
who prima facie evidence indicated were fraudulently upon the registry
list. These were summoned to appear and testify before the notaries
public taking testimony under the authority of and by the direction of
Congress. Service of these summons was intrusted to the United States
marshal of the judicial district and his deputies. Of this number 188
could not be found, either at the addresses from which they voted or
elsewhere. Seventy-seven upon whom process had been duly served refused
to appear. Of the remainder who appeared and by their testimony sought
to justify the legality of their vote, a large majority were not in
fact domiciled at their voting address, but had families elsewhere with
whom they actually made their homes, and their pretensions to a
residence in these precincts of ward 5, upon which they could legally
predicate the right to vote there, were the flimsiest subterfuge. In
addition to this testimony, in 28 of the cases of alleged fraudulent
registrants who refused to obey the congressional process, the
testimony of women who knew these men and their families proved their
nonresidence at the addresses voted from.
Your committee finds and reports that fully one-third of the total
number of votes cast in the fourth, eighth, and ninth precincts of the
fifth ward of Boston were fraudulent.
Your committee further finds and reports that Martin M. Lomasney is
the political boss of the fifth ward; that he is nominally a Democrat
but that when it suits his personal ends he has no hesitancy in
wielding his power to encompass the defeat of Democratic candidates;
that he and his lieutenants work through an organization located in the
fifth ward, known as the Hendricks Club; that he has built up his power
through a number of years largely by means of the fraudulent votes of
the liquor dealers, bartenders, and city job holders illegally
registered in his ward and the padded returns of alleged residents in
the cheap lodging houses. Lomasney admits that he used the full powers
of his organization and resources to defeat contestant.
As an example of the methods employed, your committee refers to the
fact that at the primary election the names of a number of young men
who were absent from Boston in the military or naval service of the
country were voted on, among these being the son of the president of
the Hendricks Club and the son of the secretary of that organization.
In each ease where the name of the son was thus fraudulently voted on,
the father was in charge of and present at the polling place at which
such vote was east.
Your committee further points out that one of the workers on behalf
of the contestee, subsequent to the selection, admitted to a friend of
contestant that he had caused to be prepared and distributed stickers
with no gum attached, in order that the person seeking to vote for
Tague would be thwarted in this by the falling off of the sticker after
the ballot had been deposited in the box. Such a sticker without gum
was produced in evidence, but there was in fact no direct evidence
produced showing the distribution at the polls of such ungummed
stickers by workers for the contestee. In corroboration of the
admission of the supporter of contestee, however, your committee found
on 10 ballots crosses after a blank space, with evidence that the paper
in
[[Page 1337]]
said blank space had been moistened, apparently in an endeavor to affix
something thereto.
That Lomasney exercised in this election control over large numbers
of these illegal registrants is demonstrated by the following incident.
Process under authority of ballot-law commissioners of Massachusetts
had been served on a large number of alleged fraudulent voters in the
investigation of the primary election. They refused to appear. The
commission intimated that their absence might militate against the
eontestee. Lomasney thereupon appeared in the court room at the head of
some 45 alleged witnesses. He admitted when testifying in the
congressional investigation that he had ordered these witnesses
produced. He refused to render like assistance to Congress. Questions
as to his ability and willingness to assist Congress in the production
of evidence sought under its authority in conformity with the procedure
prescribed by it in statutes were excluded by the notary public,
Mancowitz, who functioned on behalf of contestee. In this the notary
grossly exceeded his authority. His performance during the hearing
presents a curious admixture of ignorance and impudence. The attitude
of Lomasney, Mancowitz, and certain others present at the congressional
proceedings on behalf of contestee was one of defiance of the authority
of Congress and resentment at its interference in what they deemed
their local affairs.
In the face of all this evidence contestee contents himself with a
bare denial and produces no testimony to refute it.
Mr. Robert Luce, of Massachusetts, submitted minority views to
accompany the committee report. Those views provided in part:
In the present case it was shown that illegal registration had also
taken place in the wards carried by Mr. Tague, and although no attempt
was made to prove it existed there to such an extent as in the wards
carried by Mr. Fitzgerald, there was nothing to indicate that even if
it were possible to prove in specific instances for whom illegal votes
were cast, it would be shown that no considerable number of such votes
were cast for Mr. Tague.
2. Mr. Tague had been twice elected to Congress under the same
conditions as those of which he now complains. In each instance he
sought and accepted the support of Martin M. Lomasney, a ward leader
whom he now charges with being responsible for the frauds alleged. As a
candidate for a third term, he again sought the support of Mr.
Lomasney, and only when that was refused did he show any objection
whatever to the methods by which he had profited and with which he was
thoroughly familiar. For many years it has been common knowledge in
Boston that many men whose real homes are in the suburbs, make an
annual pretense of living in the locality here concerned, for
financial, political, or social reasons. It has also been commonly
known that men in unreasonably large numbers have been registered from
lodging houses, with the effect of making impersonation easy, inasmuch
as repeaters can vote on the names of such men with little fear of
detection. Mr. Tague took no offense at this state of affairs while it
accrued to his advantage. He then made no request to the election
commissioners that lists should be purged. He employed no
investigators, no challengers. He did not assume it to be a part of
good citizenship to lay the facts
[[Page 1338]]
before the legislature and suggest a remedy. He acquiesced in what he
now declares to be fraud, because that was then to his benefit. It is a
cardinal principle of justice that he who seeks equity must come into
court with clean hands. A man may not profit by fraud both coming and
going. Mr. Tague is estopped by his previous acquiescence.
Mr. Overstreet and Mr. Johnston contended in their minority views:
There is not one case of illegal registration conclusively proven.
There was no proof of one illegal vote cast for Mr. Fitzgerald. There
has not been a single name stricken from ward 5 voting list on Mr.
Tague's charges; in fact, recent information discloses that the voting
list this year just completed shows 280 more voters registered in ward
5 than a year ago when this election took place.
The majority of the committee bases its decision on the unsupported
testimony of contestant, which was the result of information received
from canvassers, and clearly inadmissible in any court of law, and
never before was received before a congressional committee.
The contestant in his brief practically admitted that he had not
proved his allegation of illegal registration. He claims, however, that
because his unsubstantiated allegations were not answered by the
persons involved he is excused from proving them. This position is
unsound for the reasons:
First. The burden of proof is on the contestant.
Second. There is a presumption that the certified voting lists are
correct and in compliance with the law.
Contestant attacks the right of many persons to vote where listed
and registered in this district, claiming that they have no legal
domicile there.
Every man must have a domicile. It is undisputed that he has a
right to choose his domicile. In the ease of men having several homes,
they have the right to choose any one of them as their domicile. In the
ease of men moving from place to place, it is clearly their right to
choose their domicile, and the question of domicile is a question of
intent. . . .
Ward 5 comprises nearly the entire business section of Boston, with
its great hotels, docks, and wharves, great banks and warehouses, the
two great railroad terminals of Boston, the statehouse, post office,
customhouse, city hall, and the county courts. It has a highly
diversified population in which are represented all of the European
countries, as well as the native Yankee. There are many small hotels
and lodging houses. There are a great many places where men only live
for a short while, and move from place to place. There are many
unfortunate men who are compelled by force of circumstances to live in
these cheap places, but who have the right to a domicile and the right
to vote. These men can not be disfranchised because they happen to live
in a different house or on a different street at election time than
they did at the time they were listed by the police.
In Boston, men, in order to vote at election, must be listed where
they reside the first week of April. If they are so listed they have
the right to vote
[[Page 1339]]
from such residence if qualified and later registered. (See sec. 14,
chap. 835, acts of 1914.)
All of the witnesses stated that they were listed and registered in
ward 5 where they lived and nowhere else. Now, if these men live there
intending that it shall be their domicile, they can not be listed
elsewhere, and without listing they would not be entitled to vote
elsewhere, and would therefore be disfranchised.
Here is the law on this matter:
See. 69. In Boston there shall be a listing board
composed of the police commissioner of said city and one
member of the board of election commissioners.
Sec. 70. The listing board shall, within the first seven
week days of April in each year, by itself or by police
officers subject to the jurisdiction of the police
commissioner, visit every building in said city, and after
diligent inquiry make true lists, arranged by streets, wards,
and voting precincts, and containing as nearly as the board
can ascertain, the name, age, occupation, and residence on
the first day of April in the current year, and the residence
on the first day of April in the preceding year, of every
male person twenty years of age or upwards, who is not a
pauper in a public institution, residing in said city. Said
board shall designate in such lists all buildings used as
residences by such male persons in their order on the street
where they are located, by giving the number or other
definite description of every such building so that it can be
readily identified, and shall place opposite the number or
other description of every such building the name, age, and
occupation of every such male person residing therein on the
first day of April in the current year, and his residence on
the first day of April in the preceding year.
The board shall place in the lists made by it, opposite
the name of every such male person or woman voter, the name
of the inmate, owner or occupant of the building, or the name
and residence of any other person, who gives the information
relating to such male person or woman voter. (Chap. 835.
Listing and Registration of Voters in Boston.)
As shown above in the statute the name of the informant must be
given to the police, so that this evidence was available to show
whether or not these men were bona fide residents.
Under this system in ward five, the police listed over 22,000 male
persons on the 1st of April 1918, six months before the election, and
at a time when Mr. Tague and Mr. Lomasney's relations were most
friendly, as shown by Mr. Tague's letter to Mr. Lomasney, which appears
in the evidence, under date of March 28, 1918, in which he asked him to
send him the name of a contractor whom he could use to get in on
contracts to build some of the cantonments, yet but 4,800 of these
22,000 possible voters were registered on election day in November.
Could any stronger answer be made to Mr. Tague's charge of
colonization?
[[Page 1340]]
It is also worthy of note that an examination of the voting lists
in the three precincts to be thrown out shows that the large majority
of the voters to be disfranchised were on the voting list all the time
that Mr. Tague was in Congress, and were known as his supporters, in
fact were respongible for hie first nomination. This does not look like
colonization to defeat Mr. Tague.
In order to decide that there was illegal registration so as to
invalidate any of the contestee's votes, it must be shown either that
the men charged were acting in conjunction with the contestee or his
friends in fraudulent registration or that the informant or landlord
were doing the same. This was not shown in any case.
Having failed to properly prove this, the contestant, over
contestee's objection, read a prepared list of the names of persons
alleged to be the same persons registered in ward 5, and alleged to be
residents of other districts in other parts of the city, or in Boston
suburbs.
This evidence was gathered by investigators, whose names the
contestant would not divulge, and which was not sworn to. He refused to
allow contestee's counsel to examine the reports from which he was
reading. . . .
Examination with a microscope by experts did not furnish any
evidence to substantiate the charge that stickers lacking gum were
distributed. The fact that dot a single voter testified to having
received a sticker without gum on it made it seem to some of the
committee at any rate extremely improbable that the distribution of
such stickers was general, if indeed it took place at all.
The majority report concluded:
Having found the facts to be as above set forth, it remained for
your committee to apply such remedy as would do justice and would
conform to the law.
Early in the history of congressional contested-election cases, the
doctrine was developed that where precincts or districts were so
tainted with fraud and irregularity that a true count of the votes
honestly cast was impossible, such precincts or districts must be
rejected and the parties to the contest may prove aliunde and receive
the benefit of the votes honestly cast for them. As early as the
Fourteenth Congress, 1815-1817, in the case of Easton v. Scott
(Rowell's Digest, 68); the committee unanimously recommended that the
alleged return from the precinct of Cote Sans Dessein be rejected and
submitted resolutions declaring petitioner entitled to the seat. This
report was recommitted to the committee with instructions to receive
evidence that persons voting for their candidate were not entitled to
vote on the election. Apparently the recommendation of the committee to
reject the vote of the precinct was not questioned. The doctrine thus
laid down by the Elections Committee in the Fourteenth Congress has
been followed in an overwhelming number of cases, the most recent
being--
Horton v. Butler, twelfth Missouri, Fifty-seventh Congress.
(Moore's Digest, 15.)
[[Page 1341]]
Wagner v. Butler, twelfth Missouri, Fifty-seventh Congress.
(Moore's Digest, 20.)
Connell v. Howell, tenth Pennsylvania, Fifty-eighth Congress.
(Moore's Digest, 23.)
Gill v. Catlin, eleventh Missouri, Sixty-second Congress. (Moore's
Digest, 52.)
Gill v. Dyer, twelfth Missouri, Sixty-third Congress. (Moore's
Digest, 84.)
The contention that by this procedure honest voters lost their
franchise and that the parties are deprived of votes honestly cast for
them is overcome by the rule that evidence aliunde may be received to
establish what persons honestly voted in such precincts and for whom.
Contestee after notice of the charge and after knowledge of the
testimony in support thereof that so many fraudulent votes had been
cast in the fourth, eighth, and ninth precincts of ward 5 in the city
of Boston as to vitiate the returns from that district had ample
opportunity, particularly in view of the influence and control
exercised over such voters in these precincts by his supporter, Martin
M. Lomasney, to produce persons lawfully entitled to vote in said
precincts and to prove by their testimony that fact and that they had
voted for him. It has at times been suggested that a proper procedure
would be to deduct from the return of a tainted precinct the number of
fraudulent votes proved and if it can not be established for whom such
fraudulent votes were cast to apportion the loss pro rata between the
contesting parties. This course would result in the election of the
contestant. Your committee, however, is unwilling to adopt this
procedure and base its recommendations thereon, because it believes
that the number of fraudulent votes in these precincts was greater than
the number actually proved; that in the conditions obtaining such
fraudulent votes were not cast pro rata between the parties to this
contest; that it is a bad precedent and consequently your committee is
unwilling to assume responsibility therefor and that as a remedy for
the conditions developed by the evidence it is inadequate. Your
committee rejects the suggestion that the seat be declared vacant. Such
a course in the state of facts proved in this case is contrary to the
established practice of the House of Representatives. It is unfair to
the contestant and to the honest voters of the tenth congressional
district of Massachusetts, the majority of whom voted for him. It is
repugnant to the legal maxim that there should be an end to litigation.
It is withholding by the House of Representatives the full measure of
its disapprobation which it ought to set upon the situation disclosed
in this case.
Rejecting these three precincts, your committee finds that the
contestant, Peter F. Tague, on the face of the returns, without
considering the changes made by the committee in its recount of the
ballots, received a plurality of 316 votes over the contestee, John F.
Fitzgerald. Giving effect to the revision of the count of ballots, your
committee finds that contestant had a plurality of 525.
For the reasons assigned, your committee recommends to the House
the adoption of the following resolutions:
1. That John F. Fitzgerald was not elected a Member of the House of
Representatives from the tenth congressional district of the State of
Massachusetts in this Congress and is not entitled to retain a seat
herein.
[[Page 1342]]
2. That Peter F. Tague was duly elected a Member of the House of
Representatives from the tenth congressional district of the State of
Massachusetts in this Congress and is entitled to a seat herein.
Mr. Luce submitted:
With the conclusion of the majority of the committee that the seat
now occupied by John F. Fitzgerald should be declared vacant I agree,
but I am of the opinion that Peter F. Tague should not be declared to
have been elected, for these reasons: 1. It is not possible to show
that Mr. Tague received a plurality of the votes legally cast. 2. The
illegal registration of which Mr. Tague complains and which furnishes
the only sufficient ground for vacating the seat was a continuance of
the conditions that Mr. Tague twice accepted when to his advantage, and
that aroused his protest only when turned to his detriment. He may not
profit by fraud at which he had connived. 3. To reject the polls of
three precincts is not justifiable. 4. When an election is tainted with
fraud, the proper remedy is a new election.
. . . The proposal to change the result of an election by rejecting
the poll of three precincts raises a question of fundamental importance
that the House may usefully consider. It seems rarely if ever to have
been fully discussed on its merits, either because involved with
partisan considerations or because ignored. Yet resort to the device
has become so frequent, its dangers are so manifest and manifold, it so
lends itself to partisan abuse, that on an occasion when the issue is
between two men of the same political faith, the House may well take
advantage of the opportunity to declare, without suspicion of prejudice
or bias, what it may deem to be the true rule. . . .
The doctrine that there should be resort to other proof is laid
down in numerous cases, but unfortunately they are silent as to what
should be done if such proof is not available. For such a situation it
seems to me the true rule should be that laid down by a majority of the
committee in the congressional case of Curtin v. Yocum, in 1880:
It will be seen from all the authorities that where a new
election can be held without injury it is the safest and most
equitable rule to declare the election void and refer the
question again to the people in all eases where there are a
greater number of illegal votes proven, but for whom they
voted does not appear, than the return majority of the
incumbent.
Mr. Overstreet and Mr. Johnston concluded:
If 11 cases or more of illegal registration were shown, and it was
also shown that these men had voted for the contestee, or from all the
circumstances it could be reasonably inferred that they did, these
votes taken from the contestee would give contestant a plurality.
If contestant could have proven these illegal registrations, what
is the necessity of disfranchising hundreds of honest voters?
The majority committee report states that there are 316 eases of
illegal registration on prima facie evidence. We deny this, but, if
that is so, and
[[Page 1343]]
they could show that more than 11 cast their votes for contestee,
contestant would be elected, and no honest voter would be
disfranchised.
The action of the committee is indefensible for the reason that
hundreds of honest voters are disfranchised on insufficient evidence of
illegal registration, whereas if only a few eases were proven
conclusively the same result could be obtained. . . .
The majority report would seem to indicate that the contestee
should have proven that he was elected.
It says that he could have easily brought hundreds of men in to
show that they voted for him.
It is a new doctrine that the burden of the proof is on the
contestee. The burden is absolutely on the contestant, and it does not
shift. There was no responsibility on contestee to bring any of these
men to the hearing. If contestant could not prove his ease, there was
no obligation, legal or moral, on part of contestee to help him, and it
should not be lost sight of that Mr. Tague has never appealed to the
election officials or courts of Massachusetts for redress, contenting
himself from the start with the statement that he would fight his case
out on the floor of Congress. It is unbelievable that a State like
Massachusetts would permit such practices as Mr. Tague alleges without
proper means of redress.
Upon such flimsy evidence as this Mr. Tague's whole case rests. He
has not proved a single one of the charges made by him or made in the
brief and argument of his counsel. Both of them charged the various
election officials in Massachusetts who had anything to do with the
case with crookedness and wrongdoing, to Mr. Tague's disadvantage, yet
every member of the committee is satisfied that these officials acted
fairly and conscientiously in the performance of their duties. The
committee was told by Mr. Tague and his counsel that hundreds of
ballots would be found upon which a spurious sticker had been placed,
yet not one was found. No effort has been made by him as far as the
official records show to purge the ward 5 voting lists of any one of
these so-called illegal voters.
Instead, Mr. Tague himself, according to the uncontradicted
testimony at the hearings of this case, stands convicted of using his
own home and his mother's home for what he terms fraudulent
registration.
On page 642 is the testimony of Patrick F. Goggin, a captain in the
Boston fire department, who admitted under oath that he registered from
Mr. Tague's own home, 21 Monument Square, Charlestown, Mass., for
voting purposes, while his wife and four children were living in
Somerville since 1914.
On page 647 of the evidence is the statement of Martin Turnbull,
cousin of Mr. Tague, who admitted that he registered from Mrs. Tague's
home (Mr. Tague's mother) on Corey Street, Charlestown, Mass., while
his wife and little girl lived in Somerville.
On page 568, his counsel, Mr. Joseph P. O'Connell, admitted that he
lived in Brookline, which was his address in the directory at the time
he was elected from Boston to the constitutional convention two years
ago.
[[Page 1344]]
Yet these are the men who want this Congress to disfranchise more
than 1,000 American citizens for the very thing they were doing
themselves in order to give Mr. Tague the seat in Congress now held by
Mr. Fitzgerald.
Mr. Tague was twice elected under the same conditions he now
condemns. Even in this contest he sought the support of the political
organization which he now charges with colonization, and only when he
was refused support did he begin to complain. In our judgment he is by
his conduct estopped.
In conclusion, we submit that the whole case of the contestant
rests on allegations and assertions with no substantial proof and that
the misstatements made by him in connection with the ballots justifies
us in rejecting his uncorroborated testimony about illegal
registration.
We therefore submit for the action of the House the following
resolution [H. Res. 356] in lieu of the resolution offered by the
majority of the committee:
Resolved, That John F. Fitzgerald was duly elected a
Member of the House of Representatives from the tenth
congressional district of the State of Massachusetts in this
Congress, and is entitled to a seat therein.
On Oct. 23, 1919, Mr. Goodall, by direction of the Committee on
Elections No. 2, submitted House Resolution 355:
Resolved, That John F. Fitzgerald was not elected a
Member of the House of Representatives from the tenth
congressional district of the State of Massachusetts in this
Congress and is not entitled to retain a seat herein.
2. That Peter F. Tague was duly elected a Member of the House of
Representatives from the tenth congressional district of the State of
Massachusetts in this Congress and is entitled to a seat herein.
Debate on this resolution was by unanimous consent extended to four
and one-half hours, two hours to be controlled by Mr. Overstreet, 45
minutes by Mr. Luce, and the remaining time to be controlled by Mr.
Goodall with permission for him to yield to contestant for debate. The
previous question was to be considered as ordered on all resolutions
offered. After debate, Mr. Overstreet submitted and then withdrew his
resolution (H. Res. 356) declaring contestee elected and entitled to
retain his seat. Thereupon Mr. Luce offered House Resolution 357 as a
substitute for House Resolution 355:
Resolved, That neither Peter F. Tague nor John F. Fitzgerald was
duly elected a Member of this House from the tenth congressional
district of Massachusetts on the 5th day of November, 1918, and that
the seat now occupied by the said John F. Fitzgerald be declared
vacant.
[[Page 1345]]
This substitute resolution was disagreed to by division vote, 46-
167. House Resolution 357 was thereupon divided for the vote, and both
parts were agreed to by voice vote. [H. Jour. 528, 66th Cong. 1st
Sess.]
Sec. 2.2 Carney v Berger, 5th Congressional District of Wisconsin.
Qualifications of Member.--A Member-elect having been excluded from
seat, after investigation by a special House committee, as not
qualified under section 3 of the 14th amendment of the U.S.
Constitution (for having given aid or comfort to enemies of the U.S.
Government after having taken an oath of office as a Member of a prior
Congress), an elections committee concurred in such findings of
disqualification.
Report of Committee on Elections No. 1 submitted by Mr. Frederick
W. Dallinger, of Massachusetts, on Oct. 24, 1919.
On May 19, 1919, at the organization of the House of
Representatives of the Sixty-sixth Congress, Mr. Frederick W.
Dallinger, of Massachusetts, objected to the administration of the oath
of office to Victor L. Berger and offered the following resolution (H.
Res. 6), which was agreed to [58 Cong. Rec. 9, 66th Cong. 1st Sess; H.
Jour. 7]
Whereas it is charged that Victor L. Berger, a Representative-elect
to the Sixty-sixth Congress from the State of Wisconsin, is ineligible
to a seat in the House of Representatives; and
Whereas such charge is made through a Member of the House, and on
his responsibility as such a Member, and on the basis, as he asserts,
of public records and papers evidencing such an ineligibility:
Resolved, That the question of the prima facie right of Victor L.
Berger to be sworn in as a Representative of the State of Wisconsin of
the Sixty-sixth Congress, as well as of his final right to a seat
therein as such Representative, be referred to a special committee of
nine Members of the House, to be appointed by the Speaker; and until
such committee shall report upon and the House decide such question and
right, the said Victor L. Berger shall not be sworn in or be permitted
to occupy a seat in this House; and said committee shall have power to
send for persons and papers and examine witnesses on oath relative to
the subject matter of this resolution.
(Adoption of the above resolution was vacated by unanimous consent on
June 10, 1919, and the resolution was then amended to incorporate the
initial ``L'' wherever it appears above and readopted.)
Pursuant to House Resolution 6, the select committee after thorough
investigation reported the following resolution (H. Res. 380), which
was agreed to by the House on Nov. 10, 1919 (311 yeas to 1
[[Page 1346]]
nay), after extended debate, and which provided [58 Cong. Rec. 8261,
8262, 66th Cong. 1st Sess.; H. Jour. 571]:
Resolved, That under the facts and circumstances of this case,
Victor L. Berger is not entitled to take the oath of office as a
Representative in this House from the fifth congressional district of
the State of Wisconsin or to hold a seat therein as such
Representative.
Immediately upon the adoption of House Resolution 380, Mr.
Dallinger called up House Resolution 384 from the Committee on
Elections No. 1.
Report No. 414
Contested Election Case, Carney v Berger
i. findings of fact
At the election held in the fifth congressional district of the
State of Wisconsin on November 5, 1918, Victor L. Berger, the
contestee, who was the Socialist candidate, received 17,920 votes;
Joseph P. Carney, the contestant, who was the Democratic candidate,
received 12,450 votes, and William H. Stafford, who was the Republican
candidate, received 10,678 votes. No question is raised in this case as
to the regularity of the election or the correctness of the election
returns.
Victor L. Berger, the contestee, previously had been elected to
Congress as a Socialist to the Sixty-second Congress in 1910 and had
taken the usual oath of a Member of Congress to support the
Constitution of the United States.
On October 3, 1917, the second-class mailing privilege of the
Milwaukee Leader, of which Victor L. Berger, the contestee, was editor
in chief, and for the publication of which he was responsible, was
revoked by the Postmaster General of the United States for a violation
of the provisions of sections 1 and 2 of Title 12 of the act of June
15, 1917, commonly known as the Espionage Act. This action was taken as
a result of the publication of a series of articles evidently printed
in a spirit of hostility to our Government and with the apparent
purpose of hindering and embarrassing the Government in the prosecution
of the war.
On February 2, 1918, the contestee, Victor L. Berger, together with
Adolph Germer, J. Louis Engdahl, William F. Kruse, and Irwin St. John
Tucker, were indicted by the grand jury in the District Court of the
United States for the Northern District of Illinois, for a violation of
sections 3 and 4 of Title 7 of the Espionage Act.
Both of the above facts, as well as the continued activities of the
contestee, both as a member of the national executive committee of the
Socialist Party and as editor in chief of the Milwaukee Leader, were
well known to the voters of the fifth congressional district of the
State of Wisconsin at the election held on November 5, 1918.
[[Page 1347]]
Subsequent to the election, Victor L. Berger, the contestee, and
his codefendants were tried before Judge Landis and a Federal jury at
Chicago, and on January 8, 1919, were found guilty as charged in the
indictment. On February 20, 1919, the contestee was sentenced to 20
years imprisonment in the Federal Prison at Leavenworth, Kans. An
appeal was taken by the contestee to the United States Circuit Court of
Appeals for the Seventh District, which appeal is still pending.
After careful consideration of all the evidence introduced at the
Chicago trial, in addition to the testimony submitted to your
committee, your committee concurs with the opinion of the special
committee appointed under House resolution No. 6, that Victor L.
Berger, the contestee, did obstruct, hinder, and embarrass the
Government of the United States in the prosecution of the war and did
give aid and comfort to its enemies.
ii. law applicable, to the case
There are two questions of law before your committee: First, Is
Victor L. Berger, the contestee, entitled to the seat to which he was
elected? and second, if not, Is Joseph P. Carney, the Democratic
contestant, who received the next highest number of votes, entitled to
the seat?
In regard to the first question, your committee concurs with the
opinion of the special committee appointed under House resolution No.
6, that Victor L. Berger, the contestee, because of his disloyalty, is
not entitled to the seat to which he was elected, but that in
accordance with the unbroken precedents of the House, he should be
excluded from membership; and further, that having previously taken an
oath as a member of Congress to support the Constitution of the United
States, and having subsequently given aid and comfort to the enemies of
the United States during the World War, he is absolutely ineligible to
membership in the House of Representatives under section 3 of the
fourteenth amendment to the Constitution of the United States.
Contestant.--An unsuccessful candidate who had not received a
plurality of votes cast was held not entitled to the seat upon
exclusion of contestee, as English Parliament and state court decisions
and opinion of an individual member of a former elections committee to
the contrary are not precedents binding on the House.
Report recommending contestant not entitled to seat and
recommending declaration of vacancy. Contestant not seated and vacancy
declared by the House.
In regard to the second question, your committee is of the opinion
that Joseph P. Carney, the Democratic contestant, is not entitled to
the seat.
The only congressional precedent cited by counsel for the
contestant is the case of Wallace v. Simpson in the Forty-first
Congress. In this case neither the contestant nor the contestee were
sworn in at the convening of the House of Representatives.
[[Page 1348]]
The matter was referred to the Committee on Elections and a
subcommittee of that committee unanimously reported in favor of the
contestant. This report however was based on three grounds:
First. That the ineligibility of the contestee involved the
election of the contestant.
Second. That the election was void in six of the nine counties and
the contestant had a majority in those counties.
Third. That if no counties were rejected, enough voters were
prevented from voting by violence and intimidation to have given the
majority in the district to the contestant if they had voted.
The first proposition, which is the one on which counsel for the
contestant in the present case relies, was agreed to only by Mr.
Cassna, the chairman of the committee, who drew the report; Mr. Hale,
agreed to the second and third propositions, and Mr. Randall to the
third only. Under a rule of the House at that time a subcommittee was
authorized to report directly to the House, and in this case the
subcommittee recommended that the contestant be seated and the House
accepted the report. (Rowell's Digest of Contested Election Cases,
1790-1901, p. 245.)
It is plainly evident, however, that the proposition that the
ineligibility of the contestee involved the election of the contestant
was simply the opinion of one member of the committee and did not
establish a precedent for the House of Representatives. (Rowell's
Digest of Contested Election Cases, 1790-1901, p. 220.)
In the case of Smith v. Brown, in the Fortieth Congress, which is
cited by counsel for the contestant on the preceding page of his brief,
this question is discussed at great length. In that case Brown, the
contestee, received 8,922 votes, whereas Smith the contestant received
only 2,816 votes. The committee found that Brown, the contestee, had
``voluntarily given aid, countenance, counsel, and encouragement to
persons engaged in armed hostility to the United States'' and was
therefore not entitled to take the oath of office or to be admitted to
the House as a Representative from the State of Kentucky. Counsel for
Smith, the contestant, claimed that it was a conclusion of law that
when the candidate who had received the highest number of votes was
ineligible and that the ineligibility was known by those voting for him
before casting their votes, the votes thus cast for him should be
thrown away and treated as if they were never cast, and that
consequently the minority candidate should be declared elected.
In support of this claim he called attention to a large number of
cases in the Parliament and courts of Great Britain sustaining this
doctrine. After calling attention to the fact that under the English
practice public notice of the ineligibility of the candidate must be
given to the electors at the time of the election, which was not done
in the case at issue, the committee went on to state that it had been
unable to find any such law regulating elections in this country in
either branch of Congress or in any State legislature, and that an
examination of the origin and history of the English rule would show
the impossibility of its application to the American House of
Representatives. (Reports of Committees, 2d sess. 40th Cong., Vol. I,
Report No. 11, p. 6.) . . .
[[Page 1349]]
congress not bound by state decisions in election cases
In the present case counsel for the contestant cites as an
authority the case of Bancroft v. Frear, in volume 144, page 79, of the
Wisconsin Reports. In this case Frank T. Tucker, candidate for attorney
general for the Republican nomination at the primary election held on
September 6, 1910, died on September l, 1910, the fact of his death
being published generally in the newspapers throughout the State. At
the primary election, however, 63,482 votes were cast for him, although
deceased, as against 58,196 for Levi H. Bancroft. Upon these facts, the
Supreme Court of Wisconsin, by a vote of 4 to 3, decided that Bancroft,
who received the next highest number of votes, was entitled to have his
name placed upon the final election ballot as the Republican candidate
for attorney general. As the minority of the court point out in their
dissenting opinion, this decision overruled the well-established and
traditional law of Wisconsin, as laid down in the case of State ex rel.
Dunning v. Giles (144 Wis., p. 101).
It is contended, however, by counsel for the contestant in the
present case that Congress is bound by the laws of the States and
inasmuch as the case of Bancroft v. Frear is now the law in the State
of Wisconsin, that the House of Representatives is bound thereby, and
that Joseph P. Carney, the Democratic contestant, is therefore entitled
to a seat in the House. Such, however, in the opinion of your
committee, is not the law.
In the Mississippi contested election case of Lynch v. Chalmers, in
the Forty-seventh Congress, it was determined by the House of
Representatives that the House does not consider itself actually bound
by the construction which a State court puts on the State law
regulating the times, places, and manner of holding elections and that
the courts of the State have nothing to do with judging elections,
qualifications, and returns of Representatives in Congress. (Hinds'
Precedents, vol. 2, p. 264.) . . .
iii. conclusion
Your committee, upon all the law and the evidence, is of the
opinion that, first, Victor L. Berger, the contestee, is not entitled
to the seat to which he was elected; and, second, that Joseph P.
Carney, the Democratic contestant, who received the next highest number
of votes, is not entitled to the seat. Inasmuch as the special
committee appointed under authority of House resolution No. 6 has
already recommended to the House a resolution declaring the contestee
ineligible, it is not necessary for your Committee on Elections No. 1
to make a similar recommendation. The committee, however, does
recommend the adoption of the following resolutions:
Resolved, That Joseph P. Carney, not having received a
plurality of the votes cast for Representative in this House
from the fifth congressional district of Wisconsin, is not
entitled to a seat therein as such Representative.
Resolved, That the Speaker be directed to notify the
governor of Wisconsin that a vacancy exists in the
representation in this House from the fifth congressional
district of Wisconsin.
[[Page 1350]]
Reported privileged resolution (H. Res. 384) agreed to after brief
debate by voice vote [58 Cong. Rec. 8262, 66th Cong. 1st Sess., Nov.
10, 1919; H. Jour. 572].
Sec. 2.3 Memorial of Albert L. Reeves (Reeves v Bland), 5th
Congressional District of Missouri.
Notice of contest was not served within required time and delay not
excusable; therefore petition by defeated candidate alleging election
fraud denied by committee after Federal Appeals Court had restrained
petitioner from proceeding with statutory contest. Committee report
laid on table after stricken from House calendar, and laid on table.
Seated Member retained seat.
Report of Committee on Elections No. 1 submitted by Mr. Frederick
W. Dallinger, of Massachusetts, on Nov. 7, 1919, follows:
Report No. 449
Memorial of Albert L. Reeves (Reeves v Bland)
The Committee on Elections No. 1, to which was referred the
memorial of Albert L. Reeves praying for an investigation of the
conduct of the election of a Representative in Congress from the fifth
congressional district of Missouri, having completed its investigation
and consideration of the same, respectfully submits herewith its report
to the House of Representatives.
The memorial with the accompanying exhibits will be found in full
on pages 38 to 134, inclusive, of the printed hearings. Its allegations
may be briefly summarized as follows:
1. That at the election held November 5, 1918, according to the
returns William T. Bland, the Democratic candidate for Congress from
the fifth congressional district of Missouri, received 31,571 votes,
and Albert L. Reeves, the Republican candidate, received 18,550 votes.
2. That the Democratic candidate, William T. Bland, was declared
duly elected and on November 19, 1918, the secretary of state issued to
him a certificate of election.
3. That the Republican candidate, Albert L. Reeves, believing that
wholesale frauds had been perpetrated at the election in the interest
of the Democratic candidate, prepared a notice of contest and
complaint, but neither he nor his attorneys were able to procure
service of said notice of contest upon William T. Bland, the contestee,
for the reasons that the latter absented himself from the district and
State during--
practically the entire 30-day period immediately following
the issuance of the certificate of election; that he had
caused his office to be closed and his whereabouts concealed
from the contestant until after the time prescribed by law
within which to serve such notice had expired and until 18
days thereafter, to wit, January 6, 1919, upon which day the
contestant, his attorneys and agents, located the said
William T. Bland at San Diego, Calif., and then
[[Page 1351]]
and there served upon him a copy of said notice of contest
and complaint.
4. That on January 29, 1919, William T. Bland filed a petition in
the circuit court of Jackson County, Mo., praying for an order
enjoining the said Albert L. Reeves from taking any steps as contestant
pursuant to said notice. The case was transferred to the United States
District Court for the Western District of Missouri, which, on February
6, 1919, denied the injunction.
5. That on February 7, 1919, Albert L. Reeves served notice upon
William T. Bland of his intention to take depositions in accordance
with the statutes, beginning February 13, 1919. Thereupon William T.
Bland took an appeal to the United States Circuit Court of Appeals of
the Eighth Circuit, which, on February 10, 1919, granted a temporary
restraining order enjoining Reeves from further proceeding in said
contest.
6. That abundant testimony is obtainable to sustain the allegations
of fraud set forth in the notice of contest and complaint.
Hearings were held by your committee on June 9 and 10, 1919, at
which the petitioner, Albert L. Reeves, was represented by David M.
Proctor, Esq., and Charles C. Madison, Esq., and the respondent,
William T. Bland, was represented by J. G. L. Harvey, Esq.
i. findings of fact
Your committee finds the facts in this case to be as follows:
According to the face of the returns William T. Bland, Democrat,
received 31,571 votes and Albert L. Reeves, Republican, received 18,550
votes, and on November 19, 1918, the secretary of state declared
William T. Bland to be duly elected as Member of Congress from the
fifth district of the State of Missouri and issued to him a certificate
of election.
William T. Bland remained at his home in Kansas City from November
5, 1918, until November 27, when he went to Memphis, Tenn., to visit
his son who was a pilot in the Aviation Service of the Government. On
December 3 he went to Washington, D.C., and from there returned to
Kansas City by way of Memphis, reaching home on December 13, where he
remained until December 23, when he left for California on account of
his wife's health. During all the time he was away from home he was in
constant touch with his office, No. 608 Ridge Arcade, and all important
mail was forwarded to him from there. There was no evidence of any
attempt on his part to conceal his whereabouts or to prevent the
service upon him of any legal paper. Moreover, during the entire period
from November 19, 1918, to December 19, 1918, he had no intimation that
his election was to be contested.
Mr. David M. Proctor, one of the attorneys for Albert L. Reeves,
admitted at the hearings that the notice of contest in the case was not
prepared until December 22, 1918, so that it could not have been served
upon Mr. Bland between November 19 and December 19, even if Mr. Bland
had remained in Kansas City during the entire period.
[[Page 1352]]
The petitioner, Albert L. Reeves, was enjoined from taking any
testimony by order of the United States circuit court of appeals, the
course of the judicial proceedings being accurately stated in the
memorial.
At the hearings before your committee, counsel for the petitioner
presented a large number of sworn affidavits, together with statements
and letters from citizens of Kansas City and numerous editorials and
articles from local newspapers, which indicate the undoubted existence
of deliberate and widespread frauds in many of the wards in Kansas City
at the election held on November 5, 1918. These frauds consisted of
fraudulent registration, repeating, intimidation, and intentional
wrongful counting of ballots.
ii. the law applicable to the case
Section 105 of the Revised Statutes of the United States provides
as follows:
Whenever any person intends to contest an election of any
Member of the House of Representatives of the United States
he shall, within thirty days after the result of such
election shall have been determined by the officer or board
of canvassers authorized by law to determine the same, give
notice, in writing, to the Member whose seat he designs to
contest, of his intention to contest the same, and, in such
notice, shall specify particularly the grounds upon which he
relies in the contest.
While it is true that paragraph 5 for section 5 of Article I of the
Constitution of the United States provides that ``each House shall be
the judge of the elections, returns, and qualifications of its own
Members,'' nevertheless the House of Representatives has never
disregarded the provisions of the act of Congress above quoted
prescribing the method in which contested-election cases must be
conducted, except for cause. In the case of McLean v. Bowman in the
Sixty-second Congress (Moore's Digest of Contested Election Cases,
1901-1917, p. 54), the Committee on Elections No. 1, in its report,
asserted that ``the statute was merely directory and was intended to
promote the prompt institution of contests and to establish a wholesome
rule not to be departed from except for cause,'' but at the same time
held that the excuse of sickness did not justify the contestant in not
serving his notice of contest within the 30 days required by the
statute and that he had lost his rights. Inasmuch, however, as the
contestee in that case had permitted the taking of testimony, the
reference of the case to the committee, and its hearing and argument
before the committee, it was held that he was in no position to object
to such a consideration of the record as would determine in the public
interest whether or not he was entitled to a seat in the House. As a
matter of fact the committee found on the record in the case such fraud
and corruption on the part of the contestee or his agents at the
election that it brought in a resolution declaring the contestee not
elected.
In the present case the evidence shows that the petitioner and
would-be contestant Albert L. Reeves did not sign the notice of contest
until December 31, 1918, which was 12 days after the 30-day period
prescribed by the stat
[[Page 1353]]
ute had expired. (See p. 54 of printed record.) Moreover, the evidence
further shows that the notice was not even prepared by Mr. Reeves's
counsel until December 22, or 3 days after the statutory period had
expired. (See p. 181 of printed record.) In this case, therefore, there
was no excuse for noncompliance with the plain provision of the
statute.
iii. conclusion
As has already been stated a mass of ex parte testimony was before
your committee indicating extensive and widespread frauds in many of
the wards in Kansas City at the last State election and your committee
has been strongly urged by the newspaper press, by various nonpartisan
civic bodies and by numerous citizens of Kansas City of both political
parties to report a resolution providing for an investigation de novo
of the election in the fifth Missouri district. If the facts alleged in
the memorial were true and the petitioner, Albert L. Reeves, had been
prevented from serving the notice required by law by the action of the
sitting Member, Mr. Bland, your committee might have seen its way clear
to report a resolution for an investigation of the conduct of this
election.
It is to be regretted that the plain provisions of the statute
regulating the election contests were not complied with by the
petitioner in this case. The committee is earnestly desirous of
preventing, so far as it is possible for it to do, the existence and
repetition of any such fraud and wanton disregard of law as the ex
parte testimony in this case indicates was practiced in some of the
Kansas City wards at the election on November 5, 1918.
Much of such conduct which is fundamentally destructive of a
representative Government must be dealt with by the conscience,
judgment, and power of the community itself and by the courts of the
State, but as facts may be brought before the committee, within the
time and in the manner provided by law, the committee will always
endeavor to prevent any one from enjoying the fruits of such wrong.
Under the circumstances, however, although viewing with the deepest
concern the charges of wholesale frauds practiced at the last election
in Kansas City, we do not feel justified in granting the prayer in the
memorial and therefore report that no action is necessary thereon.
Privileged committee report, referred to House Calendar (Nov. 7,
1919), stricken from calendar and laid on table by unanimous consent
[58 Cong. Rec. 8350, 66th Cong. 1st Sess., Nov. 11, 1919; H. Jour.
575].
Sec. 2.4 Salts or Major, 7th Congressional District of Missouri.
Ballots, where available as best evidence, were examined and
recounted by an elections committee, while remaining partial recount
was based upon secondary evidence where ballots were not available.
Returns were not rejected in precincts where tally sheets were
irregularly altered by election officials to correct errors, absent
fraud.
[[Page 1354]]
Report of Committee on Elections No. 1 submitted by Mr. Frederick
W. Dallinger, of Massachusetts, on May 11, 1920, follows:
Report No. 961
Contested Election Case, Salts v Major
statement of the case
At the election held in the seventh congressional district of the
State of Missouri on November 5, 1918, according to the official
returns, Sam C. Major, the contestee, who was the Democratic candidate,
received 20,300 votes; and James D. Salts, the contestant, who was the
Republican candidate, received 20,222 votes. As a result of these
returns, Sam C. Major, the contestee, was declared elected by a
plurality of 78 votes over his Republican opponent, James D. Salts, and
a certificate of election was duly issued to him by the secretary of
state of Missouri. . . .
First: that there was a fraudulent alteration of the tally sheet
and official record of the vote as to the candidates for Congress in
the second ward of the city of Sedalia, in Pettis County, whereby 40
tallies were taken from the vote of the contestant and 40 tallies added
to the vote of the contestee, making a change in the net result of the
vote amounting to 80 votes favorable to the contestee and unfavorable
to the contestant, and that, therefore, the contestant should be
credited with 40 additional votes and that the vote of the contestee
should be reduced by 40 votes.
Second: that a mistake was made in the tabulation of the vote in
Boone Township in Green County, whereby through inadvertence and
oversight on the part of the judges of election, the contestant was not
given 37 votes to which he was lawfully entitled and that, therefore,
he should be credited with 37 additional votes.
In his brief, the contestant admits that the contestee is entitled
to 6 additional votes in Bowling Green Township, in Pettis County, and
to 2 additional votes in Sedalia Township in the same county. With
these corrections in the official record, the contestant James D. Salts
claims that he was elected by a plurality of 31 votes over the
contestee Sam C. Major.
On January 16, 1919, the contestee served on the contestant an
answer denying all the allegations contained in the contestant's notice
and making numerous allegations of irregularities in many voting
precincts of the district. In the contestee's brief as filed with the
committee, however, he relied entirely upon the claim that he was
entitled to 6 additional votes in Bowling Green Township, in Pettis
County, and to 2 additional votes in Precinct No. 1, in Sedalia
Township in the same county, and upon the further claim that the entire
vote of the fourth ward of the city of Springfield, in Green County,
should be thrown out and not counted because of the fact that the
election officials in that ward failed to place on the back of the
ballots voted therein the registration number of the voters as required
by the election laws of the State of Missouri.
In this ward, according to the official returns, the contestant
received 206 votes and the contestee 141 votes. The contestee,
therefore, contended that
[[Page 1355]]
the official returns are correct with the exception of the eight
additional votes before referred to, to which he claims that he was
entitled; and with the further exception of the entire vote of the
fourth ward of the city of Springfield which, according to his
contention, should be entirely thrown out. The contestee therefore
claims that he was duly elected by a plurality of 151 votes over the
contestant.
work of the committee
The testimony in the case having been printed, and printed briefs
having been duly filed with the committee by both parties as well as a
reply brief by the contestant, a hearing was given to the parties by
your committee on Tuesday, March 16, 1920, at which oral arguments were
presented by J. O. Patterson, Esq., in behalf of the contestant and by
Frank M. McDavid, Esq., as counsel for the contestee.
At the close of the hearing the committee, believing that the
ballots themselves were the best evidence for determining what actually
took place at the election, voted to request the Sergeant at Arms to
send for the ballots, poll books, and tally sheets in Boone Township,
in Green County, and in the second ward of the city of Sedalia in
Pettis County. The county clerk of Pettis County reported that, in
accordance with the election law of the State of Missouri, he had
destroyed all ballots cast at the election held November 5, 1918, at
the expiration of one year from the date thereof. The county clerk of
Green County, however, in accordance with the Sergeant at Arms'
request, sent the ballots, poll book, and tally sheet in the case of
Boone Township, and on Wednesday, April 21, 1920, your committee
counted the ballots cast in said township with the following result:
Total number of ballots cast................................... 488
========
James D. Salts, Republican, received........................... 291
Sam C. Major, Democrat, received............................... 177
Jonathan H. Allison, Socialist, received....................... 4
Blank ballots.................................................. 16
--------
Total.................................................. 488
------------------------------------------------------------------------
According to the original official count in this township James D.
Salts, Republican, received 259 votes and Sam C. Major, Democrat,
received 175 votes. According to the recount of the committee,
therefore, the contestant James D. Salts was entitled to 32 more votes
than were credited to him by the official count, and the contestee Sam
C. Major was entitled to 2 votes more than he was credited with on the
official count, making a net gain for James D. Salts, the Republican
contestant of 30 votes instead of the 37 which he claimed in his brief.
findings of fact
Your committee therefore finds that the contestant James D. Salts
is entitled to 32 additional votes in Boone Township, Green County; and
that the
[[Page 1356]]
contestee Sam C. Major is entitled to 2 additional votes in Boone
Township, in Green County; to 2 additional votes in Sedalia Township,
and to 6 additional votes in Bowling Green Township, both of which are
in Pettis County, making in all 10 additional votes.
In regard to the vote in the second ward of the city of Sedalia, in
Pettis County, where the contestant claims that through a fraudulent
alteration of the tally sheet 40 votes were taken from him and added to
the vote of his opponent, in the absence of the ballots themselves, the
committee was obliged to rely upon the testimony as contained in the
record of the case. While it is true that the tally sheet and the
official record were altered, the overwhelming weight of the testimony
shows that there was no fraud involved, but that the alterations were
honestly made to correct a mistake of an incompetent election clerk.
The evidence discloses the fact that the two election clerks in this
ward on election day were Charles P. Keck, Republican, and Mark A.
Magruder, Democrat. It also appears from the evidence that Mr. Keck,
the Republican clerk, was a bank cashier, while Mr. Magruder, the
Democratic clerk, was inexperienced in clerical work and had continual
trouble with his tally sheet during the day; and that when the vote was
tabulated on election night it was found that Mr. Magruder's total did
not agree with that of Mr. Keck as to several of the offices, including
that of Congressman. Mr. Kell, the Republican judge of elections,
thereupon instructed Mr. Magruder to make his totals agree with those
of Mr. Keck. In accordance with these instructions Mr. Magruder made
the changes in the tally sheet which are complained of by the
contestant.
That the alterations in the tally sheet were honestly made to
correct a mistake is corroborated by the further testimony that Mr.
Major, the Democratic candidate for Congress, ran ahead of his ticket
in that ward, and received a good many Republican votes. This testimony
is, in turn, supported by the fact that the official returns in other
parts of the district and the ballots in Boone Township, which were
counted by your committee, show conclusively that the name of Mr. Salts
was scratched on the Republican ticket and that Mr. Major, the
Democratic candidate, received more votes than the regular Democratic
ticket. Your committee therefore finds that the official returns of the
second ward in Sedalia, as certified to by the election officers and
the secretary of state, are the correct returns, and that James D.
Salts, the Republican candidate, is not entitled to any additional
votes from said ward.
Your committee therefore finds that at the election held on
November 5, 1918, in the seventh congressional district of the State of
Missouri, Sam C. Major, the Democratic candidate, received 20,310
votes, and that James D. Salts, the Republican candidate, received
20,254 votes, and that, therefore, Sam C. Major, the Democratic
candidate was duly elected over said James D. Salts by a plurality of
56 votes.
State election law.--An elections committee refused to consider
contestee's allegation that a statute requiring placement of
registration numbers on ballots violated the state constitution.
[[Page 1357]]
State election law prohibiting the counting of ballots not
containing registration numbers, though considered mandatory and
sufficient to void entire returns of precinct where such ballots were
cast, became a moot question where rejection of such returns would not
change election result.
Report for contestee, who retained seat.
the question of the vote in the fourth ward of the city of springfield
The committee having found that as a matter of fact Sam C. Major,
the Democratic candidate, was duly elected, it is unnecessary to
consider the claim raised by counsel for the contestee that the entire
vote of the fourth ward of the city of Springfield which was included
in the official returns, should be thrown out. Your committee, however,
is of the opinion that attention ought to be called to the fact that
the precedents of the House of Representatives clearly support the
contention of the contestee in this matter.
It is admitted that section 5905 of the Revised Statutes of the
State of Missouri (1909) provides that in cities where registration of
voters is required--and it is also admitted that Springfield is one of
such cities--the clerks of election shall place on each ballot ``the
number corresponding with the number opposite the name of the person
voting, found on the registration list, and no ballot not so numbered
shall be counted.''
It is further admitted that this provision has been in the statutes
of the State of Missouri for many years and that it has never been
declared to be in conflict with the constitution of that State by any
tribunal either Federal or State.
The contestant in this case claims that this statute is
unconstitutional, but the Committee on Elections No. 1 of this House
said in its report in the case of Gerling v. Dunn, from the thirty-
eighth congressional district of the State of New York in the Sixty-
fifth Congress (65th Cong., 3d sess., Rept. No. 1074, p. 2):
It has not been and should never be the policy of the
House of Representatives to pass upon the validity of State
laws under which elections are held when the complaint is
that the legislative enactment is contrary to the provisions
of the State constitution.
The contestant further claimed that the provision of the Missouri
statute requiring the registration number of the voter to be placed
upon each ballot by the election officers is a directory and not a
mandatory provision, and that the voters of the fourth ward of the city
of Springfield ought not to be deprived of their vote because of the
failure on the part of the election officers to comply with this
provision of the statute. Upon this point also the contention of the
contestant is contrary to the well-established precedents of the House
of Representatives.
In the Alaska contested election ease of Wiekersham v. Sulzer, in
the Sixty-fifth Congress, the whole question of mandatory and directory
provi
[[Page 1358]]
sions of election statutes was discussed at length by the Committee on
Elections No. 1 of that Congress. The committee in its report (65th
Cong., 3d sess., Rept. No. 839, p. 6) said:
It has been repeatedly held that where the law itself
forbids the counting of ballots of certain kinds or forms
that do not meet the provisions of the statute it is
mandatory, and that it should be so construed by the courts.
In support of this doctrine the committee cited the cases of Miller
v. Elliot, in the Fifty-second Congress (Rowell's Digest, p. 461),
Thrasher v. Enloe, in the Fifty-third Congress (Rowell's Digest, p.
487), and also quoted with approval the case of Horsefall v. School
District (143 Mo., 542), in which the court lays down the well-
established law involved in this question, as follows:
If the statute provides specifically that a ballot not in
prescribed form shall not be counted, then the provision is
mandatory and the courts will enforce it; but if the statute
simply provides that certain things shall be done and does
not prescribe what results shall follow if these things are
not done, then the provision is directory merely.
In the present case the Missouri statute provides specifically that
``no ballot not so numbered shall be counted,'' and is clearly
mandatory and not directory. Accordingly, if the other facts in the
case did not clearly show that Sam C. Major, the Democratic candidate,
was duly elected, the committee would be obliged, if it followed its
own precedents, to hold as a matter of law that the vote of the fourth
ward of the city of Springfield should be entirely thrown out. If this
were done, then even if the entire contention of the contestant as set
forth in his brief were granted, the contestant would have only 20,093
votes, whereas the contestee would be entitled to 20,127 votes and
would still be elected by a plurality of 34 votes.
If, however, we take the facts as to the correct returns of the
election as found by the committee in this report and then throw out
the entire vote of the fourth ward of the city of Springfield in
accordance with the law and the precedents of Congress, it would make
the total vote of the contestee, Sam C. Major, 20,169 and the total
vote of James D. Salts, the contestant, 20,048, which would give the
contestee a plurality of 121 votes over the contestant.
conclusion
Your committee, therefore, for the reasons hereinbefore stated,
respectfully recommends to the House of Representatives the adoption of
the following resolutions:
Resolved, That James D. Salts was not elected a
Representative in this Congress from the seventh
congressional district of the State of Missouri and is not
entitled to a seat herein.
[[Page 1359]]
Resolved, That Sam C. Major was duly elected a
Representative in this Congress from the seventh
congressional district of the State of Missouri and is
entitled to retain a seat herein.
Privileged resolution (H. Res. 562) agreed to by voice vote after
brief debate [59 Cong. Rec. 7231, 66th Cong. 2d Sess., May 18, 1920; H.
Jour. 412].
Sec. 2.5 Bodenstab v Berger, 5th Congressional District of Wisconsin.
Qualifications of Member.--A Member-elect having been elected to
fill the vacancy caused by his initial exclusion from his seat and
having again been excluded by the House as not qualified under section
3 of the 14th amendment to the U.S. Constitution, an elections
committee again concurred in such disqualification.
Report of Committee on Elections No. 1 submitted by Mr. Frederick
W. Dallinger, of Massachusetts, on Feb. 5, 1921, follows:
Report No. 1300
Contested Election Case, Bodenstab v Berger
i. findings of fact
At the regular election held in the fifth congressional district of
the State of Wisconsin, on November 5, 1918, Victor L. Berger, the
contestee, who was the Socialist candidate, received 17,920 votes;
Joseph P. Carney, who was the Democratic candidate, received 12,450
votes; and William H. Stafford, who was the Republican candidate,
received 10,678 votes.
No question was raised in that case as to the regularity of the
election or the correctness of the election returns.
Objection, however, was made on the floor of the House to the
swearing in of Victor L. Berger, the contestee, when he presented
himself with his certificate of election, and the question of his
eligibility to a seat in the House was referred to a special committee,
which was appointed by the Speaker May 21, 1919.
After an exhaustive investigation this special committee, on
October 24, 1919, submitted its report to the House of Representatives,
which report was printed as Report No. 413 of the first session of the
Sixty-sixth Congress. After a long debate, in the course of which
Victor L. Berger, the contestee, was given every opportunity to speak
in his own behalf, the House of Representatives on November 10, 1919,
by a vote of 311 to 1 on a roll call, adopted the following resolution:
Resolved, That under the facts and circumstances of this
case, Victor L. Berger is not entitled to take the oath of
office as a Representative in this House from the fifth
congressional district of the State of Wisconsin or to hold a
seat therein as such Representative. [Congressional Record,
Sixty-sixth Congress, first session, p. 8727.]
[[Page 1360]]
The ground upon which the committee made its report and upon which
the House adopted the above resolution recommended by the committee was
that Victor L. Berger, the contestee, was ineligible under the
fourteenth amendment to the Constitution of the United States to
membership in the House of Representatives for the reason that having
been previously elected to the Sixty-second Congress in 1910 and having
taken the usual oath of a Member of Congress to support the
Constitution of the United States, he had subsequently given aid and
comfort to the enemies of the United States during the War with
Germany.
Shortly after the appointment of the special committee above
referred to, the contested-election case of Joseph P. Carney v. Victor
L. Berger, from the fifth congressional district of the State of
Wisconsin, was duly referred to the Committee on Elections No. 1, and
this committee, after a careful investigation, on October 24, 1919,
submitted its report to the House of Representatives, which report is
printed as Report No. 414 of the first session of the Sixty-sixth
Congress. In this report the Committee on Elections No. 1 concurred in
the findings of the report of the special committee, that Victor L.
Berger, the contestee, was not entitled to the seat to which he was
elected on the face of the returns, and also found that Joseph P.
Carney, his Democratic contestant, who received the next highest number
of votes, was not entitled to the seat, the committee recommending the
adoption of the following resolution, which was adopted by the House of
Representatives on November 10, 1919, without a division:
Resolved, That Joseph P. Carney, not having received a
plurality of the votes cast for Representative in this House
from the fifth congressional district of the State of
Wisconsin, is not entitled to a seat therein as such
Representative.
Resolved, That the Speaker be directed to notify the
governor of Wisconsin that a vacancy exists in the
representation in this House from the fifth congressional
district of Wisconsin. [Congressional Record, Sixty-sixth
Congress, first session, p. 8728.]
Subsequently the governor of Wisconsin called a special election to
fill the vacancy from the fifth congressional district of the State of
Wisconsin.
At this special election, held in the fifth congressional district
of the State of Wisconsin on December 19, 1919, Victor L. Berger, the
contestee, who was the Socialist candidate, received 24,350 votes and
the contestant, Henry H. Bodenstab, who was the Republican candidate
and endorsed by the Democratic Party, received 19,566 votes.
No question was raised in this case as to the regularity of the
election or the correctness of the election returns.
When the contestee, Victor L. Berger, to whom a certificate of
election had been issued, appeared to take the oath of office on
January 10, 1920, the House of Representatives adopted the following
resolution on a roll call by a vote of 330 to 6:
Whereas Victor L. Berger, at the special session of the
Sixty-sixth Congress, presented his credentials as a
Representative
[[Page 1361]]
elect to said Congress from the fifth congressional district
of the State of Wisconsin; and
Whereas on November 10, 1919, the House of
Representatives, by a vote of 311 to 1, adopted a resolution
declaring that ``Victor L. Berger is not entitled to take the
oath of office as a Representative in this House from the
fifth congressional district of the State of Wisconsin or to
hold a seat therein as such Representative,'' by reason of
the fact that he had violated a law of the United States,
and, having previously taken an oath as a Member of Congress
to support the Constitution of the United States, had given
aid and comfort to the enemies of the United States, and for
other good and sufficient reasons; and
Whereas the said Victor L. Berger now presents his
credentials to fill the vacancy caused by his own
ineligibility; and
Whereas the same facts exist now which the House
determined made the said Victor L. Berger ineligible to a
seat in said House as a Representative from said district:
Now, therefore, be it
Resolved, That by reason of the facts herein stated, and
by reason of the action of the House heretofore taken, the
said Victor L. Berger is hereby declared not entitled to a
seat in the Sixty-sixth Congress as a Representative from the
said fifth district of the State of Wisconsin and the House
declines to permit him to take the oath and qualify as such
Representative. [Congressional Record, Sixty-sixth Congress,
second session, p. 1399.]
No action, however, was taken at that time upon the contested-
election case of Henry H. Bodenstab v. Victor L. Berger, for the reason
that the pleadings required by statute had not at that time been
completed, and the case, therefore, had not reached the House of
Representatives. The testimony and briefs did not reach the Clerk of
the House of Representatives and the case was not referred to your
Committee on Elections No. 1 until shortly before the end of the second
session of the Sixty-sixth Congress.
Inasmuch as two committees of the House of Representatives have
twice reported that Victor L. Berger, the contestee, is not eligible to
membership in the House of Representatives, and inasmuch as the House
of Representatives itself has twice, by an overwhelming vote, refused
to seat the said Victor L. Berger, the contestee, on the ground that he
is ineligible to membership therein, and inasmuch as there is no
additional testimony in this case, your committee finds that Victor L.
Berger, the contestee, is ineligible to membership in the House of
Representatives, but recommends no resolution, for the reason that the
House of Representatives has already finally determined that question
so far as the present Congress is concerned.
Contestant.--An unsuccessful candidate who had not received a
plurality of votes cast in the special election was held not entitled
to a seat upon exclusion of contestee, even though voters had notice of
contestee's ineligibility, as precedents cited by contestant either
were not binding on the House or were distinguishable on the facts.
[[Page 1362]]
Majority report recommending contestant not entitled to seat.
Minority views for contestant, who was not seated.
This committee having previously reported in the case of Joseph P.
Carney v. Victor L. Berger that Joseph P. Carney, the Democratic
contestant, was not entitled to a seat in the House of Representatives
for the reason that he did not receive a plurality of the votes cast in
the district, the only question of fact that remains to be considered
is whether the facts of the present case furnish any additional reason
why this committee should reverse its former opinion and find that the
Republican contestee, Henry H. Bodenstab, should be declared entitled
to a seat in the House of Representatives.
At the time of the regular election, on November 5, 1918, Victor L.
Berger, the contestee, had been indicted by a grand jury in the
District Court of the United States for the Northern District of
Illinois, for violations of sections 3 and 4, title 7, of the espionage
act. On the other hand, at the time of the special election held on the
19th day of December, 1919, Victor L. Berger, the contestee; had been
convicted of the crime for which he had been indicted by the United
States District Court for the Northern District of Illinois, and had
been sentenced to 20 years' imprisonment in the Federal prison at
Leavenworth, Kans. Moreover, at the time of said special election
Victor L. Berger, the contestee, had been declared ineligible to a seat
in the House of Representatives by resolution adopted by the House of
Representatives on November 10, 1919, to which reference has already
been made. As a matter of fact, therefore, the voters of the fifth
congressional district of the State of Wisconsin had notice of the fact
that Victor L. Berger, the contestee, had been adjudged ineligible to a
seat in the House of Representatives, and in spite of that fact 24,350
legal voters of the district voted for him for the office of
Representative in Congress.
ii. law applicable to the case
In the previous contested-election case of Carney v. Berger,
counsel for the contestant, Joseph P. Carney, cited as an authority the
case of Bancroft v. Frear in volume 144, page 79 of the Wisconsin
Reports, which case is also cited by the contestant in the present
case. In that case Frank T. Tucker, candidate for attorney general for
the Republican nomination at the primary election held on September 6,
1910, died on September 1, 1910, the fact of his death being published
generally in the newspapers throughout the State. At the primary
election, however, 63,482 votes were cast for him, although deceased,
as against 58,196 votes cast for Levi H. Bancroft. Upon these facts the
Supreme Court of Wisconsin, by a vote of 4 to 3, decided that Levi H.
Bancroft, who received the next highest number of votes, was entitled
to have his name placed upon the final election ballot as the
Republican candidate for attorney general. As the minority pointed out
in their dissenting opinion, this decision overruled the well-
established and traditional law of Wisconsin as laid down in the case
of State ex rel. Dunning v. Giles (144 Wis., 101).
[[Page 1363]]
The only congressional precedent cited by counsel for the
contestant in the case of Carney v. Berger is the case of Wallace v.
Simpson, in the Forty-first Congress, which your committee found was no
precedent at all, for the reason that only one of the members of the
Committee on Elections in that case contended for the doctrine that the
ineligibility of the contestee involved the election of the contestant,
the case having been decided by a majority of the committee on other
grounds. (Rowell's Digest of Contested Election Cases, 1790-1901, p.
2450.)
On the other hand, in the case of Smith v. Brown, in the Fortieth
Congress, while the Committee on Elections at that time found that the
doctrine that where a contestee receives a majority of the votes cast
but is found to be ineligible, the candidate having the next highest
number of votes is entitled to his seat, has been the prevailing
doctrine in Great Britain, it never has been recognized by the United
States House of Representatives. . . .
The committee also found that precisely the same question was
raised in the contested-election case of Maxwell v. Cannon in the
Forty-third Congress; in the case of Campbell v. Cannon, in the Forty-
seventh Congress; and in the case of Lowry v. White, in the Fiftieth
Congress; in all of which the Committee on Elections of the House of
Representatives rejected the doctrine that where the candidate who
received the highest number of votes is ineligible, the candidate
receiving the next highest number of votes is entitled to the office.
In the previous case of Carney v. Berger, your committee also
considered very carefully the general question of whether Congress is
bound by the law of the State in which the contest arises.
After an exhaustive examination of the authorities, your committee
came to the unanimous conclusion that where the law of a State in a
matter of this kind is contrary to the unbroken precedents of the House
of Representatives in election cases the congressional precedent must
prevail, anything in the laws of the State or decisions of its supreme
court to the contrary notwithstanding.
While it is true that in the present case the voters of the fifth
congressional district of Wisconsin can fairly be said to have had
constructive notice of the fact that Victor L. Berger, the contestee,
was ineligible to membership in the House of Representatives, which
circumstance was lacking in the case of Carney v. Berger, nevertheless
this additional fact offers no reason why your committee and the House
of Representatives should allow a decision of the Supreme Court of
Wisconsin or of any other State to override an unbroken line of
congressional precedents and establish a new rule in determining
contested-election cases in the Congress of the United States.
In the present case counsel for the contestant cites as additional
authority for seating the contestant, Henry H. Bodenstab, the case of
McKee v. Young, in the Fortieth Congress, and asks that the 24,350
votes returned as being cast for Victor L. Berger, the contestee, be
thrown out as illegal votes, leaving the 19,566 votes cast for Henry H.
Bodenstab, the contestant, as the only legal votes cast, which would
result in a unanimous election for Mr. Bodenstab, the contestant. Your
committee, however, fails to find any parallel between the present case
and the case of McKee v. Young. In the latter
[[Page 1364]]
case the contestant claimed the right to the seat on the ground that
the ineligibility of the majority candidate gave the seat to the person
having the next highest number of votes. The Committee on Elections,
however, overruled this contention in accordance with the unbroken
practice of the House of Representatives. The contestant then claimed
to have received a majority of the votes legally cast.
There was evidence in that case tending to show that over 2,000
returned Confederate soldiers voted for the contestee, although the
specific proof only showed 752 by name. The contestant also claimed
that the entire vote in certain election precincts should be thrown out
on the ground that the officers of election in those precincts were
returned Confederate soldiers. The majority of the committee held that
the votes cast by the Confederate soldiers should be rejected on the
ground that they were paroled prisoners not yet pardoned. The
proclamation of amnesty issued by the President of the United States
had expressly excepted ``all prisoners who left their homes within the
jurisdiction and protection of the United States and passed beyond the
Federal military lines into the pretended Confederates States for the
purpose of aiding the rebellion.'' This necessarily applied to all
Confederate soldiers from Kentucky, and, consequently, not having been
pardoned they were still prisoners of war and had no more right to vote
for representative in Congress than an enemy in the field. The majority
of the committee also held that the congressional statute requiring the
judges of election to be of opposite political parties and
disqualifying rebel adherents from acting as election officers were
mandatory and that the entire vote of the precincts where this act was
violated should be rejected on the ground that no legal election had
been held therein. Throwing out the entire vote of these precincts and
the votes of the Confederate soldiers before referred to, the majority
of the committee found that the contestant received a majority of the
votes cast and was entitled to his seat. (See Rowell's Digest of
Contested Election Cases, 1789 to 1901, pp. 222 to 224.)
In the present case there was no evidence whatever submitted to
your committee that a single one of the 24,350 votes cast for the
contestee, Victor L. Berger, was illegal either because the voter had
borne arms against the United States or had given aid and comfort to
the enemy during the war with Germany. The contentions advanced by
counsel for the contestee that all of the persons who voted for Victor
L. Berger, the contestee, were as ineligible to cast their votes as the
man for whom they voted was ineligible to a seat in the House of
Representatives, or that they should be punished by being compelled to
be represented in Congress by a person who was not the choice of the
people of the district, are equally untenable.
Upon this point your committee again calls the attention of the
House to the clear and convincing statement of the Committee on
Elections of the House of Representatives in its exhaustive report in
the contested-election case of Smith v. Brown in the Fortieth Congress:
As Congress, much less the House of Representatives,
never conceded, never having the power to concede, to a voter
his right to the ballot, neither can it take away, modify, or
limit it. Least
[[Page 1365]]
of all can this body, the House alone, punish a voter for
``obstinacy'' or ``perversity'' in the exercise of his right.
. . . It can not touch a voter or prescribe how he shall
vote, nor can it impose a penalty on him, much less
disfranchise him or say what shall be the effect or the power
of his ballot if it be cast in a particular way. The laws of
the State determine this. . . .
As has been shown, Parliament did enact a law that votes
cast for one ineligible shall be treated as if not cast and
one having a minority of the votes be thus elected. But
neither has Congress nor Kentucky enacted any such law; much
less can this House alone by a resolution set it up, and that
too after the fact as a punishment for ``willful obstinacy
and misconduct.'' The right of representation is a sacred
right which can not be taken away from the majority. That
majority by perversely persisting in casting its vote for one
ineligible can lose its representation, but never the right
to representation while the Constitution and the State
government shall endure. [Reports of committees, 2d sess.,
40th Cong., vol. 1, Rept. No. 11, p. 6. The italics are the
committee's.]
iii. conclusion
Your committee therefore, upon all the law and the evidence, is of
the opinion that while Victor L. Berger, the contestee, is not entitled
to the seat to which he was elected at the special election held in the
fifth congressional district of the State of Wisconsin on December 19,
1919, and it has been so held by the resolution adopted by the House of
Representatives on January 10, 1920, to which reference has already
been made, neither is Henry H. Bodenstab, the contestant, entitled to a
seat in the House of Representatives for the reasons already set forth.
The committee therefore recommends the adoption of the following
resolution (H. Res. 696):
Resolved, That Henry H. Bodenstab, not having received a
plurality of the votes cast for Representative in this House
from the fifth congressional district of Wisconsin, is not
entitled to a seat therein as such Representative.
The following minority views were submitted by Mr. Clifford E.
Randall, of Wisconsin:
finding of facts
The findings of fact as stated by the majority report of the
committee are substantially correct and the repetition of such facts
herein will serve no useful purpose.
law applicable to the case
Under the so-called English rule, if the candidate at an election
who receives the highest number of votes is ineligible and his
disqualification is known to the electors, before they vote for him,
their votes are to be consid
[[Page 1366]]
ered as thrown away and the candidates who receives the next highest
number of votes shall be declared elected, if he be qualified. (Rex v.
Parry, 14 East, 549, 104 Eng. Reprint, 712; Reg ex rel. Mackley v.
Cook, 3 El. and Bl., 249, 118 Eng. Reprint, 1133; Rex v. Hawkins, 10
East, 211, 103 Eng. Reprint, 755.)
The English courts of law have unanimously held this rule to be the
correct doctrine, and such principle has been declared by the uniform
and unbroken current of decisions in the British Parliament from the
earliest to the present time.
The rule affirmed by the courts of the United States is that a
majority or plurality of votes cast at a popular election for a person
ineligible to the office for which such votes are cast, does not confer
any right or title to the office upon such an ineligible candidate.
Nevertheless the votes so cast will be effectual to prevent the
election of an eligible person who received the next highest number of
votes in the absence of proof of the fact that the votes cast for the
ineligible candidate were given by the electors with the full knowledge
or notice, either actual or constructive, of his ineligibility or
disqualification.
The precise question involved in this case has never been before
the House of Representatives. The majority opinion refers to, relies
upon, and quotes with approval several House decisions in election
cases which are supposed to be inconsistent with the principles of law
hereinbefore stated. Examination of these cases demonstrates clearly
that in none of them was it established that the electors had knowledge
of the ineligibility of the candidate voted for. . . .
As hereinbefore stated, all the election cases cited by the
majority and herein discussed, namely, Smith v. Brown (40th Cong.),
McKee v. Young (40th Cong.), Maxwell v. Cannon (43d Cong.), Campbell v.
Cannon (47th Cong.), and Lowry v. White (50th Cong.), as well as Carney
v. Berger (66th Cong.), fail to establish that the electors had
knowledge of the ineligibility of the candidates voted for. These cases
are authority only for the rule that where the voters do not know of
the disqualification the majority or plurality of the votes cast for a
person ineligible to the office for which such votes are cast does not
confer any right or title to the office upon such ineligible candidate,
but are effectual to prevent the election of an eligible person who
received the next highest number of votes and the election will be
deemed a nullity.
The testimony, exhibits, and facts in the case under consideration
indisputably prove that the electors of the fifth congressional
district of Wisconsin had actual knowledge of the ineligibility of
Victor L. Berger. Prior to the election Mr. Berger had been convicted
of a violation of the espionage act and sentenced to 20 years
imprisonment at the Federal prison at Fort Leavenworth; and after
extended hearings had been excluded from membership in the Sixty-sixth
Congress by a record vote of 311 to 1. The calling by the governor of
Wisconsin of the special election was notice in itself of Mr. Berger's
ineligibility. The judgment of exclusion by the House was final and not
subject to modification. Mr. Berger's campaign was one of defiance to
the mandate of the House. Before the electors of the district he jeered
this
[[Page 1367]]
judgment and designated it an insult to the electors and urged the
voters to show their contempt and defiance of the action of the House
of Representatives by voting for him at the special election. The sole
issue in the campaign was his disqualification. The voters knew that if
elected he would again be excluded from the Sixty-sixth Congress.
Therefore, it is submitted that upon reason and authority the votes
cast for Mr. Berger with full knowledge on the part of the voters that
he was ineligible to serve as a Member of the House of Representatives
ought to be considered as thrown away, and that the election was legal
and that the qualified candidate, Mr. Bodenstab, receiving the highest
number of votes and a majority of all votes cast for qualified
candidates, was duly elected. It is conceded that a majority have a
constitutional right to govern in this country, but it is not conceded
that the majority of a congressional district may morally or willfully
defeat the Government by refusing to elect a Member qualified to sit in
the House of Representatives. In this case the majority of the electors
had a right to elect a qualified person to the House of
Representatives, but, having waived their right by voting for a person
known to be disqualified, as much as though they had refused to vote at
all, or had voted for a man known to be dead, the minority who complied
with the Constitution by voting for a qualified candidate may well be
held to have expressed the will of the people. If the majority, being
called upon, will not vote, they can not complain that the election was
decided by those who did not vote, though a minority of the electors;
and voting for a person known to be disqualified is not voting. Such
votes are void and are no votes.
Therefore, the adoption of the following resolution is recommended:
Resolved, That Henry H. Bodenstab was duly elected a
Member of Congress from the fifth congressional district of
Wisconsin to the Sixty-sixth Congress, on the 19th day of
December, 1919, and that he is entitled to a seat in the
House of Representatives as such Representative.
The resolution that Mr. Bodenstab was not entitled to a seat (H.
Res. 696) was reported as privileged by Mr. Dallinger. While it was
pending Mr. Randall's substitute that Mr. Bodenstab was entitled to the
seat, was defeated, 8 yeas to 307 nays, 1 present. Mr. Dallinger's
resolution was then agreed to by voice vote [60 Cong. Rec. 3883, 66th
Cong. 3d Sess., Feb. 25, 1921; H. Jour. 248].
Sec. 2.6 Wickersham v Sulzer and Grigsby, Territory of Alaska.
Contestee's death prior to certification of election having caused
the Territory Governor to call a special election to fill the vacancy,
a new Delegate-elect was seated and substituted as contestee by the
House.
Evidence taken ex parte by contestant was held inadmissible, while
the time for parties to take testimony was extended upon adoption by
the House of a resolution, where death of contestee had prevented
timely taking.
[[Page 1368]]
Ballots cast at the general election were examined and completely
recounted by an elections committee upon adoption by the House of a
resolution authorizing the production of all ballots and returns from
the general and special elections.
Majority report of Committee on Elections No. 3 submitted by Mr.
Cassius C. Dowell, of Iowa, on Feb. 12, 1921, follows:
Report No. 1319
Contested Election Case, Wickersham v Sulzer and Grigsby
statement of the case
At the general election held in Alaska on November 5, 1918, James
Wickersham, the contestant herein, was the Republican candidate, and
Charles A. Sulzer was the Democratic candidate, for Delegate to
Congress. Francis Connolly was the Socialist candidate, but received
only a few hundred votes.
From the official count as reported by the canvassing board,
Francis Connolly received 329 votes, Charles A. Sulzer 4,487 votes,
James Wickersham 4,454 votes. Sulzer's plurality 33.
Before the canvassing board had completed the canvass and announced
the result, and on April 15, 1919, Charles A. Sulzer died. The
canvassing board completed the canvas and declared the result on April
17, 1919. and issued a certificate of election certifying the election
of Charles A. Sulzer, which certificate was duly filed with the Clerk
of the House of Representatives.
The Legislature of Alaska passed an act providing for a special
election to fill the vacancy caused by the death of Mr. Sulzer. This
act was approved on April 28, 1919. Under this act the governor called
a special election, which was held on June 3, 1919, at which special
election James Wickersham was not a candidate, and George B. Grigsby
received a majority of the votes cast, and the canvassing board on June
14, 1919, issued a certificate of election to George B. Grigsby, the
contestee herein, which certificate was filed on July 1, 1919, and he
was sworn in and took his seat in the House of Representatives as such
Delegate from Alaska on said date.
After the death of Charles A. Sulzer, and after the certificate of
election had been issued to him, James Wickersham, the contestant, on
May 3, 1919, filed notice of contest with the Clerk of the House, and
under this notice took some ex parte testimony in the case. Contestant
also about June 23, 1919, served notice of contest on Mr. Grigsby,
notifying him of his intention to contest the special election of June
3 and also the election of Sulzer on November 5, 1918.
The Committee on Elections, finding the testimony taken by
contestant was ex parte, it therefore could not consider such evidence
in the case. On account of the death of Sulzer and the contestant being
unable to comply with the statute relative to notice and the taking of
testimony on the 28th day of July, 1919, the House of Representatives
passed a consolidating reso
[[Page 1369]]
lution extending the time for taking testimony for 90 days from the
date of passing the resolution, and providing the manner of giving
notice and taking the testimony, substituting George B. Grigsby in all
necessary respects for Charles A. Sulzer, deceased, in this contest.
On July 28, 1919, Mr. Dowell, by direction of the Committee on
Elections No. 3, called up the following resolution:
Resolved, (1) That the time for taking testimony in the contested-
election ease from Alaska, James Wickersham, contestant, wherein the
contestee, Charles A. Sulzer, died on April 15, 1919, two days before
the issuance of the certificate of election to said Sulzer, be, and the
same is hereby, extended for 90 days from the date of the passage of
this resolution; (2) that contestant, Wickersham, shall have the first
40 days thereof in which to take his testimony, which shall be taken in
the manner provided by the present statutes governing the taking of
testimony in contested-election eases by notice served on George B.
Grigsby, the successful candidate in the special Alaska election of
June 3, 1919; (3) said George B. Grigsby shall have the next 40 days in
which to take testimony in opposition to contestant's claim to the
election of November 5, 1918, and in support of his own right shall be
seated by virtue of said special election; (4) the contestant,
Wickersham, to have the final 10 days in which to introduce rebuttal
testimony in both elections; (5) that the governor of Alaska and the
custodian of the election returns and attached ballots of the election
of November 5, 1918, be, and he is hereby, commanded and required
forthwith to forward by registered mail to the Clerk of the House of
Representatives the whole of the election returns and all attached
papers and ballots of the election of November 5, 1918, for inspection
and consideration as evidence by the House of Representatives in said
contested-election ease, (6) and if either the contestant or the
successful candidate, said George B. Grigsby, at said special election
of June 3, 1919, desires the returns of that election introduced in
evidence, it shall be done under the same authority and in the same
manner as is provided by this resolution for securing the returns of
the election of November 5, 1918; (7) that any notice which contestant
would be required to serve on said Sulzer if living, to take testimony
of any witness mentioned herein, or to be called to sustain any
allegation in contestant's case or any other notice which contestant
might be required to serve on contestee, if living, shall be served
with the same legal effect on the successful candidate, said George B.
Grigsby, at the said special election; (8) and any notice which the
successful candidate at said special election might find necessary to
serve to present his case under either of said elections may be served
on contestant; (9) that the Secretary of War be, and he is hereby,
requested to order by telegraph immediately on the passage of this
resolution that the 40 soldiers named and whose Army status is
described in the certified list, dated June 11, 1919, signed by the War
Department officials, and which list is attached to the application of
contestant for the passage of this resolution, be assembled at the
office of the commanding officer of the United States military cable
and telegraph in the towns of Valdez, Sitka, and Fairbanks, Alaska,
within the 40 days' period for taking testimony by the contestant,
[[Page 1370]]
then to be examined under oath by contestant or his attorney or agent
touching the matters and things alleged in the notice and statement of
contest on file in this House and in this cause, each to state
specifically which candidate he voted for; and ( 10) the testimony of
all witnesses shall be reduced to writing, signed by the witness,
verified, and returned to the Clerk of the House of Representatives for
use in these causes in the manner provided in the laws of the United
States relating to contested elections as modified by this resolution.
Reported privileged resolution [H. Res. 105 (H. Rept. No. 154)]
amended and agreed to by voice vote [58 Cong. Rec. 3252, 66th Cong. 1st
Sess., July 28, 1919; H. Jour. 338].
Under this resolution both parties took testimony, which was fully
submitted to the committee, and the committee has fully considered all
of this evidence, including the arguments of counsel. The questions in
this case are, first, the election on November 5, 1918, as between
James Wickersham, contestant, and Charles A. Sulzer; second, the
election of George B. Grigsby at the special election of June 3, 1919.
The special election was to fill the vacancy caused by the death of
Charles A. Sulzer, and in the event Sulzer was duly elected on the 5th
of November, 1918, the question then turns to the objections contestant
makes to the special election on June 3, 1919. In the event James
Wickersham was elected on November 5, 1918, and not Charles A. Sulzer,
there was no vacancy created by the death of Charles A. Sulzer and
therefore no vacancy could be filled at the special election on June 3,
1919.
Territory election law, repealing the precinct residence
requirement of the federal organic law, was held invalid.
Suffrage.--Ballots cast by precinct nonresidents were held invalid.
Federal election law setting the time for opening and closing of
polls was held mandatory, voiding entire returns from precincts not
complying.
Federal election law required advance notice of election official's
order changing polling places within an election precinct, and
noncompliance in order to disfranchise qualified voters was held
grounds for rejection of entire returns from such precincts.
rejected ballots
One of the questions involved in this contest relates to some 40 or
50 rejected ballots. The contestant contended that a proper canvass and
counting of these rejected ballots should be made. The contestee made
no objection to the canvass of these ballots, and the committee
carefully examined and canvassed all of these ballots, which resulted
in a gain to Mr. Wickersham of 2 votes and reduced the plurality of Mr.
Sulzer over that of Mr. Wickersham 2 votes.
[[Page 1371]]
qualifications of electors in alaska
In 1906, on May 7, Congress passed an act governing elections in
Alaska. Section 3 of this act. being section 394, Compiled Laws of
Alaska 1913, reads as follows:
Sec. 394. All male (or female) citizens of the United
States 21 years of age and over who are actual and bona fide
residents of Alaska, and who have been such residents
continuously during the entire year immediately preceding the
election, and who have been such residents continuously for
thirty days next preceding the election in the precinct in
which they vote, shall be qualified to vote for the election
of a Delegate from Alaska.
Under this act it is clear that no one can lawfully vote in Alaska
for Delegate who is not (1) a citizen of the United States and 21 years
of age; (2) an actual and bona fide resident of Alaska, and has been
such resident continuously during the entire year immediately preceding
the election and continuously for 30 days next preceding the election
in the precinct in which they vote.
On August 24, 1912, Congress passed an act creating a legislative
assembly in Alaska, and in this act changed the time of election for
Delegate to Congress from August to November, and provided that ``all
of the provisions of the aforesaid act shall continue to be in full
force and effect, and shall apply to the said election in every
respect, as is now provided for the election to be held in the month of
August therein.''
Mr. Grigsby, as attorney general of Alaska, rendered an opinion to
the Territorial governor, a member of the canvassing board, on February
12, 1919, in the following language:
I have to advise you that the legislature in attempting
to change the qualifications of voters by this act exceeded
its power, the qualifications having been fixed by the act of
May 7, 1906, and continued in full force and effect by the
organic act or constitution of Alaska. The organic act
expressly authorized the legislature to extend the elective
franchise to women, but in no other way authorized the
changing of the qualifications of electors by the
legislature.
Respectfully submitted.
George B. Grigsby, Attorney General.
This, we think, is the correct interpretation of this law. The
Territorial Legislature of Alaska attempted to modify this law by the
enactment of a provision permitting electors to vote in any precinct in
the judicial division of the Territory, thus ignoring the provisions of
the congressional act which requires the actual and bona fide residence
in Alaska for one year and such residence continuously for 30 days next
preceding the election in the precinct in which they vote. In this
respect the Territorial law is in direct conflict with the Federal
statute. The Federal statute is incorporated into the
[[Page 1372]]
organic law of the Territory and, as stated by Mr. Grigsby as attorney
general, can not be set aside by an act of the Legislature of Alaska.
The evidence discloses that 21 persons voted at the election on
November 5, 1918, for Charles A. Sulzer in precincts in which they were
not bona fide residents, a few of whom were not entitled to vote at all
because of nonresidence or noncitizenship in the Territory, and your
committee finds that 21 votes should be deducted from the total vote
for Charles A. Sulzer. Your committee further finds that 11 persons
voted at the election on November 5, 1918, for James Wickersham in
precincts in which they were not bona fide residents, a few of whom
were not entitled to vote at all because of nonresidence or
noncitizenship in the Territory, and that 11 votes should be deducted
from the total vote for James Wickersham, a net loss for Sulzer of 10
votes.
At the Chickaloon precinct in the third division one John Probst, a
legal voter in the precinct, presented himself at the polls and offered
to vote, but was informed that the election officers had taken the
ballot box and books up the creek and he could not vote. If permitted
to vote he would have voted for James Wickersham. The committee finds
that this vote should be added to the aggregate vote for James
Wickersham.
cache creek precinct
In this precinct Connolly received 1 vote, Sulzer 23 votes, and
Wickersham 2 votes. The contestant charges that this precinct should be
thrown out because of the violation of the election laws in holding the
election; that the election was opened and the ballots cast several
hours before the time fixed by law for opening the polls. The testimony
clearly shows that in this precinct the election was held and nearly
all the voters left the precinct before the time fixed by law for
opening the polls. A number of these voters testified, and while the
exact time is not fixed by the witnesses, all agree that the polls were
opened and the votes cast long before 8 o'clock a.m. . . .
Section 9 of the act of Congress of May 7, 1906, relating to the
elections in Alaska, provides:
Sec. 9. That the election boards herein provided for
shall keep the several polling places open for the reception
of votes from 8 o'clock antimeridian until 7 o'clock
postmeridian on the day of election.
The testimony shows this election was held in a cabin some time
near 5 o'clock in the morning, and that approximately the whole camp
moved away. There was no attempt to comply with the law in the opening
of the polls or in the conduct of this election.
A parallel case arose in the State of Kentucky. We refer to the
case of Verney v. Justice (86 Ky., 596). Under the constitution of that
State it is provided that ``all elections by the people shall be held
between 6 o'clock in the morning and 7 o'clock in the evening.'' This
election extended over until 9 or 10 o'clock in the evening. Enough
votes were received after 7 o'clock
[[Page 1373]]
in the evening to have changed the result. We quote from the opinion of
the court, on page 601:
The section under consideration uses the word ``shall'';
it is mandatory and excludes the right to hold the election
earlier than 6 o'clock in the morning and later than 7
o'clock in the evening. If the language was construed as
directory merely, the election might not only be continued
until 9 or 10 o'clock at night but all next day and the day
after, and on and on, unless the courts in the exercise of a
discretion should limit it and thus make a constitutional
provision in disregard of the one made by the people for the
government of election.
For these reasons it is clear that the votes cast after 7
o'clock in the evening for the appellant were illegal, and
that the circuit court did right in excluding them.
We also refer to Tebbe v. Smith (41 Pac. (Cal.), 454).
The section of the act of Congress above referred to, which is the
constitution and fundamental law of the Territory of Alaska, is alike
in its provisions with the constitution of the State of Kentucky.
Your committee therefore finds that the votes cast in this precinct
should not be counted in the canvass of votes for Delegate at this
election. In this precinct 23 votes should be deducted from the total
of the votes received by Charles A. Sulzer, 2 votes should be deducted
from the total received by James Wickersham, and 1 vote should be
deducted from the total vote received by Mr. Connolly, a net loss for
Sulzer of 21 votes.
forty mile district
The contestant charges that in the Forty Mile district there was an
official suppression of the election in certain precincts in the
district in the interest of Mr. Sulzer, whereby the contestant lost
some 20 votes. The testimony discloses that prior to the election in
1918 there were five voting precincts in this district, known as the
Jack Wade precinct, Steel Creek precinct, Franklin precinct, Chicken
precinct, and Moose Creek precinct. That about October 1, 1918,
Commissioner Donovan, of the district, made an order redistricting the
district into three voting precincts, to wit, Franklin, Chicken, and
Moose Creek, thereby abolishing the Jack Wade and Steel Creek voting
precincts in the district, or rather merging these precincts into the
other three precincts, and it is charged that this was done for the
purpose and that it had the effect of placing the voting precincts at
such great distances from the voters that the voters in the Jack Wade
and Steel Creek precincts, by reason of the great distance, were unable
to reach the polls and to cast their ballots at the election. The
authority and duty of the commissioner in providing voting precincts in
the various election districts is defined in section 5 of the act of
Congress of May 7, 1906, and is as follows:
Sec. 5. That all of the territory in each recording
district now existing or hereafter created situate outside of
an incorporated town shall, for the purpose of this act,
constitute one election dis
[[Page 1374]]
trict; that in each year in which a Delegate is to be elected
the commissioner in each of said election districts shall, at
least thirty days before the date of said first election and
at least sixty days before the date of each subsequent
election, issue an order and notice, signed by him and
entered in his records in a book to be kept by him for that
purpose, in which said order and notice he shall--
First. Divide his election district into such number of
voting precincts as may in his judgment be necessary or
convenient, defining the boundaries of each precinct by
natural objects and permanent monuments or landmarks, as far
as practicable, and in such manner that the boundaries of
each can be readily determined and become generally known
from such description, specifying a polling place in each of
said precincts, and give to each voting precinct an
appropriate name by which the same shall thereafter be
designated: Provided, however, That no such voting precinct
shall be established with less than thirty qualified voters
resident therein; that the precincts established as aforesaid
shall remain as permanent precincts for all subsequent
elections, unless discontinued or changed by order of the
commissioner of that district.
Second. Give notice of said election, specifying in said
notice, among other things, the date of such election, the
boundary of the voting precincts as established, the location
of the polling place in the precinct, and the hours between
which said polling places will be open. Said order and notice
shall be given publicity by said commissioner by posting
copies of the same at least twenty days before the date of
said first election, and at least thirty days before the date
of each subsequent election, etc.
The election of November 5, 1918, was not the first election after
the passage of the act and therefore the order, under this act, must be
made at least 60 days before the date of the election. The evidence,
however, shows that it was made and signed on October 1, 1918, calling
the election for November 5, 1918. We herewith set out a copy of the
order of Commissioner Donovan with reference to this voting district:
order and notice of election to be held on tuesday, november 5, 1918
In the office of the United States commissioner at
Franklin, Alaska, fourth judicial division, in the matter of
the election of a Delegate to the House of Representatives
from the Territory of Alaska, one member of the Senate of the
Territory of Alaska, four members of the House of
Representatives of the Territory of Alaska, one road
commissioner for road district No. 4.
In pursuance of an act of Congress approved May 7, 1906,
entitled ``An act providing for the election of a Delegate to
the House of Representatives from the Territory of Alaska,''
I, John J. Donovan, United States commissioner, in and for
the Forty Mile pre
[[Page 1375]]
cinct, fourth division, Territory of Alaska, do hereby order
that said recording district be, and the same is hereby,
divided into the following voting precincts, the boundaries
thereof defined, a polling place specified, and a notice of
said election published; fixing the date of said election,
and designating the said polling places as follows, and the
hours between which said polling places will be open:
1. Moose Creek precinct.--It is ordered that the
boundaries of said precinct shall be as follows: Commencing
on the Forty Mile River, at the international boundary line,
thence running upstream to the mouth of O'Brien Creek,
including all tributaries flowing into the said Forty Mile
River and Walker's Fork and all its tributaries, from the
mouth of Cherry Creek upstream to the international boundary
line.
2. Franklin voting precinct.--It is ordered that the
boundaries of said precinct shall be as follows: Commencing
on the Forty Mile River at the mouth of O'Brien Creek, thence
running upstream and including all tributaries of the North
Fork, within the boundaries of the Forty Mile precinct, and
all tributaries of the South Fork upstream to the mouth of
Walker's Fork, thence in an easterly direction to the mouth
of Cherry Creek on said Walker's Fork and all its tributaries
flowing into Walker's Fork.
3. Chicken voting precinct.--It is ordered that the
boundaries of said precinct shall be as follows: Commencing
at the mouth of Walker's Folk on the South Fork of the Forty
Mile River, thence in a southerly direction, including
Dennison Fork and all its tributaries, Mosquito Fork and all
its tributaries, and the Tanana Basin within the boundaries
of the Forty Mile precinct.
4. That the several polling places herein designated will
be open for the reception of votes from 8 o'clock unto 7
o'clock p.m. on the day of said election, to wit, the 5th day
of November, 1918.
Dated this the 1st day of October, 1918.
John J. Donovan,
United States Commissioner
in and for the Forty Mile Precinct,
Territory of Alaska.
This order, fixing the precincts in this district, is not in
compliance with the law above set forth. It was not issued and entered
in his records 60 days before the date of the election and does not
specify a polling place in each precinct as required by law, and does
not give the location of the polling places in each precinct as
provided by law.
Prior to the election on November 5, 1918, there had been five
polling places in the election district as above stated. These had been
established for some years and were well known to the voters. These
could be changed only under the provisions of the law. In this instance
the commissioner had received a letter from the clerk of Judge Bunnell,
which was approved either
[[Page 1376]]
before or after its signing. The last clause of the letter of
instructions was as follows:
The attention of one or two commissioners is directed to
section 396 of the Compiled Laws of Alaska. The law does not
contemplate the establishing of voting precincts in places
where many prior elections have proven that there are but
five or six votes. While it is not believed that any
considerable number of voters should be deprived of their
franchise by reason of having no voting precinct established,
yet it is a matter which should receive the careful attention
of the commissioner creating the same.
Respectfully,
J. E. Clark, Clerk.
(In the District Court for the Territory of Alaska,
Fourth Judicial District.)
The record in this case discloses that 20 witnesses were called who
lived in the Jack Wade and Steel Creek precincts. These were citizens
and lawful voters of these precincts. All of these witnesses testified
they were unable to vote because it would require at least two days,
and traveling a distance of some thirty-odd miles, to and returning
from the voting precincts as designated by the commissioner. Three of
these voters testified had they been permitted to vote they would have
voted for Mr. Sulzer. One testified he would have voted the Socialist
ticket. All of the others testified they would have voted for Mr.
Wickersham for Delegate from Alaska. . . .
We have set out this testimony because it clearly shows that the
changing of the precincts by the commissioner was not entirely in the
interest of economy. The abolishing of the Jack Wade and Steel Creek
precincts, the largest centers in this division both of them having
post offices where the residents for miles around went for their mail,
and including the territory of these precincts in other precincts, and
the placing of the voting precincts at Franklin, Chicken, and Moose
Creek, the latter place having only two residents, the committee
believes was for the purpose of depriving the voters of Jack Wade and
Steel Creek precincts from having an opportunity to cast their votes.
This action of the commissioner, as shown by the record, was in
violation of law and did deprive 20 legal voters from casting their
votes at the election.
These 20 voters had a legal right to vote and should have been
permitted to vote and could have voted had the commissioner conducted
the election in compliance with the law. Had they been permitted to
vote, Connolly would have received 1 additional vote, Sulzer 3
additional votes, and Wickersham 16 additional votes, in the two
precincts abolished and absorbed into the other precincts. If these
votes are counted 1 vote should be added to the aggregate vote for
Connolly, 3 votes to the aggregate vote for Sulzer, and 16 votes to the
aggregate vote for Wickersham.
However, the committee finds that the whole action of the
commissioner in the Forty Mile district in redistricting said district
on the 1st day of Octo
[[Page 1377]]
ber, 1918, was in violation of the law and this action of the
commissioner did deprive at least 20 legal voters from casting their
ballots at said election, and said action was without authority or
jurisdiction.
It is the judgment of the committee that the votes cast in said
entire district, which includes the precincts of Chicken, Franklin, and
Moose Creek, were illegal and should be rejected. . . .
Your committee therefore finds that from the aggregate vote of
Connolly there should be deducted 3 votes; from the aggregate vote of
Sulzer there should be deducted 23 votes; and from the aggregate vote
of Wickersham there should be deducted 13 votes, a net loss to Sulzer
of 10 votes.
Sufferage.--Ballots cast by Indians born in territory and severed
from tribe were held valid, whereas ballots cast by military personnel
involuntarily stationed in territory were held invalid.
Returns were rejected by proportional deduction method where there
was no evidence for whom unqualified voters had cast ballots.
Majority report for contestant, who was seated.
Minority report (unprinted) for contestee, who was unseated as his
predecessor had not been elected.
the indian vote
It is contended by both parties that in certain precincts the votes
of a number of Indians should not have been counted. The contestant
claims, and with much force, that in a number of precincts where
Indians voted and the majorities were for the contestee, the Indians
were not entitled to vote, because they had not severed their tribal
relations and were not citizens in the sense that they were qualified
electors. The contestee claims that at certain other precincts, where
the majorities were for the contestant, a portion of the vote being
that of Indians was not legal for like reasons.
This identical question arose in the former case in the Sixty-fifth
Congress, and the House, following the report of the committee,
disposed of this question and did not exclude the Indian vote. Your
committee believes it should follow the ruling of the House in the
former case, and not disturb this vote.
the soldier vote
The question of the soldier vote in Alaska was determined by the
committee and afterwards by the House in the Sixty-fifth Congress in
the case of Wickersham v. Sulzer. This case having been so carefully
investigated and so well considered, having the unanimous endorsement
of the former committee and a large majority of the House, this
committee has considered the question settled, and in view of the fact
that this case was determined so recently, we have used that decision
as the law in this case, and have followed it.
In the case under consideration the evidence shows that 44 soldiers
in the United States Army, stationed in Alaska, voted for Delegate at
the election
[[Page 1378]]
on the 5th day of November, 1918. As in the former case, each and all
of the 44 voters in question in this case came to Alaska as soldiers in
the United States Army. They remained in such service from the date of
their arrival in Alaska up to the date of the election, and were in
Alaska in such service on that date. All of them were enlisted and
accepted for service in the States; and, as indicated by the record,
the number of men and dates of enlistment being as follows: Eight in
1917, 2 in 1916, 5 in 1915, 6 in 1914, 6 in 1913, 2 in 1912, 2 in 1911,
1 in 1909, 2 in 1908, 1 in 1907, 3 in 1903, 1 in 1899, 1 in 1898, 4 in
____, of whom there were 6 from Washington State; 3 each from
Minnesota, California, and New York; 2 each from Texas, Illinois,
Oklahoma, Kentucky, Louisiana, and Missouri; and 1 each from Georgia,
Ohio, Virginia, West Virginia, Montana, South Dakota, Michigan, Kansas,
Iowa, Wisconsin, and New Jersey; and 5 from States not specified.
A few of these were honorably discharged and immediately reenlisted
in Alaska; and each and all of them had been in the Territory more than
a year immediately preceding the date of election, and in the precinct
more than 30 days immediately preceding the election day.
If they had acquired a legal domicile in Alaska they were
entitled to vote, and the vote should be counted; otherwise
not. To become a citizen and a qualified elector in Alaska a
bona fide residence of 1 year in the Territory and 30 days in
the voting precinct is required.
This is the rule laid down in the former case and under this rule
the House excluded all of this vote.
Of the soldier vote in the 1918 election, Wickersham received 5
votes, Sulzer received 24 votes, and 16 of them refused to testify for
whom they voted, or evidence was not presented to show for whom they
voted. Of the votes of the ones where the testimony shows for whom they
voted, there should be deducted from the total vote of Wickersham 5
votes, and from the total vote of Sulzer 24 votes, a net loss to Sulzer
of 19 votes.
Of the 16 votes cast, where the evidence does not disclose for whom
they voted, 11 voted in the Valdez precinct, and can be apportioned
under the rule laid down in the former case of Wickersham v. Sulzer. .
. .
The other 4 votes, where the evidence does not disclose for whom
they voted, were east in the Valdez Bay precinct and can be apportioned
under this same rule.
In the Valdez Bay precinct Connolly received 1 vote, Sulzer
received 24 votes, and Wickersham received 11 votes.
With a deduction made on this same basis of apportionment 1 should
be deducted from the total vote of James Wickersham and 3 votes should
be deducted from the total vote of Sulzer, a net loss to Sulzer of 2
votes.
Readjusting the entire vote in accordance with the findings of the
committee, the result finally established is:
Wickersham..................................................... 4,422
Sulzer......................................................... 4,385
--------
Wickersham's plurality............................... 37
------------------------------------------------------------------------
[[Page 1379]]
For the reasons assigned herein, your committee recommends to the
House the adoption of the following resolution:
Resolved, That Charles A. Sulzer was not elected a Delegate to the
House of Representatives from the Territory of Alaska in this Congress,
and George B. Grigsby, who is now occupying the seat made vacant by the
death of said Sulzer, is not entitled to a seat herein.
Resolved, That James Wickersham was duly elected a Delegate from
the Territory of Alaska in this Congress, and is entitled to a seat
herein.
Minority views were submitted by Mr. C. B. Hudspeth, of Texas, and
Mr. James O'Connor, of Louisiana, but were not printed to accompany the
committee report. The minority dissented from each conclusion reached
in the majority report. Their recommended resolution, offered as a
substitute for the resolution called up by the majority, provided:
Resolved, That James Wickersham was not elected a
Delegate to the Sixty-sixth Congress from the Territory of
Alaska, and is not entitled to a seat in said Congress.
Resolved, That Charles A. Sulzer was duly elected a
Delegate from the Territory of Alaska to the Sixty-sixth
Congress, and that said Charles A. Sulzer having died, and
George B. Grigsby having been elected at a special election
as a Delegate from the Territory of Alaska, and having been
sworn in as a Member of the House of Representatives on July
1, 1920, that the said Grigsby is entitled to retain his seat
therein.
The unnumbered resolution recommended by the majority report (H.
Rept. No. 1319) declaring contestant elected at the general election
and declaring contestee not entitled to retain his seat (as his
predecessor had not been elected at the general election), was
submitted by Mr. Dowell on Feb. 28, 1921. Mr. Hudspeth thereupon
offered a substitute amendment declaring contestant not elected and
declaring contestees to have been elected. Debate was extended to three
hours by unanimous consent, to be equally divided and controlled by Mr.
Dowell and Mr. Hudspeth. On Mar. 1, 1921, when the resolution was
further considered, the substitute amendment was divided for the vote,
the first part rejected 169 yeas to 179 nays with 10 ``present,'' and
the second part rejected 162 yeas to 179 nays with 5 ``present.'' After
a motion to recommit the report and resolutions to the Committee on
Elections No. 3 was rejected 169 yeas to 188 nays with 3 ``present,''
the resolution was divided for the vote, the first part being agreed to
182 yeas to 162 nays with 9 ``present,'' and the second part being
agreed to 177 yeas to 163 nays with 10
[[Page 1380]]
``present'' [60 Cong. Rec. 4189, 66th Cong. 3d Sess., Mar. 1, 1921; H.
Jour. 275-278].
Sec. 2.7 Farr v McLane, 10th Congressional District of Pennsylvania.
Federal Corrupt Practices Act.--Violation by contestee's campaign
committee of the limitation on contributions to a candidate was held
attributable to contestee and sufficient grounds for unseating
contestee.
Report of Committee on Elections No. 1 submitted by Mr. Frederick
W. Dallinger, of Massachusetts, on Feb. 15, 1921, follows:
Report No. 1325
Contested Election Case, Farr v McLane
At the election held in the tenth congressional district of the
State of Pennsylvania on November 5, 1918, according to the official
returns, Patrick McLane, the contestee, who was the Democratic
candidate, received 11,765 votes and John R. Farr, the contestant, who
was the Republican candidate, received 11,564 votes. As a result of
these returns, Patrick McLane, the contestee, was declared elected by a
plurality of 201 votes over his Republican opponent, John R. Farr, and
a certificate of election was duly issued to him by the secretary of
state of Pennsylvania. . . .
violation of the corrupt-practices act
The act of Congress approved August 19, 1911 (37 Stat. L., 33),
commonly known as the ``corrupt-practices act,'' provides as follows:
Every person who shall be a candidate for nomination at
any primary election or nominating convention, or for
election at any general or special election, as
Representative in the Congress of the United States, shall,
not less than ten nor more than fifteen days before the day
for holding such primary election or nominating convention,
and not less than ten nor more than fifteen days before the
day of the general or special election at which candidates
for Representatives are to be elected, file with the Clerk of
the House of Representatives at Washington, District of
Columbia, a full, correct, and itemized statement of all
moneys and things of value received by him or by anyone for
him with his knowledge and consent, from any source, in aid
or support of his candidacy, together with the names of all
those who have furnished the same in whole or in part; and
such statement shall contain a true and itemized account of
all moneys and things of value given, contributed, expended,
used, or promised by such candidate, or by his agent,
representative, or other person for and in his behalf with
his knowledge and consent, together with the names of all
those to whom any and all such gifts, contributions,
[[Page 1381]]
payments, or promises were made, for the purpose of procuring
his nomination or election. . . .
No candidate for Representative in Congress or for
Senator of the United States shall give, contribute, expend,
use, or promise, or cause to be given, contributed, expended,
used, or promised, in procuring his nomination and election,
any sum, in the aggregate, in excess of the amount which he
may lawfully give, contribute, expend, or promise under the
laws of the State in which he resides: Provided, That no
candidate for Representative in Congress shall give,
contribute, expend, use, or promise any sum, in the
aggregate, exceeding $5,000 in any campaign for his
nomination and election; and no candidate for Senator of the
United States shall give, contribute, expend, use, or promise
any sum, in the aggregate, exceeding $10,000 in any campaign
for his nomination and election: Provided further, That money
expended by any such candidate to meet and discharge any
assessment, fee, or charge made or levied upon candidates by
the laws of the State in which he resides, or for his
necessary personal expenses, incurred for himself alone, for
travel and subsistence, stationery and postage, writing or
printing (other than newspapers), and distributing letters,
circulars, and posters, and for telegraph and telephone
service, shall not be regarded as an expenditure within the
meaning of this section, and shall not be considered any part
of the sum herein fixed as the limit of expense and need not
be shown in the statements herein required to be filed.
The evidence shows that on December 5, 1918, Patrick McLane filed a
personal return of his campaign expenses showing total receipts of $275
and total expenditures or disbursements of $748.04.
On the same date George Hufnagel, treasurer, filed a return in
behalf of the ``McLane Campaign Committee'' showing total receipts of
$12,800 and total expenditures of $11,749. Under the head of
``Expenditures or disbursements'' occurs this item:
November 3, P. J. Noll, secretary Democratic county
committee, $6,000.
On December 2, 1918, Albert Gutheinz, treasurer of the Democratic
county committee of Lackawanna County, which county is situated in the
tenth congressional district of the State of Pennsylvania, filed a
return with the Clerk of the House of Representatives showing total
receipts of $10,195 and total expenditures or disbursements of
$7,476.96 and unpaid debts and obligations of $158.79. At the top of
this return, the original of which was examined by the committee,
appears the following statement:
I hereby certify that the following is a full, correct,
and itemized statement of all moneys and things of value
received by me as treasurer of the Democratic county
committee of Lackawanna County, Pa., together with the names
of all those who have furnished the same, in whole or in
part, in aid or support
[[Page 1382]]
of the candidacy of Patrick McLane for election as Democatic
Representative in the Congress of the United States for the
tenth congressional district of the State of Pennsylvania at
the general election to be held in said district on the 5th
day of November, 1918. [The italics are the committee's.]
It is evident, therefore, that in spite of the fact that Congress
by statute has expressly forbidden any candidate for Representative in
Congress to expend more than $5,000 in any campaign for his nomination
and election, after deducting $6,000 which was received by the McLane
campaign committee and paid by it to the Democratic county committee of
Lackawanna County and expended by the latter, and also deducting the
amount of $760.75 expended for purposes for which no return is required
by the Federal statute, there was expended in the interest of the
contestee, Patrick McLane, $7,853.49 in excess of the statutory amount.
But omitting entirely the expenditures of the Democratic county
committee, the ``McLane Campaign Committee'' alone, which was organized
solely for the purpose of promoting the election of the contestee,
Patrick McLane, spent $11,749, the whole amount of which, with the
exception of items aggregating $292.50, was expended for purposes for
which, if expended by the candidate himself, a return is required to be
made by the Federal law.
It was contended by the contestee, Patrick McLane, that he had not
violated the corrupt practices act, because he personally had expended
only $748.04 and that the balance of the money was expended by a
committee of which he claims that he had no knowledge. If his
contention is correct then the corrupt practices act becomes a farce
and the limitation placed by Congress upon campaign expenditures is
meaningless. The reading of the entire statute clearly shows that it
was the intent of Congress to prohibit a candidate for Congress from
expending directly or indirectly more than $5,000 for his nomination
and election.
In the contested election case of Gill v. Catlin [Moore's Digest of
Contested Election Cases, 1901-1917, p. 521 from the eleventh district
of the State of Missouri, in the second session of the Sixty-second
Congress, where the contestee pleaded that he had no knowledge of any
money being expended in his behalf outside of what he spent personally,
it was held that he had constructive notice from the fact that he must
have known as a reasonable man that money was being spent in his
interests. In the present case, the testimony is plain that the
contestee, Patrick McLane, had actual notice of the fact that money was
being spent by his committee in his interests and that he was even
shown copies of the advertisements which were inserted in the Scranton
newspapers in his behalf.
The committee therefore finds that the contestee, Patrick McLane,
must under the law be held to have had constructive knowledge of
expenditures made in excess of the amount permitted under the corrupt
practices act. For that reason, in accordance with congressional
precedent and as a matter of principle, he is not entitled to his seat
in the Sixty-sixth Congress.
Fraud was sufficient to justify total rejection of returns in
precincts where election officials illegally changed polling places,
[[Page 1383]]
marked ballots, and permitted double votes and the registration and
balloting by unqualified or fictitious voters.
Evidence.--The burden of proof is on contestant to show voters
unqualified, and proof of alphabetical arrangement of names in poll
books is sufficient to establish fraud by election officials.
Returns were totally rejected in precincts where both official
fraud and balloting by unqualified voters were proven, and were
rejected by proportional deduction method in precincts where
unregistered voters cast ballots absent official fraud.
Report for contestant, who was seated; contestee unseated.
For the sake of clearness, the contestant's charges will first be
considered in detail and then the contestee's charges will be taken up
in like manner.
contestant's charges of illegality
1. Archbald Borough, first ward, first district: Official vote--
Farr 71, McLane 156. The contestant claims that in this district 37
persons were permitted by the election officers to vote who were not
legally qualified to vote because they had not registered and did not
make affidavit of their right to vote in the absence of their
registration, as required by the laws of the State of Pennsylvania.
The committee finds that giving the contestee the benefit of the
doubt, which has been the policy of the committee throughout, 34 such
persons were actually permitted to vote.
2. Archbald Borough, first ward, second district: Official vote--
Farr 5, McLane 229. The contestant claims that in this district 30
persons whose names appear on the list of voters returned by the
election officers as having voted did not, as a matter of fact, vote at
the congressional election on November 5, 1918. The committee finds
that this happened in 19 cases.
In the same district the contestant claims that 10 persons voted
illegally, either because they had paid no tax or were aliens or
minors. The committee finds that there is some conflict in the
testimony and therefore gives the contestee the benefit of the doubt.
The contestant also claims that the names of seven persons were
returned as having voted whose names were fictitious, as no such
persons in fact existed. The committee finds considerable evidence to
support this contention.
The contestant claims and the committee finds that the registry
list of qualified voters belonging to this district disappeared under
suspicious circumstances.
3. Archbald Borough, second ward: Official vote--Farr 18, McLane
319. The contestant claims that in this ward 18 persons who were
returned by the election officers as having voted did not, as a matter
of fact, vote at the congressional election on November 5, 1918. The
committee finds that this was true in 12 cases. The contestant further
claims that in this district 46 votes were cast by unregistered voters
who had not qualified in accordance with the laws of Pennsylvania. The
committee finds that 41 such persons
[[Page 1384]]
were permitted to vote. The contestant also claims and the committee
finds that persons under age were induced to make false affidavits and
then permitted to vote illegally with the full knowledge and consent of
the election officials.
4. Archbald Borough, third ward: Official vote--Farr 11, McLane
190. The contestant claims that in this district 37 persons whose names
appear upon the list of voters returned by the election officers of the
said district as having voted did not, as a matter of fact, vote at the
congressional election on the 5th day of November, 1918. The committee
finds that there were 29 such cases.
The contestant also claims that 18 names on the list of voters as
returned by the election officers as having voted were fictitious and
that no such persons, as a matter of fact, existed. There is
considerable evidence to establish this contention and, in addition the
alphabetical arrangement of the names which were supposed to be entered
in the poll book in the order in which the voters cast their ballots,
clearly indicates the existence of fraud on the part of the election
officials.
The contestant further claims that 84 persons whose names appear
upon the list of voters as having voted, were not registered and were
not qualified to vote under the laws of the State of Pennsylvania. The
committee finds that 71 such persons actually voted.
The contestant also claims that the polling place in this district
was illegally changed on election day contrary to the laws of
Pennsylvania, and, that in aeeordance with the decisions of the supreme
court of that State, the entire returns of that district should be
thrown out. While the committee finds that the evidence and decisions
strongly support this contention, this fact alone would not have caused
the committee to recommend the rejection of the entire return.
Considering the question, however, in connection with the evidence of
fraud hereinbefore referred to, the committee is of the opinion that
the entire return from this district should be rejected, as recommended
hereafter.
5. Dickson City Borough, first ward: Official vote--Farr 87, McLane
182. The contestant claims that in this district 69 persons were
permitted to vote by the election officers who were not legaDy
qualified to vote because they had not registered and did not make
affidavit of their right to vote in the absence of their registration,
as required by law. The committee finds that 68 such persons were
permitted to vote.
6. Dickson City Borough, second ward: Official vote--Farr 42,
McLane 176. The contestant claims that the names of 23 persons appear
upon the list of voters returned by the election officers of this
district as having voted who did not, as a matter of fact, vote at the
congressional election on November 5, 1918. The committee finds that
this was true in at least 10 instances. The committee also finds that
the alphabetical arrangement of the names in the poll book constitutes
strong circumstantial evidence of collusion and fraud on the part of
the election officers. The contestant further claims and the committee
finds that 10 persons were allowed to cast their ballots in this
district who were not on the voting list and who were not qualified
according to the laws of the State of Pennsylvania.
[[Page 1385]]
7. Dickson City Borough, third ward: Official vote--Farr 28, McLane
191. The contestant claims that in this district 59 persons were
permitted to vote by the election officers who were not legally
qualified to vote because they had not registered and did not make
affidavit of their right to vote in the absence of their registration,
as required by law. The committee finds that 50 such persons were
actually permitted to vote.
8. Dunmore Borough, first ward, second district: Official vote--
Farr 17, McLane 127. The contestant claims that in this district the
election officers returned for the office of Representative in Congress
16 more votes than were actually cast. The committee finds that the
testimony and the exhibits substantiate this contention. The contestant
also claims that 54 of the 128 voters who, according to the poll book,
did vote, were not on the voting list and did not qualify on election
day as required by law. The committee finds that this was the fact in
50 oases.
9. Dunmore Borough, first ward, third district: Official vote--Farr
53, McLane 119. The contestant claims that in this district persons
were openly permitted to vote who were not citizens of the United
States, although they told this fact to the election officers, and that
their ballots were marked for them by these officials. The committee
finds that the testimony clearly shows that this was the fact, as the
following extract from the record shows. . . .
The contestant also claims and the committee finds that in this
district 10 persons were permitted to vote by the election officers who
were not legally qualified to vote because they had not registered and
did not make affidavit of their right to vote in the absence of their
registration, as required by law.
10. Dunmore Borough, second ward, first district: Official vote--
Farr 12, McLane 105. The contestant claims that in this district 19
persons were permitted to vote by the election officers who were not
legally qualified to vote because they had not registered and did not
make affidavit of their right to vote in the absence of their
registration, as required by law. The committee finds that 18 such
persons were permitted to vote.
11. Dunmore Borough, second ward, second district: Official vote--
Farr 21, McLane 140. The contestant claims that in this precinct 5
persons whose names appear upon the list of voters as having voted did
not, upon their own testimony, vote at the congressional election on
November 5, 1918. The committee finds that the evidence clearly shows
that this was true in 4 cases. The committee also finds, as contended
by the contestant, that 3 persons not citizens of the United States
were permitted to vote, and that the election officers in this district
knowingly accepted the votes of such persons.
The contestant further claims that in this district 38 persons were
permitted to vote by the election officers who were not legally
qualified to vote because they had not registered and did not make
affidavit of their right to vote in the absence of their registration,
as required by law. The committee finds that 29 such persons were
permitted to vote.
12. Dunmore Borough, fourth ward: Official vote--Farr 2, McLane 50.
The contestant claims, and the committee finds, that in this precinct
one person was returned as having voted who did not, in fact, vote
according to his own
[[Page 1386]]
testimony. The contestant further claims that 12 unnaturalized aliens
were permitted to vote and in many cases were urged to vote and their
ballots marked by the election officers. The committee finds that this
contention is supported by the evidence.
13. Olyphant Borough, third ward, first district: Official vote--
Farr 38, McLane 161. The contestant claims that in this precinct 5
persons were returned as having voted by the election officers who did
not, as a matter of fact, vote, owing to the fact that they were
fighting overseas or had died. The committee finds that this was the
fact. The testimony also shows that, in this precinct the names of
fictitious persons were repeatedly voted on, and that 7 unnaturalized
aliens were permitted to cast their votes.
The contestant further claims that in this district 85 persons were
permitted to vote by the election officers who were not legally
qualified to vote because they had not registered and did not make
affidavit of their right to vote in the absence of their registration
as required by law. The committee finds that according to the evidence
83 such persons were permitted to vote.
14. Olyphant Borough, fourth ward: Official vote--Farr 112, McLane
135. The contestant claims that in this district the regularly elected
judge of election being sick and unable to attend, neither of the
methods provided by the laws of Pennsylvania for the appointment of a
substitute judge of election was followed, but that a young man named
Joseph Onze, who, according to his own testimony, was not legally
entitled to vote himself on account of the nonpayment of taxes, was
sworn in and conducted the election. The contestant also claims that in
this district 237 votes were returned for the office of Congressman,
whereas only 204 votes were cast in the ward; and also that there were
52 fraudulent ballots deposited in the ballot box.
The contestant also claims that 6 persons whose names appeared on
the list of voters as having voted did not, as a matter of fact, vote
at the congressional election on November 5, 1918; that 2 persons were
permitted by the election officers to vote who, according to their own
testimony, were aliens, and 2 who had not paid taxes as required by
law.
The committee finds that all of these allegations are substantiated
by the evidence.
The contestant further claims that in this district 43 persons were
permitted to vote by the election officers who were not legally
qualified to vote because they had not registered and did not make
affidavits of their right to vote in the absence of their registration
as required by law. The committee finds that 38 such persons were
permitted to vote.
15. Lackawanna Township, first district: Official vote--Farr 11,
McLane 239. The contestant claims that in this district 20 persons
whose names appear on the list of voters returned by the election
voters as having voted did not, as a matter of fact, vote at the
congressional election on November 5, 1918. The committee finds that
the testimony clearly shows that this happened in 19 cases. The
contestant further claims that in this district the list of voters was
falsified by the election officers, as shown by the testimony; that 71
voters must have cast their ballots at the same time, notwithstanding
there were only five voting booths in the polling place, and that 7
persons were permitted to vote twice at the election. The committee
finds
[[Page 1387]]
that these contentions are substantiated by the testimony. The
contestant also claims that four persons were permitted to vote, one of
whom was an alien and three who had paid no taxes in violation of the
laws of the State of Pennsylvania. The committee finds that the
evidence shows that three of the four persons mentioned clearly voted
illegally.
The contestant also claims that in this district 51 persons were
permitted to vote by the election officers who had not registered and
did not make affidavit of their right to vote in the absence of their
registration, as required by law. The committee finds that 47 such
persons were permitted to vote.
The committee further finds that in this district, as in other
districts, persons who were not citizens of the United States were told
that everybody who was registered in the draft could vote, and that
many such persons were permitted to vote.
16. Lackawanna Township, second district: Official vote--Farr 7,
McLane 106. The contestant claims that in this district 14 persons who
were not citizens of the United States were permitted by the election
officials to vote and that in case of many of them their ballots were
marked and deposited in the box by outside ``workers'' acting in
collusion with the election officials. The committee finds that this
contention is borne out by the evidence. The contestant also claims
that in this district 19 persons were permitted to vote by the election
officers who were not legally qualified to vote because they had not
registered and did not make affidavit of their right to vote in the
absence of such registration, as required by law. The committee finds
that 9 such persons were actually permitted to vote.
17. Winton Borough, second ward: Official vote--Farr 16, McLane
196. The contestant claims that in this district 68 persons were
permitted to vote by the election officers who were not legally
qualified to vote, because they had not registered and did not make
affidavit of their right to vote in the absence of registration, as
required by law. The committee finds that 61 such persons were actually
permitted to vote.
18. Winton Borough, third ward: Official vote--Farr 16, McLane 184.
The contestant claims that in this district 118 persons were permitted
to vote by the election officers who were not legally qualified to
vote, because they had not registered and did not make proof of their
right to vote in the absence of such registration, as required by law.
The committee finds that 110 such persons were permitted to vote.
19. Fell Township, third district: Official vote--Farr 19, McLane
76. The contestant claims that in this district 40 persons were
permitted to vote by the election officers who were not legally
qualified to vote because they had not registered and did not make
affidavit of their right to vote in the absence of their registration,
as required by the law. The committee finds that 36 such persons were
permitted to vote.
20. Throop Borough: Official vote--Farr 108, McLane 251. The
contestant claims that in this district 59 persons were permitted to
vote by the election officers who were not legally qualified to vote
because they had not registered and did not make affidavit of their
right to vote in the absence of registration, as required by law.
The committee finds that 57 such persons were actually permitted to
vote.
[[Page 1388]]
contestee's charges of illegality
1. Carbondale: Official vote--Farr 1,016, McLane 799. The contestee
claims in his brief that in certain wards in the city of Carbondale the
names of 77 persons were added to the voting list by the board of
county commissioners of Lackawanna County on sworn petitions presented
by one Ralph Histed without the persons in question having personally
appeared before the board, on the ground that they were prevented by
sickness or necessary absence from the city, when, as a matter of fact,
they were not so prevented.
The result of the committee's inquiry by wards is as follows:
Carbondale, first ward, first district: The contestee claims that
27 votes were cast by persons illegally registered. Of these 19 were
summoned and testified.
The committee finds that 13 of these were illegally registered, of
whom 7 testified that they voted for John R. Farr for Congress, 1
testified that he voted for Patrick McLane, and the other 5 refused to
disclose for whom they voted.
Carbondale, second ward, first district: The contestee claims that
in this district 6 persons were permitted to vote who were improperly
registered. Of this number 5 were summoned and testified.
The committee finds that 4 of these persons were illegally
registered, of whom 3 voted for John R. Farr for Congress and 1 refused
to disclose for whom he voted.
Carbondale, third ward, fourth district: The contestee claims that
20 voters were permitted to vote whose registration was illegal. Of
this number 16 were summoned and testified.
The committee finds that 15 of the 16 were illegally registered, of
whom 8 testified that they voted for John R. Farr for Congress and 7
refused to disclose for whom they voted.
Carbondale, fifth ward, first district: The contestee claims that 9
votes were cast by persons illegally registered. Of these 6 were
summoned and testified. The committee finds that 3 of these persons
were illegally registered, all of whom voted for John R. Farr for
Congress.
Carbondale, sixth ward, first district: The contestee claims that
in this district 3 persons were permitted to vote who were improperly
registered. Of this number, 1 was summoned and testified, and committee
finds that he was illegally registered but refused to disclose for whom
he voted.
2. Blakely Borough: Official vote--Farr 587, McLane 127. The
contestee claims that 21 persons were permitted to vote who were not
qualified voters. The committee finds that 4 persons in this borough
voted illegally, 3 of them testifying that they voted for John R. Farr,
the contestant.
3. Old Forge Borough: Official vote--Farr 416, McLane 472. The
contestee claims that in this borough there was intimidation and
coercion of voters and that illegal votes were cast therein. The
committee finds that the testimony is vague and indefinite, except as
to one unnaturalized person, who was permitted to vote.
4. Taylor Borough, sixth ward, first district: Official vote--Farr
85, McLane 29. The contestee claims that the returns from this district
should
[[Page 1389]]
be thrown out on the ground that the polls were not open at the time
fixed by law and that in the absence of the regular election officers
an irregular election board was chosen. The committee finds that while
the polls were late in opening, the election in the district in
question was carried on in good faith, and that there are no facts
which would justify the committee in throwing out the vote of the
district.
5. Covington Township: Official vote--Farr 86, McLane 18. The
contestee claims that in this township there were 12 illegal votes
cast. The committee finds that the contestee's contention is not borne
out by the facts.
the soldier vote
The contestee also claims that the votes taken in the various
military encampments and naval stations throughout the United States
should be rejected and should be deducted from the totals on the ground
that the returns were not in accordance with the requirements of the
laws of Pennsylvania. The total soldier vote was Farr, 181; McLane,
123; there being a plurality of 58 for John R. Farr.
The State of Pennsylvania passed no new legislation providing for
the voting of persons in the Army and Navy, as was the case in many of
our States. Whatever voting was done was therefore held under the act
of the assembly of August 25, 1864 (Public Laws, 990), which was passed
during the Civil War when conditions were very different from what they
were in the late war.
While it is undoubtedly true, as the contestee claims, that some
camps and naval stations submitted returns which failed to comply with
all the provisions of the statute, nevertheless, your committee feels
that in the absence of evidence that the soldiers who voted were not
otherwise disqualified to vote, it would be reluctant to disfranchise
them. Inasmuch, however, as the rejection of the entire soldier vote
would not alter the result arrived at by the committee upon all the
other evidence in the case, it is not necessary to pass upon this
question.
summary
The committee therefore finds that in the boroughs of Archbald,
Dickson City, Dunmore, Olyphant, Winton, and Throop and in the
townships of Lackawanna and Fell there were 1,006 illegal votes cast
and counted at the congressional election on November 5, 1918. In a
vast majority of these cases there is no way of ascertaining for whom
these illegal votes were cast for the office of Representative in
Congress. In many of these districts there is conclusive evidence of
actual fraud on the part of the election officers, which would justify
the rejection of the entire vote of the district in accordance with a
long line of State and congressional precedents. In all of them there
was a reckless disregard of the essential requirements of the
Pennsylvania election laws on the part of the officers conducting the
election, to such an extent as to render their returns unreliable and
to bring about the same result as actual fraud.
[[Page 1390]]
In the case of In re Duffy (4 Brewster, 531), a Pennsylvania case,
in which were involved some of the very election districts that are
involved in the present case, the court held that when there is a
reckless disregard of the provisions of the election law on the part of
the election officers, such a condition renders the returns of the
election officers unreliable and is sufficient to set them aside. If in
the present case the entire vote of the districts in question should be
rejected, as has been done by election committees of the House of
Representatives in a large number of contested-election cases, the most
recent of which was the Massachusetts case of Tague v. Fitzgerald in
the present Congress, the result would be as follows: John R. Farr,
10,858 votes; Patrick McLane, 8,438 votes; and John R. Farr would be
elected by a plurality of 2,420 votes.
If, on the other hand, the rule of deducting the illegal votes pro
rata from the total vote of the two candidates, which rule was followed
in the case of Finley v. Walls in the Forty-fourth Congress [Rowell's
Digest of Contested Election Cases, 1789-1901, p. 305] and in other
contested-election cases, notably, in the recent case of Wickersham v.
Sulzer in the Sixty-fifth Congress, it would result in a deduction of
164 votes from the total vote of John R. Farr, and in a deduction of
841 votes from the total vote of Patrick McLane, which would make the
result as follows: John R. Farr, 11,400; Patrick McLane, 10,924; and
John R. Farr would still be elected by a plurality of 476.
After most careful consideration your committee is of the opinion
that in the present case both methods should be used. While in all of
the election districts in question persons were permitted to vote who
had not been legally registered--in certain of the districts, namely:
Archbald Borough, first ward, second district; Archbald Borough, third
ward; Dickson City Borough, second ward; Dunmore Borough, first ward,
second and third districts; Dunmore Borough, second ward, second
district; Dunmore Borough, fourth ward; Olyphant Borough, third ward,
first district; Olyphant Borough, fourth ward; and the first and second
election districts of Lackawanna Township--there was in addition
evidence of other fraud of various kinds, together with collusion on
the part of the election officials of such a character as to destroy
the integrity of the returns and to justify their absolute rejection.
Accordingly, your committee has rejected the entire returns from the
last-mentioned districts, in which John R. Farr received 322 votes and
Patrick McLane received 1,669 votes.
Deducting these votes from the official returns gives the following
result: John R. Farr, 11,242 votes; Patrick McLane, 10,096 votes. In
the remaining election districts, where there was simply evidence of
persons voting who were not legally registered, your committee has
deducted from the total vote of the two candidates the number of
illegal voters pro rata, namely, 77.71 from the vote of John R. Farr
and 411.30 from the vote of Patrick McLane, with the following result:
John R. Farr, 11,164; Patrick McLane, 9,685.
The committee then proceeded to deduct the 41 illegal votes found
to have been cast in the city of Carbondale, Blakely Borough, and Old
Forge Borough, from the total votes of the candidates where the
evidence showed for whom the person voted, and to deduct the balance
pro rata, with the final
[[Page 1391]]
result as follows: John R. Farr, 11,131; Patrick McLane, 9,677 votes;
or a plurality of 1,454 votes for John R. Farr.
conclusion
The evidence in this case, therefore, clearly shows that the
contestee, Patrick McLane, must under the law be held to have had
constructive knowledge of expenditures made in excess of the amount
permitted under the corrupt practices act, and for that reason, in
accordance with congressional precedent, he is not entitled to a seat
in the Sixty-sixth Congress.
Moreover, entirely apart from the unlawful expenditure of money
incurred to secure the election of the contestee, there was widespread
fraud and illegality in the election itself. The rejection of the
entire vote of the election districts in which such fraud and
illegality occurred, in accordance with a long line of congressional
and State precedents, results in the election of John R. Farr, the
contestant, by a plurality of 2,420 votes. Without, however, rejecting
any election districts, the subtraction of the illegal votes pro rata
from the total vote of the contestant and the contestee, respectively,
in accordance with the practice followed in some contested election
cases in past Congresses, results in the election of John R. Farr, the
contestant, by a plurality of 476 votes. Following the plan adopted by
your committee of rejecting the entire vote of those election districts
in which there occurred both fraud and illegality and deducting the
illegal votes pro rata from the total vote of each candidate in these
districts where there was only evidence of the voting of persons not
legally registered, the result is still the election of John R. Farr,
the contestant, by a plurality of 1,454 votes. No matter what plan is
adopted, the rejection of the entire soldier vote would not alter the
result.
Your committee therefore respectfully recommends to the House of
Representatives the adoption of the following resolutions:
Resolved, That Patrick McLane was not elected a Member of
the House of Representatives from the tenth congressional
district of the State of Pennsylvania in this Congress and is
not entitled to retain a seat herein.
Resolved, That John R. Farr was duly elected a Member of
the House of Representatives from the tenth congressional
district of the State of Pennsylvania in this Congress and is
entitled to a seat herein.
After debate in the House on Feb. 25, 1921, Mr. James V. McClintic,
of Oklahoma, offered the following motion to recommit:
Resolved, That the report in the Farr against McLane
contested case be recommitted to the Committee on Elections
No. 1, with instructions to examine the tally sheets and the
registration lists in the 32 boxes impounded by a court order
under date of April 5, 1919, on the prayer of the contestee,
and to report back
[[Page 1392]]
to the House when all of the testimony and facts have been
properly considered.
Reported privileged resolution (H. Res. 697) divided for vote,
first part agreed to (161 yeas to 113 nays with 4 ``present'' and
second part agreed to (158 yeas to 106 nays with 5 ``present'') after
debate and after rejection (120 yeas to 161 nays with 2 ``present'') of
motion to recommit report [60 Cong. Rec. 3899, 66th Cong. 3d Sess.,
Feb. 25 1921; H. Jour. 253, 254].
Sec. 3. Sixty-seventh Congress, 1921-23
Sec. 3.1--Memorial of John P. Bracken, At Large, Pennsylvania.
Member-elect's death prior to certification was held not to entitle
an unsuccessful candidate, receiving the highest number of votes of all
unsuccessful candidates at large, to the seat.
Report recommending memorialist not entitled to seat.
Report of Committee on Elections No. 2 submitted by Mr. Robert
Luce, of Massachusetts, on July 14, 1921, follows:
Report No. 265
Memorial of John P. Bracken
The Committee on Elections No. 2, to which was referred the
memorial of John P. Bracken, a citizen of Pennsylvania, claiming to
have been elected to the House of Representatives of the Sixty-seventh
Congress, reports as follows:
Upon the canvass of votes east in the State of Pennsylvania
November 2, 1920, Hon. Mahlon M. Garland was declared to have been
elected as one of the four Representatives at large in Congress from
that State. Before the completion of the canvass Mr. Garland died. Mr.
Bracken received the highest vote given to any candidate not declared
to have been elected. In the judgment of your committee this state of
facts does not warrant the conclusion that Mr. Bracken was elected, and
therefore the committee recommends the passage of the following
resolution:
Resolved, That John P. Bracken was not elected a
Representative at large to the Sixty-seventh Congress from
the State of Pennsylvania.
Reported privileged resolution (H. Res. 204) agreed to by voice
vote after brief debate [61 Cong. Rec. 6564, 67th Cong. 1st Sess., Oct.
20. 1921; H. Jour. 494].
[[Page 1393]]
Sec. 3.2 Bogy v Hawes, 11th Congressional District of Missouri.
Pleadings.--Failure of contestant to comply with an elections
committee rule requiring filing of an abstract of evidence with his
brief did not preclude committee's consideration of the merits of the
contest.
Evidence taken ex parte by contestant is not admissible.
Evidence offered by contestant to support allegations of fraud and
irregularities was insufficient to void returns.
Report of Committee on Elections No. 1 submitted by Mr. Frederick
W. Dallinger, of Massachusetts, on July 21, 1921, follows:
Report No. 281
Contested Election Case, Bogy v Hawes
statement of the case
At the election held in the eleventh congressional district of the
State of Missouri on November 2, 1920, according to the official
returns, Harry B. Hawes, the contestee, who was the Democratic
candidate, received 35,726 votes and Bernard P. Bogy, the contestant,
who was the Republican candidate, received 33,592 votes. As a result of
these returns, Harry B. Hawes, the contestee, was declared elected by a
plurality of 2,134 votes over his Republican opponent, Bernard P. Bogy,
and a certificate of election was duly issued to him by the secretary
of state of Missouri.
On December 18, 1920, the contestant, Bernard P. Bogy, in
accordance with law, served on the contestee a notice of contest in
which was set forth 27 separate grounds of contest, alleging false
registration, wrongful and fraudulent counting of ballots, and
intimidation of voters at the congressional election. Summarizing the
numerous allegations in his notice of contest, the contestant claims
that 31,125 votes were improperly and illegally east for the contestee
and that if the votes thus illegally and improperly counted and
accredited to the contestee, Harry B. Hawes, were deducted, the
contestant, Bernard P. Bogy, would be shown to have been fairly
elected.
To this notice of contest the contestee, Harry B. Hawes, on
December 20, 1920, served on the contestant, Bernard P. Bogy, an answer
denying all the allegations contained in the contestant's notice.
The contestee took no testimony in his own behalf before the notary
public, contenting himself with a long and exhaustive cross-examination
by himself and his counsel of the witnesses summoned by the contestant.
He contended both in his brief and in his argument before your
committee that the contestant has utterly failed to prove the
allegations contained in his notice of contest.
work of the committee
The testimony in the case having been printed and printed briefs
having been duly filed with the committee by both parties, a hearing
was given to
[[Page 1394]]
the parties by your committee on Wednesday, July 13, 1921, at which
oral arguments were presented by both the contestant and the contestee,
neither of them being represented by counsel at the hearing. Since the
close of the hearing the committee has examined the record, the briefs,
and the stenographer's report of the hearing and given the ease careful
consideration.
In order to expedite the disposition of contested election cases
the three Committees on Elections at the beginning of the present
session of Congress revised the rules of the committees and adopted a
new rule known as rule 3, which reads as follows:
Rule 3. Each contestant shall file with his brief an
abstract of the record and testimony in the case. Said
abstract shall, in every instance, cite the page of the
printed testimony on which each piece of evidence referred to
in his abstract is contained. If the contestee questions the
correctness of the contestant's abstract, he may file with
his brief a statement setting forth the particulars in which
he takes issue with the contestant's abstract, and may file
an amended abstract setting forth the correct record and
testimony.
Copies of the new rules were sent to both the contestant and the
contestee in the present case. The contestant, however, entirely
ignored this rule and did not file with his brief an abstract of the
record and testimony in the case, although the contestee did comply
with it. As a result, the committee was obliged to read the entire
record, which was full of a very large amount of irrelevant matter.
Under the circumstances, the committee might well have defaulted the
contestant for noncompliance with the rules of the committee. Inasmuch,
however, as this was the first Congress in which this rule has been in
operation, the committee has been inclined to be lenient and has
considered the case in all its bearings as fully as if the rule had
been complied with.
In connection with this subject, the committee desires to call the
attention of the House to H.R. 7761, unanimously reported by this
committee on July 16 of the present year, being No. 115 on the Union
Calendar, and now on Calendar for Unanimous Consent, which incorporates
the substance of this rule in the law governing contested election
eases.
findings of fact
In support of most of the allegations contained in his notice of
contest, the record shows that the contestant offered no evidence or
testimony whatever. In the case of the few allegations in which he
submitted testimony, it is in most cases unsatisfactory and
unconvincing, as a reading of the examination and cross-examination of
the witnesses in the record will show.
As an example of the lack of evidence in this case, the committee
desires to call attention to the twenty-fourth count in the
contestant's notice of contest, where he alleges that there were in the
eleventh congressional district about 2,000 cases of illegal
registration, the votes of all such illegally registered persons having
been cast for the contestee. Then follows a list of
[[Page 1395]]
about 450 names and addresses of persons alleged to be improperly
registered. In support of this alleged wholesale illegal registration
and voting, no evidence or testimony whatever was offered by the
contestant at any time. At the hearing before your committee the
contestant offered a sworn affidavit of a lieutenant of police of the
city of St. Louis, stating that on March 26, 1921, prior to the city
election, he was detailed by the board of police commissioners to
investigate false registration in certain wards of St. Louis, and that
he compared his canvass of certain precincts in the eleventh
congressional district with the registration lists furnished by the
board of election commissioners, and that he estimated that there were
between 1,000 and 1,200 false registrations in the eleventh
congressional district at that time. Inasmuch as this affidavit was
entirely ex parte and no opportunity was given to the contestee to
cross-examine the witness, your committee very properly excluded it in
common with several other similar affidavits. This affidavit, like the
other excluded affidavits, however, had no probative value or any
bearing upon the present contest, as there was no evidence whatever
that any of the alleged false registrants voted at the congressional
election on November 2, 1920.
conduct of the election
The contestant, Bernard P. Bogy, was a candidate for the Republican
nomination for Congress in the eleventh Missouri district at the
primary election held August 3, 1920, but was defeated by Otto F.
Stifel by a vote of 8,296 to 1,944. After the primary and before the
election, Otto F. Stifel died and the contestant, Bernard P. Bogy, was
given the Republican nomination by the Republican congressional
committee. The adoption of the nineteenth amendment to the Constitution
of the United States, granting the right of suffrage to women, resulted
in an increase in the number of registered voters in the eleventh
congressional district of Missouri from 44,670 in 1916 to 79,356 in
1920. In the year 1916 the total vote cast by both the Republican and
Democratic candidates for Congress was 41,462, while in the year 1920
the combined vote of the contestant and the contestee was 69,318. To
meet this tremendous increase in the number of registered voters only
23 additional polling places were provided by the authorities of St.
Louis, resulting in a very great congestion at the polls on election
day. In spite of this congestion, however, the election was, on the
whole, quiet and orderly, there being very few complaints made to the
board of election commissioners.
The election was in charge of the Board of Election Commissioners
of the city of St. Louis, which is a bipartisan board composed of two
Democrats and two Republicans appointed by the governor of the State
and confirmed by the State senate. The clerks in the office of the
board of election commissioners are equally divided between Republicans
and Democrats, the Republican clerks being selected by the Republican
commissioners and the Democratic clerks being selected by the
Democratic commissioners. At each of the 155 voting precincts of the
eleventh congressional district there were present on election day two
Republican and two Democratic judges of election and one Republican and
one Democratic clerk, all of these officials being ap
[[Page 1396]]
pointed by the board of election commissioners, the Republican
officials being appointed by the two Republican commissioners and the
Democratic officials being appointed by the two Democratic
commissioners. In addition, there were at each polling place one
Republican and one Democratic watcher and one Republican and one
Democratic challenger, who were appointed by the Republican and
Democratic ward committees, respectively.
charges of intimidation
There is some evidence in the record that party workers wearing
badges, at and near the polling places, and in a few instances some of
the election officials, solicited voters to vote for the Democratic
candidate in violation of the election laws of the State of Missouri.
In no precinct, however, were these or any other irregularities
testified to by the contestant's witnesses, of such a nature or of such
an extent as to warrant the throwing out of the vote of any precinct;
and there is no evidence whatever to connect the contestee or his
agents with any of such irregularities. For instance, one of the
contestant's witnesses, Mrs. Grace Guy, testified that a union labor
man urged her to vote for Gov. Cox for President because of his
friendship for organized labor, the names of the congressional
candidates not even being mentioned.
The only case of actual intimidation seems to have been that of the
Rev. Eugene V. Hansmann, who, according to his own testimony, was
assaulted and taken to the station house by a police officer in the
first precinct of ward 20 without any apparent justification. On cross-
examination he testified that he had never preferred charges against
the police officer who arrested him.
Ballots.--The results of an examination and complete recount
conducted by bipartisan election officials upon stipulation of the
parties were held binding on contestant.
Ballots.--An elections committee refused to partially recount
ballots not returned as disputed from the complete recount which had
been conducted by election officials pursuant to stipulation of the
parties, where the result would not be changed, where fraud was not
proven by certain markings, and where contestant was estopped by the
stipulation from such challenge
Fraud was not proven by contestant's receiving fewer votes than
candidates of his party for other offices, where the political
situation in the district was found consistent with such disparity.
Report for contestee, who retained his seat.
the recount
On January 11, 1921, a stipulation was entered into between the
contestant and the contestee and their respective counsel, a copy of
which will be found on pages 269 and 270 of the printed record, that
``the board of election commissioners should open the ballot boxes used
in the eleventh congressional district at the election held on November
2, 1920, and recount the bal
[[Page 1397]]
lots for the office of Representative in the Sixty-seventh Congress for
the eleventh congressional district of Missouri.'' In this stipulation,
which was signed by both the contestant and his attorney, it was agreed
that in case the validity of any ballot for either the contestant or
the contestee was challenged the question should be decided by the
board of election commissioners. The recount was commenced on January
12 and completed on January 17, 1921. The actual counting was done by
40 assistants appointed by the board of election commissioners, 20 of
them being Democrats and 20 of them being Republicans. After the
recount was completed and the board of election commissioners had
passed upon all disputed ballots, the final result showed that Harry B.
Hawes, Democrat, had received 35,404 votes and Bernard P. Bogy,
Republican, had received 33,337 votes, making a plurality for Harry B.
Hawes, Democrat, of 2,067, or a net gain for Bernard P. Bogy, the
Republican contestant, of 67 votes.
At the hearing before your committee, the contestant claimed that
in spite of the fact that the recount was conducted by an equal number
of Republican and Democratic counters, and in spite of the fact that
both the contestant and the contestee were given the privilege of
having a watcher at each table where the ballots were being counted,
nevertheless, the recount was not fairly conducted for the reason that
in some instances the contestant and his watchers were not given an
opportunity to see some of the scratched ballots for the purpose of
disputing the same. At a meeting of the board of election commissioners
held on January 25, 1921, after the recount had been completed and the
ballot boxes sealed up, the attorney for the contestant requested the
board for permission to photograph all of the scratched ballots in ward
19, precinct 12; ward 26, precinct 22; ward 26, precinct 17; ward 20,
precinct 14; and ward 22, precincts 8 and 9. This request was denied by
the board by a vote of three to one, on the ground that the ballots of
which photographs were desired, were not returned by the recount clerks
as ``disputed ballots'' and because it was contrary to the stipulation.
According to the record, these were the only precincts in which any
request was made for the reopening of the ballot boxes.
At the hearing before your committee, the contestant requested your
committee to send for these particular ballot boxes and examine all the
ballots. Even if all of the scratched ballots should prove to be in the
same handwriting and should be counted for the contestant, it would not
alter the result. Moreover, the fact that Republican ballots might be
found in these boxes in which the contestant's name was crossed out and
the name of the contestee written in, even if the handwriting were the
same, would not necessarily be evidence of fraud as under the laws of
Missouri, the election officers are permitted to mark the ballots for
illiterate voters. For these reasons your committee declined to send
for the ballot boxes in question and is of the opinion that on the
whole the recount was fairly conducted and that the contestant, having
agreed to abide by the decision of the board of election commissioners
in regard to all disputed ballots, he is precluded from now questioning
the result of the official recount.
[[Page 1398]]
summary and conclusion
In this case the contestant apparently feels that because the
Republican candidate for President carried the eleventh congressional
district of Missouri by a plurality of 2,403 votes, while at the same
time he, the Republican candidate for Congress, was defeated by his
Democratic opponent by a plurality of 2,067 votes, the result must have
been due to fraudulent practices. As a matter of fact, the eleventh
congressional district of the State of Missouri has been a Democratic
district for many years and under normal circumstances would naturally
elect a Democratic Congressman. The fact that the contestee had long
been a resident of the district, while the contestant had only recently
moved into the district, would easily account for the fact that the
former would run ahead of his ticket, while the latter would run
behind. Moreover, it is admitted by the contestant that most of the
Republican committeemen and most of the Republican election officials
were hostile to his election. Finally, he was not the choice of the
Republican voters, another candidate having decisively defeated him at
the primary and he having received his nomination from the
congressional committee. This opposition on the part of the active
Republican workers of the district would easily account for the fact
that his name was uniformly scratched in all the precincts of the
district on election day.
As has already been stated, the contestant did not even offer to
prove most of the allegations contained in his notice of contest and
offered no evidence whatever of any fraud or irregularities in most of
the 155 precincts of the congressional district. While, as the
committee has pointed out, there is some evidence of occasional
violations of the election laws of the State of Missouri, there is no
evidence whatever to justify the committee in throwing out the vote of
any voting precinct. Your committee believes that considering the very
great congestion at the polls due to the voting of women for the first
time, the election held in the eleventh congressional district in the
State of Missouri on November 2, 1920, was, on the whole, quiet and
orderly and fairly conducted. Furthermore, in order to discover any
possible discrepancies or evidence of fraud, an official recount was
held by the bipartisan board of election commissioners of the city of
St. Louis, under a stipulation signed by the contestant and his
attorney, that all disputed ballots should be decided by the board.
Your committee believes that this recount was fairly conducted and that
the official result of the recount showing that Harry B. Hawes, the
contestee, was elected by a plurality of 2,067 over his Republican
opponent, Bernard P. Bogy, the contestant, in the absence of competent
evidence to dispute it, is a fair and accurate expression of the wishes
of the voters of the eleventh congressional district of Missouri. Your
committee, therefore, for the reasons hereinbefore stated, respectfully
recommends to the House of Representatives the adoption of the
following resolutions:
Resolved, That Bernard P. Bogy was not elected a
Representative in this Congress from the eleventh
congressional district of the State of Missouri and is not
entitled to a seat herein.
[[Page 1399]]
Resolved, That Harry B. Hawes was duly elected a
Representative in this Congress from the eleventh
congressional district of the State of Missouri and is
entitled to retain his seat herein.
Reported privileged resolution (H. Res. 205) agreed to by voice
vote after brief debate [61 Cong. Rec. 6555, 67th Cong. 1st Sess., Oct.
20, 1921; H. Jour. 494].
Sec. 3.3 Kennamer v Rainey, 7th Congressional District of Alabama.
Evidence offered by contestant to support allegations of
registration frauds and irregularities was insufficient to affect
election results.
Suffrage.--Women voters were not denied the right to register or
vote by a conspiracy of the state legislature.
Irregularities by election officials in permitting unregistered
persons to vote were held insufficient to affect the election result.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 3 submitted by Mr. Cassius
C. Dowell, of Iowa, on Oct. 31, 1921, follows:
Report No. 453
Contested Election Case, Kennamer v Rainey
At the November election held in the seventh congressional district
of the State of Alabama on the 2d of November, 1920, according to the
official returns, L. B. Rainey, the contestee, who was the Democratic
candidate, received 23,709 votes, and Charles B. Kennamer, contestant,
who was the Republican candidate, received 22,970 votes. As a result of
these returns L. B. Rainey, the contestee, was declared elected by a
majority of 739 votes, and a certificate of election was duly issued to
him and upon such certificate he was duly seated as a Member of the
Sixty-seventh Congress.
On the 11th day of December, 1920, the contestant, Charles B.
Kennamer, in accordance with law, served on the contestee a notice of
contest setting forth a number of grounds of contest, generally
charging, in various forms, fraud and malconduct of various officers,
and charging fraud and irregularities in the registration of voters,
and charging generally that certain officers, members of committees,
and members of State legislature conspired to postpone legislation for
the registration of women voters in said district, and further charging
that they did deprive certain women from registering and voting in said
district, and further charging that L. B. Rainey was not elected to
said office, but that contestant was duly elected. . . .
It is charged by contestant that the governor, members of the
legislature of the State, and certain other persons conspired to delay
legislation authorizing the registration of women voters of the
district and delayed the appointment of registrars to register these
voters. The proclamation of the ratification of the woman's suffrage
amendment was made on August 26, 1920.
[[Page 1400]]
The governor issued a call for a special session of the legislature on
August 28, 1920, to convene on September 14, 1920. The record shows
that the legislature convened on the 14th day of September, 1920, in
special session, and the legislation referred to was completed and
signed by the governor on October 2, 1921, which was the last day of
the extra session. It appears that other legislation was considered and
acted upon by the legislature during this time.
Your committee do not find the charge of conspiracy to delay this
legislation and to delay the appointment of registrars to be sustained
by the evidence.
It is further charged by contestant that a number of Republican
women were not registered and were denied the opportunity to register.
The testimony of contestant on this point is very indefinite and
uncertain and does not sustain the charge of contestant.
It is further charged by contestant that the registration boards
were partisan and unfair in their selection of the various places for
the registration of voters, and that said boards unlawfully registered
Democratic voters and did not give the Republican voters the
opportunity to register and refused their registration.
Your committee find from a careful inspection of the evidence that
some persons were registered unlawfully, and the evidence shows that a
small number not legally entitled to vote voted for the contestee, Mr.
Rainey; but the testimony does not show that the number of votes cast
of those who were not properly registered and who were not legally
entitled to vote materially affected the result of the election.
While there were some other irregularities, and perhaps violations
of the law in some instances, the evidence does not disclose that these
irregularities or violations affected the result of the election in
this district. Neither does the evidence disclose that the persons who
failed to vote in said district were deprived of their right to
register and vote, nor is it shown by competent evidence that they
offered to register or vote.
On the whole case the official returns show that contestee, L. B.
Rainey, received a majority of 739 votes, and the evidence submitted in
this case does not sustain the charges of the contestant that
contestant should be declared elected.
Your committee therefore find that L. B. Rainey received a majority
of the votes cast in the seventh congressional district of the State of
Alabama on the 2d day of November, 1920, and that he was duly elected.
Your committee therefore, for the reasons herein stated,
respectfully recommend to the House of Representatives the adoption of
the following resolutions:
Resolved, That Charles B. Kennamer was not elected a
Representative in this Congress from the seventh
congressional district of the State of Alabama, and is not
entitled to a seat herein.
Resolved, That L. B. Rainey was duly elected a
Representative in this congress from the seventh
congressional district of the State of Alabama,and is
entitled to retain his seat herein.
[[Page 1401]]
Privileged resolution (H. Res. 221) agreed to by voice vote after
brief debate [61 Cong. Rec. 7214, 67th Cong. 1st Sess., Nov. 2, 1921;
H. Jour. 523].
Sec. 3.4 Rainey v Shaw, 20th Congressional District of Illinois.
Federal Corrupt Practices Act.--Contestant's allegations of
violations during contestee's primary election were insufficient, based
on advisory opinion of the Attorney General construing a Supreme Court
opinion holding such act invalid with respect to nominations.
Federal Corrupt Practices Act.--Provisions requiring timely filing
of receipt and expenditure statements by candidates in a general
election were construed as directory, and the fact that the Clerk did
not receive statements held insufficient grounds for unseating
contestee where evidence showed attempted compliance.
Answer to notice of contest.--Filing after the required time was
found not prejudicial to contestant and therefore not grounds for
unseating contestee.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 2 submitted by Mr. Robert
Luce, of Massachusetts, on Dec. 6, 1921, follows:
Report No. 498
Contested Election Case, Rainey v Shaw
Guy L. Shaw, it is admitted, received a majority of the votes cast
at the election November 2, 1920. His seat is contested by Henry T.
Rainey by reason of circumstances connected with the corrupt practices
act and the statute relating to procedure in election contests. An
allegation of improper use of certain funds received by Mr. Shaw was
not supported by any evidence whatever, nor was it further pressed upon
the committee, by argument or otherwise. There was no charge of
illegitimate use of money among the voters of the district, nor of
expenditure beyond the limit prescribed by law. In the end the
contestant restricted his contentions to matters of failure to comply
with statutory requirements.
After notice of contest had been filed, the Supreme Court, in the
case of Truman H. Newberry et al. v. The United States, gave an
opinion, May 2, 1921, bearing upon the corrupt practices act. As to the
effect thereof, the Attorney General has advised your committee as
follows:
It is my opinion that the Newberry decision should be
construed as invalidating all of the provisions of the act
referred to, relating to nominations for the office of
Senator or Representative in Congress, whether by primaries,
nominating conventions, or by endorsement at general or
special elections. I am also of the opinion that as to
statements of receipts and disbursements to be filed by
candidates for the office of Representative in Congress under
[[Page 1402]]
section 8 of the act, the only provision now in force and
effect is the one which requires such statements to be filed
in connection with the election of such candidates.
Agreeing with this view, we conclude that such of the allegations
of the contestant as concerned the primaries in the district in
question fall to the ground, by reason of the unconstitutionality of so
much of the act as related to nominations; but that those allegations
connected with the election should be considered. These center upon the
contention that Mr. Shaw should be held to be disqualified because he
failed to file within the time prescribed statements of his receipts
and expenses in connection with the election. On this point the
testimony of Mr. Shaw is to the effect that he duly mailed such
statements. They were not received by the Clerk of the House. Had Mr.
Shaw taken advantage of the statute and sent the documents by
registered mail, no question would have arisen. However, the law does
not make registration a requisite, and, as a matter of fact, many
returns forwarded without registration have been unhesitatingly
accepted. Apart from the nonarrival of the statements, there was no
evidence tending to contradict Mr. Shaw's testimony, but, on the other
hand, there was evidence to the effect that at least some of the
statements had been duly prepared. With the case so standing, it seemed
clear to your committee that in this particular no sufficient reason
had been advanced for declaring Mr. Shaw to be disqualified, even if it
were to be assumed that the requirements of law in the matter of filing
statements are mandatory rather than directory. Therefore that question
need not here be once more discussed, though in passing it may not be
undesirable to point out that the precedents support in general the
view that such requirements are directory and therefore that failure to
observe them will not of itself invalidate an election.
The only other contention seriously pressed in behalf of the
contestant was that Mr. Shaw had failed to comply with the statutory
requirement for the filing of an answer to notice of contest within a
stipulated time. Here the evidence showed no willful neglect on the
part of Mr. Shaw, nor any injury to Mr. Rainey. Mr. Shaw appears to
have erred in his understanding as to what would be a compliance with
the law, and did not receive legal advice in the matter until the time
for proper reply had passed, but a proper reply was then made, and in
ample time to protect all of Mr. Rainey's rights. Under such
circumstances, where no harm has resulted to anybody, where no act or
failure to act has shown moral obliquity, where no statutory purpose
has been thwarted to the public detriment, there is no ground for the
contention that a district ought to be deprived of the services of its
duly chosen representative, or that the dignity or the honor of the
House calls for his exclusion.
Therefore the committee recommends to the House the adoption of the
following resolutions:
Resolved, That Henry T. Rainey was not elected a
Representative in this Congress from the twentieth
congressional district of the State of Illinois and is not
entitled to a seat herein.
[[Page 1403]]
Resolved, That Guy L. Shaw was duly elected a
Representative in this Congress from the twentieth
congressional district of the State of Illinois and is
entitled to retain a seat herein.
Privileged resolutions (H. Res. 248, H. Res. 249) agreed to after
debate by voice vote [62 Cong. Rec. 431, 432, 67th Cong. 2d Sess., Dec.
15, 1921; H. Jour. 37].
Sec. 3.5 Campbell v Doughton, 8th Congressional District of North
Carolina.
Ballots.--Absentee votes were not rejected where lack of voter
domicile was not proven by contestant.
Ballots.--The absentee return was not entirely rejected for failure
of election officials to preserve all such ballots, where state law was
reasonably interpreted by officials to require preservation only of
certain absentee ballots with accompanying certificates, and not
others, and fraud was not proven by contestant.
Report of Committee on Elections No. 2 submitted by Mr. Robert
Luce, of Massachusetts. on May 27, 1922, follows:
Report No. 882
Contested Election Case, Campbell v Doughton
Returns from the district in question, with conceded corrections,
show a vote of 32,944 for Robert L. Doughton and 31,856 for James I.
Campbell, making Doughton's apparent majority 1,088. The seat is
contested on various grounds.
absentee voting
The contestant asks that all the absentee votes be thrown out, for
the reason that the great bulk of them were fraudulent, and for the
further reason that the ballots and certificates were not preserved and
returned as required by law, making it impossible for the contestant to
pursue his inquiries with thoroughness. The chief fraud alleged was in
the matter of residence qualification. In this particular the committee
does not think the charges are borne out by the evidence. The difficult
problem of domicile, so greatly involving in its determination the
question of intent, seems on the whole to have been met by the local
officials with as much fairness and wisdom as could have been
reasonably expected, and the testimony presents little if any
suggestion of conscious misfeasance. In the case of new registrations a
registrar is rarely in position to question the applicant's declaration
of intent. In the case of voters already on the roll the declaration in
the certificate accompanying the ballot of an absentee, that he is ``a
qualified voter,'' seems virtually to preclude the officials at the
polls from rejecting the ballot on the ground that the absentee has
abandoned his residence.
The practical effect is to postpone inquiry until the result of the
election is contested. Such inquiry must then be largely confined to
persons other
[[Page 1404]]
than the absentee voters themselves, as it turned out in the present
case. The testimony of such other persons must be largely opinion
testimony, which is always of doubtful weight. For this reason it was
held in Lowe v. Wheeler, Forty-seventh Congress, that the mere
statement of a witness that an elector is a nonresident is
insufficient; the witness must give facts to justify his opinion.
Furthermore, lack of acquaintance on the part of a single witness will
not be adequate proof. In Letcher v. Moore, Twenty-third Congress, the
committee unanimously adopted as a rule of decision ``that no name be
stricken from the polls as unknown upon the testimony of one witness
only that no such person is known in the county.'' This becomes of all
the more importance in the case of absentee voters because they are so
often persons who are little at home and who may indeed have passed
most of the time away for years. If these things be borne in mind, much
of the contestant's testimony aimed at the absentee vote will be found
to fall to the ground. The acceptance of ballots from voters whose
poll-taxes may not have been paid raised a more debatable issue, which
may best be considered later in this report. Apart from the votes
disputed by reason of domicile or nonpayment of poll-taxes, we find
only about 175 absentee votes specifically questioned by the contestant
with any shadow of basis for suspicion, and the rejection of all of
these would not by itself change the result of the election.
The contestant, however, avers that in any case the whole absentee
vote should be rejected because of the failure to preserve ballots and
accompanying certificates, which in his belief the law required. The
governing provision is to be found in section 4a of chapter 322 of the
Public Laws of 1919, relating to absentee voting:
In voting by the method prescribed in chapter 23 of the
Public Laws of 1917 the voter may, at his election, sign, or
cause to be signed, his name upon the margin or back of his
ballot or ballots, for the purpose of identification. The
ballot or ballots so voted, together with the accompanying
certificates, and also the certificates provided in section
two of this act, in case the voter ballots by that form,
shall be returned in a sealed envelope by the registrar and
poll holders, with their certificates of the result of the
election and kept for six months, or, in case of contest in
the courts, until the results are finally determined.
This was in an act ratified March 11. On the previous day had been
ratified the work of a commission that had been engaged in revising and
consolidating the public and general statutes, and it had been provided
that the commissioners should insert the enactments of the current
general assembly, with proper technical changes ``and make such other
corrections which do not change the law as may be deemed expedient.''
The Consolidated Statutes were to be in force from and after August
1. When they appeared, they contained this provision (sec. 8101):
All public and general statutes passed at the present
session of the general assembly shall be deemed to repeal any
conflicting provisions contained in the Consolidated
Statutes.
[[Page 1405]]
From all this it is evident that when the commissioners dropped
from section 4a of chapter 322 the words italicized in the section as
quoted above, they could not change the purport of the original
provision; could not legitimate any interpretation of the section other
than the natural interpretation of the original phraseology.
This confutes the argument that the word ``so'' in the phrase,
``The ballot or ballots so voted, together with accompanying
certificates,'' refers back to all the absentee ballots and
certificates. Otherwise there would be no significance in the word
``also'' in the phrase omitted by the commissioners. It is clear, then,
that the actual law required the keeping of only the ballots signed for
the purpose of identification. Such was the interpretation generally
given to it by the election officials of both parties.
It was an interpretation buttressed by the fact that the laws of
North Carolina make no provision for the preservation of main election
ballots in general; and that no apparent gain would result from
segregating at any rate such unmarked ballots as were sent in by the
absentee.
Some question may be raised as to the ballots cast by election
officials in compliance with instructions given in that particular form
of certificate specially mentioned in the phrase omitted by the
commissioners--the certificate in which the absentee says he casts a
straight party ballot as designated. Possibly it was contemplated that
if the ballot as actually cast was attached to or kept with the
certificate, in case of contest it might later be learned whether the
election officials complied with the instructions. However, the
testimony contains almost no charges of misfeasance in this matter of
compliance with the voter's instructions, and in this particular no
injury appears to have resulted to the contestant because this class of
ballots was not in general preserved.
It is clear that failure to preserve the certificates by which a
straight party ballot was cast was a violation of the actual law, but
it is to be remembered that the phraseology of what purported to be the
law, as contained in the Consolidated Statutes and in the extract
therefrom printed as a pamphlet entitled ``Election Law,'' which
undoubtedly the election officials commonly relied upon, might fairly
be construed to mean that only the certificates accompanying marked
ballots were to be kept. Election officials can not reasonably be
expected to unravel the technical difficulties found in such a
situation as this. Indeed, as far as they grow out of the changes made
by the commissioners who consolidated the statutes, their very
existence was left to your committee itself to ascertain and disclose.
Even if errors were committed in this matter by the election
officials, it is well established that ``in the absence of fraud the
voter can not be deprived of his vote by the omission of election
officers to perform the duties imposed upon them by law.'' (Gaylord v.
Cary, 64th Cong. Also see Moss v. Rhea, 57th Cong.; Larrazola v.
Andrews, 60th Cong.; Barnes v. Adams, 41st Cong.)
The testimony in this case when studied in detail suggests no such
amount of fraud as would warrant the exclusion of the whole absentee
vote. To be sure, viewed as a whole, this vote naturally arouses
question by reason of the great preponderance of Democratic ballots,
but, of course, this
[[Page 1406]]
would not of itself suffice to invalidate the vote. It may have no
determining weight if it can be explained by reasonable considerations.
These are to be found in the status of the greater part of the
absentees and the relative activity of the party managers.
It is to be borne in mind that the absentee-voting article itself
says:
All the provisions of this article, and all the other
election laws of this State, shall be liberally construed in
favor of the right of the elector to vote.
Here was a mandate to the officials not to quibble nor stand upon
technicalities. The voter was to have the benefit of the doubt. When
such injunctions are specifically set forth, the clearest proof is
necessary in order to sustain an allegation of fraud in the acceptance
of ballots. No such proof has been presented by the contestant.
The following minority views were submitted by Mr. John L. Cable,
of Ohio:
The conduct of the election in many precincts of the eighth
congressional district of North Carolina was so tainted and permeated
with fraud, corruption, conspiracy, forgery, disregard of the law by
some of the election officials, misconduct and impropriety--all
constituting such a grievous assault upon the integrity of the ballot
box in such precincts that, in the opinion of the undersigned, these
acts remove from the official return the sacred character with which
the law should clothe them and place the burden of proof upon the
contestee, Doughton, to maintain the legality of the official count.
This he has failed to do and is not entitled to hold his seat as a
Member of Congress. . . .
The vote in the district upon which the certificate of election was
issued to the contestee stood as follows: Doughton, 32,934; Campbell,
31,856; Doughton's alleged majority, 1,078.
But the absentee votes included above are ``so tainted with fraud
that the truth can not be deductible therefrom.'' The ratio of the
absentee votes of Doughton and Campbell tell their own story, 1,596 to
201, respectively. Without this absentee vote Campbell wins by 317
votes. In Iredell and Rowan Counties Doughton received a total of 1,041
to Campbell's 87, or 12 to 1. The illegal absentee votes can not be
separated from the legal, and all absentee ballots should, therefore,
be rejected.
In addition contestant is entitled to 254 additional votes and
contestee 24 by reason of the Democrats purposely delaying and
depriving Republicans from voting in Fur and Big Lick precincts. . . .
absentee voters
It is apparent from the following list of absentee votes cast and
counted in the counties of Rowan, Iredell, Stanly, Ashe, and Caldwell,
that fraud must have been perpetrated against contestant Campbell in
the preparation and casting of the votes. . . .
[[Page 1407]]
Prior to the 1919 amendment to the absentee electoral law there was
no provision for the preservation of any of the absent-elector
certificates or ballots, but in this same chapter 322 of the 1919
assembly the law was amended by providing that certain certificates and
ballots should be ``kept for six months'' after the election, viz:
I. Ballots signed by absentee voter for identification
purposes.
II. Certificates (Form B) provided by section 2 of the
1919 law calling for a straight party ticket.
The courts have never passed upon the question as to whether or not
it is legal to destroy the absentee certificates prior to the six
months' period of time. There is no law authorizing the destruction of
the general election ballots. No matter how a court should construe
this provision, the record clearly shows that the destruction of the
certificates was a part of the conspiracy whereby many illegal votes
were cast. Prior to the election the Democrats received the application
of absent electors for certificates or ballots. No public record was
kept of the name and residence of these applicants, and no knowledge
was obtained by the Republicans as to who applied to vote under the
absent-elector law. The first information the Republicans obtained as
to the identity of those who desired to vote by absentee was at 3
o'clock on the day of election when the Democratic registrar produced
for the first time the envelopes containing the absent electors'
certificate or certificate and ballots, as the case might be, depending
upon the method the elector desired to use in voting. The envelopes
were opened at 3 o'clock and if Form B was used, ballots representing
the desire of the elector were picked up from the table and put in the
ballot box, and the Democratic registrar retained the envelope and
certificate. If Form A was used, the ballots were taken from the
envelope and put in the ballot box. In either case, Republicans had no
opportunity of obtaining information whereby the casting of these
ballots might be challenged. Directly after the ballots were counted,
they, together with the certificates, were destroyed or secreted. The
absentee electoral vote was the means of casting 1,596 Democratic votes
for Contestee Doughton, while but 201 absentee votes were cast for
Contestant Campbell. The record shows that absentee ballots were cast
on behalf of Contestee Doughton in part as follows: In the name of the
dead; the insane; without the knowledge or consent of those who did not
vote; a second absentee ballot without knowledge or consent of those
who had already voted; for and by many nonresidents of the State; for
and by many who had not paid their poll tax, as required by law; on
forged certificates.
By destroying or secreting the absentee certificates and marked
ballots it was impossible for contestant Campbell to obtain or to trace
and discover the identity and eligibility of the absentee voter in
every case; that is, from the certificate itself. Contestant, however,
by means of witnesses, introduced evidence showing that votes were cast
as above outlined.
To be a qualified elector in North Carolina section 5937 in part
provides:
The residence of a married man shall be where his family
resides, and that of a single man where he sleeps.
[[Page 1408]]
Notwithstanding this provision of the law, evidence was introduced
by contestant showing that many absentee ballots were cast in the name
of actual nonresidents of the voting precincts and even the State; such
absentees were living in Ohio, Illinois, Kentucky, Georgia, California,
and many other States of the Union, sometimes for 10 or 12 years.
A vote was cast for a man confined in the State institution for the
insane at Morgantown, on the western branch of the Southern Railroad,
whereas the envelope containing the certificate was mailed at Winston-
Salem, many miles from the hospital and not on the same railroad that
ran through Morgantown, in which it was located.
Because the identity of the absentees was concealed by reason of
the destruction of the certificates after the election and because of
the operation of the law before election it was impossible for
contestant to trace all absentee votes and show their illegality.
Fraud.--Conspiracy to defraud was not proven by contestant where
election official's inefficiency prevented timely opening of some polls
and the casting of some ballots.
Unethical campaign practices against a candidate on contestant's
ticket that were not attributable to contestee were held not
prejudicial against contestant.
Registration.--Registration of voters by election officials,
allegedly on a partisan basis, at places other than those designated
for registration (as permitted by state law) were held not prejudicial
against contestant.
Registration.--Denial of access to registration books to
contestant's party workers was found insignificant.
The majority report continued:
conspiracy
In two precincts of Stanly County (Big Lick and Fur) the conduct of
the polling was not inconsistent with the possibility of conspiracy.
Insufficient accommodation was provided for the voters; apparently the
crowd was not handled with ordinary skill; there were instances of
delay that might well have aroused suspicion. On the other hand
although the total vote polled was much less than in sundry other
precincts, and it was charged that 264 voters were unable to vote
before the polls closed at sunset, yet in one case 750 and in the other
695 ballots were cast, more than 1 a minute, leaving no ground to infer
conspiracy simply from the total of the figures. The weight of the
evidence showed no discrimination, except in favor of the women and
most of the elderly men, who regardless of party were given precedence.
Although as these precincts were strongly Republican, the loss fell
chiefly on the Republican ticket, yet Democrats suffered as well as
Republicans, and it is hard to believe that men would deliberately plan
to deprive their own partisans of exercising the right of suffrage in
the hope that a larger number of their opponents would be shut out.
Direct evidence of
[[Page 1409]]
conspiracy was wholly lacking, and the circumstances could be explained
as due to the inefficiency of election officials.
intimidation
By reason of the circulation and exhibition of a picture with
implications most unfair to the Republican candidate for President, and
a libellous publication purporting to be a genealogical tree, each
meant to arouse prejudice by raising the negro question in a peculiarly
obnoxious way, it was averred that numerous voters who otherwise would
have voted the Republican ticket, either voted the ticket of the other
party or stayed away from the polls. To this it was rejoined that if
any such effect was produced, it was much more than offset by the
indignation aroused in Republicans and the consequent stimulus to
harder work. Of course, neither thing is capable of much verification
and anyhow there was not even a charge that Mr. Doughton knew of the
matter or had in it any share whatever. Language strong enough for the
censure of such methods of campaigning is hard to find, but it would be
unwise to say that because of a vicious attack, wholly indefensible,
aimed at a candidate for one of the various offices to be filled at an
election, candidates for other offices should be imperiled.
registration
In North Carolina the law requires the attendance of registrars at
the place of registration on the four Saturdays preceding an election,
and permits the registrars at any other time to register elsewhere. The
contestant averred unfairness by registrars when away from the
registration places, in that they would then devote their energies
mainly to registering voters of their own faith, to the neglect of
voters of opposite faith. If there was violation of law in this
particular, it was to be found only in disregard of that part of the
oath taken by the registrar which imposed on him the duty of acting
``impartially.'' Undoubtedly a registrar would have been delinquent if
he had refused to register any qualified voter presenting himself at
the registration place on the appointed days, for registration was then
obligatory. To register elsewhere and at other times was wholly
permissive. Where it is altogether within the discretion and pleasure
of an official whether an act shall be performed at all, and its
performance is accompanied by no denial of rights, can the act be
impeached on the score of partiality? No voter in North Carolina has
either an inherent or a statutory right to be registered away from the
registration place. If there was neglect to give any voter an
opportunity that in fact was within the discretion of the official
concerned, it can not be treated as partiality from the legal point of
view.
Complaint was made that in various instances friends of the
contestant were impeded in getting access to registration books in time
to make proper inquiry as to ground for preferring challenges on
challenge day or at the polls. However, even putting the worst face on
the episodes cited, the offenders, if they were such, generally kept
within the letter of the law, and the exceptions were neither
considerable nor important enough to be given much weight in the
balancing of considerations.
[[Page 1410]]
In his minority views Mr. Cable contended:
delay depriving republicans from voting
In Stanly County, Fur and Big Lick precincts are heavy Republican.
The Democrats so conducted the election in these two precincts that
many Republicans were deprived of casting their vote for contestant. In
Fur precinct the polls were opened so that voting began about 8
o'clock, when the law requires the opening of the polls at sun-up--a
delay of at least an hour and a half. . . .
In both of these precincts Democrats were given preference in being
permitted to vote, so that when the polls were closed those without and
not being permitted to vote numbered 254 Republicans and 24 Democrats,
or a ratio of 10 to 1, while the record shows that the vote cast in
these precincts ran 3 Republicans to 1 Democrat.
The vote in these precincts does not compare in number to the vote
in some of the heavy Democratic precincts. It ran as high as 1,600. The
record is filled with many other cases of illegality and fraud, but it
is not necessary to go into them in this report. Not only the rights of
contestee and contestant are at issue here, but the rights of the
people of the district and of the State, and of the people of the
United States are involved. The undersigned respectfully contends that
it is impossible to separate the legal from the illegal absentee
ballots, and therefore all absentee ballots must be thrown out and
deducted so that the final vote in this case should be as follows:
------------------------------------------------------------------------
Campbell Doughton
------------------------------------------------------------------------
Cast in person.................................... 31,655 31,338
Unlawfully deprived of voting..................... 254 24
---------------------
Total..................................... 31,909 31,362
Campbell's lawful majority........................ 547 .........
------------------------------------------------------------------------
I therefore recommend to the House that ``James I. Campbell was
elected as Representative from the eighth congressional district of
North Carolina, and is entitled to a seat herein; and that Robert L.
Doughton is not duly elected as Representative in this Congress from
the eighth congressional district of North Carolina, and is not
entitled to retain his seat herein.''
Suffrage.--Widespread failure to observe state constitutional
requirements for payment of poll tax and for a literacy test, tacitly
approved by the parties and election officials, absent fraud and not
affecting the election result, was censured by an elections committee
but held not to be sufficient grounds for voiding the election.
Majority report for contestee, who retained his seat as the House
took no disposition.
Minority report for contestant.
The majority report concluded:
[[Page 1411]]
poll taxes
The constitution of the State required, with certain exceptions,
the prepayment of poll taxes as a qualification for voting. The
requirement was in general disfavor, and indeed at this very election
was taken out of the constitution. Nevertheless, it was at the time a
living thing and should have functioned, universally and impartially.
It did not so function. In one county, by definite agreement between
the organizations of both parties, the law was not enforced at all.
Throughout the district it was not enforced against men in the military
service, justification being supposedly found in an opinion of the
attorney general of the State which held that such men might be
exempted. In many other instances enforcement or refusal to enforce was
more or less arbitrary and accidental, seeming to depend on the whim of
the officials or the sentiment of the locality. Of course this opened
wide the door for abuse, and abuse walked in. Each side contends that
many votes improperly cast accrued therefrom to the benefit of the
other. To determine the facts and strike a completely accurate balance
would be impossible without prolonged and exhaustive individual inquiry
on the spot, and even then the lack of certain records would so
embarrass investigation as to cloud its results. For example, in
Iredell County, where it was agreed that the poll-tax requirement
should not be enforced, the sheriff did not certify the list of those
who had paid, as required by law. This might entail individual inquiry
as to the legality of every vote east in the county. Furthermore, that
would be of no avail unless the voters were compelled to disclose the
character of their votes, which raises the mooted question of violation
of the secrecy of the ballot. Indeed, the situation is so confused that
the contestant asks us to throw out the whole vote of the county. Such
drastic treatment does not seem to us called for by the circumstances.
The contestant saw fit not to rely solely upon his request, but
proceeded with examination of many Iredell County witnesses in this
particular, and we deem it sufficient to content ourselves with their
testimony and that of witnesses for the contestee in the same field.
The same course has been pursued in respect of the contentions about
votes said to be invalid because of nonpayment of poll taxes in the
other counties and of absentee votes as well as of those personally
cast.
literacy qualifications
The constitution of the State requires, with exceptions not now of
material consequence, that every person presenting himself for
registration shall be able to read and write. As in the case of the
poll-tax provision, this requirement was extensively ignored. In
certain parts of the district the people seem to have been unanimous in
the opinion that their judgment in this particular was above the
constitution. Each side contends that as a consequence the other gained
many votes with which it ought not to have been credited. Here, too, an
attempt to determine the facts with complete accuracy would require
lengthy and laborious inquiry on the spot, with little promise of
satisfactory conclusion, and we have thought it sufficient to rely on
the testimony.
[[Page 1412]]
These kindred contentions, relating to constitutional requirements
in the matter of poll-tax and literacy qualifications, furnish the main
question of principle involved in this case. It will be seen to differ
from the usual contest in that the important complaint is not of
restraint of suffrage, nor its improper extension on a large scale
without the knowledge or consent of a candidate or his adherents, but
of such an extension made with common knowledge and general consent.
Strictly speaking, there is no difference in effect between the
suppression of votes and their nullification by offsetting votes
illegally cast. The question here is whether the approval, avowed or
tacit, by the candidates and their adherents, prior to the conclusion
of the election, alters the situation.
Precedents to help us are rare. We have found but two cases
throwing any light on the question. In Taliaferro v. Hungerford,
Thirteenth Congress, with regard to certain irregularities in the
conduct of polling, declared by the sitting Member to be matters of
general practice and sanctioned by long usage, the committee
pronounced:
We feel no hesitation in saying that custom ought not to
justify a departure from the letter and spirit of positive
law.
Therefore the committee recommended that the election be set aside.
The House refused to take this advice and recommitted the matter,
whereupon the committee again reported that the election should be set
aside because it had been conducted in an irregular manner. This time
the House squarely took issue with the committee and voted that the
sitting Member should keep his seat.
In a case from the same State in the following Congress,
Porterfield v. McCoy, the sitting Member advanced an agreement between
himself and the petitioner under which a certain class of votes should
be received at the polls, another should be rejected, and persons
having a right to vote in one county but happening to be at an election
in another county of the same district might vote in such other county.
The committee was of the opinion that the agreement of the parties
could neither diminish nor enlarge the elective franchise as secured to
the freeholders of the district. This view, however, did not cost the
sitting Member his seat, for, after throwing out the votes that on
various grounds were held to be illegal, he was found still to have a
majority.
These cases do not cover the whole matter here in issue. The first
indicates merely that the House was averse to annulling an election
where custom had sanctioned irregularities that in fact related to form
rather than substance. The second did not go beyond agreement between
candidates and at most was obiter. So we are still confronted by the
question:
When an electorate deliberately and with common consent disregards
the provisions of a State constitution to an extent clouding the
result, has there been a valid election?
It is a question of much perplexity. On the one hand there is grave
danger in encouraging the belief that a constituency may violate
constitutional injunctions with impunity. On the other hand there is
grave doubt whether Congress may properly mete out punishment when
there is no clear and
[[Page 1413]]
convincing proof that the will of the constitutional majority has been
thwarted. Balancing these considerations, your committee has concluded,
though not without misgivings, that when acts alleged to have violated
the provisions of a State constitution do not appear to have changed
the result, either by themselves or in combination with statutory
misdemeanor, the House is not justified in declaring a seat vacant.
This neither excuses nor palliates the conduct in question. We have
no hesitation in declaring that it was reprehensible. Respect for law
and observance of constitutions are essential to the safety of our
common rights. If either basic or secondary law ceases to represent the
will of the majority, it should be annulled or changed, but while it
stands, it should be enforced. We are not called upon to consider what
may be the duty of the State itself in the way of prevention or
penalty. Our position simply is that failure to enforce the provisions
of a State constitution, a failure generally approved or acquiesced in
by candidates and electors, without conscious defiance of authority,
and without heinous circumstances, resulting from no wish or intent to
work injustice, and not proved to have altered the result, will not in
and of itself suffice to vitiate an election to the House of
Representatives.
Confining ourselves, then, to inquiry as to individual votes as far
as illuminated by the testimony, and taking that testimony at its face
value, with due allowance for contradiction, we have sought to strike a
balance between the contentions of the opposing parties. By reason of
the great intricacy of the record, which is confused by duplications
and a large variety of uncertainties, mathematical accuracy in this
balance is impossible, but we have been able to satisfy ourselves that
even with liberal allowance of the contestant's claims, the majority of
the contestee would not be overcome.
Therefore the committee recommends to the House the adoption of the
following resolutions:
Resolved, That James I. Campbell was not elected a
Representative from the eighth congressional district of the
State of North Carolina and is not entitled to a seat herein.
Resolved, That Robert L. Doughton was duly elected a
Representative in this Congress from the eighth congressional
district of the State of North Carolina and is entitled to
retain a seat herein.
Reported privileged resolution (H. Res. 355) was considered under
extended debate, contestant participating in debate, but without final
House disposition [62 Cong. Rec. 7808, 67th Cong. 2d Sess., May 27,
1922; H. Jour. 389].
Sec. 3.6 Paul v Harrison, 7th Congressional District of Virginia.
Registration.--State constitutional requirement that voters file
unassisted, handwritten applications was held mandatory, voiding
ballots cast by voters not filing or assisted in filing registration
applications.
[[Page 1414]]
Registration.--Ballots cast by voters filing defective unassisted
written applications were held merely voidable and were counted where
supplemented by oral examination under oath by a registrar as permitted
by the state constitution.
Report of Committee on Elections No. 1 submitted by Mr. Frederick
W. Dallinger, of Massachusetts, on June 14, 1922, follows:
Report No. 1101
Contested Election Case, Paul v Harrison
statement of the case
At the election held in the seventh congressional district in the
State of Virginia on November 2, 1920, according to the official
returns, Thomas W. Harrison, the contestee, who was the Democratic
candidate, received 13,221 votes and John Paul, the contestant, who was
the Republican candidate, received 12,773 votes. As a result of these
returns Thomas W. Harrison, the contestee, was declared elected by a
majority of 448 votes over his Republican opponent, John Paul, and a
certificate of election was duly issued to him by the secretary of
state of Virginia.
On December 18, 1920, the contestant, in accordance with law,
served on the contestee a notice of contest in which were set forth
numerous grounds of contest which may be summarized under three main
heads:
1. That a large number of persons voted at this election who were
not lawfully registered, and therefore under the constitution of
Virginia were not qualified to vote, and that if the votes of these
persons were eliminated the contestant would be elected.
2. That a number of persons voted at this election without paying
their poll tax, as required by the constitution and laws of Virginia,
and that if the votes of these persons were eliminated, together with
the other facts in the case, the contestant would be elected.
3. That the conduct of the election in certain precincts of the
district was marked by such reckless disregard of the provisions of the
constitution and laws of Virginia that the returns from those precincts
do not represent the expression of the will of the people; that there
was no valid election in those precincts, and therefore the returns
from them should be thrown out, in which case the contestant would be
elected.
To this notice of contest the contestee on January 14, 1921, served
on the contestant an answer denying all the allegations contained in
the contestant's notice, charging numerous cases of illegal
registration, and making sundry allegations of irregularities in
certain voting precincts of the district.
work of the committee
The testimony in the case having been printed and printed briefs
having been duly filed by both parties, hearings were given to the
parties by the committee on Tuesday, February 7, and Wednesday,
February 8, 1922, at which oral arguments were presented by the
contestant and his counsel,
[[Page 1415]]
Henry W. Anderson, Esq., and by the contestee and his counsel, William
M. Fletcher, Esq. Since the close of the hearing the committee has
examined the long and voluminous record and given the case most careful
and painstaking consideration.
illegal registration
Under section 18 of the constitution of the State of Virginia no
one is allowed to vote who has not been registered, and the
requirements for registration for all persons registered since January
1, 1904, as provided in section 20 of said constitution, are very
drastic. These requirements on the voter are as follows:
1. That he has personally paid to the proper officer all
State poll taxes assessed or assessable against him, under
this or the former constitution, for the three years next
preceding that in which he offers to register; or, if he came
of age at such time that no poll tax shall have been
assessable against him for the year preceding the year in
which he offers to register, has paid $1.50, in satisfaction
of the first year's poll tax assessable against him.
2. That, unless physically unable, he make application to
register in his own handwriting, without aid, suggestion, or
memorandum, in the presence of the registration officers,
stating therein his name, age, date and place of birth,
residence and occupation at the time and for the two years
next preceding, and whether he has previously voted; and if
so, the State, county, and precinct in which he voted last.
3. That he answer on oath any and all questions affecting
his qualifications as an elector submitted to him by the
officers of registration, which questions and his answers
thereto shall be reduced to writing, certified by the said
officers, and preserved as a part of their records.
In the voluminous record in this case there is evidence of hundreds
and even thousands of cases of persons who were registered although no
applications at all had been filed with the registrar. There are also
numerous instances in the record where assistance was given to
applicants for registration, either by the registrar himself or by some
third person. In addition to this the contestee introduced in evidence
a large number of cases of persons who were placed on the registration
list whose applications were not in strict conformity with the
requirements of the constitution.
Both the contestee and his counsel contended that these provisions
of the constitution were merely directory and not mandatory, and that
the votes of persons not registered in conformity with the constitution
could not be questioned at the election, the only remedy being to have
the names of persons thus illegally registered stricken from the voting
list previous to the election, as provided in the constitution. On the
other hand the contestant and his counsel contended that these
provisions of the constitution being mandatory on the legislature of
the State are also mandatory on the reg
[[Page 1416]]
istration and election officials; and that where no application is
filed the registrar acquires no jurisdiction and the vote of any person
placed on the registration list in the absence of such application is
void ab initio. . . .
In regard to the facts relative to the registration at this
election of persons who had filed no applications there is no room for
difference of opinion, as the contestant proved his case by calling as
witnesses the registrars in the various precincts who under the system
in vogue in Virginia were all members of the party to which the
contestee belonged, and they testified that they registered the voters
whose names were inquired of without requiring any written applications
as required by the constitution. In a large number of the precincts
registrars testified that they had never received any written
applications during their entire terms of office. The committee finds
that there were almost 1,900 cases of such illegal registration of
persons whose names were set out in the contestant's notice and in the
contestee's answer. In addition there were almost 3,200 additional
cases of void registrations not set out in the notice and answer but
shown by the evidence, making a total of over 5,000 cases of persons
who voted at the last congressional election in this district whose
registration and therefore whose votes were invalid. In its
consideration of the evidence the committee has in the first instance
confined itself to the names set forth in the notice and answer on the
theory that where the parties in their pleadings set up particular
names they should be strictly held to the names set forth in the
pleadings.
The contestant further contended that the votes of persons who were
assisted in making their applications, either by the registrar or by
other parties, are equally void ab initio and should not be counted. In
view of the fact that the constitution provides that the voter must
make application ``without aid, suggestion, or memorandum, in the
presence of the registration officer,'' the committee is of the opinion
that this contention is sound, as the written applications in such
cases would not be the applications of the voters themselves.
While the contestee vigorously contended throughout the taking of
the testimony and at the hearings before the committee that all the
votes of persons registered contrary to the provisions of the
constitution should be counted on the ground that the registration
could not be attacked collaterally, he also contended that if the
committee should decide against him, all applications which did not
strictly contain all the information set forth in the constitution
should be treated in the same manner, and he had placed in the record a
large number of alleged defective applications.
The committee has examined with care the applications in the cases
of all persons whose names were set forth in the contestee's answer and
finds that a very large number of the applications contain all the
information required by the second clause of section 20 of the
constitution. In the case of a considerable percentage of the
applications which are technically defective the voters, mostly women,
voting for the first time under the nineteenth amendment to the Federal
Constitution, have simply neglected to state that they had never before
voted, a fact of which any court might well take judicial notice. The
contestant contends that it would be absurd to place such defective
applications in the same category as cases where no applications were
[[Page 1417]]
filed or where assistance was given, and cites the analogy of the
validity of a judgment, even though the notice, in a court of record,
is grossly defective in form, once the court has acted on it and when
judgment is given. He also calls attention to the fact that, although a
notice in a suit is defective, amendments are invariably allowed by the
courts whenever the interests of justice demand.
The committee is of the opinion that this analogy is sound. As
Judge McLemore well says in the Suffolk Local Option Election case (17
Va. Law Reg. 358) before referred to--``the registrar has no
jurisdiction in the premises until there has been an application as
specifically provided by the constitution.'' The fact that the third
paragraph of section 20 of the Virginia constitution provides for an
examination under oath of the applicant by the registrar as to his
qualifications, implies that the written application might not contain
all of the required information; otherwise the registrar would not need
to ask the applicant any questions but could from the application
itself, after having sworn the applicant, make the proper entries on
the registration book. If, however, the written application is
imperfect then the registrar can put the name of the applicant on the
registration book after asking him questions as to his qualifications.
In other words, while the registrar has no authority under the
constitution to ask any questions or to do anything else until a
written application has been made to him by a person in his own
handwriting, without aid, suggestion, or memorandum, when such
application has been made, however defective it may be, then the
registrar has jurisdiction to act, and he can ask the applicant any
questions about his qualifications to vote, the registrar in such cases
being required to reduce such questions and answers to writing and to
preserve them. Consequently the committee is of the opinion that
defective applications when once received by a registrar, under the
Virginia law are not void but merely voidable, and the vote of a person
registered on such an application supplemented by the examination under
oath by the registrar should not be thrown out in an election contest.
While this is the opinion of the committee, nevertheless, in
arriving at its final result the committee has considered not only the
defective applications in the cases of the names set forth in the
contestees answer, but also all the defective applications offered in
evidence by the contestee accompanied by proof that the parties
actually voted at the congressional election even where the names were
not set forth in the answer.
The following minority views were submitted by Mr. C. B. Hudspeth,
of Texas, and Mr. Alfred L. Bulwinkle, of North Carolina:
If the same standards are applied to many precincts carried by the
contestant as have been applied to the precincts carried by the
contestee and rejected by the committee and this method of treating
illegal votes is adopted, the contestee would be elected by a majority
in excess of that shown by the returns. In the absence of any data or
statistics we are unable to determine how the committee arrive at the
figures in which in any one of seven alternatives they find that the
contestant received a majority. We have care
[[Page 1418]]
fully considered the results of the election and have come to the
following conclusion:
First. The majority at each precinct by its ruling disfranchises a
very large per cent of the voters about whose registration and their
right to assistance no question can be raised. They were registered
prior to 1904 and were entitled to vote with or without assistance.
Second. Hundreds of others, who registered properly according to
the views of the majority and cast their ballot without assistance are
disfranchised on the vaguest testimony of assistance of some vague kind
to some unidentified voters, or because some did not make a proper
application. In many of the precincts the challenged vote proved to
have voted, is very small compared to the unchallenged vote. . . .
Fourth. Contrary to the Virginia constitution and contrary to the
decision of Judge McLemore, emphasized by his letter, the majority
holds, that a mere written application, though in no wise complying
with the requirements of Virginia law is sufficient, and without a
written application is void.
Suffrage.--Ballots cast by voters not paying the poll tax required
by the state constitution were rejected.
State election law requiring bipartisan judges, prohibiting
assistance to voters at registration and polling places, and requiring
proper custody and secrecy of ballots was held mandatory.
Returns were totally rejected in precincts where election
official's fraud or irregularities violated mandatory state election
laws; and, in other precincts, where rejected either on the basis of
the number of voided ballots actually proven to have been cast for each
candidate, or by proportional deduction method where it could not be
determined for which candidate illegal ballots had been cast.
Majority report for contestant, who was seated.
Minority report for contestee, who was unseated.
The majority report concludes:
poll taxes
Both parties in the present case agree that the votes of persons
who have failed to pay their poll taxes, as required by the
constitution, should not be counted in determining the result of the
election. While a great deal of space in the printed record and in the
briefs is taken up with this question of poll taxes owing to the fact
that both the contestant and the contestee in their pleadings, charged
that a large number of persons were illegally permitted to vote who had
not paid their poll taxes, the committee finds that the charges were
sustained in only about a hundred cases. Where the evidence shows for
whom the person voted deduction has been made from the vote of that
particular candidate, and where there is no evidence how the party
voted a deduction has been made pro rata from the total vote of both
candidates in the particular precinct. . . .
[[Page 1419]]
Under this grossly unfair system the legislature elects the judges
of the circuit court, all of whom are members of the dominant party,
even in those circuits where a majority of the voters belong to the
minority party. The decisions of these circuit judges in all election
cases are final, there being no appeal to the appellate court, as in
other States. These judges appoint, in each county and city, electoral
boards of three members each, with no provision for minority
representation, and these boards are almost invariably composed
entirely of partisans of the dominant party. The electoral boards in
turn choose the registrars, who are always members of the party in
power, and also the judges and clerks of election. In the case of the
latter the only provision for minority representation is the loosely
drawn requirement that in the appointment of the judges of election
representation ``as far as possible'' shall be given to each of the two
major political parties, but in all cases the selection of the so-
called minority member is exclusively in the hands of the electoral
board, which, as mentioned above, is always in the control of the
majority party.
At the congressional election held in the seventh congressional
district in 1920 the election machinery was absolutely in the control
of the political party to which the contestee belongs. The judges who
appointed the electoral boards were all Democrats and all the electoral
boards, except in the counties of Rockingham and Page, were made up
exclusively of members of the same party.
In addition to the utter disregard of the mandatory provisions of
the State constitution respecting registration and the failure to
conform to the requirement in respect to the appointment of Republican
judges of election, there were also in a large number of precincts
violations of the constitutional and statutory provisions concerning
the secrecy of the ballot, the keeping of the ballot box in view, the
counting and disposition of the ballots, and especially the provision
prohibiting the election officials from giving assistance to voters
unless registered previous to 1904 or unless physically disabled. . . .
summary and conclusion
After a careful and exhaustive consideration of all the evidence
the committee finds that in the precincts of Howardsville, Wingfields,
North Garden, Owensville, Lindsey, Covesville, Carters Bridge, Court
House, Monticello, Batesville, Keswick, Stony Point, Porters,
Hillsboro, Free Union, Ivy, and Scottsville in Albemarle County; in the
fourth ward of the city of Charlottesville; in the precincts of Mount
Airy, Russells, and White Post, in Clarke County; in the precincts of
Dry Run, Old Forge, Brucetown, Newtown, or Stephens City, Greenwood,
Gore, Neffstown, Middletown, Kernstown, Armel, Gainsboro, and
Canterburg in Frederick County; in both wards of the city of
Winchester; in the precincts of Mount Olive and Fishers Hill in
Shenandoah County; and in the precinct of Mount Crawford in Rockingham
County; there was such an utter, complete and reckless disregard of the
mandatory provisions of the fundamental law of the State of Virginia
involving the essentials of a valid election, that it can be fairly
said that there was no legal election in those precincts. Consequently,
in accordance with the universally accepted principles of the law
governing contested elections and
[[Page 1420]]
in conformity with a long line of congressional precedents, from the
Missouri case of Easton v. Scott in the Fourteenth Congress (Powell's
Digest, p. 68) down to and including the cases of Wickersham v. Sulzer
in the Sixty-fifth Congress, of Tague v. Fitzgerald in the Sixty-sixth
Congress, and of Farr v. McLane decided by this committee in the same
Congress, the committee is of the opinion that the entire returns of
these precincts should be rejected.
Rejecting the returns from the above precincts, and, in accordance
with congressional precedent, deducting from the total returned votes
of the contestant and contestee in the remaining precincts of the
district the votes of all persons whose votes were void because of
nonpayment of poll taxes or on account of illegal registration where it
was definitely proved for whom they voted, and in all other cases
deducting such void votes pro rata, the result of the congressional
election held in the seventh district of the State of Virginia on
November 2, 1920, would be as follows: John Paul, Republican, received
10,001 votes; Thomas W. Harrison, Democrat, received 8,445 votes; and
the contestant is elected by a majority of 1,556 votes. If in addition
there are deducted in like manner the votes of all persons named in the
contestee's answer whose written applications were proved to be
defective in form (although the committee is of the opinion, as already
stated, that such votes are not void), the result of the election is
found to be as follows: John Paul, Republican, received 9,637 votes;
Thomas W. Harrison, Democrat, received 8,431 votes; and the contestant
is elected by a majority of 1,206 votes.
Moreover, if in addition there are deducted pro rata the votes of
all persons who were registered by Democratic registrars in Republican
precincts, whose written applications were not in strict conformity
with the Virginia constitution, and which were offered in evidence by
the contestee but not set forth in his answer, in spite of the fact
that the committee has limited the contestant in the matter of illegal
votes to names set forth in his notice of contest, the result of the
election would be as follows: John Paul, Republican, received 9,036
votes; Thomas W. Harrison, Democrat, received 8,084 votes; and the
contestant is elected by a majority of 952 votes. Again, if the
contestee is given credit for all defective applications claimed by
him, regardless of whether they are in fact defective and regardless
also of any proof that the persons in question actually voted, the
result would be as follows: John Paul, Republican, received 8,680
votes; Thomas W. Harrison, Democrat, received 8,068 votes; and the
contestant would still be elected by a majority of 612 votes.
Furthermore, if the returns from none of the precincts are
rejected, although many of them clearly ought to be for the reasons
hereinbefore stated, and the votes that are illegal and void on account
of no written applications being filed by the voter ``without aid,
suggestion, or memorandum,'' and on account of the nonpayment of the
poll tax, as required by the constitution of the State of Virginia, are
deducted from the returns in the manner hereinbefore described, under
the construction of the law as found by the committee that the votes of
persons registered on written applications without assistance, if
received by the registrar, are not void but merely voidable, the result
of the election would be as follows: John Paul, Republican, received
11,607 votes; Thomas W. Harrison, Democrat, received 10,265 votes; and
the
[[Page 1421]]
contestant is elected by a majority of 1,342 votes. If in addition
there are deducted from the returns the votes of persons whose names
were set out in the contestee's answer whose written applications were
defective in form, although, as above stated, the committee does not
consider that such votes are void, the result would be as follows: John
Paul, Republican, received 11,158 votes; Thomas W. Harrison, Democrat,
received 10,911 votes; and the contestant is elected by a majority of
247 votes. Finally, if neither party is confined to the names set out
in the pleadings, although the committee is of the opinion that in all
fairness they should be, and the votes of all persons who voted and
whose registration was illegal because of the failure to file written
applications without assistance, or whose applications although
accepted by the registrar were actually defective in form, are deducted
from the returns in the manner hereinbefore described, the result would
be as follows: John Paul, Republican, received 9,312 votes; Thomas W.
Harrison, Democrat, received 9,074 votes; and the contestant is still
elected by a majority of 238 votes.
Your committee therefore respectfully recommends to the House of
Representatives the adoption of the following resolutions (H. Res.
469):
Resolved, That Thomas W. Harrison was not elected a
Member of the House of Representatives from the seventh
congressional district of the State of Virginia in this
Congress and is not entitled to retain a seat herein.
Resolved, That John Paul was duly elected a Member of the
House of Representatives from the seventh congressional
district of the State of Virginia in this Congress and is
entitled to a seat herein.
Mr. Hudspeth and Mr. Bulwinkle concluded in their minority views:
In our opinion in order to warrant the rejection of the returns at
any precinct it was incumbent upon the contestant to show facts which
warranted the disenfranchisement of every voter at such precinct, or at
least to make an effort to do so. In most of the precincts which were
rejected only a relatively small portion of those registered were shown
not to have complied with the constitutional requirements, and many of
the voters necessarily need not have complied with such requirements.
At such precincts many of the voters were entitled to assistance
because they had registered prior to 1904, and the evidence as to
assistance was so vague and indefinite in respect to the character of
the assistance and who and how many were assisted that in our judgment
it constitutes no ground for the rejection of the poll. Certainly
voters entitled to assistance should not be disenfranchised and not
allowed to participate in the election in question because some
assistance might have been given to those not entitled to assistance,
and such voters entitled to assistance should not suffer on account of
the delinquency of any of the election officers and other voters. It is
incumbent upon the contestee to use every effort to show the number of
those illegally assisted and who they were and also establish the
number of persons as to whom
[[Page 1422]]
no complaint as to registration or assistance could be made and thus
afford a basis for some correct conclusion to be made by the committee.
At not a single precinct in the district did the contestant make any
effort to do this. Not a single person was called to show that he was
assisted. On the contrary, the contestant in introducing evidence as to
assistance merely asked whether the judges would assist the voter and
sometimes asked whether they would do so, without regard to whether
they were on the permanent or the new roll. No attempt was made in most
instances to establish the character of the assistance or whether it
consisted in merely giving information as to how to mark the ballot or
in the actual marking of the ballot
itself. . . .
It was incumbent upon the contestant to establish these facts. Did
space permit, other instances might be cited of a similar nature in
respect to assistance. From an examination of the facts and a
consideration of the law we are of the opinion that the returns from
the precincts rejected by the committee should not have been rejected
and that the proper course to have been pursued would have been to
apportion the illegal votes proved to have been cast. . . .
Third. The majority ruled, that the parties were confined to the
names set up in the notice and answer and denied the right to prove
that any one voted for contestant by circumstances. The result was
reached, that the very persons set up in the answer as having voted for
contestant and proved by strong uncontradicted evidence to have so
voted under the proportionate rule were counted as having voted for
contestee. . . .
Fifth. Hundreds of names not in his notice were introduced in
evidence by contestant in his own time, and hundreds of others in
contestee's time and at his expense. Furthermore contestee introduced
evidence not to prove illegal votes for he has always claimed the votes
were legal, but to prove that contestant was not prejudiced by the
construction of the law adopted by the election officials in which
contestant for years has acquiesced.
Sixth. The majority does not enter into specifications and it is
impossible to understand their figures, but they show very little
consideration given to the record, when they say there were only a few
Republican precincts at which persons were registered without written
application. Counting Ottobine, in Rockingham County, where there was
no sort of individual action on the part of the registrant and where
the registrations are admitted to be void, there are 49 precincts in
the evidence at which parties were allowed to register without a
written application. Four of these were about a tie, but 23 of them,
Republican precincts. If the proof of contestee is admitted as to how
the voter cast his ballot, 666 would be deducted from contestant's
vote, and 505 from contestee, and the contestee would be elected by 609
majority instead of 448. If, however, the loss at each precinct is
apportioned, then 505 would be deducted from contestee and 407 from
contestant and contestee would still be elected by 350 majority.
If the defective registrations are not counted, then under the
apportionment plan contestee would be elected by 932 majority and by
proof of how the voter voted, by 1,382 majority.
[[Page 1423]]
At this election, owing to the admission of the women to suffrage,
the registration was very heavy. It is estimated that about 8,000 women
registered and as the Republicans were far more active and enthusiastic
than the disunited and dispirited Democrats, nearly 2 to 1 of these
women were Republicans. It is only natural, therefore, if there were
any flaws in the registration, the Republicans would be the greater
sufferers.
Seventh. The majority in one of its summations, undertakes to give
a result based on a count of all illegal ballots and reaches this
conclusion, to wit: John Paul received 9,312 votes and Thomas W.
Harrison 9,074. Again the majority fails to furnish any basis for its
figures, and it is impossible for the same to be correct. According to
this estimate the total vote was 18,386, and the total, according to
the certified returns, is 25,994. The majority has deducted, therefore,
7,608 as illegal votes. A careful tabulation by precincts shows that
the total number of votes about which, in the evidence, there is the
slightest suggestion of illegality is only 5,834, and this is much in
excess of the true illegal vote. So that 1,764 votes are deducted more
than in the evidence are suggested as illegal.
In the precincts of ward 1, ward 2, ward 3, Charlottesville;
Lindsey, Keswick, Stony Point, Crozet, Amisville, Woodville, Edinburg,
Mount Jackson, McGaheysville, Keezleton, and West Harrisonburg
registrants were permitted to have the benefit of the statute.
In the precincts of Howardsville, White Hall, Hillsboro, Free
Union, North Garden, Owensville, Batesville, Carters Bridge, Russells
(Clarke County), Shenandoah, Pine Hill, Quicksburg, Hudson Cross Roads,
Strasburg, Printz Mills, Columbia Furnace, Shirley, Leaksville, Luray,
Elkton, Singers Glen, Swift Run, Melrose, and Porters there was
evidence of assistance of an indefinite or more or less indiscriminate
character, but who were assisted and in what the assistance consisted
is vague and indefinite. Of these precincts 10 are Democratic, 13
Republican. It has not seemed fair to undersigned to disfranchise those
properly registered by proving somebody received some sort of
assistance to which by possibility he might not have been entitled, but
if any uniform or fair rule is applied it will add to contestee's
majority.
The undersigned therefore recommend that the House adopt the
following resolutions:
Resolved, That John Paul was not elected a Member of the
House of Representatives from the seventh congressional
district of the State of Virginia in this Congress and is not
entitled to a seat herein.
Resolved, That Thomas W. Harrison was duly elected a
Member of the House of Representatives from the seventh
congressional district of the State of Virginia in this
Congress and is entitled to retain a seat herein.
C. B. Hudspeth.
A. L. Bulwinkle.
The reported privileged resolution (H. Res. 469) recommended in the
majority report was permitted consideration (when the Speaker
[[Page 1424]]
overruled a point of order that the committee report had not been
printed when first submitted), was debated, and was divided for the
vote (the first part being agreed to 203 yeas to 100 nays with 2
``present''; the second part being agreed to 201 yeas to 99 nays with 2
``present'') [64 Cong. Rec. 531, 67th Cong. 4th Sess., Dec. 15, 1922;
H. Jour. 59-61].
Sec. 3.7 Gartenstein v Sabath, 5th Congressional District of Illinois.
Evidence not taken by contestant within the legal time was held
inadmissible where an extension of time for good cause was not sought,
and as stipulations of the parties for extensions are not binding on
the House.
Report of Committee on Elections No. 3 submitted by Mr. Cassius C.
Dowell, of Iowa, on Dec. 20, 1922, follows:
Report No. 1308
Contested Election Case, Gartenstein v Sabath
At the general election held in the fifth congressional district of
the State of Illinois on November 2, 1920, Jacob Gartenstein, the
contestant herein, was the Republican candidate and Adolph J. Sabath
was the Democratic candidate for Representative in the Congress of the
United States. William Newman was the Socialist candidate and received
a number of votes. Adolph J. Sabath at said election was declared
elected, and a certificate was issued to him accordingly.
On the 21st day of December, 1920, Jacob Gartenstein served notice
of contest upon Adolph J. Sabath, setting forth certain grounds of
contest and charging fraud, irregularities, errors, and mistakes in the
returns from certain precincts at said election, and charging that
while the official returns showed Adolph J. Sabath to be elected by a
plurality of 298 votes, a true and correct tabulation of the votes cast
at the election in said fifth congressional district would show that
the contestant, Jacob Gartenstein, was elected by a plurality of more
than 1,500 votes.
On January 15, 1921, Adolph J. Sabath, the contestee, served his
answer upon contestant, denying the allegations in the contestant's
notice and petition, and denying that there was any miscounting or
mistabulating in the counting of votes in said precincts. . . .
It will be noted that contestant began taking testimony 25 days
after the time for his taking testimony had expired under the statute,
and closed his taking of testimony under the various stipulations 80
days after his 40 days for taking testimony under the statute had
expired. . . .
The section of the statute providing for the taking of testimony in
a contested-election case is in the following language:
Sec. 107. In all contested-election cases the time
allowed for taking testimony shall be 90 days, and the
testimony shall be taken in the following order: The
contestant shall take testimony
[[Page 1425]]
during the first 40 days, the returned Member during the
second 40 days, and the contestant may take testimony in
rebuttal only during the remaining 10 days of said period.
This shall be construed as requiring all testimony in cases
of contested elections to be taken within 90 days from the
date on which the answer of the returned Member is served
upon the contestant.
While this statute has been held to be directory, and is not
binding upon the House, yet under ordinary circumstances the contestant
has been required to commence and complete his evidence within the 40
days allowed by statute, and if further time is required it must be
granted by the House, and may be granted only after showing a good and
sufficient reason therefor. . . .
In the case under consideration the contestant not only does not
show diligence but the record clearly shows without reason or excuse by
numerous stipulations undertook to set aside the operation of the
statute and practically took no testimony in the 40 days allowed him by
statute. Had the contestant come before the House asking for an
extension of time to take testimony after the expiration of the 40 days
there can be no question this would not have been granted to him, for
the record discloses that he had no good reason to ask for extension of
time for taking testimony. However, at each date to which extension had
been made he stipulated with the contestee for further continuances and
extensions, and without asking leave of the House, undertook to set
aside the statute limiting time for taking the evidence.
. . . In the case under consideration there was no question of the
limitation by the statute, and the record clearly shows that the
parties were attempting to set aside the operation of the statute by
agreements between themselves. If this action is to be approved by the
House, contested-election cases in the future may, by stipulation
between the parties, be presented to the House at any time the parties
may see fit, and the statute may thus be nullified.
Your committee finds in this case that contestant was not diligent
in prosecuting his case, and did not present his proofs within the time
prescribed by statute.
Returns are prima facie evidence of the correctness of an election,
and may be rejected only by a complete recount of ballots properly
preserved as best evidence.
Ballots.--Testimony of witnesses making a tally at a partial
recount, conducted by an official appointed to receive testimony, was
held inadmissible where all ballots cast were not offered as evidence
by contestant at such recount.
Ballots.--An elections committee refused to order a complete
recount where ballots and ballot boxes were not proven by contestant to
have been properly preserved.
Report for contestee, who retained his seat.
[[Page 1426]]
integrity of the ballots
Notwithstanding the findings of the committee relative to the time
for taking testimony, your committee has in this case examined the
record and the evidence relative to other questions raised in the
contest. . . .
Before a recount of the ballots may be had in an election contest
proof of inviolability of the ballot boxes and their contents is
necessary.
We will here submit a small part of the record and evidence
relative to the preservation and care of the ballots in this case: . .
The above record is set out to show the general condition of the
ballots and ballot boxes as they were presented to the commissioner
taking testimony.
The proofs in this case show that the judges of election, after
counting and canvassing the ballots, placed them in boxes and delivered
them to the election commissioners' office. The delivery of these
ballots began at 8 or 9 o'clock on the evening of the election and
continued until the afternoon of the following day. The evidence
discloses that the ballot boxes in some instances were not of
sufficient size to hold all the ballots cast in the precinct, and when
this happened the ballots were folded and tied with a rope and the
bundle was delivered with the ballot box to the commissioners' office.
The evidence shows these ballots remained in the office of the election
commissioners for some time and that a number of employees were
designated to handle the ballots and store them in the vault on the
floor above. A number of these were temporary employees.
It is well settled that before resort can be had to the ballots as
means of proof, absolute proof must be made that the ballots offered
are the identical ballots cast at the election; that they had been
safely kept as required by law; that they are in the same condition
they were when cast; that they had not been tampered with, and that no
opportunity had been had to tamper with them. The burden of making this
preliminary proof rests upon the party who seeks to use the ballots as
evidence. (English v. Hilborn, 53d Cong., Rowell, p. 486.)
In order to command confidence in a recount ``it is necessary for
the contestant first to establish the identity of the ballot boxes,
and, secondly, show that these boxes had been so kept as to rebut any
presumption that they had been tampered with.'' (Butler v. Layman, 37th
Cong.) . . .
The returns of election officers are prima facie correct, and a
recount showing a different result can not be regarded unless it
affirmatively appears that the ballots recounted are the same as those
originally counted and in the same condition.
The record in this case not only does not show that the ballots
were folded, wired, and sealed when presented to the commissioner
taking testimony, as required by law, but the proofs affirmatively show
that in a number of the precincts the ballot boxes were not tied and
sealed as required by the Illinois statute. In some instances at least
the evidence clearly shows that the ballot boxes were not at all sealed
when taken from the vault, but were tied and bundled together in such
manner that the boxes could be opened and closed without disturbing the
appearance of the ballot boxes.
[[Page 1427]]
With the ballots and ballot boxes in this condition, and with the
evidence of Mr. Curran that people were in and out of the vault where
these ballots were kept, it seems to your committee that the proofs of
the integrity of the ballots have not been established. Therefore your
committee holds that proofs of the proper and legal preservation of the
ballots have not been established in this case.
the best evidence must be offered
Contestant, in order to establish his claim of error and miscount,
called certain witnesses who were clerks in the election commssioner's
office. These witnesses were called upon by contestant to go through
the ballots in a number of the precincts in the fifth congressional
district and announce to another witness, who kept tally of the votes
announced for Member of Congress in the precinct, which witness
afterwards read the results of the tally to the commissioner taking
depositions. In this manner the contestant went through a number of the
precincts in said fifth congressional district. By the count in this
manner the vote of the contestant increased in the various precincts
over that of contestee until by this count contestant had increased his
vote in the precincts thus counted to overcome the plurality designated
by the contestee in the official count. Something like half of the
precincts, by this method, were recounted.
The ballots in these various precincts were before the
commissioner, but contestant did not have them identified, nor were
they offered in evidence. But, over the objection of contestee, the
witnesses were directed to count the ballots in the above manner and
report the result of the count to the commissioner taking testimony.
The election board, under the law, is presumed to have made correct
returns in this election. . . .
Your committee is of the opinion that the primary evidence of the
votes cast for the candidates for Representative in the Congress of the
United States in this district was the poll books and ballots
themselves, and that the official count by the election officers should
not be set aside by the testimony of a witness who merely looked at the
ballots and testified to the results.
Upon a proper showing and upon the production of the ballots
properly protected and preserved, contestant was entitled to a recount
of these ballots. But this proof should be established by the best
evidence, and the ballots being present should have been offered in
evidence as the best evidence in the case. The House will not set aside
the official count except upon positive proof that the official count
was incorrect.
a recount should include all the ballots
In this case the witness who went through the ballots examined only
those in perhaps half of the voting precincts in the district. It has
been held that a recount, if had, should include the ballots in all of
the precincts in the district.
[[Page 1428]]
If it is reasonable to suppose that there was error in counting
ballots in certain precincts, it would be equally reasonable to assume
that there were errors in counting in the remaining precincts. If any
recount is ordered it should be of all of the ballots cast in the
district. (Galvin v. O'Connell, 61st Cong., Supplement Election Cases,
p. 39.) We quote from the opinion on page 40:
The contestant asked that about 1,500 ballots cast in
said election precincts be ordered recounted by the committee
and the House, and the contestee insists that in case this is
ordered the order include the whole number of 25,000 ballots
cast. On this the committee rules as follows: ``It is the
opinion of the committee that if on the evidence submitted it
would be reasonable to suppose that there was error in
judgment in the counting of the ballots cast in the wards and
precincts mentioned by the contestant, it would be equally
reasonable to assume that there were errors in judgment in
the counting of the ballots in the remaining wards and
precincts, and that if any, all of the ballots cast at said
election, aggregating 35,669, should be ordered for recount
by the committee and the House.''
Where some of the ballots had not been preserved, the committee
denied recounting the balance of the ballots. (Murphy v. Haugen, 53d
Cong., p. 58, Supplement; Canton v. Siegel, 64th Cong., p. 92,
Supplement; Brown v. Hicks, 64th Cong., p. 93, Supplement.)
The committee can only report cases on the evidence furnished by
the parties. We can neither make the evidence nor improve the quality
nor supply the deficiency of that furnished. (See Goode v. Epps, 53d
Cong., Rowell, p. 469.) In this case contestee had a majority of 868 on
the returns and received the certificate. We quote from the opinion in
this case the following:
Most of the returns appear to have been thrown out
because the ballots or poll books were not properly sealed,
or the returns were irregular, ambiguous, or not delivered by
the proper official. The committee went over the evidence in
detail and complained that contestant had not in most
instances produced the best evidence available.
In the case under consideration the ballots were the best evidence
of the votes cast for each candidate for Member of Congress. The
ballots are not in evidence and are not therefore before the committee.
No attempt was made by contestant to offer these ballots to be
canvassed by the committee, but contestant seeks in this case to
overthrow the official canvass of the votes by the legally constituted
election boards by calling a witness to go through the ballots and
report the tally to the commissioner selected by contestant to take
testimony.
Where a witness testified that he compared the poll lists, entry
lists, or lists of persons struck from the registry list of a county,
and presented a list of names which he said were found on the poll list
but not on either of the other lists, the committee held that ``these
statements made by the witness
[[Page 1429]]
are inadmissible. The papers themselves are the best and only evidence
of what they contain if they are admissible for any purpose. The
committee must make the comparison and can not take the statements of
the witness as to the result of his comparison.'' (Finley v. Bisbee,
45th Cong., Rowell, p. 326.)
Where votes were proved to have been illegal but the evidence that
they were cast for contestee was the testimony of persons who had
compared the numbered ballots with the poll list, the ballots
themselves not being produced in evidence, the evidence was considered
insufficient to justify the deduction of the votes from the vote of the
contestee. (See Gooding v. Wilson, 42d Cong., Rowell, p. 276.)
The recount in this case should have included all of the ballots in
all of the precincts in the fifth congressional district. The ballots
not having been offered in evidence by contestant, your committee
thinks the evidence in this case is not sufficient to set aside the
official returns. For the reasons set forth in this report your
committee recommends the adoption of the following resolutions:
Resolved, That Jacob Gartenstein was not elected a
Representative in the Sixty-seventh Congress from the fifth
congressional district of Illinois, and is not entitled to a
seat therein.
Resolved, That Adolph J. Sabath was duly elected a
Representative in the Sixty-seventh Congress from the fifth
congressional district of Illinois, and is entitled to retain
his seat therein.
Reported privileged resolution (H. Res. 574) agreed to by voice
vote without debate [64 Cong. Rec. 5469, 67th Cong. 4th Sess., Mar. 3,
1923; H. Jour. 346].
Sec. 3.8 Parillo v Kunz, 8th Congressional District of Illinois.
Evidence not taken by contestant within the legal time was held
inadmissible where delay was not excusable (although the parties had
stipulated to extensions), rendering contestant without standing to
institute the contest.
Evidence.--Assuming admissibility of evidence, contestant failed to
sustain his allegations where fraudulent marking of ballots was not
proven and where the partial recount of disputed ballots by an official
appointed to take testimony was not sufficient to change the election
result.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 1 submitted by Mr. Frederick
W. Dallinger, of Massachusetts, on Jan. 15, 1923, follows:
[[Page 1430]]
Report No. 1415
Contested Election Case, Parillo v Kunz
statement of the case
At the election held in the eighth congressional district of the
State of Illinois on November 2, 1920, according to the official
returns Stanley H. Kunz, the contestee, who was the Democratic
candidate, received 15,432 votes; Dan Parillo, the contestant, who was
the Republican candidate, received 14,627 votes; and Harry C.
Stockbridge, who was the Socialist candidate, received 1,334 votes. As
a result of these returns Stanley H. Kunz, the contestee, was declared
elected by a plurality of 805 votes over his Republican opponent, Dan
Parillo, and a certificate of election was duly issued to him by the
secretary of state of Illinois.
On December 21, 1920, the contestant, in accordance with law,
served on the contestee a notice of contest in which it was alleged
that errors and mistakes had been committed in the count of the ballots
in certain precincts of the sixteenth, seventeenth, and nineteenth
wards of the city of Chicago, comprising 44 of the 107 precincts
constituting the eighth congressional district. The contestant claimed
that a recount of the votes cast in the above precincts would disclose
that the contestant was duly and legally elected.
On January 12, 1921, the contestee served on the contestant an
answer denying all the allegations contained in the contestant's notice
and alleging that a recount of certain other precincts therein
mentioned would show a gain in the contestee's plurality.
work of the committee
The testimony in the case was duly printed and the contestant filed
an abstract of record as required by the rules of the committee and
also a printed brief and argument. The contestee filed no brief.
Although the committee gave the contestant and his counsel an
opportunity to appear before the committee and argue his case, he
declined to do so, stating that he desired the case to be decided upon
the printed record and brief.
findings of fact
Most of the facts in this case are not in dispute. The contestee's
answer was served on the contestant January 12, 1921. The act of
Congress approved March 2, 1875 (U.S. Stat. L., vol. 18, ch. 119, p.
338), provides that all testimony in contested-election cases shall be
taken within 90 days from the date on which the answer of the returned
Member is served upon the contestant and that the contestant shall take
his testimony during the first 40 days thereof. In this case,
therefore, the law required that the taking of all testimony should be
completed on April 12, 1921. As a matter of fact, however, no testimony
was taken by either party within the 90 days required by law. On
February 8, 1921, a stipulation was entered into by the parties that
the taking of evidence on the part of the contestant should be
commenced on February 28, 1921. On February 28, 1921, it was again
stipu
[[Page 1431]]
lated by the parties that the time for taking evidence for the
contestant might be continued until April 18, 1921, and on that date
the taking of evidence was commenced before Guy C. Crapple, a notary
public, in the office of the board of election commissioners in
Chicago. By agreement of counsel the wards and precincts in dispute
were then taken up in numerical order and the ballots recounted. On
October 10, 1921, over seven months after the law required the
contestant's testimony to be concluded and almost six months after the
law required that the taking of all testimony should cease, the
contestant closed his case, and on December 5, 1921, it was agreed that
the taking of evidence by both parties should close, this latter date
being almost eight months after the time fixed by Congress had expired.
The recount showed that Stanley H. Kunz had received 14,733 votes
and Dan Parillo 14,487 votes--a plurality of 246 votes for Stanley H.
Kunz, the contestee. At the conclusion of the taking of all the
evidence, counsel for the contestant moved to strike out of the recount
the entire vote of 19 precincts in the sixteenth ward and of 7
precincts in the seventeenth ward on the strength of the testimony of
Howard A. Rounds, a handwriting expert, who testified that, in his
opinion, some of the pencil crosses on certain of the ballots in these
precincts were made by persons other than the voter himself. Your
committee does not consider that the evidence sustains the contention
of the contestant and finds that there is no reason why the returns
from the precincts in question should be rejected.
conclusions of law
Section 107 of the Revised Statutes of the United States as amended
by the act of March 2, 1875, explicitly provides that all testimony in
contested-election cases shall be taken within 90 days from the date on
which the answer of the contestee is served upon the contestant. It has
been the invariable practice of the House of Representatives to require
the taking of the testimony within the time required by law, except
where the time has been extended for good and sufficient reasons. In
the Missouri case of Reynolds v. Butler (Moore's Digest, p. 28) in the
Fifty-eighth Congress the unanimous report of the Committee on
Elections No. 2, after reciting facts showing a lack of diligence on
the part of the contestant and stating that he had not commenced taking
evidence within 40 days from the time of serving notice on the
contestee, thus states the law:
It is quite true that the statute providing and limiting
the time for the taking of testimony is not binding upon this
House, which under the Constitution is the only and absolute
judge of the qualifications and elections of its Members.
But, as has frequently been held, it furnishes a wise and
wholesome rule of action, and ought not to be departed from
except for sufficient cause shown or where the interests of
justice clearly require. It would seem that contestant might
have commenced and concluded his testimony in this case
within 40 days; certainly he might have commenced. No reason
whatever appears upon the record why he could not or did not;
but upon the argument before your com
[[Page 1432]]
mittee it was stated that counsel for the present contestant
were also counsel for Wagoner in his contest, and that some
or all of them were engaged upon that case most of the time.
There must, however, have been other counsel in St. Louis
quite capable of taking such testimony as was taken in this
case.
In the Arkansas case of Bradley v. Slemons in the Forty-sixth
Congress (Rowell's Digest, p. 339) although the contestee offered no
objection, the Committee on Elections excluded all evidence not taken
within the time prescribed by the statute.
In the present case the contestant not only does not show due
diligence but the record clearly shows that without any reason or
excuse whatever he undertook by a series of stipulations to set aside
and ignore the clear and explicit provision of the statute. No
testimony whatever was taken by the contestant until April 18, 1921,
six months after the entire 90 days allowed by the act of Congress for
the taking of all the testimony in the case had expired. In this case
there is no excuse whatever for the contestant not commencing to take
his testimony within 40 days from the service of the contestee's answer
as required by law. If he had started to take his testimony immediately
after serving his answer, and for good and sufficient reasons had been
unable to complete his testimony before the expiration of the 40 days
allowed him by law, and had then asked the House of Representatives for
an extension of time he undoubtedly would have received an extension.
In this case, however, as a matter of fact the record discloses that he
had no reason whatever for asking any extension of time and that all of
his testimony might have been taken within the 40 days and that all the
testimony on both sides of the case might have been taken within the 90
days required by law. Your committee, therefore, finds that in this
case the contestant deliberately ignored the plain mandate of the law
without any reason or excuse, that he has offered no evidence which can
legally be considered by your committee, and that he has no standing as
a contestant before the House of Representatives.
summary and conclusion
Your committee, therefore, finds that the contestant, not having
complied with the provisions of the law, governing contested-election
cases, has no case which can be legally considered by your committee or
by the House of Representatives. Moreover, even if he had fully
complied with the law, your committee finds that as a matter of fact he
has failed to prove the allegations contained in his notice of contest;
that there is no evidence warranting the rejection of any of the
precincts of the district; and that the recount of votes, which he
alleged would show that he had been elected, according to his own
figures, still shows that the contestee was actually elected by a
plurality of 246 votes.
For the above reasons your committee recommends the adoption of the
following resolutions:
[[Page 1433]]
Resolved, That Dan Parillo was not elected a Member of
the House of Representatives in the Sixty-seventh Congress
from the eighth congressional district of the State of
Illinois, and is not entitled to a seat herein.
Resolved, That Stanley H. Kunz was duly elected a Member
of the House of Representatives in the Sixty-seventh Congress
from the eighth congressional district of the State of
Illinois, and is entitled to retain his seat herein.
Reported privileged resolution (H. Res. 575) was agreed to by voice
vote without debate [64 Cong. Rec. 5472, 67th Cong. 4th Sess., Mar. 3,
1923; H. Jour. 346].
Sec. 3.9 Golombiewski v Rainey, 4th Congressional District of Illinois.
Pleadings.--Failure of contestant to comply with an elections
committee rule requiring filing of an abstract citing portions of
evidence being relied upon, and contestant's refusal to respond to
offers for committee hearings, were considered grounds for dismissal of
the contest.
Returns were not rejected where contestant offered insufficient
stipulated evidence of fraudulent marking of ballots.
Committee on elections report, incorporating by reference findings
of other elections committees in contests considered concurrently, was
for contestee, who retained his seat.
Report of Committee on Elections No. 2 submitted by Mr. Robert
Luce, of Massachusetts, on Feb. 1, 1923, follows:
Report No. 1500
Contested Election Case, Golombiewski v Rainey
The Committee on Elections No. 2, to which was referred the
contested election case of John Golombiewski v. John W. Rainey, from
the fourth congressional district of the State of Illinois, reports as
follows:
The result of the election in this district, November 2, 1920, was
officially announced to be:
John W. Rainey................................................. 23,230
John Golombiewski.............................................. 21,546
Charles Beranek................................................ 2,753
------------------------------------------------------------------------
Golombiewski took steps to contest the election and to that end
secured a recount in 90 out of 159 precincts of the district. By the
recount Rainey lost 1,008 votes, and Golombiewski gained 321, leaving
Rainey with a plurality of 676, irrespective of 179 ballots laid aside
as challenged.
Thereupon Golombiewski, through counsel, submitted to the House
printed brief and argument, the record of testimony, and an abstract
thereof; and Rainey, through counsel, submitted brief and argument. The
contestant rest
[[Page 1434]]
ed his case upon the allegation that the fraudulent marking of ballots
after they had been cast in 16 specified precincts indicated a degree
of corruption warranting the exclusion of all the ballots cast in those
precincts. His abstract of testimony failed to comply with the rules
adopted by the committees on elections in that it did not by definite
citation aid the committee in learning just what testimony was relied
upon, unless we are to suppose that a tabulation of figures accepted by
both parties could be in and of itself sufficient to prove fraud and
mistakes by showing that 179 ballots were challenged. By this
tabulation it appears that the challenged ballots were confined to 16
precincts. In each of 12 of these less than 10 ballots were challenged,
and in the other 4 the percentage of challenged ballots was not large
enough in and of itself to indicate that degree of gross corruption
which has hitherto been held by the House to be necessary for the total
exclusion of a poll.
This is one of three cases from the city of Chicago which were
referred respectively to your three committees on elections. The issues
involved and the circumstances are much the same in all three cases.
The report of the Committee on Elections No. 3 in the case of
Gartenstein v. Sabath, submitted December 20 last, and the report of
the Committee on Elections No. 1 in the case of Parillo v. Kunz,
submitted January 15 last, contain discussion of the effect of
violating statutory requirements, of incomplete recounts, and of the
evidence that should be offered under conditions such as here
prevailed, together with analysis of testimony and citation of
precedents, all of which apply as well to the present case, and to
rehearse them here would be needless repetition. It should, however, be
added that in this case counsel for the contestant has failed to
proceed beyond the filing of the required documents, repeated inquiries
from your committee as to whether he desired a hearing having been
wholly ignored.
In view of all the circumstances your committee recommends to the
House the adoption of the following resolution:
Resolved, That John Golombiewski was not elected a
Representative from the fourth congressional district of the
State of Illinois and is not entitled to a seat herein.
Resolved, That John W. Rainey was duly elected a
Representative from the fourth congressional district of the
State of Illinois and is entitled to retain a seat herein.
Reported privileged resolution (H. Res. 576) was agreed to without
debate by voice vote [64 Cong. Rec. 5473, 67th Cong. 4th Sess., Mar. 3,
1923; H. Jour. 346].
Sec. 4. Sixty-eighth Congress, 1923-25
Sec. 4.1 Eligibility of Edward E. Miller, 22d Congressional District of
Illinois.
Federal Corrupt Practices Act.--A privileged resolution, creating a
select committee to investigate the question of the right of a Member
[[Page 1435]]
to his seat based on alleged violation of the limitations on
expenditures by candidates, was referred to an elections committee,
reported adversely and laid on the table by the House.
Report for seated Member, who retained his seat.
Report of Committee on Elections No. 3 submitted by Mr. Richard N.
Elliott, of Indiana, on Jan. 18, 1924, follows:
Report No. 56
Adverse Report
[To accompany H. Res. 2]
The Committee on Elections No. 3, having had under consideration
the following resolution--
[House Resolution No. 2, Sixty-eighth Congress, first session]
Whereas it is charged that Edward E. Miller, a
Representative elect from the State of Illinois, is probably
ineligible to a seat in the House of Representatives;
Whereas such charge is made through a Member of the House
and on his responsibility as a Member;
Whereas it is charged that said Miller has grossly
misused two trust funds committed to his charge by the State
of Illinois while he was treasurer of the State of Illinois
in promoting his candidacy for election to the Sixty-eighth
Congress; and
Whereas it is charged that said fund so used also greatly
exceeds the amount he is permitted by law to expend for said
purpose;
1. Resolved, That the question of the right of said
Miller to a seat as a Representative of the State of Illinois
in the Sixty-eighth Congress in the House be referred to a
committee of seven Members of the House, to be appointed by
the Speaker, and said committee shall have the power to send
for persons and papers and examine witnesses on oath as to
the subject matter of the resolution.
submits the following report:
That a thorough hearing and investigation was made by the
committee, and after hearing the evidence presented it finds that no
good reason has been shown to it which would justify the passage of the
resolution and the appointment of a special committee of seven Members
of the House of Representatives to investigate the charges contained in
said resolution.
And it unanimously recommends to the House of Representatives that
said House Resolution No. 2 be laid on the table.
[[Page 1436]]
Privileged resolution (H. Res. 2) reported adversely and laid on
table without debate pursuant to clause 2, Rule XIII [65 Cong. Rec.
1154, 68th Cong. 1st Sess., Jan. 18, 1924; H. Jour. 178].
Sec. 4.2 Chandler v Bloom, 19th Congressional District of New York.
Ballots disputed at a complete recount conducted by the parties
were examined and recounted by an elections committee upon adoption by
the House of a resolution reported from that committee authorizing
subpena of ballots and election officials.
Ballots were rejected where cast by voters not registered in new
precincts as required by state law, but ballots cast by voters not
signing poll books were not examined as a proportional rejection would
not affect the election result.
On Jan. 30, 1924, Mr. Richard N. Elliott, of Indiana, from the
Committee on Elections No. 3 reported (H. Rept. No. 131) and called up
as privileged the following resolution (H. Res. 166):
Resolved, That John H. Voorhis, Charles Heydt, James Kane, and
Jacob Livingston, constituting the board of elections of the city of
New York, State of New York, their deputies or representatives, be, and
they are hereby, ordered to be and appear by one of the members, the
deputy, or representative, before Elections Committee No. 3 of the
House of Representatives forthwith, then and there to testify before
said committee or a subcommittee thereof in the contested-election case
of Walter M. Chandler, contestant, v. Sol Bloom, contestee, now pending
before said committee for investigation and report; and that said board
of elections bring with them all of the disputed ballots, marked as
exhibits, cast in every election district at the special congressional
election held in the nineteenth congressional district of the State of
New York on January 30, 1923. That said ballots be brought in the same
envelopes or wrappings in which the same now are; that said ballots be
examined and counted by and under the authority of said Committee on
Elections in said case; and to that end that proper subpoena be issued
to the Sergeant at Arms of this House commanding him to summon said
board of elections, a member thereof, or its deputy, or representative,
to appear with such ballots as a witness in said ease; and that the
expenses of said witness or witnesses and all other expenses under this
resolution shall be paid out of the contingent fund of the House; and
that said committee be, and hereby is, empowered to send for all other
persons and papers as it may find necessary for the proper
determination of said controversy; and also be, and it is, empowered to
select a subcommittee to take the evidence and count said ballots or
votes and report same to Committee on Elections No. 3, under such
regulations as shall be prescribed for that purpose; and that the
aforesaid expenses be paid on the requisition of the chairman of said
committee after the auditing and allowance thereof by said Elections
Committee No. 3.
[[Page 1437]]
House Resolution 166 was agreed to by voice vote without debate [H.
Jour. 211, 68th Cong. 1st Sess., Jan. 30, 1924].
Report of Committee on Elections No. 3 submitted by Mr. Guinn
Williams, of Texas, on Feb. 23, 1924, follows:
Report No. 224
Contested Election Case, Chandler v Bloom
statement of the case
At the special election held in the nineteenth congressional
district of the State of New York on January 30, 1923, according to the
official returns, Sol Bloom, the contestee, who was the Democratic
candidate, received 17,909 votes and Walter M. Chandler, the
contestant, who was the Republican candidate, received 17,718 votes. As
a result of these returns Sol Bloom, the contestee, was declared
elected by a plurality of 191 votes over his Republican opponent,
Walter M. Chandler, and a certificate of election was duly issued to
him by the secretary of state of New York. . . .
recount of disputed and protested ballots
The contestant and contestee had conducted an official recount of
the ballots cast in said election in which it was determined that the
contestee had received 17,802 apparently good ballots and the
contestant had received 17,676 apparently good ballots, leaving an
apparent majority for Bloom of 126. Several of the ballots not counted
in the official recount were claimed to be good, and the committee
under direction of the House of Representatives had all of the disputed
and void ballots cast in said election brought before it and canvassed
and found that 83 of said rejected ballots were good and 55 of them
should have been counted for the contestee and that 28 of them should
have been counted for the contestant, which would give the contestee
17,857 and the contestant 17,704, leaving the contestee a majority of
153.
illegal voting by persons not properly registered
Under section 150 of the election laws of New York no one is
allowed to vote who is not a citizen and who has not been registered
under the registration law of said State, and if he removes from the
election district in which he is registered to another election
district before the day of election, at which he offers to vote, he
loses his right to vote, unless he appears before the board of
elections of New York City, if he is a voter in New York City, and
applies for a transfer or special registration to permit him to vote.
Fifteen voters who voted at the special election had removed from the
district in which they were registered and in which they had voted at
the preceding general election of November, 1922. These voters, the
record shows, had not secured a transfer or special registration from
the board of elections of New York that would permit them to vote
legally at the special election January 30, 1923.
[[Page 1438]]
There is evidence in the record to the effect that at least 11 of
these voters voted for contestee, that 3 of them voted for contestant,
and that 1 of them stated in a sworn affidavit that he voted for
contestee, and in his deposition which was taken in this case he
testified that he voted for contestant.
alleged illegal votes because voters failed to sign their names in
official registry of voters, twenty-eighth election district of the
eleventh assembly district, which registry was used at the special
election for entering signatures of those who voted
Under the New York election law, 1922, sections 202 and 207, each
voter is required to place his signature in the signature column of the
official registry of voters before he shall be allowed to vote. It is
alleged that James Bennett, who voted ballot No. 1; Frank W. Scott, who
voted ballot No. 2; Israel Rivkin, who voted ballot No. 3; William
Murphy, who voted ballot No. 4; Henry Seeman, who voted ballot No. 5;
Patrick McMahon, who voted ballot No. 6; each failed to sign his name
in said register and that by reason thereof their votes were illegal.
The contestant maintains that their votes should be rejected. There is
no evidence in the record, however, to show how any of these persons
voted. It is contended by the contestant that inasmuch as five of these
voters were enrolled as Democrats, that in the absence of evidence to
the contrary, party affiliation of an illegal voter may be considered
in determining from whom such votes should be deducted or for whom they
should be counted. . . .
summary and conclusion
The committee therefore finds that of the 15 illegal votes cast by
the voters who had lost their right to vote by moving to another
precinct, 11 of them were cast for Bloom and should be deducted from
his total vote, and that 3 were cast for Chandler and should be
deducted from his total vote. The committee is unable to determine from
the evidence for whom the other vote was cast and finds that it should
be deducted pro rata from the votes of the contestant and contestee.
That of the 6 votes cast by the voters who failed to sign their
names in the official registry in the twenty-ninth election district of
the eleventh assembly district, the evidence does not disclose for whom
they were voted, and if they were rejected it would have no bearing
upon this case on account of the fact that they should in that event be
subtracted pro rata from the votes of the contestant and contestee; for
this reason the committee does not feel that it is necessary to decide
the question of the legality of said votes.
Returns were not rejected by the House in precincts where election
officials, though not properly qualified or unsworn, acted under color
of authority.
Returns were not rejected by the House where contestant did not
sustain allegations of fraud or intimidation in the casting, counting,
or custody of ballots.
[[Page 1439]]
The House overruled the majority report of an elections committee
which had summarily rejected entire precinct returns for violations of
mandatory state election laws and for fraud by election officials
alleged by contestant.
Majority report for contestant, who was not seated.
Minority views for contestee, who retained his seat.
twenty-third election district of the eleventh assembly district
The contestant contends that the poll of the twenty-third election
district of the eleventh assembly district should be rejected for the
following reasons:
(a) The board of inspectors of said election district was illegally
constituted and organized, and was, therefore, without authority to
act.
(b) In this election district 53 ballots were stolen from the pile
of unused or unvoted ballots, and a large majority of them were
undoubtedly voted for the contestee, Sol Bloom, by what is called
shifting or substitution of ballots.
(c) In this election district the record discloses that illegal
voting by repeaters and other illegal voters took place on a large
scale.
(d) Electioneering within the polling place and within the
prohibited limit of 100 feet by means of banners and pictures of Bloom,
the contestee, and by personal solicitation of his workers, including
the Democratic election inspectors themselves, was carried on in this
election district, in violation of the election laws of New York.
(e) Unsworn persons, other than election officers, were permitted
to handle the official ballots both during the day and at the count and
canvass of the ballots at night, in violation of the election laws of
New York.
(f) There was intimidation of Republican workers, who were
compelled to leave the election district when most needed in the
afternoon of election day by organized bands of ruffians, evidently
friends of the contestee herein, who threatened the said Republican
workers with fractured skulls and with death if they failed to leave
the district at once.
(g) Drunkenness and boisterous conduct characterized the actions of
the Democratic chairman of the board of inspectors, David Elbern, and
the Democratic captain, George Rosenberg, to such an extent that the
freedom of the election in that district was destroyed, that
intimidation resulted, that scandal disgraced the entire proceedings,
and that the election results and returns were rendered unreliable
thereby.
(h) The method of counting the votes and the preparation of the
tally sheets after the close of the polls in this election district
were in flagrant violation of the election laws of New York providing
for a true count and an accurate return of votes cast.
(i) The election returns from this particular election district, as
filed with the board of elections of New York City, and with the county
clerk of New York County, were evidently deliberately false returns,
for, although the election inspectors knew at noon of election day that
53 ballots had been stolen from the pile of unvoted ballots and had not
been recovered, they failed
[[Page 1440]]
to report them as missing ballots in their election returns, but, on
the contrary, reported the full number of unvoted ballots.
thirty-first election district of the seventeenth assembly district
The contestant contends that the poll of the thirty-first election
district of the seventeenth assembly district should be rejected for
the following reasons:
(a) Because the board of inspectors of said election district was
illegally constituted and organized, and was therefore without
authority to act.
(b) Because there was electioneering within the polling place and
within the prohibited limit of 100 feet in said election district by
means of banners and pictures of Bloom, the contestee, and by personal
solicitation of his workers, in violation of the election laws of New
York.
(c) Because the secrecy of the ballot was openly violated in said
election district by the Democratic election officers, in violation of
the election laws of New York.
(d) Because the Democratic inspectors of election deliberately
tore, erased, and mutilated many ballots, thus violating the secrecy of
the ballot and furnishing proof of a criminal conspiracy to corrupt
voters, in violation of both the civil and criminal election laws of
New York.
(e) Because such methods of intimidation were employed by the
Democratic election officers and workers in said election district that
the Republican officers and workers were prevented from properly
performing their official duties, thus destroying freedom of official
action and rendering unreliable the election returns from said
district.
(f) Because the canvass of the ballots and the preparation of the
tally sheets were in flagrant violation of the election laws of New
York.
thirtieth election district of the seventeenth assembly district
The contestant contends that the poll of the thirtieth election
district of the seventeenth assembly district should be rejected for
the following reasons:
(a) Because 34 ballots were stolen from the pile of unused or
unvoted ballots and were voted for Sol Bloom, contestee, by what is
known as shifting or substitution of ballots.
(b) Because there was a deliberately false and fraudulent return of
votes by the board of inspectors of this election district.
twenty-ninth election district of the seventeenth assembly district
The contestant contends that the poll of the twenty-ninth election
district of the seventeenth assembly district should be rejected for
the following reasons:
(a) Because the board of inspectors of said districts was illegally
constituted and organized and was, therefore, without authority to act.
(b) Because there was a violation in this district of the secrecy
of the ballot as well as open corruption of voters with whisky and with
money.
[[Page 1441]]
(c) Because there was illegal voting in this district by repeating,
in which Democratic election officers and workers personally
participated.
twenty-fifth election district of the seventeenth assembly district
The contestant contends that the poll of the twenty-fifth election
district of the seventeenth assembly district should be rejected for
the following reasons:
(a) Because the board of inspectors was illegally constituted and
organized and was therefore without authority to act.
(b) Because the record discloses the fact that there was a well-
formed conspiracy in this district to carry the election for Bloom, the
contestee, by fraud and intimidation. . . .
After a careful and exhaustive consideration of the evidence and
hearings in this case the committee finds that all of said election
districts are tainted with fraud. That in the twenty-third election
district of the eleventh assembly district and in the thirtieth and
thirty-first election districts of the seventeenth assembly district
there was such an utter, complete, and reckless disregard of the
provisions of the election laws of the State of New York involving the
essentials of a valid election, and the returns of the election boards
therein are so badly tainted with fraud that the truth is not deducible
therefrom, and that it can be fairly said that there was no legal
election held in the said election districts.
Consequently in accordance with the universally accepted principles
of the law governing contested elections and in conformity with a long
line of congressional precedents, from the Missouri case of Easton v.
Scott in the Fourteenth Congress (Rowell's Dig. 68) down to and
including the cases of Gill v. Dyer in the Sixty-third Congress,
Wickersham v. Sulzer in the Sixty-fifth Congress, Tague v. Fitzgerald
in the Sixty-sixth Congress, Farr v. McLane in the Sixty-sixth
Congress, and Paul v. Harrison in the Sixty-seventh Congress, the
committee is of the opinion that the entire returns of the twenty-third
election district of the eleventh assembly district and the thirtieth
and thirty-first districts of the seventeenth assembly district should
be rejected.
Rejecting the returns from the above three precincts and deducting
from the total votes of the contestant the three votes illegally cast
for him and from the total votes of the contestee the 11 votes
illegally cast for him in the remaining precincts of the district
aforesaid, the result of the congressional election held in the
nineteenth congressional district of the State of New York on January
30, 1923, would be as follows:
Walter M. Chandler, Republican, received 17,504 votes, and Sol
Bloom, Democrat, received 17,280 votes, and the contestant is elected
by a majority of 224 votes.
The committee therefore respectfully recommends to the House of
Representatives the adoption of the following resolutions (H. Res.
254):
Resolved, That Sol Bloom was not elected a Member of the
House of Representatives from the nineteenth congressional
district of the State of New York in this Congress and is not
entitled to retain a seat herein.
[[Page 1442]]
Resolved, That Walter M. Chandler was duly elected a
Member of the House of Representatives from the nineteenth
congressional district of the State of New York in this
Congress and is entitled to a seat herein.
The following minority views were submitted by Mr Guinn Williams,
of Texas; Mr. John H. Kerr, of North Carolina; and Mr. Heartsill Ragon,
of Arkansas:
Report No. 224, Part 2
. . . At the request of the contestant, a recount of the votes cast
at said election was had, pursuant to law. At this recount the
contestee's majority was reduced to 126, counting those ballots which
were conceded by each party to be undisputedly good, a goodly number
being contested by both parties and put aside for the House Election
Committee to pass upon, and upon investigation of these disputed
ballots the House Election Committee determined that Sol Bloom was
entitled to a net gain of 27 more, thus making Bloom's plurality, after
two counts and an inspection by the committee, 153.
. . . This matter resolves itself into the question as to whether
the contestant has offered evidence sufficient to establish the fact
that he was deprived of his election upon the face of the returns by
reason of frauds perpetrated in the twenty-third election precinct of
the eleventh assembly district, and in the thirtieth and thirty-first
election precincts of the seventeenth assembly district.
It is a well-accepted rule of law that fraud ``which is criminal in
its essence'' and involves moral turpitude at least is never presumed
but must be proven affirmatively; conversely, a party is not bound to
disprove fraud either directly or constructively; it must be proven by
the party alleging it. The presumption, if any, is against the
existence of fraud and in favor of innocence, honesty, and fair
dealing.
argument
The contestant contends that the twenty-third election district of
the eleventh assembly district should be rejected for the following
reasons, viz:
First. That the board of inspectors of said district were
not properly organized and therefore had no authority to act.
What are the facts? In the precinct five inspectors of election
designated under the statute by their political parties held this
election--Webster, a Republican, who was in every way qualified, this
is admitted; Grohol, a Republican, who was designated by his party to
act, although he was not an elector or voter in New York City; and Levy
and Elbern, Democrats, who had acted as inspectors in this polling
place on every registration day but who were sworn for this day perhaps
not strictly in accordance with the statutes, and Mrs. Josephine Born,
who took Levy's place when he was called away about noon.
[[Page 1443]]
This House of Representatives is asked to reject the vote of this
precinct, for the reason that Grohol, who had been designated by the
Republican leaders, pursuant to law, to act as inspector, was not a
resident, of the city of New York. This fact seems to be true, but
wouldn't it be a monstrous proposition that a man recommended for
appointment by his Republican organization and actually accepted and
sworn in by a bipartisan board of elections, and who thereafter served
through the election honestly and faithfully, should be used by his
party as the instrument of unseating a successful opponent who was in
no way responsible for his recommendation and appointment?
The two Democratic inspectors, Levy and Elbern, may have failed to
take the oath in the manner required by the statute, but they had been
acting throughout the registration, they were well known in the
district, and they were de facto officials if technically not de jure
ones; their acts as far as the public is concerned are as valid as the
acts of an officer de jure. Can it be said that the contestant has been
wronged or lost one vote by this ``illegally constituted and
organized'' board of inspectors, as contended by him?
Mr. Webster, who was admittedly qualified, had the authority to
have sworn in each of these officers and thus qualified them fully, or
he could have constituted an entirely new board, under the New York
statute, if he had wished to have done so. Levy and Elbern and Mrs.
Born, who were sworn in by one of them, were de facto officials under
all the authorities of the State and of Congress.
An election held by one regularly appointed inspector and
one officer de facto acting under color of authority is
valid. (Smith v. Elliott, 44th Cong., Mobley, 718-722.)
In People v. Cook (8 N.Y. 87) the Court of Appeals of the State of
New York said:
The first objection I shall consider relates to the
inspectors of election. It appears by the record that the
inspectors who opened the polls in the morning were not
regularly sworn and that they were appointed by the
supervisors, town clerk, and a single justice ``inspectors of
election for the second district of the town of Williamsburg
to act until others are appointed.'' It was dated November 4,
1851. It appears that there were inspectors elected for that
district, but that they were not present at the opening of
the polls. There can be no doubt that this appointment was a
colorable authority for these inspectors, and that their acts
in that capacity were valid, so far as third persons were
concerned; their omission to take the oath in due form did
not invalidate their acts. . . . An officer de facto is one
who comes into office by color of a legal appointment or
election; his acts in that capacity are as valid, so far as
the public is concerned, as the acts of an officer de jure;
his title can not be inquired into collaterally. . . .
[[Page 1444]]
Had the sheriff or constable arrested a disorderly person
under authority of either of the boards of inspectors, who
were merely such de facto, he would have been protected. The
person of the voter is as securely guarded under authority of
inspectors de facto as of inspectors de jure; a challenged
voter swearing falsely before a de facto board of inspectors
is as much liable to punishment under the statute as if the
oath had been administered by inspectors de jure.
In Barnes v. Adams (41st Cong., 2 Bart. 765) it was said:
There is, however, a principle of law which your
committee believes to be well settled by judicial decisions
and most salutary in its operations, which is conclusive of
this point as well as of several other points in this case.
It is this: That in order to give validity to the official
acts of an officer of election, so far as they affect third
parties or the public, and in the absence of fraud, it is
only necessary that such officer shall have color of
authority. It is sufficient if he be an officer de facto and
not a mere usurper.
In Eggleston v. Strader (41st Cong., 2 Bart. 897-904) it was said:
It takes but little to constitute an officer de facto as
affects the right of the public. The exercise of apparent
authority under color of right, thus inviting public trust
and negativing the idea of usurpation, is sufficient.
And also this:
It is well settled in law that so far as the public is
concerned the acts of one who claims to be a public officer,
judicial or ministerial, under a show of title or color of
right will be sustained. Such a person is an officer in fact
if not in law, and innocent parties or the public will be
protected in so considering or trusting him.
In Birch v. Van Horn (40th Cong., 2 Bart. 206), where a supervisor
of registration was not qualified to hold the office, it was said:
The committee are of the opinion that his acts as such
supervisor can not be regarded as void, so as to affect the
legality of the votes given at the election; that, having
come into the office under all the forms and requirements of
the law, he is at least a good officer de facto whose acts
are not to be questioned in a collateral proceeding but only
by some proceeding bringing his title to the office directly
in question.
The case of Sheafe v. Tillman, cited by the contestant, does not
apply. In that case the committee held that the coroner was not even an
officer de facto, for he did not hold his office under color of legal
authority. He was a mere usurper and all his acts were void. This is
clearly not the fact in the case of Grohol, who, although not
qualified, was duly appointed and fully
[[Page 1445]]
and properly performed his duties, nor in the cases of Levy and Elbern,
who were qualified but not properly sworn.
(Second.) That 53 ballots were stolen from the pile of
unused or unvoted ballots and undoubtedly voted for the
contestee, Sol Bloom, by what is called shifting or
substitution of ballots.
The 53 ballots which appear to have been missing from the bottom of
the pile, 17 of which were found by some one in a barber's chair in the
back part of the polling place, can not be chargeable to the contestee
or to the acts of his friends; there is absolutely no proof that one of
them was deposited in the ballot box; there is absolutely no proof that
either of them were taken out of the pile for a fraudulent purpose;
each and every one of the inspectors swear that they knew nothing of
the removal; the evidence discloses that Grohol, the Republican,
``handled the ballots practically all day.'' It would have been utterly
impossible for them to have been removed and shifted or put into the
ballot box in the presence of the four election inspectors, the
watchers, the challengers, the captains, and police, several of whom
were there all the while. There can be no sanctity attached to these
unused ballots. The overpowering fact is that there were 275 voters who
registered their names and voted in this box and there were 275 stubs
detached from their ballots and deposited in the stub box and there
were 275 votes counted out of this box. To contend that some of those
removed unvoted ballots were fraudulently cast in this precinct is
based upon not a scintilla of fact or evidence. The fertile mind of the
contestant, who has established no fact of fraud in this matter by any
well-accepted rule of law or common sense, has a suspicion that some
one was attempting to wrong and was wronging him. We respectfully
submit that his case is founded upon circumstances which do not rise
even to the dignity of a well-founded suspicion; and yet this House of
Representatives, constituted by a large number of lawyers who know the
rules and equities of their profession, are called upon to do an act so
manifestly unjust that to even contemplate it should arouse the spirit
of any just and fair man. It would be just as fair for the contestee to
suspicion that Grohol was sent into this Democratic precinct by the
friends of the contestant and not qualified as contended by contestant,
for the purpose of creating this irregularity or the perpetration of a
fraud, and then he would be prepared for this attack upon this
precinct.
The vote of this district as analyzed from the enrollment and as
compared with the adjoining district, shows that Mr. Bloom received
only 60 per cent of the enrolled Democratic vote, whereas Mr. Chandler
received 90 per cent of the enrolled Republican vote. It shows that
Bloom received only 115 plurality in this district while he received a
plurality of 130 and 132 in the two adjoining districts of similar
character. Bloom's majority was considerably less in this district than
Mr. Marx received at the November election before. It was considerably
less than the majority recorded for the Democratic candidate for State
senator, assemblyman, and alderman in the general election of 1922 and
1923; it shows that the vote east and counted at the special election
was absolutely normal; it negatives the idea that any of these unvoted
ballots went into the box.
[[Page 1446]]
Romaine v. Meyer (55th Cong., Rept. 1521) is determinative of this
point.
In the absence of evidence that any official ballot
fraudulently or otherwise obtained was voted, it can not be
held that the existence of such outstanding ballots in any
way affected the result of the election.
Unless the frauds and irregularities charged are proven,
and unless it is further shown that enough votes were
affected so as to change the result, a poll can not be
rejected. (Evans v. Turner, 66th Cong.; Wilson v. Lassiter,
57th Cong.; Duffy v. Mason, 46th Cong.)
We submit that there is no proof whatsoever that a fraud was
committed, that it tainted the box, or that it affected enough votes to
change the result.
(Third.) That there were cast and counted illegal voters
on a large scale.
Upon investigation of the evidence the House will find that this
voting of ``illegal voters on a large scale'' consists in four people
voting under the name of Feldman--a Mr. Feldman and his three sons.
There is not the slightest proof that Bloom's friends had anything to
do with procuring these illegal votes, assuming that they were illegal,
and there is not the slightest proof as to how or for whom these votes
were cast. If they are found to be illegal, the box can be easily
purged of them by deducting them from the votes of the candidates
proportionately. (Wickersham v. Grigsby, 66th Cong.)
(Fourth.) That there was electioneering within the
prohibited space by Democratic election officials, and that
there was a sign with Bloom's picture on it at or near the
voting place.
The evidence is not sufficient to warrant the finding that there
was electioneering on the part of the election officials; certainly no
complaint was made either by the officer present or by the board of
election, which was in session all day to hear complaints and correct
all errors and settle controversies. The great dereliction seems to be
in having a likeness of the contestee on a movable sign near the
polling place. The minority is inclined to think it was there. The
Republican leader, Mr. Levis, in the district called the attention of
some official, and with his aid the banner and the pictures were
removed. It may have been a violation of the law to have exhibited
these pictures so near the polling place, and the officials who allowed
such may have been amenable to prosecution, but certainly this is no
grounds upon which you should disfranchise 275 bona fide electors. (See
Wigginton v. Pacheco, 45th Cong.)
(Fifth.) That unsworn persons handled the ballots.
The evidence discloses that Mr. Grohol folded and handled the
ballots most of the day; when the count was begun the watchers, both
Republican and Democrat, would look at disputed ballots; they had a
right to do so. Grohol testified that there was no misconduct of any
kind when the ballots
[[Page 1447]]
were being counted; and Mr. Coyne testified that he saw every ballot
taken out of the box by one of the inspectors, in full view of every
other inspector, and counted and tallied, and ``that the account and
tally were correct in every way.'' Coyne was the officer who was
assigned to this precinct to keep order and see that the election was
conducted properly. Suppose, for argument, that when a ballot was being
discussed some one took it and looked at it, would this fact invalidate
a poll and be any just reason to disfranchise the electors of this
precinct? We submit that this is too trivial to be considered by this
House, and yet the contestant insists that this is a serious earmark of
fraud. (See Hurd v. Romeis, 49th Cong. Carney v. Smith, 63d Cong.;
Roberts v. Calvert, 98 N.C. 580).
(Sixth.) That certain Republican workers were intimidated
and run away.
There is no evidence whatever of any intimidation of an inspector
or a voter. Grohol himself says that he was not intimidated, and this
serious offense charged to the contestee consisted in the running away
of four Italian ruffians who came to the precinct from some other
section of New York City by some men who were not identified as the
friends of Bloom. They were doubtless police officers, but certainly
this could not be chargeable to Bloom; he had no control over them. Not
a voter was intimidated, and we respectfully submit that the
intimidation of a voter is the only matter Congress will take
cognizance of.
(Seventh.) That the Democratic inspector and captain was
under the influence of liquor to the extent that the freedom
of election was destroyed and intimidation resulted.
The Republican inspector upon whose evidence the contestant relied
upon to make out his ease entirely in respect to fraud in the twenty-
third election precinct in the eleventh assembly district--we refer to
Mr. Grohol--testified that ``there was much social disorder'' and that
the Democratic captain said ``he could lick anybody in the place, and
appeared to be under the influence of spirits,'' but the witness
further testified that he, Grohol, was not intimidated. This
contention, the minority respectfully submits, resolves itself into the
fact that one or more witnesses testified that they ``smelled liquor on
Elbern and Rosenberg's breath''; and this House is asked to deprive Mr.
Bloom of his seat herein because, forsooth, Chandler's witnesses
smelled liquor on a man's breath. No liquor was given a voter, and no
officer charged that the freedom of election was interfered with in any
manner whatsoever. (See Norris v. Handley, 42d Cong.; Chaves v. Clever,
40th Cong.; Bromberg v. Harolds, 44th Cong.; Harrison v. Davis, 36th
Cong.)
(Eighth.) That this poll should be rejected because the
ballots were improperly counted.
The method of counting cast ballots is directory; any method which
will ascertain the true number cast is sufficient; the count was
conducted and agreed to by the representatives of both parties; the
true number was tab
[[Page 1448]]
ulated, and the recount disclosed that the first count was correct;
certainly the contestee can not be held responsible for the failure of
the officers to do their duty properly; no fraud can possibly be
attached to this dereliction of the election officers if in this
instance they failed to strictly comply with the law.
(Ninth.) That this poll should be rejected, the twenty-
third election precinct in the eleventh assembly district,
because the inspectors failed to report the 53 missing
ballots.
The failure of the inspectors to report the 53 missing ballots when
they made their return did not affect the result of the vote in this
precinct. They reported the exact vote found in the box. We submit
again that the provision of the law which required them to report the
missing ballots and the unused ones was directory only and these
returns can not be legally rejected for this reason. (Carney v. Smith,
63d Cong.; Gaylord v. Carey, 64th Cong.; Larrazola v. Andrews, 60th
Cong.)
A party can not be held responsible for the mistakes and omissions
of election officers chosen necessarily from all classes of persons.
There were more than a thousand election officers who held this special
election; it is not expected that none of them made any mistakes. It is
sufficient that the result was not affected by such mistakes. (Barnes
v. Adams, 41st Cong.)
thirty-first election district of the seventeenth assembly district
(a) The allegation is that this election board was illegally
constituted in that Rothchilds, one of the inspectors, had been
indicted in 1920, and further, that the board was organized before one
of the inspectors arrived. No question is raised as to the
qualification of three of the inspectors; Rothchilds is attacked
because he had been once indicted. He was never tried for any offense
and never convicted. Neither under the law nor on principle was this
inspector, Rothchilds, disqualified; an indictment is a mere accusation
and does not stamp a man as having a bad character or disqualify him
for holding an office. Rothchilds was a de jure inspector. The evidence
discloses that the board was organized before anyone offered to vote,
and that no one voted until all four inspectors were acting. Certainly
upon this position this poll should not be rejected.
(b) The charge of electioneering in this precinct was based on the
statement of a Republican worker that a Democratic captain handed out a
few cigars and cards to some voters. If this is true, under the laws of
New York it would only constitute a misdemeanor, and, as any fair mind
would readily see, would not affect the integrity of the ballot box,
because these party captains are not election officers. But this
statement is flatly contradicted by three reputable witnesses and two
police officers. No effort is made to connect this instance with any
effect that it had on the results of the election. Under the authority
of Congress it could not vitiate a poll. (Wiggington v. Pacheo, 45th
Cong.)
(c) The charge is made that one of the inspectors of election
squeezed the ballot in such a way as to see how it was marked and as a
result kept a
[[Page 1449]]
private tally, thereby violating the secrecy of the ballot. The witness
testifying discredits his own testimony. He states at 3 o'clock in the
afternoon he was permitted to look at this tally and it showed 73 for
Chandler and 40 for the Socialist candidate. The fact is that even
after the recount Chandler only received 65 votes and the Socialist 14.
The undisputed testimony is that the heaviest voting was in the late
afternoon, and it would be preposterous to say that Chandler received
no votes between 3 o'clock and 6 o'clock and the Socialist never had
over 14 votes. It is foolish reasoning to say that a man bent upon the
perpetration of some crooked enterprise in an election would
voluntarily call and show the opposing side the very methods by which
he was accomplishing his purposes. Viewing it from the most serious
aspect of the contestant's charge it would have no other effect than to
subject the offending official to punishment for a misdemeanor, and
certainly would not vitiate the ballot. This story, however, is
emphatically denied by two reputable witnesses. It is not here shown,
if such an incident occurred, that it interfered with the freedom of
the election or kept anyone from the polls, and therefore could not
have tainted the election with fraud.
(d) The other charge that ballots were mutilated by inspectors
tearing the stubs off jaggedly is equally discredited by the physical
feet that the examination of the ballots on the recount disclosed that
of all the ballots east only five were held out as void in this
precinct, and that not one of these five was mutilated.
(e) The intimidation charged by the contestant did not relate to
the intimidation of voters, but of the Republican election officials.
The two officials who it is claimed were intimidated expressly contend
that they were neither threatened nor put in fear by anyone, and there
were two police officers present, and that not a single complaint was
made to these officers. We can not attach as much importance to the
intimidation which they seek to prove in this precinct as we did to
that which they sought to prove in the twenty-third of the eleventh
heretofore discussed.
(f) There was a slight incorrectness in the count of the ballots in
this precinct. However, no importance can be attached to this because
the recount of the ballots by the contestant and contestee and their
attorneys effected a correction, the purpose a recount is supposed to
serve. It is disclosed that there was a great deal of wrangling between
the inspectors as to whether certain ballots were good or bad, and also
as to whether or not one of the inspectors called the ballots too
rapidly. The result was that the two tally clerks arrived at different
results. This feature of the contestant's charge has been completely
remedied by the recount and, therefore, can under no circumstances
vitiate this ballot. We submit that this precinct should not be thrown
out.
thirtieth election district of the seventeenth assembly district
It is our opinion that these grounds for contest should not be
considered because they were not included in the original notice of
contest. They were added in an amended notice of contest two months
after the time to serve a notice of contest had expired. The statutes
clearly provide that the notice of contest must be filed within 30 days
after the election. The contestant
[[Page 1450]]
served notice of contest on contestee March 3, 1923. Contestee answered
and then, on May 10, 1923, he filed this amended notice of contest.
(a and b) Considering the merits of this particular district,
however, we find that during the time the parties and their attorneys
were recounting the ballots in the offices of the board of election in
downtown New York they found among the unused ballots of this district
that 34 were missing. While the New York statutes require the
preservation of unused ballots, yet it is self-evident that they can
not and would not have the sanctity accorded to a used ballot because
they serve no useful purpose. We can not say that this precinct should
be thrown out because three months after the election 34 unused ballots
were found to be missing. There is no testimony to show that they were
missing on the day of the election or at the time the returns were
made. The only time they were discovered as missing was three months
after the election was over. Without a word of testimony as to when or
how these ballots disappeared, or by whom they were taken or lost, the
majority of the committee have indulged themselves in the conclusion
that the disappearance of these ballots had something to do with
tainting the poll with fraud. The disappearance of these ballots is
brought no closer to this polling place than several city miles and no
closer in time to the election than three months. It can with equal
propriety be charged that these ballots were missing by the efforts of
Chandler's supporters as to charge it to the Bloom supporters.
A weak attempt is made to establish a substitution of ballots in
this district by a twist of legal procedure the sanction of which is
found in the decision of no court anywhere. The contestant and two
other parties seek to establish the substitution of ballots in this
precinct by the impeachment of their own witness. They used an old
Italian barber as a witness and sought to draw from him that he had
told these other persons that he had observed one of the inspectors
pocketing ballots cast. He denied making the statement or any other
statement that would lead to an inference of the kind suggested.
Contestant and his other two witnesses then took the stand and
testified that they were told this by this Italian barber. In other
words, we are asked to accept as true the unsworn statement of this
barber to establish a fact which he swears himself is not true. No rule
of evidence could be tortured into a construction which would render
admissible this testimony as tending to establish any fact. Any
irregularities in the returns in this district are of such minor
importance as not to justify a discussion on our part, or they were
corrected by the recount.
It is interesting to know that Robert Oppenheim, the Republican
leader of the seventeenth assembly district, in which are located the
thirtieth and thirty-first election districts, testified that he was at
this precinct and the thirty-first several times during the day, and
that he had workers and captains there all the time; that he did not
see anything in the district upon this election day which warranted his
belief that anything wrong was being done or any fraud being
perpetrated or any irregularities taking place, and that as far as his
knowledge and information were concerned such did not occur. If any
fraud such as would justify the throwing out of this box were
perpetrated in this assembly district, it is astounding that the party
leader
[[Page 1451]]
of the district would not know anything of it, much less not even hear
of it. . . .
Upon a legal canvass of the votes cast at this special election in
the nineteenth congressional district in the State of New York, the
contestee, Sol Bloom, received a plurality of 191 votes over the
contestant; upon a recount of said votes upon conceded lawful votes,
votes agreed by both parties to be in all respects legal votes, the
contestee had a plurality of 126; the election committee increased this
plurality upon thorough investigation to 153 and then reduced this 8
votes, leaving a net plurality for the contestee of 145.
To overcome this majority of 145 votes, which contestee has over
the contestant, the committee rejects the votes cast in the twenty-
third election precinct of the eleventh assembly district, and the
votes cast in the thirtieth and thirty-first election precincts of the
seventeenth assembly district. These three precincts had given Bloom
369 more votes than Chandler had received in said districts, and in
this manner declared Chandler elected.
The election inspectors who held this election and who counted the
ballots cast at the several precincts, there being 156 thereof, threw
out more than 600 ballots which were attempted to be cast for Mr.
Bloom, because these ballots were marked improperly, though they
clearly disclosed that the voter in good faith intended to vote for Mr.
Bloom; they technically complied with the law and the New York statute.
We make no protest as to this, but in all fairness we invoke the right
to compel the contestant to also comply with the law and the well-
accepted rules thereof when he undertakes to overcome the presumption
in favor of the legality of the returns of this election, which
certified that he was defeated by the contestee by his allegation of
fraud and irregularities. Unless he does so to the satisfaction of this
House, by evidence which is strong, clear, and convincing, and carries
with it a conviction of the truth of his charges, he should not avail.
The undersigned members of the committee therefore recommend the
adoption of the following resolution:
Resolved, That Walter M. Chandler was not elected a
Representative to the Sixty-eighth Congress from the
nineteenth congressional district of the State of New York;
and
Resolved, That Sol Bloom was elected a Representative to
the Sixty-eighth Congress from the nineteenth congressional
district of the State of New York.
Privileged resolution (H. Res. 254) agreed to as amended (209 yeas
to 198 nays with 3 ``present'') after extended debate in which
contestant was permitted to participate and after adoption of
substitute (210 yeas to 198 nays with 5 ``present'') declaring
contestee entitled to a seat and declaring contestant not so entitled
[65 Cong. Rec. 6034, 68th Cong. 1st Sess., Apr. 10, 1924; H. Jour. 418,
419].
[[Page 1452]]
Sec. 4.3 Clark v Moore, 1st Congressional District of Georgia.
Evidence.--Contestant failed to offer sufficient proof of
allegations of fraud and conspiracy to defraud by election officials of
contestee's party.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 2 submitted by Mr. John M.
Nelson, of Wisconsin, on Mar. 26, 1924, follows:
Report No. 367
Contested Election Case, Clark v Moore
The basic contention of the contestant in this case is that because
the Democratic Party controlled all State and county officers that a
monocratic form of government was thus set up, making it impossible for
a Republican candidate to have any watchers at the polls or in any
other way to secure a fair opportunity to win an election. On this
ground contestant desires the results of the election vitiated and the
seat of the contestee declared vacant in the House of Representatives.
The committee can find no justification in evidence or in practice
for the disfranchisement of the voters of the first congressional
district of Georgia merely because that district is dominantly
Democratic in its politics.
The committee finds no evidence to support allegations 1, 2, 3, and
4 of contestant that the State and county officials were confederated
in a conspiracy to deprive him of the privilege of running as a
candidate for Congress from the first district.
The committee finds no evidence to support the allegation of
contestant that the actions of the county election officials in the
counties of the first district were such as to vitiate the results of
the election.
The committee finds no evidence to support the allegation of the
contestant that county officials in refusing to distribute contestant's
blank ballots committed an act which vitiated the results of the
election.
The committee finds no evidence to support the allegation of
contestant that the election was void because of disqualification of
the election managers in the various counties of the first district.
The committee finds no evidence to sustain the allegation of the
contestant that the election has not been completed under the laws of
Georgia as they were at that time.
The committee finds no evidence to support the allegation that the
actions of the chairman of the State Democratic executive committee of
Georgia were such as to vitiate the results of the election.
The committee finds no evidence to support the allegation of the
contestant that the managers of elections were not qualified by law to
so act; that there was repeating and other fraudulent voting practices;
that any votes cast for contestant were deliberately destroyed
uncounted.
[[Page 1453]]
The committee finds that the contestant in his brief has been
reckless and extravagant in his use of language and in making charges,
and that the contestant offers assumption instead of evidence to prove
his contention.
The contestant avers that in some of the precincts the ballots were
burned and in others that they were lost. He offers no evidence to show
that any of the ballots alleged to have been burned or lost were cast
for him, but bases his claim that they were cast for him on the ground
that if they had been cast for the Democratic candidate they would not
have been burned or lost.
The contestant's allegation that in some of the counties many of
the polling places were not open, so the voters could cast their
ballot, remains unproven, and on the contrary the evidence shows that
there was ample opportunity for the voters to cast their ballots if
they chose to do so.
The contestant's allegation that 600 ballots cast by colored voters
in the city of Savannah were cast for him is unproven, the only
evidence that such was the case being the assumption by three colored
witnesses that the colored voters of Savannah naturally would vote for
a Republican candidate.
The contestant has utterly failed to show, even if he were allowed
all of the votes which he claims were cast for him and were burned or
lost, that he would have a majority of the votes cast in the district;
but in fact the contestee would have a large plurality over the
contestant in any event.
Although the contestant has failed to show cause why the election
should be voided, or why the contestee's title to his seat in the House
of Representatives should be invalidated, even if the contestee's seat
were vacated by the committee, there is nothing in the evidence to show
that the contestant would be entitled to it.
It is difficult to follow the reasoning of the contestant since his
brief is made up of such allegations as the following:
Hope that the fires of loyalty and devotion to
constitutional laws and its enforcement may be rekindled;
that the viperous political fangs of an idiocratic monocracy
shall no longer be tolerated, by crime, treachery, and
treason, to paralyze the decadent people and state, it has so
long deluded and enslaved, but that it and the system shall
be wrenched from the politic heart of Georgia, has impelled
this contest.
And further the following:
When, where, and why has the reward of fraud, crime,
conspiracy, and treason been held to produce the domination
of vice, here--produce a vacant seat in the Sixty-eighth
Congress of the United States? Contestant now and here defies
contestee to offer such precedent or rule of law. When he
does, then it will have come to pass that a sufficiency of
crime and treason, and the criminals and traitors, thereby
produced, will automatically vacate, at their pleasure, every
seat in the upper and lower House of Congress, and all
Government will end.
[[Page 1454]]
The above quotations are typical of the nature of the contestant's
brief in this case, and your committee is of the opinion that such
loose, extravagant, and unfounded charges being made the basis for an
election contest with the consequent expense to the Government should
be discouraged in the future.
summary and conclusion
Your committee therefore finds that the contestant has failed to
prove the allegations contained in his brief, that there is no evidence
warranting the rejection of the votes of any of the precincts of the
district; and that the contestee, R. Lee Moore, was duly and legally
elected a Member of the House of Representatives from the first
district of Georgia. For the above reason your committee recommends the
adoption of the following resolutions:
Resolved, That Don H. Clark was not elected a Member of
the House of Representatives in the Sixty-eighth Congress
from the first congressional district of the State of
Georgia, and is not entitled to a seat herein.
Resolved, That R. Lee Moore was duly elected a Member of
the House of Representatives in the Sixty-eighth Congress
from the first congressional district of Georgia, and is
entitled to retain his seat herein.
Privileged resolution (H. Res. 340) agreed to by voice vote without
debate [65 Cong. Rec. 10323, 68th Cong. 1st Sess., June 3, 1924; H.
Jour. 369].
Sec. 4.4 Claim of E. W. Cole to Seat, At Large, Texas.
Apportionment.--The right of a Member-elect with regular
credentials to a seat, where the state's representation would thereby
be in excess of the state entitlement under existing law, was denied by
the House.
The constitutional provision requiring reapportionment by act of
Congress after each decennial census was held to be discretionary as to
time for enactment, and to preclude the House from itself increasing
its total membership and creating an extra unfunded seat.
Report adverse to the claim of a Member-elect, who was not seated.
Report of Committee on Elections No. 2 submitted by Mr. John M.
Nelson, of Wisconsin, on Mar. 29, 1924, follows:
[[Page 1455]]
Report No. 398
Claim of E. W. Cole to Seat
statement of the case
Under the constitutional provision providing for representation of
the States in the House of Representatives on a basis of numerical
population, and basing its action on the census of 1920, the State of
Texas proceeded to elect a Representative at Large on the ground that
the census of 1920 entitles the State of Texas to one more
Representative than it now has in Congress, making the number 19
instead of 18.
In May, 1922, E. W. Cole, of Austin, Tex., had his name placed on
the ballot to be voted on in the primary election in the selection of
Democratic nominees for various offices of the State as well as for
Representative at Large in Congress. Mr. Cole secured recognition on
the ballot through the Democratic State executive committee according
to his brief filed with his claim. He further alleges that in July,
1922, at the primary election he received practically the unanimous
vote of the Democratic Party of Texas for the nomination for the
position of Representative at Large.
The Governor of the State of Texas at the proper time, it is
alleged, issued his proclamation calling for the election of the
various Members of Congress and the State officers in November, 1922,
and among other provisions included in the proclamation was one for the
election of a Representative at Large in Congress for the State of
Texas.
Claimant alleges that his name was duly placed upon the Democratic
ballot as the candidate for that party in the general election held in
November, 1922, and that the Republican Party of the State of Texas had
placed upon its ballot as a candidate for the same office the name of
Herbert Peairs.
Claimant alleges that in the election November, 1922, the said
Herbert Peairs received 46,048 votes and that claimant received 265,317
votes.
Claimant further alleges that thereafter the election board of
Texas canvassed the result of the said general election, and declared
that E. W. Cole, the claimant, was duly elected as Representative at
Large from the State of Texas, and that thereafter in due time and form
the Hon. Pat. M. Neff, Governor of the State of Texas, issued, signed,
and delivered a certificate of election to claimant as Representative
at Large for the State of Texas, and that said certificate of election
was duly filed with the Clerk of the House of Representatives of the
Congress of the United States. Claimant further alleges that the Clerk
of the House of Representatives received and is holding said
certificate of election, but has refused to file the same or to
recognize the claims of the claimant for a seat in the House of
Representatives of Congress and has refused to recognize the
appointment of a secretary and other privileges to which the said E. W.
Cole would be entitled as a Representative in the House of
Representatives in the Sixty-eighth Congress.
All of which allegations your committee assumes to be true, having
taken no evidence concerning them.
Claimant's counsel cites in support of the claim Article I, Section
II, Subdivision III of the Constitution of the United States, which
reads as follows:
[[Page 1456]]
Representatives and direct taxes shall be apportioned
among the several States which may be included within this
Union, according to their respective numbers, which shall be
determined by adding to the whole number of free persons,
including those bound to service for a term of years, and
excluding Indians not taxed, three-fifths of all other
persons. The actual enumeration shall be made within three
years after the first meeting of the Congress of the United
States and within every subsequent term of ten years, in such
manner as they shall by law direct.
Claimant's counsel further cites Section II of Article XIV of the
Constitution of the United States, in which the following language is
found:
Representatives shall be apportioned among the several
States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not
taxed. But when the right to vote at any election for the
choice of electors for President and Vice President of the
United States, Representatives in Congress, the executive
officers of a State or the members of the legislature
thereof, is denied to any of the male inhabitants of such
State, being 21 years of age and citizens of the United
States, or in any way abridged, except for participation in
rebellion or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such
male citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.
It may be observed that male citizens only are referred to in this
section of the Constitution, but by the nineteenth amendment to the
Federal Constitution women were enfranchised and now those
constitutional provisions have to be read in connection with the
nineteenth amendment.
Claimant sets up the theory that not only is the direction for
taking the census made mandatory in the Constitution, but that the
action of Congress to enact a reapportionment act based upon each
succeeding census is also mandatory.
Your committee of course agrees that taking of the census is made
mandatory by the Constitution; but while it be true that for a hundred
years the Congress has at its first session following the taking of a
census enacted a reapportionment act, the time of performing this duty
is not made mandatory by the Constitution but remains discretionary
with the Congress.
While it is true that some color may be given a claim that long-
established custom has fixed that time for Congress to pass a
reapportionment act the first session of Congress following the taking
of the census, it still remains custom and not a constitutional
provision nevertheless.
Your committee sympathizes with the view that since no explicit
time is set by the Constitution in which Congress shall enact a
reapportionment act following the taking of a census, the framers of
the Constitution had in mind that Congress should within a reasonable
time after the taking of the census make a reapportionment. Your
committee also sympathizes with the view
[[Page 1457]]
that the long-established custom of the Congress in providing for a
reapportionment at the first session following the taking of the census
lends some weight to the claim that this practice has established that
time as being a reasonable time within the meaning of the Constitution.
Claimant cites a resolution by the Texas Legislature in which the
legislature petitions Congress to seat claimant on the ground that the
official census of 1920 showed the representative population of Texas
to be 4,663,228, the legislature calling attention to the fact that the
official census of 1920 shows the representative population of the
United States to be 105,371,598 and reciting the fact that the present
or Sixty-eighth Congress came into existence on March 4, 1923, and that
the membership of the House has not been changed and still remains 435.
Your committee has no reason to question the facts as set forth in
the petition of the Texas State Legislature.
The situation presented here, however, brings up the question of
whether or not it is incumbent upon Congress as a duty to enact a
reapportionment act at its first session following a taking of the
census. That is a matter for the Congress and not this committee to
pass upon.
In the view of the committee two insurmountable obstacles to the
seating of claimant obtrude themselves.
The first is: The number of Representatives fixed by an act of the
Congress in 1913, based upon the official census of 1911, is 435. That
act of Congress was passed by the House, then by the Senate, and was
signed by the President of the United States. Your committee is of the
opinion that the House of Representatives alone could not amend or
modify an act of the whole Congress by increasing the membership of the
House of Representatives to 436 without the act of the House being
passed upon by the United States Senate and the President of the United
States. Consonant with that view, then, your committee is of the
opinion that if this claimant were to be seated he would have to be
seated through an act of Congress to increase the membership of the
House to 436.
The second obstacle is: Even though the House might attempt by its
own act and independently of the Senate and of the President of the
United States to seat claimant, thereby increasing the membership of
the House by one Member and increasing the representation of the State
of Texas by one, there would be no fund with which to pay the salary,
clerk hire, mileage, and other perquisites and expenses of claimant,
because the appropriation from which salaries, clerk hire, mileage, and
other expenses of Members of the House of Representatives is paid is an
appropriation passed by an act of the whole Congress and approved by
the President of the United States, and therefore, even though claimant
were seated, his salary and perquisites would have to be paid by a
special act of Congress.
Claimant cites in support of his claim the case of F. F. Lowe,
quoted in the Thirty-seventh Congress, second session, House of
Representatives Report No. 79 (U.S. House Reports, vol. 3, 37th Cong.,
2d sess.), which case was substantially as follows:
A memorial was based upon the alleged right of California to three
Representatives in the Thirty-seventh Congress. By a special provision
of a stat
[[Page 1458]]
ute enacted July 30, 1852, it was provided that California should have
two Representatives until a new apportionment should take effect. But
that State, believing that the apportionment based on the Eighth Census
had already taken effect, did at a general election elect three persons
to represent the State in Congress. Two of the persons elected were
duly seated, while the third, F. F. Lowe, was denied a seat, so that
the case in point does not sustain the claim of E. W. Cole, but
operates to deny his claim, since the committee authorized to consider
the Lowe case came to the conclusion, which your committee now holds,
that the proper procedure, where a State believing itself entitled to
more Representatives than the number fixed by an apportionment act of
the Congress elects a Representative at large, is for such
Representative at large to be seated by an act of Congress and not by
an action solely of the House.
Your committee is of the opinion that to attempt to settle
questions of the nature involved in this case by seating the claimant,
would be to disorganize the House of Representatives. It would bring up
other questions, such as the action to be taken in the cases of States
which are now overrepresented, due to decrease in their population.
Your committee is of the opinion that in cases where States elect
Representatives at large in the belief that such States are entitled to
greater representation than they now have, the proper procedure is for
such claimants to find their remedy through a bill presented to the
Congress for action rather than through a report from an elections
committee.
Your committee understands that the claimant in this case has
caused a bill to be introduced to increase the membership of the House
by one Member and to seat claimant. This is a matter for the Congress
to pass upon and does not fall within the scope of this committee's
functions.
Therefore, your committee recommends that the following resolution
be adopted by the House of Representatives:
Resolved, That E. W. Cole is not entitled to a seat in
this House as a Representative from the State of Texas in the
Sixty-eighth Congress.
Privileged resolution (H. Res. 341) agreed to by voice vote without
debate [65 Cong. Rec. 10324, 68th Cong. 1st Sess., June 3, 1924; H.
Jour. 636].
Sec. 4.5 Gorman v Buckley, 6th Congressional District of Illinois.
Evidence not having been forwarded to the House by the official
appointed by contestant to take testimony within the time required by
an elections committee rule, contestant was held not to have standing
to institute the contest.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 3 submitted by Mr. Richard N.
Elliott, of Indiana, on May 13, 1924, follows:
[[Page 1459]]
Report No. 722
Contested Election Case, Gorman v Buckley
statement of the case
At the general election held in the sixth congressional district of
the State of Illinois on November 7, 1922, according to the official
returns, James R. Buckley, Democratic candidate, received 58,928 votes,
John J. Gorman, Republican candidate, received 58,886 votes, and John
S. Martin, Socialist candidate, received 4,341 votes. As a result of
these returns James R. Buckley, contestee, was declared elected by a
plurality of 42 votes over his Republican opponent, John J. Gorman, and
a certificate of election was duly issued to him by the secretary of
the State of Illinois. On January 2, 1923, the contestant, in
accordance with law, served on the contestee a notice of contest in
which it was alleged that errors, mistakes, and irregularities had been
committed in said election and in the counting of the ballots in
various precincts in said congressional district. The contestant
claimed that a recount of the votes cast in the above precincts would
disclose that the contestant was duly and legally elected.
On January 27, 1923, the contestee served on the contestant an
answer denying all of the allegations contained in contestant's notice
of contest.
work of the committee
The testimony in the case was duly printed and the contestant filed
an abstract of record and also a printed brief and argument. The
contestee filed his brief and the following motion:
motion to strike depositions from the record
To the honorable the House of Representatives of the Sixty-eighth
Congress of the United States:
Now comes James R. Buckley, contestee herein, by William
Rothman, his attorney, and moves that the depositions herein
and each of them filed herein by the commissioners
respectively designated by the parties to hear and take the
testimony be stricken from the record, on the ground that
said commissioners failed to file the said depositions with
the Clerk of this House, ``without unnecessary delay'' after
the taking of the same was completed as required by section
127 of the Revised Statutes as amended, in that the same were
not filed within 30 days after the completion of the taking
of said testimony as required by the rules of the Committee
on Elections of this honorable House; and in this connection
the contestee respectfully represents that the taking of
testimony herein was completed on April 28, 1923, at the hour
of 12:30 o'clock p.m., at which time the further hearing of
the said cause was adjourned sine die; that the only further
proceedings had in said cause subsequent to said April 28,
1923, were hearings which were had before his honor, Judge
Wilkerson,
[[Page 1460]]
in the United States district court, which were had on June 2
and June 4, 1923; and that no further proceedings of any kind
or nature were had in the said cause subsequent to said June
4, 1923; and that the depositions filed herein by the
commissioner designated by the contestant were filed with the
Clerk of this honorable House on, to wit, November 5, A.D.
1923, more than 191 days following the completion of the
taking of testimony and more than 154 days after the date
when the last proceedings of any sort were had in said
contest.
Dated at Chicago, Ill., November 20, 1923.
Hearings were conducted by the committee on the 21st and 22d of
April, at which time the contestant was present by himself and counsel,
and the contestee was present by himself and counsel.
findings of fact
The contestee's answer was served on contestant January 27, 1923.
The act of Congress approved March 2, 1875 (U.S. Stat. L., vol. 18, ch.
119, p. 338), provides that in all contested-election cases the time
allowed for taking testimony shall be 90 days, and the testimony shall
be taken in the following order: The contestant shall take testimony
during the first 40 days, the returned Member during the succeeding 40
days, and the contestant may take testimony in rebuttal only during the
remaining 10 days of said period.
In this case, therefore, the contestant, under said law, was
allowed until March 9 in which to take his testimony in chief and the
law required that the taking of all testimony should be completed on
April 27, 1923. As a matter of fact, however, the contestant took only
a part of his testimony in chief in the first 40 days, which expired on
the 9th day of March, 1923. The contestee took no testimony in the next
40 days. During the 10-day period at the end of the 90 days the
contestant took some additional testimony, which was not in rebuttal,
but was intended as testimony in chief. The testimony in this case was
filed with the Hon. William Tyler Page, Clerk of the House of
Representatives, on the 5th day of November, 1923.
conclusions of law
Section 107 of the Revised Statutes of the United States as amended
by the act of March 2, 1875, explicitly provides that all testimony in
contested-election cases shall be taken within 90 days from the date on
which the answer of the contestee is served upon the contestant, and
that all officers taking testimony to be used in a contested-election
case, whether by depositions or otherwise, shall, when the taking of
the same is completed, and without unnecessary delay, certify and
carefully seal and immediately forward same by mail or express,
addressed to the Clerk of the House of Representatives of the United
States, Washington, D.C.
Rule 8 of the rules of the Committee on Elections in the House of
Representatives, reads as follows:
[[Page 1461]]
The words ``and without unnecessary delay'' in the third
line of section 127 of the Revised Statutes, as amended by
the act of March 2, 1887, shall be construed to mean that all
officers taking testimony to be used in a contested-election
case shall forward the same to the Clerk of the House of
Representatives within 30 days of the completion of the
taking of said testimony.
Your committee finds that the contestant in this case ignored the
plain mandate of the law and the rules of the Committees on Elections
of the House and that he has no standing as a contestant before the
House of Representatives.
summary and conclusion
Your committee therefore finds that the contestant, not having
complied with the provisions of the law governing contested-election
cases, has no case which can be legally considered by the committee or
by the House of Representatives.
For the above reasons your committee recommends the adoption of the
following resolutions:
Resolved, That John J. Gorman was not elected a Member of
the House of Representatives in the Sixty-eighth Congress
from the sixth congressional district of the State of
Illinois and is not entitled to a seat herein.
Resolved, That James R. Buckley was duly elected a Member
of the House of Representatives in the Sixty-eighth Congress
from the sixth congressional district of the State of
Illinois and is entitled to retain his seat herein.
Privileged resolution (H. Res. 346) was agreed to by voice vote
without debate [65 Cong. Rec. 10405, 68th Cong. 1st Sess., June 3,
1924; H. Jour. 644].
Sec. 4.6 Ansorge v Weller, 21st Congressional District of New York.
Ballots disputed at a complete recount conducted by the parties
under state law were examined and recounted by an elections committee
upon adoption by the House of a resolution reported from that committee
authorizing subpoena of ballots and election officials.
An elections committee, having adopted a resolution establishing
categories of disputed ballots, recounted a plurality of valid ballots
for contestee.
Report for contestee, who retained his seat.
On Mar. 31, 1924, Mr. Frederick W. Dallinger, of Massachusetts,
from the Committee on Elections No. 1 reported (H. Rept. No. 409) and
called up as privileged the following resolution (H. Res. 242):
[[Page 1462]]
Resolved, That John Voorhis, Charles E. Heydt, James Kane, and
Jacob Livingston, constituting the board of elections of the city of
New York, State of New York, their deputies or representatives be, and
they are hereby, ordered to appear by one of the members, the deputy or
representative, before Elections Committee No. 1 of the House of
Representatives forthwith, then and there to testify before said
committee, or a subcommittee thereof, in the contested-election case of
Martin C. Ansorge, contestant, v. Royal H. Weller, contestee, now
pending before said committee for investigation and report; and that
said board of elections bring with them all the disputed ballots,
marked as exhibits, cast in every election district at the general
election held in the twenty-first congressional district of the State
of New York on November 7, 1922. That said ballots be brought to be
examined and counted by and under the authority of said Committee on
Elections in said case, and to that end that the proper subpoena be
issued to the Sergeant at Arms of this House, commanding him to summon
said board of elections, a member thereof, or its deputy or
representative, to appear with such ballots as a witness in said case;
and that the expense of said witness or witnesses, and all other
expenses under this resolution, shall be paid out of the contingent
fund of the House; and that said committee be, and hereby is, empowered
to send for all other persons or papers as it may find necessary for
the proper determination of said controversy; and also be, and it is,
empowered to select a subcommittee to take the evidence and count said
ballots or votes and report same to Committee on Elections No. 1, under
such regulations as shall be prescribed for that purpose; and that the
aforesaid expense be paid on the requisition of the chairman of said
committee after the auditing and allowances thereof by said Committee
on Elections No. 1.
Reported privileged resolution (H. Res. 242) was agreed to by voice
vote without debate [65 Cong. Rec. 5271, 68th Cong. 1st Sess., Mar. 31,
1924; H. Jour. 381].
Report of Committee on Elections No. 1 submitted by Mr. R. Clint
Cole, of Ohio, on May 14, 1924, follows:
Report No. 756
Contested Election Case, Ansorge v Weller
At the election held in the twenty-first congressional district in
the State of New York on November 7, 1922, according to the official
returns Royal H. Weller, the contestee, who was the Democratic
candidate, received 32,392 votes and Martin C. Ansorge, the contestant,
who was the Republican candidate, received 32,047 votes, all other
candidates receiving 2,836 votes. Royal H. Weller, the contestee, was
declared elected by a plurality of 345 votes over his Republican
opponent, Martin C. Ansorge, and a certificate of election was duly
issued to him by the secretary of state of New York.
On December 28, 1922, the contestant, in accordance with law,
served on the contestee a notice of contest, a copy of which notice and
attached petition was in due course filed with the Clerk of the House
of Representatives and
[[Page 1463]]
in which notice and petition were set forth numerous grounds of
contest, which may be summarized as follows:
That the count, canvass, and handling of the ballots in the
election districts of the said congressional district were not
conducted in the lawful, orderly, and proper manner, provided for by
the election law to prevent fraud and unintentional error.
That the contestant prays that the said ballots may be counted
under the direction of the House of Representatives by its duly
authorized committee and the true result of said election by them
ascertained and declared and that if said representations are found to
be true and correct, that he has been reelected as a Member of
Congress, that the House of Representatives shall so declare, and that
he be sworn in as a Member of the Sixty-eighth Congress.
To said notice and petition the contestee, on January 26, 1922,
filed his answer setting forth that the notice of the contestant was
insufficient in that it contained no facts or proof whatsoever to raise
any presumption whatever of mistake, irregularity, or fraud in the
original count or canvass, and asking that the application founded
thereon be dismissed.
Pursuant to the above notice and petition, the contestant thereupon
proceeded, and both parties or their counsel, conducted a recount of
all the ballots cast in the twenty-first congressional district of New
York at the general election held on November 7, 1922.
The complete and voluminous record and abstract of this recount of
70,525 ballots from the 188 precincts of the twenty-first congressional
district of New York were duly filed with the Clerk of the House of
Representatives and duly transmitted to this committee; together with
the briefs so filed by both parties.
According to the record, during said recount the contestant gained
75 votes in one election district, 60 in another, 33 in another, 22 in
another, 17 in another, and lesser net gains in other boxes of separate
election districts and upon such recount it was then and is now agreed
by counsel for both parties, that upon conceded votes the contestant
overcame the contestee's lead or first plurality of 345 and that upon
the result of such recount the contestant was ahead of the contestee
115 votes upon the conceded votes, without taking into account the 820
disputed ballots which were subsequently brought before the committee
by the Sergeant at Arms under a resolution of this committee adopted by
the House of Representatives.
Previous to the sending for the disputed ballots, hearings were
given to the parties by your committee on Thursday, March 20, 1924, and
Friday, March 21, 1924, at which oral agreements were presented by both
the contestant and the contestee and by eminent counsel in their
behalf--James R. Sheffield, Esq., and Jacob H. Corn, Esq., appearing
for the contestant, and Hon. John W. Davis, John Godfrey Saxe, Esq.,
and Judge George W. Olvany, appearing for the contestee.
At a subsequent hearing in this case before this committee, held on
the 22d day of April, 1924, counsel for contestee offered the following
resolution for adoption by the committee:
[[Page 1464]]
Resolved, That in order to expedite the work of the
committee, counsel for the respective candidates be, and they
hereby are, instructed, during the next hour to arrange the
various ballots which have been brought from New York to
Washington into the following piles:
1. Ballots marked otherwise than with a pencil having
black lead- this is, ballots marked in ink or with a blue
crayon or with an indelible pencil, etc.
2. Ballots bearing a mark for the office of Congressman
challenged on the ground that the lines of the alleged cross
mark do not cross-i.e., alleged y's, v's, and t's.
3. Ballots bearing a cross mark where the lines cross but
challenged because of extra lines forming part of the cross,
or because of other irregularities in character or form of
the mark.
4. Ballots bearing a cross mark outside of the voting
squares.
5. Ballots bearing two cross marks for the office of
Congressman, irrespective of whether such marks were made by
the voter or claimed to be reprints or impressions.
6. Ballots bearing erasures, smudges, or ink marks.
7. Ballots bearing any name written on the ballot.
8. Ballots challenged because they appear to have been
torn by someone.
9. Ballots other than the above which are challenged by
either party because of extra lines, dots, and dashes
disconnected with the cross mark.
10. All other ballots.
This resolution was agreed to by all parties and adopted by the
committee, whereupon the counsel for both parties arranged the ballots
into classes, after which the committee heard the argument of counsel
on both sides as to the application of the New York statutes and
decisions to separate ballots and classes of ballots, and the marking
thereof, counsel arranging ballots in 12 classes, 2 additional classes
being found advisable by them.
During argument before committee throughout the days of April 23
and April 24, counsel for both parties agreed as to a great number of
the ballots of different classes being good for one party or the other,
void, or disputed, and as to a great number of the disputed ballots,
for the information of the committee, counsel stipulated in the record
their respective claim or objection.
The committee having taken jurisdiction of the ease after a hearing
on the pleadings and after hearing argument of counsel as to the
disputed ballots over a period of 10 days, held executive sessions and
gave careful consideration to all issues presented by argument and
evidence and by the ballot exhibits. While not considering that the
committee was bound by the stipulations and agreements of counsel as to
good, void, and protested ballots, the members of the committee have
substantially sustained the agreements of counsel and have passed upon
the unagreed ballots submitted for the consideration and determination
of the committee as well as those included in the
[[Page 1465]]
groups agreed by counsel to be good votes for either party or void, as
the ease may be. The following tabulation shows the result of the
committee's canvass of the entire group of ballots marked as exhibits
during the recount held in New York:
----------------------------------------------------------------------------------------------------------------
Good Good
ballots for ballots for
contestant contestee
----------------------------------------------------------------------------------------------------------------
Class 1............................................................................... 17 8
Class 2............................................................................... 12 20
Class 3............................................................................... 12 7
Class 4............................................................................... ........... 1
Class 5............................................................................... 2 33
Class 6............................................................................... 30 43
Class 7............................................................................... 2 2
Class 8............................................................................... ........... 1
Class 9............................................................................... 5 15
Class 10.............................................................................. 29 70
Class 11.............................................................................. 7 29
Class 12.............................................................................. 64 69
Envelopes............................................................................. 7 14
-------------------------
Total......................................................................... 187 312
New York recount totals............................................................... 31,892 31,777
-------------------------
Grand total................................................................... 32,079 32,089
----------------------------------------------------------------------------------------------------------------
Your committee therefore finds that at the election held in the
twenty-first congressional district of the State of New York on
November 7, 1922, Royal H. Weller received 32,089 votes and Martin C.
Ansorge received 32,079 votes and that Royal H. Weller was elected by a
plurality of 10 votes.
Your committee therefore recommends to the House of Representatives
the adoption of the following resolutions:
Resolved, That Martin C. Ansorge was not elected a
Representative from the twenty-first congressional district
of the State of New York and is not entitled to a seat
herein.
Resolved, That Royal H. Weller was duly elected a
Representative from the twenty-first congressional district
of the State of New York and is entitled to retain a seat
herein.
Privileged resolution (H. Res. 328) agreed to by voice vote without
debate [65 Cong. Rec. 9631, 68th Cong. 1st Sess., May 27, 1924; H.
Jour. 593].
Sec. 4.7 Frank v LaGuardia, 20th Congressional District of New York.
Evidence not taken by contestant within the legal time was held
grounds for discharge of an elections committee from further consid
[[Page 1466]]
eration of the contest where delay was not excusable and violated the
statute, although the parties had stipulated to extensions; House and
committee rules were considered mandatory as to the parties.
Ballots.--An elections committee refused to order a partial recount
where contestant was guilty of laches and did not offer evidence of
fraud or irregularities in marking of ballots sufficient to change the
election result.
Unethical action by contestee's counsel was not held attributable
to contestee.
Report recommending discharge of committee with additional
concurring views, contestee retained his seat.
Report of Committee on Elections No. 2 submitted by Mr. John M.
Nelson, of Wisconsin, on Jan. 7, 1925, follows:
Report No. 1082
Contested Election Case, Frank v LaGuardia
finding of fact
Official returns.--At the general election held in the twentieth
congressional district of the State of New York on November 7, 1922,
according to the official returns Fiorello H. LaGuardia, the contestee,
who was the Republican candidate, received 8,492 votes, and Henry
Frank, the contestant, who was the Democratic candidate, received 8,324
votes. All the other candidates received 5,358 votes.
Certificate of election.--As a result of these returns, Fiorello H.
LaGuardia, the contestee, was declared elected by a plurality of 168
over his opponent, Henry Frank, and a certificate of election was duly
issued to him by the secretary of the State of New York.
State proceedings.--The contestant resorted to proceedings in the
courts of his State for an examination of the ballots, which was denied
by Mr. Justice MacAvoy, of the supreme court. An appeal from this
decision was taken but not prosecuted and the appeal dismissed. In a
later action before Mr. Justice Giegerich to pass upon the validity of
certain void ballots, the decision of the board of elections declaring
some 40 ballots void was sustained by Judge Giegerich and these
ballots, therefore, have been declared void both by the board of
elections and by decision of the court in the State of New York. While
these proceedings were discussed by counsel at the hearing, they
furnished no aid to your committee. The findings of the board of
elections remain unmodified.
Notice of contestant.--On December 28, 1922, the contestant served
on the contestee a notice of contest in which were set forth numerous
grounds of contest. The allegations in the contestant's notice were of
a general nature, not specifieally alleging instances where the
election might have been invalidated, but claiming a majority of the
legally cast ballots and asking an examination of the ballots and the
ballot boxes to ascertain the facts.
[[Page 1467]]
Denial of contestee.--On January 27, 1923, the contestee answered
the contestant's notice of contest, in which he denied all allegations
contained therein.
Time consumed in taking testimony.--On February 21, 1923, the
contestant served on the contestee notice to take testimony, and on
February 23, 1923, a preliminary hearing was held before a notary
public of the State of New York. On March 1, 1923, the actual taking of
testimony was begun by contestant and was adjourned (after the
examination of two witnesses) until March 5, 1923, when it was
continued, with intermittent adjournments until April 24, 1923, and
then adjourned by consent until a date to be later agreed upon.
On July 24, 1923, after a lapse of three months, the hearings were
resumed by the contestant, and after one witness was examined
adjournment was had until July 30, 1923, and then till August 6, and
August 13, 1923, without the examination of any witnesses until the
last date. Hearings were conducted with intermittent delays until
September 7, 1923 when successive adjournments were had until September
19, 1923, and additional testimony was then taken.
By successive adjournments testimony was taken on several days
until November 30, 1923, and on December 21, 1923 a certificate from
the notary was offered as evidence that taking of testimony for the
contestant had been concluded.
On December 20, 1923, contestee served notice of taking testimony
and continued his taking of testimony with intermittent delays until
March 1, 1924.
The case was reported by the Clerk to the Speaker on June 3, 1924.
The briefs were not served by the contesting parties until after the
adjournment of Congress, the first filed on June 30 and the last on
August 28, 1924.
Stipulation of parties.--On March 1, 1923, parties entered into a
stipulation as follows:
It is stipulated by and between the parties hereto,
through their respective attorneys and counsel, that the time
limit as fixed by the rules of the House of Representatives
and the statutes of the United States governing contested
elections shall be deemed as directory and not mandatory, and
that either party may have more than the period of time
allotted and fixed therein within which to present his
respective case in this proceeding, and both sides waive
specifically any right to object that they may have under the
law with respect to the time so fixed. (Frank v. La Guardia,
Record, p. 7)
Application for ballots.--A few days before the case came on for
hearing, counsel for contestant made a request that subpoenas be issued
to produce 82 ballots said by him to be in dispute between the parties.
To this request the contestee replied that in that event he would ask
for the ballots generally to be sent for. It appears that there had
been an examination of the ballots by the parties in the case during
the taking of the testimony. Attor
[[Page 1468]]
ney for contestee stated at the hearing that he had conceded certain
ballots of the contestee to be void under the State law, but which
under the ruling in the recent case of Ansorge v. Weller before
Elections Committee No. 1, were held valid. This presented to the
committee the prospects of an extensive recount of the ballots in this
congressional district.
Reasons for denial.--With the application your committee took into
consideration these facts:
The record is bare of any evidence or proof to sustain the general
allegations of intimidation, fraud, or of other misconduct alleged in
the notice of contest.
Contestant's counsel by failing to stress at all these contentions
in the argument conceded that such allegations could not be sustained.
The record fails to reveal any real ground for contest other than
the hope that a recount of the ballots might overturn the narrow
majority of 168 by which the election of the contestee had been
certified by the secretary of state.
The record reveals the fact that the contestant had permitted the
contest to drag along up to within a few months of the termination of
the Congress to which he claimed election; that the recount, even if
successful for the contestant, would still further reduce the value of
it for him to the nominal distinction of having been declared elected,
but of course he would get the substantial emoluments of salary and
clerk hire for two years.
But there is nothing in the record at all persuasive that a recount
would change the result. The ballots said to be in dispute involve
merely considerations of the kind of lead pencil used by voters, hair
lines seen on the face of the ballots, and alleged erasures. There is
no question involved of fraud or of other serious irregularities.
Moreover, the people in this congressional district at the recent
election had reelected contestee over contestant by a large majority.
No cause was found in the record for the laches in taking
testimony. At the hearings the attorney for contestant was pressed by
members of the committee to give any reason whatever for such utter
lack of diligence in the prosecution of the case. Counsel admitted that
no reasons could be given other than that parties had amicably agreed
by stipulation to waive all objections and that contestant relied on
this agreement.
Suggestion was further made by the attorney for the contestant that
he relied on the stipulation in view of the feet that contestee's
counsel was experienced in election cases and represented the sitting
Member.
The House and committees not boards of recount.--The committee
concluded that even if it were willing to give its time in the closing
days of the session to recount these ballots it would not be defensible
to take up the time of the House to ask for authority to subpoena State
officials to produce the ballots or to give any further consideration
of this case. Your committee was strengthened in this conclusion by
precedents directly in point. (Galvin v. O'Connell, 61st Cong., Moores,
p. 39; Kline v. Myers, 38th Cong., Hinds, I, 723.) . . .
[[Page 1469]]
Conclusion of law.--The controlling factors, however, in our minds
in reaching the conclusion in this case, were the imperative necessity
of safeguarding the printed rules unanimously approved by the three
election committees, a special rule of the House recently adopted, the
plain and explicit provisions of a law of Congress, and a long and
unbroken line of House precedents.
The rules of committees.--The rules of the election committees were
carefully prepared and unanimously adopted by the three election
committees.
They were prepared specifically to expedite the determination of
election cases. The contestant's attorney admitted that he had not
brought himself within these rules.
Special House rule.--A special rule of the House was adopted at the
opening of the present Congress, as follows:
The several elections committees of the House shall make
final report to the House in all contested-election cases not
later than six months from the first day of the first session
of the Congress to which the contestee is elected, except in
a contest from the Territory of Alaska, in which case the
time shall not exceed nine months. (Sec. 726-a, House
Manual.)
The purpose of this rule was clearly stated by the chairman of the
Committee on Rules when he presented it to the House for adoption. He
said:
Everyone is opposed to allowing contested election cases
to run along until the last day of the session, as is often
done, and we can see no good reason for doing so. . . . But
with that rule enforced, we thought we could hurry them up
and get better action from the election committees than we
have had in the past. (Cong. Record, vol. 65, pt. 2, 68th
Cong., p. 950.)
The law.--The law governing the taking of evidence is as follows:
Sec. 107. In all contested-election cases the time
allowed for taking testimony shall be 90 days, and the
testimony shall be taken in the following order: The
contestant shall take testimony during the first 40 days, the
returned Member during the second 40 days, and the contestant
may take testimony in rebuttal only during the remaining 10
days of said period. This shall be construed as requiring all
testimony in cases of contested elections to be taken within
90 days from the date on which the answer of the returned
Member is served upon the contestant . . .
House precedents.--The precedents of the House have recently been
very specific and direct in holding that parties guilty of laches would
have no standing before the House unless sufficient cause was disclosed
for delay. Recent cases directly in point are Gartenstein v. Sabath;
Parillo v. Kunz; and Golombiewski v. Rainey, all of the Sixty-seventh
Congress.
A stipulation by parties in the nature of an agreement can not
waive the plain provision of the statutes. . . .
[[Page 1470]]
proper procedure
The proper procedure, if parties require further time has been
plainly indicated as follows:
If either party to a case of contested election should
desire further time and Congress should not then be in
session, he should give notice to the opposite party of a
procedure to take testimony and preserve the same and ask
that it be received, and upon good reason being shown, it
doubtless would be allowed. (Vallandigham v. Campbell, 35th
Cong., 1 Hinds, Prec. 726; O'Hara v. Kitchin, 1 Ellis 378.)
It is to be noted that Congress was in session from December 3,
1922, to June 7, 1924, but parties did not ask the consent of Congress
either to extend the time or to validate the stipulation, even in the
face of a special rule of the House that cases must be disposed of
within six months after the opening of the Congress.
not mandatory on house
The law providing for the taking of evidence has been held to be
not binding upon the House. It has been correctly stated, ``That the
House possesses all the power of a court having jurisdiction to try to
the question who was elected. It is not even limited to the power of a
court of law merely, but under the Constitution clearly possesses the
functions of a court of equity also.'' (McKenzie v. Brackston, Smith's
Election Cases, p. 19; Brooks v. Davis, 1 Bart. 44; Horton v. Butler,
57th Cong.)
binding on parties
The law, however, is binding upon the parties, as evidenced by the
use of the mandatory word ``shall.'' The House alone, upon proper
application, may grant a further extension of the time for taking
evidence for cause shown as a matter of equity but not of right, or to
protect the rights of the people of a district. The binding nature of
the law has been well stated as follows:
Although the acts of Congress in relation to taking
evidence in contested election cases are not absolutely
binding on the House of Representatives, yet they are to be
followed as a rule and not departed from except in
extraordinary cases. The contestant must take his testimony
under the statute, and in accordance with its provisions,
unless he can show that it was impracticable to do so, and
that injustice may be done unless the House will order an
investigation. (McCrary on Elections. sec. 449.)
They constitute wholesome rules not to be departed from
without cause. (Williamson v. Sickles, 1 Bart. 288.)
Parties should be held to rigid rule of diligence under
it, and no extension ought to be allowed where there is
reason to believe that had the applicant brought himself
within such rules there
[[Page 1471]]
would have been no occasion for application. (Boles v.
Edwards, Smith's Contested Election Cases, p. 19.)
In the case of Ansorge v. Weller, John W. Davis correctly stated
the holding of election committees in the following colloquy:
Mr. Major. This provision, Mr. Davis, that determines the
time when the contestant must take his evidence, do you
regard that as a mandatory provision?
Mr. Davis. I regard that as mandatory; yes, sir. It has
been so held over and over again. Now, there is relief from
it. The House, of course, can extend the time upon showing by
the contestant, but it has been over and over again held that
that being statutory it must be strictly pursued. (Ansorge v.
Weller, 68th Cong., p. 55. See also Williamson v. Sickles,
36th Cong., 1 Hinds Prec., 597-598; Boles v. Edwards, 42d
Cong., 1 Hinds Prec., 789.)
on application extension at times granted
As the House has plenary power, it has frequently granted an
extension of time upon application when a worthy cause has been shown
and the laches has not been excessive or the failure to follow some
requirement of the law has been trivial or technical. (Kline v. Verree,
37th Cong.; Boyd v. Kelso, 39th Cong.; Delano v. Morgan, 40th Cong.;
Van Wyck v. Greene, 41st Cong.; Bowen v. De Large, 42d Cong.; Niblack
v. Walls, 42d Cong.; Hopkins v. Kendall, 54th Cong.; Archer v. Allen,
34th Cong.; McCabe v. Orth, 46th Cong.; Page v. Pirce, 49th Cong.)
house has frequently refused extension
The House has frequently refused to grant extension of time where
there was no satisfactory reason assigned or where the laches had been
unwarranted. (O'Hara v. Kitchin, 46th Cong.; Howard v. Cooper, 36th
Cong.; Gallegos v. Perea, 38th Cong.; Giddings v. Clarke, 42d Cong.;
Boles v. Edwards, 42 Cong.; Thomas v. Davis, 43d Cong.; Mabson v.
Oates, 47th Cong.; Thobe v. Carlisle, 50th Cong.; Hoge v. Otey, 54th
Cong.; Hudson v. McAleer, 55th Cong.; Horton v. Butler, 57th Cong.)
rights of contestee
While the contestee's attorney joined in the stipulation to waive
the requirements of the law, indeed, himself dictated it and was
afterwards guilty of a breach of legal ethics when he raised the point
of lack of diligence, nevertheless, it is incumbent upon the contestant
to prosecute his case speedily. The contestee holds the certificate of
election. His title can only be overturned upon satisfactory evidence
that he was not elected. His seat in this body can not be jeopardized
by the faults of others. It has been held that the House itself must do
justice.
[[Page 1472]]
``The House has no right unnecessarily to make the title
of a Representative to his seat depend upon the acts,
omissions, diligence, or laches of others.'' (Payne on
Elections, sec. 1012.)
resolution recommended
Following the precedent in the case of Reynolds v. Butler (see
Hinds Prec., vol. 1, sec. 685), in which the duty of contestant to
comply with the explicit provisions of the law was discussed, which
report was sustained by the House, your committee respectfully
recommends the adoption of the following resolution:
Resolved, That the Committee on Elections No. 2 shall be,
and is hereby, discharged from further consideration of the
contested-election case of Henry Frank v. Fiorello H.
LaGuardia from the twentieth congressional district of New
York.
The following additional concurring news were submitted by Mr. John
L. Cable, of Ohio:
It can not be said that contestant's claim was not just, for the
committee did not go into the merits of the case. The official count
gave contestee a plurality of but 168 over contestant. This number by
consent of contestee's counsel has been considerably reduced and it can
not now be properly said that if the committee should have gone into
the merits of those few remaining contested ballots the contestant
would not have received the highest number of lawful votes for the
office.
There is no alternative, however, because of the violation and
disregard of the rules of this Congress and the laws of the United
States, than to adopt the resolution asking that the committee be
discharged from further consideration of the case.
Privileged resolution (H. Res. 425) was agreed to by voice vote
without debate [66 Cong. Rec. 2940, 68th Cong. 2d Sess., Feb. 3, 1925;
H. Jour. 191].
Sec. 5. Sixty-ninth Congress, 1925-27
Sec. 5.1 Brown v Green, 2d Congressional District of Florida.
Abatement of contest, withdrawal of contestant. Report for
contestee, who retained seat.
Report of Committee on Elections No. 3 submitted by Mr. Charles L.
Gifford, of Massachusetts, on Feb. 24, 1926, follows:
[[Page 1473]]
Report No. 359
Contested Election Case, Brown v Green
The Committee on Elections No. 3, which has had under consideration
the contested-election ease of H. O. Brown v. Robert A. Green, from the
second district of Florida, reports as follows:
The contestant having withdrawn from the contest by a letter duly
subscribed and sworn to before a notary public, we submit the following
resolution for adoption:
Resolved, That Hon. Robert A. Green was duly elected a
Representative from the second congressional district of
Florida to the Sixty-ninth Congress and is entitled to his
seat.
Privileged resolution (H. Res. 170) agreed to by voice vote without
debate [67 Cong. Rec. 5471, 69th Cong. 1st Sess., Mar. 12, 1926; H.
Jour. 371, 372].
Sec. 5.2 Sirovich v Perlman, 14th Congressional District of New York.
Ballots.--An elections committee refused to conduct a partial
recount of ballots remaining in dispute after a complete recount by the
parties, where the parties stipulated that the election result would
not be changed.
Evidence.--Contestant failed to offer sufficient proof of fraud and
conspiracy to defraud by contestee and election officials.
Evidence.--Contestant's application for reopening of contest to
take further testimony was denied where delay was not justified.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 1 submitted by Mr. Don B.
Colton, of Utah, on Apr. 12, 1926, follows:
Report No. 858
Contested Election Case, Sirovich v Perlman
At the election held in the fourteenth congressional district in
the State of New York on November 4, 1924, according to the official
returns Nathan D. Perlman, the contestee, who was the Republican
candidate, received 12,046 votes and William I. Sirovich, the
contestant, who was the Democratic candidate, received 11,920 votes,
thereby giving the contestee a plurality of 126 votes.
Mr. Nathan D. Perlman, the contestee, was declared elected by a
plurality of 126 votes over his Democratic opponent, William I.
Sirovich, and a certificate of election was duly issued to him by the
secretary of the State of New York.
On December 30, 1924, the contestant, in accordance with law,
served on the contestee a notice of contest, a copy of which notice and
attached petition
[[Page 1474]]
was in due course filed with the Clerk of the House of Representatives
and in which notice and petition were set forth numerous grounds of
contest, which may be summarized as follows:
That the State Board of Canvassers of New York and the board of
elections of the city of New York, in their canvass and return of the
votes cast at said election, had erred in declaring Nathan D. Perlman,
the contestee herein, elected, and in issuing to him a certificate of
election based upon said canvass and return.
That if contestee did receive an alleged majority of votes it was
because of the frauds practiced by said contestee on the electorate on
the day of election and prior thereto, and as a result of a conspiracy
on the part of contestee to commit a fraud, which was carried out, upon
the electorate on the day of election.
That the contestee entered into a conspiracy with one George Rosken
and one Abe Lewis to falsify the tally sheets in the twentieth and in
the twenty-third election districts.
To said notice and petition the contestee filed his answer setting
forth that the notice of the contestant was insufficient in that it
contained no statement of facts or proof whatsoever to raise any
presumption of irregularity or fraud in the original count or canvass.
The contestee denied each and every allegation of contestant
relating to fraud or irregularity.
Pursuant to the above notice and petition and answer the contestant
and contestee or their counsel conducted a recount of all the ballots
cast for congressional candidates in the fourteenth congressional
district of New York at said election. They passed on all of the
ballots except 188, which were termed disputed.
These 188 disputed ballots, a copy of the indictment of one George
Rosken, the tally sheets and a ring similar to that alleged to have
been used by Rosken for marking ballots and other exhibits were
subpoenaed from New York and examined by the committee.
Upon permission of the committee, Mr. Stump and Mr. Gilbert,
attorneys for the contestant and contestee, respectively, were allowed
to pass upon the disputed ballots, and they agreed that 139 were not to
be counted; the remainder were disputed.
The committee was not called upon to determine whether these
disputed ballots were bona fide votes. It was admitted at the close of
the count that contestee had a majority of the votes cast. They were
used merely as exhibits in the argument to show fraud and conspiracy.
During the proceedings counsel for contestant made application for
the reopening of the case to take further testimony.
Full and complete hearings were had by the committee, after which,
in executive session, the committee carefully considered the entire
case. The committee found that the contestant had not used due
diligence in securing the proper evidence at the time of making his
ease in chief and therefore did not feel justified in asking the House
for authority to reopen the case.
[[Page 1475]]
Your committee therefore finds after a careful analysis of the
testimony and argument, and in conformity with a long line of
congressional precedents, that the proof presented before the committee
by the contestant did not sustain the charges made against the
contestee by the contestant.
This is made as a committee report, but Messrs. Hudspeth, Eslick,
and Chapman, members of the minority party, declined to vote on the
resolutions and also refrained from submitting minority views.
Your committee therefore recommends to the House of Representatives
the adoption of the following resolutions:
Resolved, That William I. Sirovich was not elected a
Representative from the fourteenth congressional district of
the State of New York and is not entitled to a seat herein.
Resolved, That Nathan D. Perlman was duly elected a
Representative from the fourteenth district of the State of
New York and is entitled to retain a seat herein.
Privileged resolution (H. Res. 220) was agreed to by voice vote
after debate [67 Cong. Rec. 7533, 69th Cong. 1st Sess., Apr. 15, 1926;
H. Jour. 507].
Sec. 5.3 Clark Edwards, 1st Congressional District of Georgia.
Ballots.--Contestant's allegations of improper arrangement and
printing of party designations were not sustained.
Evidence.--Contestant failed to offer sufficient proof of fraud and
conspiracy to defraud by election officials.
Pleadings.--Failure of contestant to file a brief was presumed a
withdrawal of the contest.
Expenses of contest were denied to contestant by an elections
committee.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 2 submitted by Mr. Bird J.
Vincent, of Michigan, on June 10, 1926, follows:
Report No. 1449
Contested Election Case, Clark v Edwards
statement of the case
At the election held in the first congressional district of the
State of Georgia on the 4th day of November, 1924, according to the
official returns, Charles G. Edwards, the contestee, who was the
Democratic candidate, received 14,694 votes; Herbert G. Aarons, the
Republican candidate, received 627 votes; and Don H. Clark, the
contestant herein, who made the claim that he was the Republican
candidate, received 448 votes. As a result of these returns Charles G.
Edwards, the contestee, was declared elected, and a certificate of
election was duly issued to him by the proper State officials.
[[Page 1476]]
The contestant, Don H. Clark, thereafter filed a notice of contest
before the House of Representatives in which he charged that he was the
duly nominated Republican candidate, but that his name was placed upon
ballots in the various counties of the district under such headings as
``Independent Party`` or ``Independent Republican Party.''
The committee finds as to this that Herbert G. Aarons was the
regularly nominated Republican candidate and that the contestant was
not. It seems to the committee that in securing the placing of his name
upon the ballots under the party designations used contestant was
accorded at least all that he was entitled to.
The contestant charges further that the entire election was
illegal, false, and fraudulent because of the existence of a political
oligarchy and general conspiracy throughout the district.
As to this the committee finds no testimony worthy of credence to
sustain such charge.
The contestant further charges the public officials of the
congressional district with skillfully, flagrantly, and criminally
violating the provisions of the Neil Act, which is a late election law
of Georgia.
The committee finds this charge not to be sustained by the
evidence.
The contestant in bombastic and reckless language makes other
charges of crime, fraud, deceit, and conspiracy in the district, none
of which charges the committee finds to have been supported by
evidence.
In an endeavor to support his contest the contestant took testimony
throughout the district, which testimony has, with some exceptions,
been returned to the House of Representatives and delivered to this
committee in the form of a record. Although notified by the Clerk of
the House of Representatives in due time as to the requirement of the
rules of the House and the law governing contests, as to when he should
file his brief, the contestant has not filed any brief up to this time,
and has taken no action in the further prosecution of his case since
the settlement of the record. As the time has long gone by in which he
is permitted to file a brief, the committee assumes that he has
abandoned his contest. Whether this be true or not, however, the
committee finds that there is absolutely no merit in his contest.
It is proper to state that this same contestant filed a contest in
the Sixty-eighth Congress against Hon. R. Lee Moore, who was then the
Representative from said district, under almost identical circumstances
with the present contest. At that time in the election held November 7,
1922, Mr. Moore received 5,579 votes, P. M. Anderson received 426
votes, and Don H. Clark received 196 votes. Mr. Clark contested Mr.
Moore's election. That contest was heard by the Committee on Elections
No. 2 of the House of Representatives. There are five members of the
Committee on Elections No. 2 in the Sixty-ninth Congress who were
members of that committee in the Sixty-eighth Congress, and who heard
the contest proceedings of Clark v. Moore. The following is quoted from
the report of the committee at that time:
[[Page 1477]]
The above quotations are typical of the nature of the
contestant's brief in this case, and your committee is of the
opinion that such loose, extravagant, and unfounded charges
being made the basis for an election contest with the
consequent expense to the Government should be discouraged in
the future.
The Committee on Elections No. 2 in the present case not only finds
that the present contest is not grounded in any merit, but also finds
that the contestant is not acting with bona fides in bringing it; and
it desires to announce to the House of Representatives that, unless
otherwise directed by the House, it will decline to authorize the
payment by the Government to the contestant in this case of any expense
incurred by him in bringing the present contest.
summary and conclusion
The committee finds that the contestant has failed to prove his
allegations; that there is no evidence warranting the rejection of the
votes of any of the precincts of the district; and that the contestee,
Charles G. Edwards, was duly and legally elected a Member of the House
of Representatives from the first district of Georgia. For the above
reasons the committee recommends the adoption of the following
resolutions:
Resolved, That Don H. Clark was not elected a Member of
the House of Representatives in the Sixty-ninth Congress from
the first congressional district of the State of Georgia, and
is not entitled to a seat herein.
Resolved, That Charles G. Edwards was duly elected a
Member of the House of Representatives in the Sixty-ninth
Congress from the first congressional district of the State
of Georgia, and is entitled to retain his seat herein.
Privileged resolution (H. Res. 296) agreed to by voice vote without
debate [67 Cong. Rec. 11312, 69th Cong. 1st Sess., June 15, 1926; H.
Jour. 778, 779].
Sec. 5.4 Bailey v Walters, 20th Congressional District of Pennsylvania.
Ballots.--Partial recounts were (a) initiated and then denied by a
local election board for lack of authority under state law, (b)
conducted by an official appointed by the parties to take testimony,
and (c) then conducted by an elections committee upon adoption by the
House of a resolution authorizing subpoena of election officials and
disputed ballots.
Ballots.--An elections committee refused to order a complete
recount where contestant offered insufficient evidence to overcome the
presumption of correctness of official returns in undisputed precincts.
[[Page 1478]]
Minority views for contestant and sustaining authority of local
board to conduct recount.
On May 18, 1926, Mr. Bird J. Vincent, of Michigan, submitted the
following resolution as a question of privilege:
Resolved, That Logan M. Keller, sheriff of Cambria County, State of
Pennsylvania, or his deputy, be, and he is hereby, ordered to appear by
himself or his deputy, before Elections Committee No. 2, of the House
of Representatives forthwith, then and there to testify before said
committee in the contested-election case of Warren Worth Bailey,
contestant, against Anderson H. Walters, contestee, now pending before
said committee for investigation and report and that said sheriff or
his deputy bring with him all the ballots cast in the sixteenth ward of
the city of Johnstown, Pa., and in Westmont Borough No. 2, of Cambria
County, Pa., at the general election held in the twentieth
congressional district of the State of Pennsylvania on November 4,
1924. That said ballots be brought to be examined and counted by and
under the authority of said Committee on Elections in said case, and to
that end that the proper subpoena be issued to the Sergeant at Arms of
this House, commanding him to summon said sheriff, or his deputy, to
appear with such ballots as a witness in said case, and that the
expense of said witness, and all other expenses under this resolution,
shall be paid out of the contingent fund of the House; and that the
aforesaid expense be paid on the requisition of the chairman of said
committee after the auditing and allowance thereof by said Committee on
Elections No. 2.
When said resolution was considered and agreed to.
Privileged resolution (H. Res. 270) was agreed to by voice vote
without debate [67 Cong. Rec. 9646, 69th Cong. 1st Sess., May 18, 1926;
H. Jour. 670, 671].
Report of Committee on Elections No. 2 submitted by Mr. Bird J.
Vincent, of Michigan, on June 10, 1926, follows:
Report No. 1450
Contested Election Case, Bailey v Walters
statement of the case
At the general election held in the twentieth congressional
district of the State of Pennsylvania on November 4, 1924, which
district is composed of the single county of Cambria in said State, the
contestee, who was the candidate for Representative in Congress of the
Republican, the Progressive, and the Prohibition Parties, according to
the official returns received 23,519 votes; and Warren Worth Bailey,
the contestant, who was the candidate of the Democratic, Socialist, and
Labor Parties, according to the official returns, received 23,456
votes. Thus according to the official returns the contestee had a clear
majority of 63 votes, and it was upon this majority so found that the
certificate of election was issued to the contestee and he was seated
in the House of Representatives.
[[Page 1479]]
In view of proceedings which were taken immediately after the
election it is proper at this point to state that the act of Assembly
of the Commonwealth of Pennsylvania approved May 19, 1923, provides as
follows:
And in case the returns of any election district shall be
missing when the returns are presented, or in case of
complaint of a qualified elector, under oath, charging
palpable fraud or mistake, and particularly specifying the
alleged fraud or mistake, or where fraud or mistake is
apparent on the return, the court shall examine the return;
and if in the judgment of the court it shall be necessary to
a just return, said court shall issue summary process against
the election officers and overseers, if any, of the election
district complained of, to bring them forthwith into court,
with all election papers in their possession; and if palpable
mistake or fraud shall be discovered, it shall, upon such
hearing as may be deemed necessary to enlighten the court, be
corrected by the court and so certified; but all allegations
of palpable fraud or mistake shall be decided by the said
court within three days after the day the returns are brought
into court for computation; and the said inquiry shall be
directed only to palpable fraud or mistake and shall not be
deemed a judicial adjudication to conclude any contest now or
hereafter to be provided by law; and the other of said
triplicate returns shall be placed in the box and sealed up
with the ballots.
. . . The board proceeded to examine witnesses and to recount
ballots in these precincts, and through its clerks had the results of
such recounts taken down but had not yet reached the point where the
results of such recounts had become the official act of said board when
the contestee, Mr. Walters, through his counsel, presented a petition
that the returns of the various precincts should be canvassed in
accordance with their face and the certificate of election should be
determined to be issuable to him because of his majority of 63 votes on
the face of the original returns, which petition was based upon the
contention that in the case of a candidate for Representative in
Congress the Constitution reposes in the House of Representatives the
determination of the qualifications, elections and returns of its own
members, and that therefore this board did not have the authority to go
back of the original returns and recount boxes. At the time this
petition was presented it appears that so far as such recount had then
gone Mr. Bailey, the contestant, would have had at that time, as the
count then stood, a majority of 14 votes. But, as said above, the
recount in these precincts, as made by the board, never became an
official act.
The two judges who constituted the computation board granted a
hearing on the petition of the contestee, Mr. Walters, and were unable
to agree, one holding that Mr. Walters was correct in his contention
and the other holding the opposite. Thereupon, under the provision of
the law of Pennsylvania, Hon. Thomas J. Baldrige, president judge of
the court of common pleas of Blair County, Pa. (outside this
congressional district), was assigned to sit with the two judges above
named, and upon further hearing before the three
[[Page 1480]]
judges he held with the contention raised by Mr. Walters, and it was
decided that the computation board was without authority to go beyond
the face of the original returns in the various election precincts,
and, therefore, it was held that the contestee, Mr. Walters, was
entitled to receive the certificate of election. In this decision
written by Judge Baldrige, Judge Evans concurred and Judge McCann
dissented.
Thereupon Mr. Bailey, the contestant, through his counsel, appealed
from this order to the Supreme Court of Pennsylvania and the matter was
argued before that court with six judges sitting. The opinion of that
court in full is as follows:
The judges who heard this case are equally divided in
opinion on the question as to whether or not the votes in the
ballot box of St. Michael district could legally be counted
by the computing board. When these ballots are counted Bailey
is entitled to the certificate of election, but when not,
Walters is entitled to receive it. The court being divided on
the question of the legal right to count the votes
considered, it follows that the order appealed from must
stand and the certificate issued to Anderson H. Walters. It
is so ordered.
A petition for reargument was denied. Later Mr. Bailey, the
contestant, through his counsel, applied for a writ of certiorari to
the Supreme Court of the United States, but this also was denied. A
certificate of election, in accordance with the holding of the Supreme
Court of Pennsylvania, was issued to Mr. Walters, the contestee.
Thereupon Mr. Bailey, the contestant, filed his notice of contest
before the House of Representatives on the general ground that the
certificate of election should have been issued to him, that he had
actually received more votes in the district than his opponent, that in
certain specified precincts of the district either by mistake or fraud
he had not received credit for all of the votes actually east for him,
and that his opponent had received credit through fraud or mistake for
more votes in various specified precincts than were cast for him.
To this notice of contest, the contestee duly made his answer
denying most of the allegations of the contestant, and averring on his
own behalf that through fraud or mistake more votes had been credited
to the contestant, Mr. Bailey, in various precincts than were actually
cast for him, and that through fraud or mistake contestee had failed to
receive credit for many votes which were cast for him. He also alleged
that many unnaturalized aliens had voted in the election for the
contestant, Mr. Bailey, and, also, many persons had so voted who had
not the right of franchise because they were not duly registered voters
in the precincts where they voted.
After filing the necessary documents in the congressional contest
the parties in the contest proceeded in their turn to take testimony
before commissioners with respect to alleged mistakes, frauds, and
irregularities in a number of specified precincts, and conducted before
such commissioners recounts of the ballots in a number of the ballot
boxes. As a result of such testimony and recounts it is conceded that
the recounts made showed . . . gains for
[[Page 1481]]
the contestee, Mr. Walters, of 36 votes. Three other precincts,
recounted, resulted in no change.
It is proper to say at this point that as a part of his proceedings
in the congressional contest Mr. Bailey, the contestant, petitioned the
committee for a recount of all the votes in all the precincts of the
congressional district.
Outside of the conceded changes as set forth above there was
presented to the Committee on Elections No. 2 disputed questions of law
and fact involving the following:
1. The question of a general recount of all the ballots in the
congressional district.
2. The question of 16 votes claimed by Mr. Bailey, the contestee,
in the sixteenth ward of Johnstown city.
3. The question of 40 votes claimed by Mr. Bailey, the contestee,
in St. Michaels district.
4. The question of a number of votes claimed by Mr. Walters, the
contestee, in Westmont Borough, No. 2, which were claimed to have been
changed by marking after they had left the hands of the voter.
5. The question of votes claimed by Mr. Walters to have been cast
to his injury by unnaturalized aliens.
6. The question of unregistered voters claimed by Mr. Walters to
have been allowed to vote at said election, to his injury.
conclusions of the committee
1. As to the petition for a general recount. It seems to be in
accordance with a long line of precedents in Congress that in order to
secure a recount, before an elections committee, that tangible evidence
must first be produced tending to show that such recount will probably
change the result of the original returns from such ballot boxes; and
that in the absence of such tangible evidence or testimony recounts
will be refused. It will be noted that in the case of 19 precincts
where tangible evidence was produced that recounts were had before the
commissioners, and later on in this report it will appear that in the
matter of 2 other precincts, Westmont Borough, No. 2, and the 16th Ward
of Johnstown City, where tangible testimony was taken and presented to
this committee, that recounts were had before the committee itself. But
no testimony nor proof casting suspicion upon any ballot boxes in the
district, nor the returns from them, was produced except as to the 21
ballot boxes which have been recounted. In the election contest of
Ansorge v. Weller, in the Sixty-eighth Congress, Hon. John W. Davis,
who appeared as counsel for one of the parties. stated his conclusion
as to the law on this subject in the following words, which this
committee thinks is a correct statement of the law as shown by the
precedents of Congress:
It has been said again and again by the House, by the
court, by every tribunal that has this duty of passing upon a
contested election that the returns which are made by the
inspectors, regularly appointed by the laws of the State
where the election is held, are presumed to be correct until
they are impeached by
[[Page 1482]]
proof of irregularity and fraud, and that the House will not
erect itself, nor will it erect its committees as mere boards
of recount. It is conceived that when the statutes of the
State have set up these bipartisan boards and made due and
proper provision for their selection, that it is, as a matter
of public policy, wise and right that their conclusions shall
be accepted by the parties to the election, by the public,
and by any board charged with the duty of passing on the
result, until such time as such irregularities and frauds are
proved as to raise a fair presumption that their duties were
not honestly performed.
The committee, therefore, has concluded that there is no just cause
shown for a general recount of the votes in the district outside of the
21 precincts around which testimony has centered.
2. The matter of the sixteenth ward of Johnstown city. With respect
to the ballot boxes and votes in this ward, it should be said that a
petition was filed before the proper court to impound the ballots from
certain precincts, including this one, which petition was granted by
the court, and it appears from the testimony in the record in this case
that when the ballots were being transferred from the ballot boxes to
the package for the purpose of impounding that the ballots were handled
separately, and the witness who was present testified that he made
account in this informal way which showed a net gain for Mr. Bailey,
the contestant, of 16 votes over the original face of the returns. In
this precinct the original returns were as follows: Walters 19, Bailey
535.
The committee ordered a recount of the votes in this precinct and
secured an order of the House of Representatives to have the ballots
brought before it and did recount the votes, and found the contestant's
position was sustained, the recount showing the following result:
Walters 20, Bailey 552, or a net gain of 16 for the contestant.
The following minority views were submitted by Mr. Gordon Browning,
of Tennessee; Mr. T. Webber Wilson, of Mississippi; and Mr. John J.
Douglass, of Massachusetts:
The minority members of the committee have not made a separate
report in this case for the reason that they feel the report is correct
in its effect under the present state of the record, though we believe
the result would be different if the committee could have justified
itself in a recount of all the votes of the district.
The precedents of the House seem to hold that some evidence of
fraud or mistake should be produced as to each box to be opened before
such action is taken. This was not done. And in this case sufficient
proof was lacking to show the boxes were kept intact and in the proper
custody for several months intervening between the election and the
impounding of the ballots.
The latter condition is due largely no doubt to the loose
provisions of the election laws in the State of Pennsylvania as to the
disposition and custody of the ballot boxes after elections. There
seems to be no arrangement for their security and the provisions
applying to same are merely directory.
[[Page 1483]]
Of the comparatively few boxes recounted the contestant showed a
consistent gain. This no doubt was due largely to the newness of the
provisions in their election laws in Pennsylvania governing the
counting of split ballots. Most of the split ballots in the district
were cast for Mr. Bailey and as a result he ran far ahead of all his
tickets. We believe from the record and the result that in many
instances those holding the election were in error as to his right to
receive these split ballots where he was voted for on otherwise
Republican ballots.
There is another phase of the contest the minority members of the
committee feel should be passed upon by the committee, since it
involves a vital principle of Constitutional rights. There is a
provision in section 17 of the acts of Assembly of the Commonwealth of
Pennsylvania, approved May 19, 1923, P.L. 267, as follows:
(1) And in case the returns on any election district
shall be missing when the returns are presented, or in case
of complaint of a qualified elector, under oath, charging
palpable fraud or mistake, and particularly specifying the
alleged fraud or mistake, or where fraud or mistake is
apparent on the return, the court shall examine the return,
and, if in the judgment of the court it shall be necessary to
a just return, said court shall issue summary process against
the election officers, and overseers, if any, of the election
district complained of, to bring them forthwith into court,
with all election papers in their possession; and if palpable
mistake or fraud shall be discovered, it shall, upon such
hearings as may be deemed necessary to enlighten the court,
be corrected by the court, and so certified; but all
allegations of palpable fraud or mistake shall be decided by
the said court within three days after the day the returns
are brought into the court for computation; and the said
inquiry shall be directed only to palpable fraud or mistake,
and shall not be deemed a judicial adjudication to conclude
any contest now or hereafter to be provided by law; and the
other of said triplicate returns shall be placed in the box
and sealed up with the ballots.
Pursuant to this provision both parties to this contest had the
ballots in some of the boxes recounted, with the result that instead of
Walters having a majority of 63 Bailey was shown to have a majority of
14, and under the count of the computing board was clearly entitled to
the certificate of election. Before this result was announced and
certificate issued to Bailey the contestee filed his petition with the
court, which court was also the computing board, averring that the
recount was beyond the jurisdiction of the computation court and that
said court had no supervisory power to examine what preceded the
election returns in so far as the election of a Representative in
Congress was concerned. A rule was granted on this petition and later
made absolute.
The effect of this holding was to say that no State has a right to
go back of the returns in the election of a Federal officer, regardless
of the provisions of the laws of that State. We insist such a holding
is wrong and should be
[[Page 1484]]
repudiated by the House. Otherwise the burden of contest can easily be
unjustly thrown upon a candidate who should not bear it, as in our
opinion was done in this case.
Unquestionably the Federal Government has the right to regulate
Federal elections if it sees fit to do so. However, it is not the mere
existence of a power in the Federal Government but the exercise of that
power which is incompatible with the exercise of the same power by the
States.
It has been repeatedly held by the House of Representatives that
statutes by States conferring power on computing boards to go behind
the returns are constitutional. (Giddings v. Clark, 42d Cong.; Norris
v. Hadley, 42d Cong.; Smith v. Jackson, Rowell, 9; also see McCray,
art. 266.) Several State supreme courts have sustained this position.
In Norris v. Hadley the Alabama statutes empowered a ``board of
supervisors of elections'' to hear proof upon charges of fraud, etc.,
and upon sufficient evidence to reject unlawful and fraudulent votes
cast. The committee said:
It is believed by the committee that the action of such a
board under the statute in question, and in pursuance of the
power conferred thereby, is to be regarded as prima facie
correct, and to be allowed to stand as valid until shown by
evidence to be illegal or unjust.
In 1870 the first statute embodying a comprehensive system for
dealing with congressional elections was enacted by Congress. After 24
years of experience practically every law relating to this subject was
repealed and Congress returned to its former attitude of entrusting the
conduct of all elections to the State laws, administered by State
officials. This matter was covered fully in the opinion by Mr. Justice
Clarke in United States v. Gradwell (243 U.S. 481-5, October term,
1916).
The opinion of the Supreme Court of Pennsylvania set out in full in
the report in this case, although indicating this position, yet does
not pass on what we think is a vital matter of principle and one
fundamental to the rights of States to regulate elections.
Ballot boxes.--Election officials' noncompliance with state law
regulating custody after election was held not to void a recount of
enclosed ballots where law was held directory and where extrinsic
evidence overcame a presumption of tampering.
Ballots, fraudulently marked by someone other than the voters, were
examined and recounted by an elections committee.
The majority report continued:
3. The matter of St. Michaels district in Adams Township. As
briefly as may be told the situation in this district was as follows:
The law required the election officials at the conclusion of their work
on election night to take the ballot box, after it had been closed and
sealed in accordance with law, to the nearest justice of the peace to
remain in his custody. The election was held in a schoolhouse and after
the conclusion of the work of the election officials, they placed the
ballot box in a room in the schoolhouse on a pile
[[Page 1485]]
of old desks and left it in custody of no one. When the returns were
published the next day all of the election officials in this precinct
except one agreed that there was a mistake in the announced vote of
Representative in Congress and petitioned the computation board for a
correction of the error. They claimed that 40 votes which should have
been included for Mr. Bailey in the tabulation, which were cast for him
on the Labor and Socialist tickets must have been omitted. Two or three
days after the election the judge of elections became alarmed at the
talk which was going around concerning this vote, and he and his wife
in the evening drove down to the schoolhouse and went in and got the
box and took it to the nearest justice of the peace. When the
computation board ordered the sheriff to bring in the box, he found it
in the home of this justice and also found that the cover had a crease
or dint in it, so that there was an opening between the cover and the
top edge of the box into which one might slip the fingers of his hand.
When the box was brought before the board the tape was found to be
broken and the seals broken. However, the 40 votes claimed for Mr.
Bailey were found to be in the box, the unused ballots still attached
to the stubs were in the bottom of the box, and by checking it appeared
that all of the ballots then in the box could be accounted for. All of
these facts were made to appear by testimony before the commissioner in
the congressional contest and were returned to the House of
Representatives in the record in this case. It is conceded that the box
was not kept in proper custody according to law. It is conceded too
that its condition laid it open to suspicion. There is testimony,
however, that the condition of the cover of the box had been the same
for several prior elections and that the election precinct officials
had requested a new box of the proper authorities which had not been
furnished. After most carefully reviewing all of the testimony in the
case and in view of the fact that the law of Pennsylvania with regard
to the custody of the box is held to be directory and not mandatory,
and that the testimony seems to account properly for the existence of
all of the ballots, the committee finds as a matter of fact that these
ballots were cast for Mr. Bailey, the contestant, as claimed by him,
and awards him a net gain in that precinct of 40 votes, the original
count being, Walters 104, Bailey 63; the recount being, Walters 102,
Bailey 101.
4. The matter of Westmont Borough, No. 2. When this box was brought
before the computation board the two judges noticed that some of the
ballots were marked for Mr. Bailey by a peculiarly shaped cross
differing from the other crosses made by the voter on the same ballot,
and the judges called each other's attention to it, but no attempt was
made to correct the error or fraud nor to determine the extent of it at
that time. It is conceded in the record, and it was conceded in the
argument before the committee, that the ballots in this box were
counted in accordance with the markings upon them, including these
peculiarly shaped crosses. When the congressional contest was being
held and testimony being taken before a commissioner, the ballots from
this box were examined carefully by a handwriting expert, who found
some 50 ballots which he testified had marks upon them opposite the
name of Mr. Bailey consisting of peculiarly shaped crosses made by one
stroke of the pencil, and that all of these peculiar crosses were made
by the
[[Page 1486]]
same person and not by the person who made the other crosses on each of
the ballots involved. In a number of instances among these 50 ballots
it was testified that a cross had been made opposite Mr. Walters's name
and erased and a cross placed opposite Mr. Bailey's name in those
instances of this peculiar character. The attorneys admitted before the
committee upon the hearing that in each of these instances the ballot
had been credited to Mr. Bailey. Hence, if these peculiar crosses were
placed on the ballot by someone other than the voter, Mr. Walters had
suffered thereby to that extent in the count of the votes in this box.
The committee was unwilling to act in this matter without the benefit
of a personal inspection of these ballots and secured by resolution of
the House the right to have all the ballots of Westmont Borough, No. 2,
brought before the committee. Personal inspection of these ballots by
the members of the committee has convinced the committee beyond doubt
that these peculiarly shaped crosses were not made by the same person
who voted the ballots. In the instance of one of the ballots the voter
marked his crosses upon the ballot with blue pencil and the peculiarly
shaped cross appears on that ballot, as on the others, in black pencil.
Having become convinced that the allegations concerning the peculiar
cross were true, the committee proceeded itself to recount the ballots
cast in this precinct, with the following results: On the original
count, the vote stood--Walters 208, Bailey 208; on the recount by the
committee the vote stands--Walters 246, Bailey 170, or a net gain for
the contestee, Mr. Walters, of 76 votes.
Suffrage.--Ballots cast by women who lost their citizenship for
marrying aliens prior to passage of the ``Cable Act'' were held void,
based on a Supreme Court decision.
Returns.--Were partially rejected by proportional deduction method
where it was not determinable for whom void ballots were cast.
Ballots.--Allegedly cast by unregistered voters were not voided, as
the election result would not be affected and as evidence was
inconclusive.
Majority report for contestee, who retained his seat.
5. The question of unnaturalized voters. The contestee, Mr.
Walters, through his counsel, introduced testimony proving that a
number of persons voted in the election who were not citizens. Many of
these women who had married aliens prior to the passage of the Cable
Act September 22, 1922, and who had not taken out naturalization papers
to regain their citizenship. Other instances were shown of aliens
voting who had never been citizens of the United States. A few of these
persons when questioned before the commissioner testified as to the
candidate for whom they voted for Representative in Congress, and a
larger number stood upon their constitutional right and refused to
answer the question respecting the candidate for whom they voted. In
his presentation of the contestee's case before the committee the
counsel for the contestee subtracted from the vote of Mr. Walters all
such aliens who testified to having voted for him, and subtracted from
the vote of Mr. Bailey the votes of all such persons who testified to
having voted for
[[Page 1487]]
him. As to those aliens who voted and refused to state for whom they
voted, the subtraction was made by reducing the vote of each candidate
in the precincts where the illegal votes were shown to be cast in
accordance with the pro rata share of the total vote obtained by each
candidate in that particular precinct. It was conceded upon the hearing
by the attorneys for the contestant that this was the proper method in
accordance with the precedents of Congress for purging the returns from
these precincts of these illegal votes, and the committee also finds
upon examination that this method is the correct one. The only question
raised upon the hearing by the contestant through his counsel was this:
He claimed that an American-born woman who married a foreigner prior to
the passage of the Cable Act but who continued to reside in this
country did not lose her citizenship. He conceded that if it were found
that the Supreme Court of the United States had held that she did lose
her citizenship by such marriage that then the entire claim of the
counsel of Mr. Walters, the contestee, and his method of purging the
returns from these votes were correct. As a matter of fact the Supreme
Court of the United States has so held. (MacKenzie v. Hare, 239 U.S.
299.)
Under the facts shown in the record and under the concessions made
at the hearing the net gain to the contestee, Mr. Walters, because of
these illegal votes by aliens is 21 votes, which the committee awards
to Mr. Walters, the contestee.
The question of unregistered voters: Proof was submitted by the
contestee that 586 illegal votes were cast in the election because the
voters who cast them were not registered in accordance with law and,
therefore, had not the right of franchise under the mandatory laws of
the State of Pennsylvania. If the proof of this allegation were held by
the committee to be sufficiently made and the election purged of these
votes in accordance with the rule thereupon fixed by the precedents in
Congress, it would serve to increase the contestee's majority over the
contestant by 262 additional votes. However, there is a division of
opinion in the committee as to whether the method of proof is proper
and sufficient, and since the determination of this question is not
necessary to the decision in this case (contestee already having a
majority of the votes) the committee refrains from expressing an
opinion in connection with this matter.
summary
Bringing the conceded gains of each party, as shown by the recounts
before the commissioners, and the several findings which the committee
has made, into tabular form, we have the following:
Majority for contestee on official returns..................... 63
His conceded net gains in recounts before commissioners........ 36
His net gain in Westmont Borough No. 2......................... 76
His net gain by purging returns of votes cast by unnaturalized 21
aliens........................................................
--------
196
========
[[Page 1488]]
Contestant's conceded net gains in recounts before 89
commissioners.................................................
His net gain in sixteenth ward of Johnstown city............... 16
His net gain in St. Michaels district.......................... 40
--------
145
========
Contestee's majority as determined by committee........ 51
------------------------------------------------------------------------
Therefore, the committee finds that the contestee received a
majority of 51 of the legal votes cast for Representative in Congress
at said election, and was duly and legally elected a Member of the
House of Representatives from the twentieth district of the State of
Pennsylvania. For the above reasons the committee recommends the
adoption of the following resolutions:
Resolved, That Warren Worth Bailey was not elected a
Member of the House of Representatives in the Sixty-ninth
Congress from the twentieth congressional district of the
State of Pennsylvania and is not entitled to a seat herein.
Resolved, That Anderson H. Walters was duly elected a
Member of the House of Representatives in the Sixty-ninth
Congress from the twentieth congressional district of the
State of Pennsylvania and is entitled to retain his seat
herein.
Privileged resolution (H. Res. 295) agreed to by voice vote after
debate [67 Cong. Rec. 11307-12, 69th Cong. 1st Sess., June 15, 1926; H.
Jour. 778].
Sec. 6. Seventieth Congress, 1927-29
Sec. 6.1 Wefald v Selvig, 9th Congressional District of Minnesota.
Committee on Elections No. 2
Abatement of contest since contestant neglected to take testimony
within the legal time.
No committee report, and no House disposition.
On Dec. 14, 1927, the Speaker laid before the House the following
communication from the Clerk of the House:
Sir: I have the honor to inform the House that in the ninth
congressional district of the State of Minnesota, at the election held
on November 2, 1926, C. G. Selvig was certified as having been duly
elected as a Representative in the Seventieth Congress, and his
certificate of election in due form of law was filed in this office.
His right to the seat was questioned by another candidate, Knud Wefald,
who served notice on the returned Member of his purpose to contest the
election. A copy of this notice, together with the reply of contestee,
were filed in the office of the Clerk of the House, who also re
[[Page 1489]]
ceived the affidavit of contestee and of his counsel to the effect that
no notice of taking depositions or of the introduction of proof of any
kind was served upon contestee or upon his attorneys, and that more
than 40 days elapsed from the date of service of contestee's answer. No
testimony has been filed with the Clerk. The contest, therefore,
appears to have abated.
House Document No. 117 [69 Cong. Rec. 664, 70th Cong. 1st Sess.].
Sec. 6.2 Clark v White, 6th Congressional District of Kansas.
Notice of contest not served within the legal time was held grounds
for dismissal of the contest.
Abatement of contest by withdrawal of contestant.
Expenses of contest.--An elections committee exercised its
discretion in awarding expenses to contestant.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 1 submitted by Mr. Don B.
Colton, of Utah, on Feb. 21, 1928, follows:
Report No. 717
Contested Election Case, Clark v White
At the election held in the sixth congressional district in the
State of Kansas on November 5 and 8, 1926, according to the official
returns, Hays B. White, the contestee, who was the Republican
candidate, received 31,159 votes, and W. H. Clark, the contestant, who
was the Democratic candidate, received 31,065 votes, thereby giving the
contestee a plurality of 94 votes.
Mr. Hays B. White, the contestee, was declared elected by a
plurality of 94 votes over his Democratic opponent, W. H. Clark, and a
certificate of election was filed with the Clerk of the House of
Representatives.
Thereafter the contestant served on the contestee a notice of
contest, a copy of which notice and attached petition was in due course
filed with the Clerk of the House of Representatives.
To said notice and petition the contestee filed his answer setting
forth that ``by his [aches, delay, and failure to comply with the
statute promulgated in this behalf by the Congress, or to serve on the
contestee any notice of intention to contest prior to December 11,
1926, the contestant is precluded from asserting or proceeding with
said contest, and that said contest be dismissed.''
Thereafter nothing was done except that the attorneys for the
parties appeared before your committee and made brief statements and
requested that the contest be dismissed.
Your committee therefore finds, after a careful analysis of this
case and in conformity with congressional precedents, that this
contested-election case should be dismissed and recommends to the House
of Representatives the adoption of the following resolutions:
[[Page 1490]]
Resolved, That W. H. Clark was not elected a
Representative in this Congress from the sixth congressional
district of the State of Kansas and is not entitled to a seat
herein.
Resolved, That Hays B. White was duly elected a
Representative from the sixth congressional district of the
State of Kansas and is entitled to retain his seat herein.
Privileged resolution (H. Res. 122) was agreed to by voice vote
after debate on issue of expenses of contest-contestant awarded one-
half of amount claimed due him [H. Jour. 455, 70th Cong. 1st Sess.].
Sec. 6.3 Hubbard LaGuardia, 20th Congressional District of New York.
Abatement of contest by withdrawal of contestant.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 1 submitted by Mr. Don B.
Colton, of Utah, on Feb. 28, 1928, follows:
Report No. 787
Contested Election Case, Hubbard v LaGuardia
The Committee on Elections No. 1, which has had under consideration
the contested election case of H. Warren Hubbard v. Fiorello H.
LaGuardia, from the twentieth district of New York, reports as follows:
The contestant having withdrawn from the contest by a letter of
abatement duly subscribed and sworn to before a notary public, we
submit the following resolution for adoption:
Resolved, That Hon. Fiorello H. LaGuardia was duly
elected a Representative from the twentieth congressional
district of the State of New York to the Seventieth Congress
and is entitled to his seat.
Privileged resolution (H. Res. 128) agreed to by voice vote without
debate [69 Cong. Rec. 3862, 70th Cong. 1st Sess., Mar. 1, 1928; H.
Jour. 490].
Sec. 6.4 Investigation of the Inhabitancy Qualification of James M.
Beck, 1st Congressional District of Pennsylvania.
Qualifications of Member.--Investigation of a Member's inhabitancy
qualification was instituted by a privileged resolution referring to an
elections committee the question of the final right of the Member to
his seat.
A resolution referring the questions of prima facie and final
rights of a Member-elect to his seat was amended to permit the Member-
elect to be sworn.
[[Page 1491]]
On Dec. 5, 1927, during the organization of the House of
Representatives of the Seventieth Congress, Mr. Finis J. Garrett, of
Tennessee, objected to the administration of the oath to James M. Beck,
of Pennsylvania. Mr. Garrett then offered the following resolution (H.
Res. 1) as privileged:
Whereas it is charged that James M. Beck, a Representative elect to
the Seventieth Congress from the State of Pennsylvania, is ineligible
to a seat in the House of Representatives for the reason that he was
not at the time of his election an inhabitant of the State of
Pennsylvania in the sense of the provision of the Constitution of the
United States (par. 5 of sec. 2, Art. I) prescribing the qualifications
for Members thereof; and whereas such charge is made through a Member
of the House and on his responsibility as such Member, upon the basis,
as he asserts, of records and papers evidencing such ineligibility:
Resolved, That the question of the prima facie right of James M.
Beck to be sworn in as a Representative from the State of Pennsylvania
of the Seventieth Congress, as well as of his final right to a seat
therein as such Representative, be referred to Committee on Elections
No. 2; and until such committee shall report upon and the House decide
such question and right, the said James M. Beck shall not be sworn in
nor be entitled to the privileges of the floor; and said committee
shall have power to send for persons and papers and examine witnesses
on oath relative to the subject matter of this resolution.
After debate Mr. Garrett moved the previous question on the
resolution which was refused (158 yeas to 244 nays). Thereupon, Mr.
Bertrand H. Snell, of New York, offered the following substitute, which
was agreed to by voice vote:
Resolved, That the gentleman from Pennsylvania, Mr. Beck, be now
permitted to take the oath of office.
The resolution, as amended, was agreed to by voice vote, whereupon
Mr. Beck appeared at the bar of the House and was administered the oath
of office. [69 Cong. Rec. 8, 10, 70th Cong. 1st Sess., Dec. 5, 1927, H.
Jour. 7.]
When the organization of the House was completed, Mr. Garrett
offered the following privileged resolution:
Whereas it is charged that James M. Beck, a Representative elect to
the Seventieth Congress from the State of Pennsylvania, is ineligible
to a seat in the House of Representatives for the reason that he was
not at the time of his election an inhabitant of the State of
Pennsylvania in the sense of the provision of the Constitution of the
United States (par. 5 of sec. 2, Art. I) prescribing the qualifications
for Members thereof; and
[[Page 1492]]
Whereas such charge is made through a Member of the House, and on
his responsibility as such Member upon the basis, as he asserts, of
records and paper evidencing such ineligibility:
Resolved, That the right of James M. Beck to a seat in the House of
Representatives of the Seventieth Congress be referred to the Committee
on Elections No. 2, which committee shall have power to send for
persons and papers and examine witnesses on oath relative to the
subject matter of the resolution.
Privileged resolution (H. Res. 9) agreed to by voice vote without
debate [69 Cong. Rec. 13, 70th Cong. 1st Sess., Dec. 5, 1927; H. Jour.
8].
Qualifications of Member.--The constitutional requirement of
inhabitancy in the state when elected was held satisfied where the
Member belonged to the ``body politic'' and lived in a leased apartment
in that state part of each week, though he owned residences in other
jurisdictions.
Majority report for seated Member, who retained seat.
Minority views that inhabitancy requirement was not met and that
the Member was not entitled to his seat.
Report of Committee on Elections No. 2 submitted by Mr. Bird J.
Vincent, of Michigan, on Mar. 17, 1928, follows:
Report No. 975
Investigation of the Inhabitancy Qualification of James M. Beck
[To Accompany the James M. Beck Election Case]
It will be seen at once that the sole question involved is the
naked constitutional question as to whether, under the facts, Mr. James
M. Beck at the time of his election to the House of Representatives was
an inhabitant of Pennsylvania within the meaning of paragraph 2 of
section 2, Article I of the Constitution of the United States. This and
no other question is involved. No charge of fraud, nor any other
wrongdoing, is raised against the entire regularity and legality of Mr.
Beck's nomination nor election except the one question of his
inhabitancy of Pennsylvania.
the facts
Mr. James M. Beck was born in Philadelphia, Pa., July 9, 1861. He
was educated in the schools of that city. Later he attended the
Moravian College at Bethlehem, Pa. He was admitted to the bar in
Philadelphia in 1884, and resided in that city and practiced law there
continuously until 1900. During this period he served one term as
assistant United States attorney for the district in which Philadelphia
is located, and also one term as United States attorney for the same
district. In 1900, he was appointed by President McKinley Assistant
Attorney General of the United States, and came to Washington to
discharge the duties of that office, but retained his residence
[[Page 1493]]
in Philadelphia until 1903, when he resigned from this office. Upon his
resignation he went to the city of New York to engage there in the
practice of law. At that time he gave up his residence in Philadelphia
and acquired a residence in New York City. He continued to reside in
New York City until November, 1920. In the intervening period between
1903 and 1920, he acquired a summer home, not suitable for residence
except as a summer place, at Seabright, N.J., which property he still
owns.
In November, 1920, he sold his residence in New York City and came
to Washington and purchased a house which he has owned since, at 1624
Twenty-first Street NW. He purchased this home in Washington in
anticipation of being appointed to a position in the Harding
administration, and in 1921 he was appointed Solicitor General of the
United States by President Harding. He held this position until 1925,
when he resigned for the reason that his eyesight was being impaired by
the burden of the work connected with that office.
Mr. Beck testified that when he went to New York to practice law,
in 1903, he did so for the purpose of acquiring a competence; that he
never intended to make New York his permanent home; that it was always
his intention to return to his native city of Philadelphia when such a
competence had been acquired. And that when he sold his residence in
New York in 1920 he ceased all residential connection with that city
and State.
On April 30, 1925, he was appointed by the mayor of Philadelphia to
represent the city of Philadelphia in securing the participation of
foreign countries in the Sesquicentennial Exposition held in that city.
Again the following year he was appointed as special commissioner of
the exposition in foreign countries. On September 28, 1925, under a
Federal statute which required that the advisory commission having the
Sesquicentennial Exposition in charge should be composed of two members
from each State, President Coolidge appointed Mr. Beck as one of the
two members from Pennsylvania on the national advisory commission of
that exposition.
On April 30, 1925, Mr. Beck made an address at a club function in
Philadelphia in which he expressed his intention of resuming his
permanent home in Philadelphia. In the spring of 1926 he conducted
negotiations for the securing of an apartment in that city. An
apartment at 1414-1416 Spruce Street, in the building known as the
Richelieu Apartments, was selected and agreed upon. Before executing
the lease therefor Mr. Beck went to Europe on matters connected with
the Sesquicentennial Exposition. The apartment was held for him until
his return. On July 6, 1926, he executed the lease for this apartment
in which it was provided that the rental should begin on June 1, 1926,
the lease to be for one year with the privilege of renewal thereafter
from year to year unless one of the parties thereto gave notice of
discontinuance at least two months prior to the end of the current
annual period. This was an unfurnished housekeeping apartment. The
rental agreed upon was $110 per month, which the testimony showed Mr.
Beck had paid continuously since the beginning of the lease. He
immediately furnished the apartment with proper furniture and
equipment.
It appeared from the testimony that Mr. Beck, with the exception of
occasions when he was absent in Europe on business connected with the
Sesqui
[[Page 1494]]
centennial, and except for summer periods spent in his Seabright summer
home, has occupied this apartment one or more times each week. His
sister, Miss Helen Beck, has also occupied the apartment for a
considerable portion of the time it has been under lease. On numerous
occasions when Mr. Beck was in Philadelphia, and his sister also was
occupying the apartment while Mr. Beck made it his headquarters, it
frequently occurred that he would spend the night near by at the Art
Club of Philadelphia, of which he has been a member for years. The
apartment consists of a living room, a bedroom, a kitchen, and a
bathroom. Mr. Beck has retained his Washington house fully furnished
and has occupied it whenever he desired during all of this period. He
testified that he retained his Washington residence in the main because
his professional work largely consisted of cases before the Supreme
Court of the United States. He has a law office in the city of
Washington but not in partnership with any other attorney. His private
business affairs are all conducted in Philadelphia, the Girard Trust
Co. being his fiscal agent.
While Mr. Beck was a resident of New York he voted in that city.
While he was Solicitor General of the United States, he registered and
voted from his summer home in Seabright, N.J. The last vote he cast
there was in the presidential election of 1924. He testified that on
account of his intention to reidentify himself with his native city of
Philadelphia, and to resume his citizenship in the State of
Pennsylvania he refrained from voting elsewhere after 1924.
The law of Pennsylvania contains a requirement of a residence of
one year in that State in order to qualify for registration for
electoral purposes, except that in the case of one that has theretofore
been a citizen of that State and, having resided elsewhere, has
returned to the State of Pennsylvania, such residence requirement is
reduced to six months. It is also required that in order to register in
Pennsylvania one must have paid a tax of some sort; and if one has not
paid a real estate or personal property tax, then one must pay a poll
tax of 25 cents and hold the receipt at the time of registration. Mr.
Beck paid this poll tax in September, 1927, and offered himself for
registration as a voter in September, 1927, and was registered. He
voted in the primaries in the city of Philadelphia on September 20,
1927. He was assessed for a personal property tax on a valuation of
$20,000 in Philadelphia on October 3, 1927. This tax did not become
payable until after the expiration of the year 1927.
After the primary of September 20, 1927, the Representative-elect
from the first congressional district of Pennsylvania, Mr. Hazlett,
resigned and to fill the vacancy so caused the proper Republican
authorities nominated Mr. Beck for Representative in Congress on the
Republican ticket. The Democratic Party nominated Mr. J. P. Mulrenan.
At the election on November 6, 1927, Mr. Beck was elected by a majority
of approximately 60,000.
As tending to prove his constant intention to reidentify himself
with Philadelphia and to resume his citizenship thereof, Mr. Beck
testified concerning his membership in many social and civic
institutions of that city, most of these memberships having existed for
many years. Among these were the Fairmount Park Art Association, of
which he had been president
[[Page 1495]]
and is now vice president and general counsel--its purpose is the
improvement of the city by the erection of works of art therein; the
Philadelphia Commission, having a somewhat similar purpose as that of
the foregoing association; the City Parks Association, having a
somewhat similar purpose; the American Philosophical Society; the Art
Club; the Legal Club; the Shakespeare Society; the Mahogany Tree Club;
the Franklin Inn Club; the General Alumni Society of the University of
Pennsylvania; the New England Society of Pennsylvania; the Historical
Society of Pennsylvania; the Five O'Clock Club; the Orpheus Club; the
Friendly Sons of St. Patrick. It is proper to say in connection with
the memberships in these clubs and associations that two of the clubs
carry a separate roster for resident and nonresident memberships. Mr.
Beck stated that he did not personally draw the checks for membership
dues in these organizations but that this matter was taken care of by
his secretary. In the late fall of 1927 his attention was called to the
question as to whether he ought not to change from the nonresident
classification to resident classification in the Art Club. This he
attended to as soon as the matter was brought to his notice. In the
case of the other club having the two classifications, he was carried
as a nonresident member.
It is proper to add also that the house in Washington is an
attractive, commodious, well-furnished house, in which there is much
more room and much more valuable furniture and equipment than in the
Philadelphia apartment, and that in the matter of number of days
actually spent by Mr. Beck in these two places of abode since the
acquiring of the Philadelphia apartment, more days have been spent in
the Washington house than in the Philadelphia apartment. It further
appeared that Mr. Beck had on occasions when he was a guest in hotels
registered from Washington, and that his automobiles bear license
plates provided by the District of Columbia.
the constitutional provision
Paragraph 2 of section 2, Article I of the Constitution provides as
follows:
No person shall be a Representative who shall not have
attained the age of 25 years and been 7 years a citizen of
the United States and who shall not, when elected, be an
inhabitant of that State in which he shall be chosen.
the proceedings in the constitutional convention
To determine whether the facts applicable to the case of Mr. Beck
place him within the meaning of the framers of the Constitution in
their use of the word ``inhabitant,'' it is of the greatest importance
to consider the debate which occurred at the time this provision was
adopted. This particular provision of the Constitution was considered
on Wednesday, August 8, 1787, and as it came before the convention the
provisions were the same as now except that citizenship of the United
States for a period of three years was required, and it was also
required that the Representative should be a ``resident`` of the State
from which he should be chosen. The following is the entire debate
contained in the Madison Papers on this paragraph of the Constitution:
[[Page 1496]]
Col. Mason was for opening a wide door for emigrants; but
did not chuse to let foreigners and adventurers make laws for
us & govern us. Citizenship for three years was not enough
for ensuring that local knowledge which ought to be possessed
by the Representative. This was the principal ground of his
objection to so short a term. It might also happen that a
rich foreign Nation, for example Great Britain, might send
over her tools who might bribe their way into the Legislature
for insidious purposes. He moved that ``seven'' years instead
of ``three'' be inserted.
Mr. Govr. Morris seconded the motion, & on the question,
All the States agreed to it except Connecticut.
Mr. Sherman moved to strike out the word ``resident'' and
insert ``inhabitant,'' as less liable to misconstruction.
Mr. Madison seconded the motion. Both were vague, but the
latter least so in common acceptation, and would not exclude
persons absent occasionally for a considerable time on public
or private business. Great disputes had been raised in
Virginia, concerning the meaning of residence as a
qualification of Representatives which were determined more
according to the affection or dislike to the man in question,
than to any fixt interpretation of the word.
Mr. Wilson preferred ``inhabitant''.
Mr. Govr. Morris was opposed to both and for requiring
nothing more than a freehold. He quoted great disputes in New
York occasioned by these terms, which were decided by the
arbitrary will of the majority. Such a regulation is not
necessary. People rarely chuse a nonresident. It is improper
as in the 1st branch, the people at large, not the states,
are represented.
Mr. Rutlidge urged & moved that a residence of 7 years
should be required in the State wherein the Member should be
elected. An emigrant from New England to South Carolina or
Georgia would know little of its affairs and could not be
supposed to acquire a thorough knowledge in less time.
Mr. Read reminded him that we were now forming a National
Government and such a regulation would correspond little with
the idea that we were one people.
Mr. Wilson enforced the same consideration.
Mr. Madison suggested the case of new states in the West,
which could have perhaps no representation on that plan.
Mr. Merger. Such a regulation would present a greater
alienship among the States than existed under the old federal
system. It would interweave local prejudices and State
distinctions in the very Constitution which is meant to cure
them. He mentioned instances of violent disputes raised in
Maryland concerning the term ``residence''.
Mr. Elseworth thought seven years of residence was by far
too long a term: but that some fixt term of previous
residence would
[[Page 1497]]
be proper. He thought one year would be sufficient, but
seemed to have no objection to three years.
Mr. Dickinson proposed that it should read ``inhabitant
actually resident for ---- year''. This would render the
meaning less indeterminate.
Mr. Wilbon. If a short term should be inserted in the
blank, so strict an expression might be construed to exclude
the members of the Legislature, who could not be said to be
actual residents in their States whilst at the Seat of the
General Government.
Mr. Merger. It would certainly exclude men, who had once
been inhabitants, and returning from residence elsewhere to
resettle in their original State; although a want of the
necessary knowledge could not in such case be presumed.
Mr. Mason thought 7 years too long, but would never agree
to part with the principle. It is a valuable principle. He
thought it a defect in the plan that the Representatives
would be too few to bring with them all the local knowledge
necessary. If residence be not required, rich men of
neighbouring States, may employ with success the means of
corruption in some particular district and thereby get into
the public Councils after having failed in their own State.
This is the practice in the boroughs of England.
On the question for postponing in order to consider Mr.
Dickinsons motion:
New Hampshire, no. Massachusetts, no. Connecticut, no.
New Jersey, no. Pennsylvania, no. Delaware, no. Maryland, ay.
Virginia, no. North Carolina, no. South Carolina, ay.
Georgia, ay.
On the question for inserting ``inhabitant'' in place of
``resident''--agreed to nem. con.
Mr. Elseworth & Col. Mason move to insert ``one year''
for previous inhabitancy.
Mr. Williamson liked the Report as it stood. He thought
``resident'' a good enough term. He was against requiring any
period of previous residence. New residents if elected will
be most zealous to conform to the will of their constituents,
as their conduct will be watched with a more jealous eye.
Mr. Butler and Mr. Rutlidge moved ``three years'' instead
of ``one year'' for previous inhabitancy.
On the question for 3 years:
New Hampshire, no. Massachusetts, no. Connecticut, no.
New Jersey, no. Pennsylvania, no. Delaware, no. Maryland, no.
Virginia, no. North Carolina, no. South Carolina, ay.
Georgia, ay.
On the question for ``1 year'':
New Hampshire, no. Massachusetts, no. Connecticut, no.
New Jersey, ay. Pennsylvania, no. Delaware, no. Maryland,
divided, Virginia, no. North Carolina, ay. South Carolina,
ay. Georgia, ay.
[[Page 1498]]
It is evident that in this debate the framers of the Constitution
were seeking for a nontechnical word, the main purpose of which would
be to insure that the Representative, when chosen, from a particular
State should have adequate knowledge of its local affairs and
conditions. Mr. Madison, Mr. Wilson, and Mr. Mercer all emphasized that
it was not desired to exclude men who had once been inhabitants of a
State and who were returning to resettle in their original state, or
men who were absent for considerable periods on public or private
business. The convention by vote deliberately declined to fix any time
limit during which inhabitancy must persist. To get clearly in mind the
thought which the word ``inhabitant'' held in the minds of the framers
of the Constitution, it is well to recall that in the days of the
Colonies the people who constituted the body politic of a colony were
quite generally described in the charters and other public documents
connected with the governments of the Colonies as being ``subjects'' of
Great Britain and ``inhabitants'' of the colony in which they were
members of the body politic.
A number of examples of this are recited in the volume of law
arguments taken in the hearings before this committee, beginning on
page 38. To these men an ``inhabitant'' was one who had an abode within
a colony and was recognized and identified as one who was a member of
the body politic thereof. The fact that he might absent himself
physically from the colony for a very considerable period of time did
not militate against the recognition of him as an inhabitant of such a
colony, and this remained true after the Colonies had achieved their
independence and had become independent States. Thus, though George
Washington was for the greater part of 16 years absent from Mount
Vernon and Benjamin Franklin was absent for years from Pennsylvania, no
one would have considered there was any cloud on their title as
inhabitants, respectively, of the States of Virginia and Pennsylvania.
In those early times it was the uncommon rather than the common thing
that a man should have more than one place of abode. In these modern
times it is quite common that men have two or more places of abode to
which they may repair according to the season of the year, according to
their business convenience, or according to the public duties which
they may be called upon to discharge, This is true of many Members of
each House of the Congress to-day, but the principle has not changed.
Admittedly a man can have but one inhabitancy within the meaning of the
Constitution at a given time. Where this may be is a mixed question of
intent and of fact.
To be an inhabitant within the Constitution, it seems clear that
one must have first, as a matter of fact, a place of abode, and,
second, that this place of abode be intended by him as his
headquarters; the place where his civic duties and responsibilities
center; the place from which he will exercise his civic rights. We
think that a fair reading of the debate on this paragraph of the
Constitution discloses that it was not intended that the word
``inhabitant'' should be regarded in a captious, technical sense. Can
it be that the fathers intended that to determine whether one was an
inhabitant of a particular place that the number of days which he
actually spent there in a given period should be counted and his
absences balanced against the periods of his physical presence? Can it
be that the fathers intended that the
[[Page 1499]]
tenure of his holding of a particular abode, whether it be by fee-
simple title or by leasehold, should govern the question as to whether
it was the place of inhabitance? We feel positive that such a
construction would in no sense carry out the meaning which the framers
of the Constitution regarded as contained in this word. Further, such a
technical attempt at construction would result in the very confusion
which the debate showed the framers hoped to avoid by the rejection of
the word ``resident.'' We think that a fair interpretation of the
letter and the spirit of this paragraph with respect to the word
``inhabitant'' is that the framers intended that for a person to bring
himself within the scope of its meaning he must have and occupy a place
of abode within the particular State in which he claims inhabitancy,
and that he must have openly and avowedly by act and by word subjected
himself to the duties and responsibilities of a member of the body
politic of that particular State.
That Mr. Beck has such an abode in the State of Pennsylvania cannot
be questioned. That he had obtained it a year and a half before his
election to Congress is unquestioned. That he had occupied it according
to his convenience one or more times a week during that period was
testified to by Mr. Beck and certainly was not disproved by any other
evidence. It is true that during a part of the period under discussion
he was absent from the country, but then he was absent on business
connected with the city of Philadelphia, and certainly such absence
ought not to be counted against his being an inhabitant, the absence
being on public business connected with the very city in which he
claims to be an inhabitant. It is true too that he spent a short
portion of time in the summer at his place at Seabright, N.J., but it
will be an unusual conclusion if it is held that for a man to absent
himself from the place of his inhabitance in order to live for a time
at his summer place raises a cloud upon the legal continuance of his
inhabitancy. So much for the fact as to a place of abode in
Pennsylvania.
As to Mr. Beck's intention, let it be said that he testified before
the committee, fully and frankly, as to all the circumstances and facts
which were asked of him; as fully and frankly disclosing those facts
which seemed, possibly, to militate against him as to any. He solemnly
testified under oath before the committee that when he went to New York
to live in 1903 he then had the intention some time to return to
Philadelphia, his native city, and resume his citizenship in that city
and reidentify himself with its affairs. Hence, he kept his memberships
in all the civic associations in which he had acquired membership
before his leaving. He testified that this had always been his
intention during all of the time he was away from Philadelphia.
He testified that when he left New York in 1920 and came to
Washington to take up the duties of Solicitor General of the United
States that he had acquired a competence, and that it was his
intention, if found acceptable to the public, to devote the remainder
of his life to public service; and that when his duties were ended as
Solicitor General he began negotiating for a place in Philadelphia so
that he might carry out the intention he had held all those years to
return and reidentify himself with Philadelphia and with its public
affairs. He testified that at that time he entertained the hope that it
might occur that he could have a seat in Congress from that city.
[[Page 1500]]
In carrying out his desire to give himself to the public service of
that city, he gave very much of his time to the Sesquicentennial
Exposition, accepting a commission from the mayor of the city and from
the President of the United States to a high position connected with
that exposition, that he traveled abroad to foreign countries to engage
their interest and cooperation in making the exposition a success,
giving his time and efforts thereto without any remuneration.
He solemnly testified under oath that since June 1, 1926, his
intention has been to be a resident of the State of Pennsylvania and in
the constitutional sense to be an inhabitant of that State, and to
subject himself to all the duties as well as to enjoy the privileges of
that status.
There is no testimony and no fact which would warrant the committee
in making a finding that this statement is not entirely true.
Further than this, Mr. Beck is now and was at the time of his
election a ``legal resident'' of Pennsylvania. We do not think that
this can be disputed. He had a habitation there and at the expiration
of more than the required time under the constitution of Pennsylvania
he presented himself for registration, asserted his intention to be a
resident of Pennsylvania, and was registered as a voter. By that act he
subjected himself conclusively to all the duties of a resident of
Pennsylvania. Thereupon he became subject, among other things, to
personal taxation within the State of Pennsylvania, subject to jury
duty there, and, if he died, conclusively subject to the inheritance
tax laws of that State. In other words, he subjected himself to all the
duties that fall upon a resident of that State and could not be heard
to claim that he was not a resident there.
Mr. Beck is a ``citizen'' of Pennsylvania. We do not think this can
be disputed. Born in that State, after having left it he has returned
and maintained a legal residence more than sufficiently long to satisfy
the constitutional provision of that State as to citizenship therein.
Mr. Beck is a legal elector in the State of Pennsylvania. We do not
think this can be disputed. Having maintained a legal residence in that
State more than sufficiently long to qualify him for the electoral
privileges, he attended to the formalities thereof, paid the poll tax
required, offered himself to the registration board for registration,
was registered as a voter without challenge, and thereafter and before
his election performed the privilege of voting in an election without
challenge.
We do not think that the framers of the Constitution intended by
the use of the word ``inhabitant'' that the anomalous situation might
ever arise that a man should be a citizen, a legal resident, and a
voter within a given State and yet be constitutionally an inhabitant
elsewhere. If any such conclusion could be reached we might have the
peculiar result in this country of a man being a resident, a citizen,
and a voter in a given State, and yet within the constitutional sense
barred from the right of representing a district in that State in
Congress, but having the right to represent a district in another State
in Congress. No such interpretation can fairly be read into this
provision. We think that Mr. Beck having legally subjected himself to
the duties and responsibilities of a citizen and an inhabitant of
Pennsylvania, having maintained an habitation there, and having
occupied the same regularly,
[[Page 1501]]
though not continuously, is also entitled to the rights of a citizen
and an inhabitant of Pennsylvania. We think that such a finding is
entirely within the meaning, the spirit, and the letter of the
Constitution.
the precedents
We think that a proper interpretation of the facts in the early
case of Philip B. Key in the Tenth Congress would be controlling in the
present case. Mr. Key was a native of Maryland and a citizen and
resident of that State at the time of the adoption of the Constitution.
He was never a citizen or resident of any other of the United States.
But in 1801 he removed from Maryland to his house in Georgetown, D.C.,
where he continued to reside until 1806. During that period he had no
other habitation. In 1805, however, he had purchased land in Maryland
and had contracted for the erection of a summer home thereon, intended
for his own use. On September 18, 1806, he removed with his family into
this summer home, which was not yet entirely completed. On October 6,
1806, just 18 days later, an election occurred in which Mr. Key was
elected to a seat in the House of Representatives. He had left his
house in Georgetown, D.C., fully furnished. On October 20, 1806, he
removed with his family and household to his house in the District of
Columbia again, where he lived until July, 1807, in which month he
returned to his Maryland house and lived in it until October 23, 1807.
On this latter date he returned to his house in the District of
Columbia to attend to his duties in Congress. During the five years
that he had no habitation in Maryland and during which his sole
habitation was in the District of Columbia he continued to practice law
in Maryland and had not practiced in the District of Columbia. But he
had in January, February, and March, 1806, declared that he intended to
reside in Maryland and that he bought the land with that intention. It
was admitted that the house which he built in Maryland and which he
occupied only 18 days before the election was fitted only for a summer
residence and was much inferior to the house in the District of
Columbia, and that the latter was left practically with its furnishing
complete whenever the family went to Maryland. This case will be found
reported on page 417 of the first volume of Hinds' Precedents.
In the argument before the committee an attempt was made to
distinguish this case from the Beck case in two particulars, first,
that Mr. Key when he left Maryland did not establish a residence in any
other State but only in the District of Columbia, while Mr. Beck when
he left Pennsylvania established a residence first in New York and
later in the District of Columbia. We are unable to see that this
creates any distinction between the two cases as a matter of legal
contemplation. Mr. Key utterly ceased to be an inhabitant of Maryland
in 1801. Mr. Beck has fully ceased to be an inhabitant of Pennsylvania
in 1903. We fail to see wherein any distinction as a matter of law can
arise on the question of inhabitancy due to the fact that one moved
into the District of Columbia and the other moved into the State of New
York. In each case the habitation in the native State completely
ceased. In both cases, if it were revived, the revival occurred by
proceeding from the District of Columbia back to the native State. In
the case of Mr. Key, the new inhabitancy of the State of Maryland
existed for 18 days prior
[[Page 1502]]
to the election. In the case of Mr. Beck, it existed for a year and a
half prior to the election.
The other point of distinction that was attempted to be raised to
void the effect of the Key case on the present issue in the argument
was that in the Key case Mr. Key owned outright the house in Maryland
to which he moved 18 days prior to his election, while Mr. Beck's is a
leasehold. We can not conceive that there is any merit in this
attempted distinction. It is as common in this country for a man's
habitation to be held by lease as it is by fee ownership. It is the
intent under which he occupies it which is the controlling feature. The
House of Representatives held that Mr. Key was, within the
constitutional sense, an inhabitant of Maryland and entitled to his
seat in the House of Representatives.
A case which was relied upon in the argument to uphold the
exclusion of Mr. Beck from his seat was the case of John Bailey,
elected from Massachusetts to the Eighteenth Congress, reported on page
419 of the first volume of Hinds' Precedents. The facts in that case
were as follows:
On October 1, 1817, Mr. Bailey, who was then a resident of
Massachusetts, was appointed a clerk in the Department of State. He
immediately repaired to Washington and entered upon the duties of his
position and continued to hold the position and reside in Washington
until October 21, 1823, when he resigned the appointment. It did not
appear that he exercised any of the rights of citizenship in the
District, and there was evidence to show that he considered
Massachusetts as his home, and his residence in Washington only
temporary. It was shown that Mr. Bailey resided in Washington in a
public hotel with occasional absences on visits to Massachusetts until
his marriage in Washington, at which time he took up his residence with
his wife's mother. He never exercised the right of suffrage in
Massachusetts after leaving there for Washington.
The election at which Mr. Bailey was chosen as a Representative was
held September 8, 1823, at which time he was actually residing in
Washington in his capacity as clerk in the State Department. This case
was debated in the House for seven days and, of course, many things
were said, but the facts in it are what seem important in its use as a
precedent. Mr. Bailey had no abode in Massachusetts. Before he came to
Washington he lived with his parents in their house. He had none of his
own, either leased or owned. In support of the committee, it was stated
``had he left a dwelling house in Massachusetts in which his family
resided a part of the year; had he left there any of the insignia of a
household establishment, there would be indication that his domicile in
Massachusetts had not been abandoned.''
We think that the Bailey case is clearly distinguishable from the
Beck case in that Mr. Bailey had no habitation, no place of abode,
under his control in Massachusetts at any time after he accepted the
appointment in Washington. The very report of the committee in the
Bailey case shows that had he maintained any place of abode or insignia
of domestic establishment to which he had repaired from time to time,
the holding of the committee would have been otherwise.
[[Page 1503]]
No doubt it would do violence to words to hold that a man was an
inhabitant of a place where he had no habitation. The House of
Representatives held that Mr. Bailey was not entitled to his seat.
The case of Nathan B. Scott, elected a Senator from the State of
West Virginia in 1899, was contested on the ground that he was not an
inhabitant of the State of West Virginia at the time he was elected.
Mr. Scott resided at Wheeling, W. Va., until January 1, 1898, when he
was appointed Commissioner of Internal Revenue, at which time he came
to Washington to discharge the duties of that office. His intention was
to retain his residence and habitation at Wheeling, W. Va., and in
carrying out that intention he voted in the election held November 8,
1898, at Wheeling, W. Va. He had no intention to change his domicile to
Washington from Wheeling and he claimed to be an inhabitant of
Wheeling, W. Va. The committee found that Mr. Scott was an inhabitant
of Wheeling, W. Va., at the time he was elected to the Senate of the
United States.
In the Bailey case, Mr. Bailey did not exercise the rights of
citizenship in the State of Massachusetts, nor did he vote in the State
of Massachusetts. In the Scott case, Senator Scott did, and the Senate
found that he was an inhabitant of the State of West Virginia.
The committee desires to direct attention to the language in the
decision of the Supreme Court of the United States in the case of
Shelton v. Tiffln (6 Howard, 163, 185). The Federal courts had no
jurisdiction in this controversy, unless within the meaning of section
2 of Article III of the Constitution of the United States, the parties
thereto were citizens of different States. Hence, this question being
raised, its solution was necessary to the decision of the court. In
this case, the Supreme Court uses the following language:
On a change of domicile from one State to another,
citizenship may depend upon the intention of the individual.
But this intention may be shown more satisfactorily by acts
than declarations. An exercise of the right of suffrage is
conclusive on the subject; but acquiring a right of suffrage,
accompanied by acts which show a permanent location,
unexplained, may be sufficient.
It is true that a holding of even the Supreme Court of the United
States is not binding on the House of Representatives in the question
at bar, since this question is committed by the Constitution solely to
the House of Representatives, but we think the opinion of the Supreme
Court of the United States ought to be regarded with the highest
respect and should be very persuasive in deciding a similar question.
It will be remembered in this connection that Mr. Beck registered as a
voter and exercised the right of suffrage in Philadelphia in the month
of September, prior to the November in which he was elected to
Congress.
It is true that in the many court decisions that have been rendered
in various courts of the States, under different legal situations, many
contradictory definitions of the words ``inhabitant'' and ``resident''
may be found. We are impressed, however, with the conviction that the
framers of the Constitution were seeking to use the word inhabitant in
the plain, nontechnical
[[Page 1504]]
sense in which it had been understood as explained above up to the time
of the framing of the Constitution, and that their purpose was to
require those who represented the several States in the House of
Representatives to be identified with the local interests of those
States by having a habitation therein and being in addition a member of
the body politic of the particular State from whence they came to the
House.
It was argued before the committee that such a construction would
lead to the existence of ``rotten boroughs'' in the United States as
once existed in England. We think this argument misapprehends what the
``rotten boroughs'' were. It will be remembered that the ``rotten
boroughs'' consisted of small communities with few inhabitants, which
were given representation in Parliament out of all proportion to the
population of other areas and large centers. In other words, the
``rotten boroughs'' situation in England resulted in insufficient
representation for large bodies of the population as compared to many
small communities. We call attention to the fact that if a man, because
he has business in the District of Columbia and arranges a place of
abode there so that he may conveniently care for such business when
necessity occasions it, whether it be public or private, is to be
denied for that reason the right to have a habitation within one of the
States, to acquire citizenship there, to be an elector there, to take
his part in exercising the duties and responsibilities of citizenship,
it will result in a much closer approximation to the ``rotten borough''
situation which has been described and condemned.
After all, we must rely upon the integrity, the patriotism, and the
good common sense of the electors in the various districts with respect
to the choice of a fit membership in the House of Representatives. This
is a part of the very genius of representative government. And we do
not think that it is proper to seek for strained and captious
interpretations of this paragraph of the Constitution to find reasons
for rejecting men who have been chosen through the deliberate will of
their constituents as indicated at the polls. We believe that every
word of the Constitution should be upheld, but we do not think that men
who have been chosen to represent a district should be excluded unless
their case presents a clear violation of the Constitutional provision.
We are convinced that such is not the case in the matter now before us.
We believe that Mr. Beck is clearly entitled to his seat.
For the above reasons, the committee recommends the adoption of the
following resolution (H. Res. 283):
Resolved, That James M. Beck is entitled to his seat in
the Seventieth Congress as a Member of the House of
Representatives from the first congressional district of the
State of Pennsylvania.
The following minority views were submitted by Mr. Gordon Browning,
of Tennessee, and Mr. T. Webber Wilson, of Mississippi:
We, the minority, regret to find ourselves in disagreement with a
majority of the committee who report that Mr. James M. Beck is entitled
to a seat in the House of Representatives from the first Pennsylvania
district. If the
[[Page 1505]]
question involved were not one of vast importance, in our opinion, we
would not interpose our opposition; for there could be no personal
objection to Mr. Beck as a Member. Neither is there any political
significance that could attach to the challenge of his right to sit, as
anyone from that district at this time undoubtedly would be of his
political faith. And we recognize fully that the renown of Mr. Beck as
a constitutional lawyer and a man of high intellectual attainments
necessarily is persuasive with the committee.
But the issue is one which goes to the vitals of the National
Constitution. Mr. Beck in his opening statement expressly recognized
that the question is not free from difficulty. The question arises as
to his qualification under Article I, section 2, of the Constitution,
wherein it says:
No person shall be a Representative who shall not have
attained to the age of 25 years, and been 7 years a citizen
of the United States, and who shall not, when elected, be an
inhabitant of the State in which he shall be chosen.
Our conviction is that he was not an inhabitant of the State of
Pennsylvania in November, 1927, when chosen.
Mr. Beck was born in Philadelphia, July 9, 1861, and had his home
in that State until 1900, when he came to Washington, D.C., as
Assistant Attorney General. In 1903 he resigned his position in
Washington, gave up his residence in Philadelphia, and moved to New
York to practice law with a view to securing a competence. He owned one
or more homes in New York where he lived and voted and practiced law
until November, 1920. At that time he sold his New York home and
purchased a commodious residence on Twenty-first Street NW.,
Washington, D.C., to which he immediately moved his family, his
extensive personal library, his art treasures, and all his personal
belongings he holds most dear.
In June, 1921, Mr. Beck was appointed Solicitor General of the
United States by President Harding, and held that position until June,
1925, when he resigned on account of his eyes failing. He immediately
established a law office in the Southern Building, Washington, and
specialized in United States Supreme Court practice, which law office
he still maintains. He also resumed his connection with his old law
firm in New York. He does not practice law in Pennsylvania, and has not
since 1900.
For several years he has owned and used a summer home in Seabright,
N.J., on the ocean front. After moving from New York in 1920 he
established a voting status at his summer home and he and his wife
voted there in the 1924 presidential election by mail. In November,
1927, when chosen he sustained the same relation as to voting status in
New Jersey which he did in 1924 and does at the present time, except
expressing an intention, which was not carried out, to transfer it to
Pennsylvania. His residential connection there is exactly the same,
having used that residence for himself and family the last summer
months. So far as the New Jersey authorities are concerned, no act of
Mr. Beck had shown withdrawal of claims for voting privileges in that
State.
In the early spring of 1926 he went to Philadelphia, and with Mr.
Greenfield, a real-estate man who is also prominent politically, looked
at some two
[[Page 1506]]
or three apartments in the first congressional district with a view to
retaining one for the specific purpose of running for Congress from
that district. Mr. Beck states that he had two purposes in view by
this. One was to again establish a status in Philadelphia as one of its
people. The other was to run for Congress from that district. As to the
latter purpose he said:
The seat in Congress was then a possibility undoubtedly,
and I would not want to say, and could not say, truthfully,
that it had nothing to do with the renting of the apartment.
(Rec. p. 58.)
Again he states:
The apartment was selected in full anticipation of the
fact that I might run for Congress. My point is that my
taking any habitation in Philadelphia had as its dominant
purpose the desire to be reidentified with the political life
of Philadelphia, quite irrespective of whether I ran for
Congress or not. But the selection of this locality had in
mind the possibility of my going to Congress; and it also had
in mind that it was very accessible to the main thoroughfare
of Philadelphia, and right around the corner from my club.
(Rec. p. 61.)
Mr. Vare, the then sitting Member from the first Pennsylvania
district, was at that time a candidate for nomination to the United
States Senate.
But no apartment was then agreed on, and Mr. Beck went to Europe on
a business mission in April, 1926. He returned early in June. On the
6th of July following it seemed that Mr. Greenfield had put in order a
two-room apartment at 1414 Spruce Street, and Mr. Beck then leased it
as of date June 1, 1926. This was a yearly renewable lease, unless
either party exercised the option of giving a legal notice of its
termination. The apartment was then furnished by Mr. Beck, and he still
holds it and pays rent on it.
His unmarried sister, Miss Helen Beck, has occupied this apartment
continuously for a year; and while she is in it he goes to the Art Club
to sleep when in Philadelphia rather than incommode her. The apartment
is equipped with a kitchenette, but Mr. Beck has never eaten a meal
there. It has one bedroom.
Mr. Beck states that he is in Philadelphia most every week; that he
frequently goes to New York on business, and stops over there to break
the trip. He was carried as a nonresident member of several clubs in
Philadelphia at the time of election and until January last. In none of
them was he listed as a resident member.
The janitor of this apartment house, who admits he is entirely
unreliable, when approached on the premises, and without notice of the
purpose of the inquiry, first said he had only seen Mr. Beck there
three times in the 18 months. When placed on the stand he finally
estimated that he had known of him being there 15 or 20 times.
On page 66 of the record, Mr. Beck gives the status of his family
as follows:
Mr. Kent. Now, your family consists of whom?
[[Page 1507]]
Mr. Beck. My wife and myself. I have two children.
Mr. Kent. Where are they?
Mr. Beck. My daughter is the wife of the United States
consul at Geneva, my son has been in London ever since he was
in the Army in France. But neither of my children live with
Mrs. Beck and myself. We live alone.
And there can be no question but that Mr. Beck and his wife ``live
alone'' in Washington, D.C., and have lived here since November, 1920,
have had this as their domicile, their abode, their habitation. Mr.
Beck always registers from Washington when he goes to hotels, has his
merchandise for personal comfort sent to him here, has his automobiles
for every use registered here; and at no time has he treated the small
two-room apartment in Philadelphia as a real, bona fide habitation for
any purpose except a gesture at compliance with the constitutional
requirement for an inhabitant.
So his claim to inhabitancy is based on the rental of this
apartment, which is in reality a place for his unmarried sister to
live, with occasional visits to the city of Philadelphia by him when he
would stop largely at the Art Club or a hotel; his testimony of intent
to return; that he transacts his private affairs in Pennsylvania; and
that he attempted to qualify and did vote there in a primary in that
State in 1927.
We can not ascribe to the doctrine that intention is the
controlling part of inhabitancy. Mr. Beck quotes approvingly a letter
relating to his speech in Philadelphia, on April 30, 1925, to the
effect that he was ``then in a position to take a permanent home again
in Philadelphia, where, among your old friends and your books, you
would indulge yourself for the balance of your life.'' Of this Mr. Beck
said, ``that is just what I said in substance.'' It would be a strange
perversion of every rule to accept even undisputed intentions, shown by
declarations, in the face of a state of facts, such as we have in this
case, to prove inhabitancy. In truth, Mr. Beck never took a permanent
home again in Philadelphia. Had he done so, and moved his family and
his books and household there before election, as his expressed
intention was, no question would now be made as to his eligibility.
Intention, in a case of this kind, is a deduction or conclusion of law
founded on fact. We must determine from the facts whether inhabitancy
exists. It certainly can not be shifted or designated at the whim or
pleasure of the individual affected.
Granting that he had the intention to return, this was outweighed
by his desire to inhabit Washington, to practice law here, to have
advantage of proximity to the United States Supreme Court, to all
Federal activities, to retain all his books, works of art, home,
servants, automobiles, mental endeavors, entirely without the borders
of the State of Pennsylvania.
As to the transaction of his private affairs in Pennsylvania, it is
a fair inference from the proof that he has $20,000 in securities or
some other form of property in that State, as he submitted to an
assessment in that sum. But he pays taxes in New Jersey on both real
and personal property, pays his income tax from Washington, as well as
a realty tax here, no doubt on more property value than that for which
he is assessed in Pennsylvania. We can find no burdens of citizenship
carried by Mr. Beck in that State which he
[[Page 1508]]
does not bear both in New Jersey and the District of Columbia, except
25 cents paid in September last for an occupational tax.
It is contended that a mere political status meets this requirement
of the Constitution. If a political status could be counted the sole
qualification for holding this office under the Federal Constitution, a
citizen just naturalized, and having acquired a voting privilege in his
State could sit in Congress, although the Constitution says he must
have ``been seven years a citizen of the United States''; and likewise,
if the citizen is 21 years of age and can vote in his State he could
come to Congress in the face of the constitutional provision that ``no
person shall be a Representative who shall not have attained the age of
25 years.'' The burdens of citizenship are definitely placed on these
two classes who are forbidden to hold a seat in Congress even though
their constituents should choose them unanimously. There is no more
discrimination against one who has met the requirements for voting in a
State, but who is not an inhabitant of that State within the meaning of
our National Constitution, than there is against these others so
limited in this privilege.
A mere voting privilege is granted by each separate State in its
own way. If a voter can satisfy the requirements of a State law, he can
exercise the privilege of franchise. But compliance with the
requirements of the Federal Constitution in qualifying for membership
in this House is entirely independent of State regulation. A
regulation. A voting status can not be the measure of inhabitancy. If
it had been thus intended, the Federal Constitution would have remained
silent and thereby left the matter to the separate States. This would
amount to the same thing as expressly telling each of the States to fix
this qualification, when they would leave that right in the absence of
any expression by the Federal Constitution.
One of the conclusive reasons that they regarded a ``citizen'' and
an ``inhabitant'' as entirely different designations is that they used
both in this same clause, this same sentence, for separate and distinct
qualifications for membership. No trivial matter of verbiage or curious
distinction is necessary to a sensible meaning of this term as used by
great men.
The word was substituted for ``resident,'' and the reason clearly
given by the great Madison was to allow a temporary absence from a true
domicile, not to place it on a casual presence in a temporary domicile.
Mr. Beck was not a qualified elector of the State of Pennsylvania
at the time he voted in the primary of September, 1927, nor at the time
of his election to Congress. The constitution of that State requires
that an elector-must be a ``resident'' of the State for 6 months next
before voting in his case, and 12 months for one who has never before
been a citizen of Pennsylvania. And the courts of that State have
repeatedly and uniformly held as in Fry's election case (71 Pa. 302, p.
305):
When the Constitution declares that the elector must be a
resident of the State for one year, it refers beyond
question, to the State as his home or domicile, and not as
the place of a temporary sojourn. . . .
[[Page 1509]]
These extracts will enable us to understand more clearly
the term ``residence,'' as denoting that home or domicile
which the third article of the Constitution applies to the
freeman of the Commonwealth. It means that place where the
elector makes his permanent or true home, his principal place
of business, and his family residence, if he have one; where
he intends to remain indefinitely; and without a present
intention to depart; when he leaves it he intends to return
to it, and after his return he deems himself at home.
It can not be reasonably contended that Mr. Beck has his home or
domicile in Pennsylvania at that time. It was here in Washington, where
it has been since November, 1920, the place where he has his family
life, where he comes when he is sick, his true home, the only
establishment he has had which resembles a home or permanent domicile,
where he keeps his five servants, two automobiles, and the only place
he keeps these or any other semblances of home life to comport with his
accustomed comfort.
In addition to this, he did not procure his occupational tax
receipt on the 9th of September, 1927, legally. This is not meant in
the sense of imputing bad faith to Mr. Beck, but the law requires
specifically that this must be purchased from the office of the
receiver of taxes in person or from a deputy at the place of
registration on any of the registration days provided by law; and the
only exception to this is when a written and signed order is given by
the elector to a person to purchase same for him. This was not done.
The receipt was delivered to Mr. Beck in the office of Mr. Vare, not on
registration day, not at the place for registration, not in the office
of the receiver of taxes, and after being procured by some person with
no written authority to purchase same. It is expressly made unlawful in
Pennsylvania for any person to vote or attempt to vote upon a tax
receipt so obtained in violation of this law. It appears from the
testimony by Harry W. Keely, receiver of taxes for the city of
Philadelphia, Mr. Beck, and others, that this receipt was not issued in
accordance with law and could not be used lawfully. It was only 11 days
old when used by him, whereas the law directs that it must have been
purchased 30 days before the election in which it is used. But the
disqualification for voting which is in no way technical is that of
failure to comply with the requirements of a ``resident,'' since his
real home, his actual established home, is elsewhere than in
Pennsylvania, where at best he only has a place of temporary sojourn.
But if Mr. Beck had been qualified and had legally voted in all
Pennsylvania elections, this would in no way be conclusive of
inhabitancy. In the Virginia case of Bayley v. Barbour (47th Cong.,
Hinds, vol. 1, p. 425) the House held as follows:
In answer to this position, without deeming it necessary
upon the facts of this case to enter into the constitutional
signification of inhabitancy, it is only necessary to say
that the right to vote is not an essential of inhabitancy
within the meaning of the Constitution, which is apparent
from an inspection of the Constitution itself. In Article I,
section 2, the electors of Members of Con
[[Page 1510]]
gress ``shall have the qualifications requisite for electors
of the most numerous branch of the State legislature,'' but
in the succeeding section, providing for the qualifications
of Members of Congress, it is provided that he shall be an
inhabitant of the State in which he is chosen. It is
reasonable to conclude that if the elective franchise was an
essential the word ``elector'' would have been used in both
sections, and that it is not used is conclusive that it was
not so intended.
And if a voting status ``is not an essential of inhabitancy within
the meaning of the Constitution,'' but is vitally essential to
citizenship or a political status, it would be sophistry indeed to hold
them synonymous.
The term ``inhabitant'' has never been defined by the courts in
connection with this clause of the Constitution, as the House is the
sole judge of the qualifications of its Members, so we must look
elsewhere for an authentic definition. The intent of the framers should
govern if that can be ascertained, and we insist it is very patent from
the only definite construction of the word which has ever been in
common usage. There has been no marked change in the commonly accepted
meaning of the term since 1787, when the Constitution was framed.
Webster's New International Dictionary says of inhabitant:
``One who dwells or resides permanently in a place, as
distinguished from a transient lodger or visitor.''
``It ordinarily implies more fixity of abode than
resident.''
``Inhabitant, the general term, implies permanent abode;
citizen, enjoyment of the full rights and privileges of
allegiance.''
Entick Dictionary, London, 1786, gives the following:
``Inhabitant, one who dwells in a place.''
Dr. Samuel Johnson's Dictionary, 1770, gives the following:
``Inhabitant, dweller; one who lives or resides in a
place.''
Ash's Dictionary, 1775, gives the following:
``Inhabitant: A dweller, one that resides in a place.''
Dyche's English Dictionary, 1794, gives the following:
``Inhabitant: One who lives in a place or house, a
dweller.''
Law dictionaries contemporaneous with the framing of the
Constitution do not vary from this. A new Law Dictionary, by Giles
Jacob, ninth edition, published in London, 1772, gives the following:
``Inhabitant: Is a dweller or householder in any place.''
Doctor Burn's Law Dictionary, published in London, 1792, Vol. II,
page 21:
[[Page 1511]]
``The word Inhabitant doth not extend to lodgers,
servants, or the like; but to householders only.''
Burrill's Law Dictionary says:
``The Latin Habitara, the root of this word, imparts by
its very construction frequency, constancy, permanency,
closeness of connection, attachment, both physical and moral;
and word `in' serves to give additional force to these
senses.''
Black's Law Dictionary:
``Inhabitant; one who resides actually and permanently in
a given place, and has his domicile there.''
In Book I, chapter 19, section 213, Vattel says:
``The term `inhabitant' is derived from abode and
habitation, and not from political privileges.''
We think the test of inhabitancy is a permanent and fixed abode
with the personal presence of the individual in that place, ordinarily;
and absence from it must be for a cause temporary in its nature, with
the intent to return to said place of abode to reside as soon as the
purpose of the said absent mission is accomplished. The absent mission
may be in its nature for pleasure, business, or public duty. When said
absence is for the purpose of engaging in a business or occupation
which calls for the establishment of a home and indeterminate presence
therein pursuant to said activity, we consider the former inhabitancy
broken, or suspended at least until it again takes on the degree of
permanence it formerly had. The overwhelming weight of authority, both
as to legal construction and definition, support this view.
Every recognized authority, whether legal or otherwise, excludes
the idea of temporary residence, and holds that the term ``inhabitant''
carries with it the necessity of a fixed and permanent home, the place
at which one is habitually present under ordinary circumstances, and to
which, when he departs for temporary purposes, he intends to return.
This is the common and only justified construction of the word.
The constitution of New Hampshire, adopted in 1792, shows clearly
what the common acceptation and meaning of this term was in the
following declaration:
And every person qualified as this constitution provides,
shall be considered an inhabitant, for the purpose of
electing and being elected into any office or placed within
this State, in the town, parish, and plantation where he
dwelleth or hath his home.
The constitution of Massachusetts, adopted in 1780, Chapter I,
section 2, Article 2, declares that----
to remove all doubts concerning the word ``inhabitant,'' in
this constitution, every person shall be considered an
inhabitant (for
[[Page 1512]]
the purpose of electing and being elected into any office or
place within this State) in that town, district, or
plantation, where he dwelleth or hath his home.
This constitution was amended in 1821 to confer the right to vote
on citizens who have resided in the State one year, and in the town or
district six months. In 46 Mass. (5 Metc.) 587, 588 it was held that
``inhabitant'' as used in the original constitution is identical in
meaning and synonymous with ``citizen who has resided,'' as expressed
in the amendment. These provisions and construction are the best
possible means of determining the exact use made of the term at that
time. Some of the men who were in the National Constitutional
Convention were members of the State conventions that placed in the
documents themselves this definition of ``inhabitant.''
On the 8th of August, 1787, in the Constitutional Convention, the
committee of detail struck out of the text at this place the word
``resident'' and substituted the word ``inhabitant.'' The motion was
made by Mr. Sherman and seconded by Mr. Madison, who thought the latter
less vague, and would permit absence for a considerable time on public
or private business without disqualification. They were trying to get
away from the abuse being made of the loose construction of
``resident'' by personal enemies of those who sought to qualify. There
is no suggestion of an uncommon meaning to be given the word in their
use of it here. The construction placed on these statements of Mr.
Madison and others by Mr. Beck is to apply it to his case wherein he
was absent from Pennsylvania 23 years, under his own admission, and yet
he would not be disqualified on the grounds of inhabitancy. (Rec. p.
15.) And this regardless of the fact that during that time he had been
an inhabitant of New York, New Jersey, and the District of Columbia,
and had voted in both these States, and still has his only true home in
Washington. Nothing was further from the thoughts of these great men.
Mr. James Wilson preferred ``inhabitant'' to ``resident''.
Statements made by him and Mr. Sherman at other stages of the debates
prove conclusively that they would not countenance a provision to
permit representation by one who had not had his actual habitation
among his constituents for such a long time. The brilliant James
Wilson, when insisting on election of the Members of the House by the
people, as shown in Formation of the Union, page 755, said:
Mr. Wilson is of the opinion that the national
legislative powers ought to flow immediately from the people,
so as to contain all their understanding and to be an exact
transcript of their minds.
Mr. Sherman, in advocating annual election of Members of the House,
said:
Mr. Sherman thought Representatives should return home
and mix with the people. By remaining at the seat of
government they would acquire the habits of the place which
might differ from those of their constituents. So he
preferred annual elections. (Formation of the Union, p. 256.)
[[Page 1513]]
Mr. Sherman. I am for one year. Our people are accustomed
to annual elections. Should the Members have a longer
duration of service, and remain at the seat of government,
they may forget their constituents, and perhaps imbibe the
interest of the State in which they reside, or there may be
danger of catching the esprit de corps. (Formation of the
Union, p. 794.)
And this from the man who moved to substitute ``inhabitant'' for
``resident.'' He was unwilling that a man should stay more than a year
at the seat of government before giving an account of his convictions
to his people.
In placing this limitation on qualifications for membership in the
House it was an attempt on their part to preserve the coloring of local
State convictions, State feelings, which might be lost if men with
attachments to other locations and other conditions were permitted to
sit for them; that otherwise they feared attachments for State
governments, would be lost to the General Government, and usurpation of
powers by the latter encouraged. No fear was ever better founded or
more completely borne out by the present trend toward centralization.
In Story on the Constitution, Volume I, article 619, he says:
The object of this clause, doubtless, was to secure an
attachment to, and a just representation of, the interests of
the State in the national councils. It was supposed that an
inhabitant would feel a deeper concern and possess a more
enlightened view of the various interests of his constituents
than a mere stranger. And, at all events, he would generally
possess more entirely their sympathy and confidence.
In Constitution of the United States, by John Randolph Tucker,
Volume I, pages 394, 395, we find:
This inhabitancy or domicile of the person in the State
which chooses him was to exclude all who, by noninhabitancy,
might secure an election when by reason of no community of
interest, with the constituency, he would be unfitted to
represent it.
There was the purpose, no doubt, as shown by the committee
discussion, to guard against corruption by the wealthy who might hunt
for a district to purchase. But the very foundation of representative
government, to their minds, rested on their ability to insure a true
reflection of local sentiment in the most numerous legislative branch.
They sought to make the House a cross section of national thought, of
national aspirations, of national feelings. They will that their
Government should always have a common interest with the people, and be
administered for their good, be responsive to their will; so it was
essential to their rights and liberties that the Members of the House
should have an immediate instruction from and sympathy with the people.
Hence the reasonableness of the provision that a person, to become a
Representative must have a bona fide and permanent abode, and actually
live among his future constituents. No habitual nonresident is
eligible.
[[Page 1514]]
The leading case directly in point is that of John Bailey, of
Massachusetts, decided in the Eighteenth Congress, as shown in Hinds'
Precedents, Volume I, page 419.
On October 1, 1817, Mr. Bailey was appointed a clerk in the State
Department from his father's home in Massachusetts, and held said
position for six years. During that time he lived in Washington in
hotels, until a year before his election in September, 1923, at which
time he married in Washington and moved into the home of his wife's
mother. He had made occasional visits back to Massachusetts, had his
library there, claimed his father's home as his habitation, declared
his stay in Washington temporary, and that his real habitation was
Massachusetts.
In the report adopted in that case Annals of Congress, volume 41,
page 1594, a full discussion and interpretation of the word
``inhabitant'' is given. It is set forth that the word was substituted
for ``resident'' as being a ``stronger'' term, intended to express more
clearly their intention that the persons to be elected should be
completely identified with the State in which they were to be chosen.
Because of the importance of this case, we quote extensively from the
report as follows:
I
``The difficulty attending the interpretation of
constitutional provisions, which depend on the construction
of a particular word, renders it necessary to complete
explication, to obtain, if possible, a knowledge of the
reasons which influenced the framers of the Constitution in
the adoption and use of the word `inhabitant,' and to make an
endeavor at ascertaining, as far as practicable, whether they
intended it to apply, according to its common acceptation, to
the persons whose abode, living, ordinary habitation, or home
should be within the state in which they should be chosen,
or, on the contrary, according to some uncommon or technical
meaning.''
II
``The true theory of the representative Government is
bottomed on the principle that public opinion is to direct
the legislation of the country, subject to the provisions of
the Constitution, and the most effectual means of securing a
due regard to the public interest, and a proper solicitude to
relieve the public inconveniences is to have the
Representative selected from the bosom of that society which
is composed of his constituents. A knowledge of the character
of the people for whom one is called to act is truly
necessary, as well as of the views which they entertain of
public affairs. This can only be acquired by mingling in
their company and joining in their conversations; but above
all, that reciprocity of feeling and identity of interest, so
necessary to relations of this kind, and which operate as a
mutual guaranty between the par
[[Page 1515]]
ties, can only exist, in their full extent, among members of
the same community.
``All these reasons conspire to render it absolutely
necessary that every well-regulated government should have,
in its constitution, a provision which should embrace those
advantages, and there can be no doubt it was from
considerations of this kind that that convention wisely
determined to insert in the Constitution that provision which
declares no person shall be a Member of either House of
Congress, `who shall not, at the time of the election, be an
inhabitant of that State in which he shall be chosen,'
meaning thereby that they should be bona fide members of the
State, subject to all the requisitions of its laws and
entitled to all the privileges and advantages which they
confer. That this subject occupied the particular attention
of the convention and that the word 'inhabitant' was not
introduced without due consideration and discussion is
evident from the journals, by which it appears that, in the
draft of a constitution reported by the committee of five, on
the 6th of August, the word `resident' was contained, and
that, on the 8th of that same month, the convention amended
that report by striking out `resident,' and inserting
`inhabitant,' as a stronger term, intended more clearly to
express their intention that the persons to be elected should
be completely identified with the State in which they were to
be chosen. Having examined the case, in connection with the
probable reasons which influenced the minds of the members of
the convention and led to the use of the word `inhabitant' in
the Constitution, in relation to Senators and Representatives
in Congress, it may not be improper, before an attempt is
made at a further definition of the word, a little to
consider that of citizen, with the view of showing that many
of the misconceptions in respect to the former have arisen
from confounding it with the latter.
``The word `inhabitant' comprehends a simple fact,
locality of existence; that of `citizen' a combination of
civil privileges, some of which may be enjoyed in any of the
States in the Union. The word `citizen' may properly be
construed to mean a member of a political society; and
although he might be absent for years and cease to be an
inhabitant of its territory, his rights of citizenship may
not be thereby forfeited, but may be resumed whenever he may
choose to return; or, indeed, such of them as are not
interdicted by the requisition of inhabitancy, may be
considered as reserved; as, for instance, in many of the
States a person who, by reason of absence, would not be
eligible to a seat in the legislature, might be appointed a
judge of any of their courts. The reason of this is obvious.
The judges are clothed with no discretionary powers about
which the public opinion is necessary to be consulted; they
are not makers but expounders of the law, and the
constitution and statutes of the State are the only
authorities they have to consult and obey.''
[[Page 1516]]
III
``If citizenship in one part of the Union was only to be
acquired by a formal renunciation of allegiance to the State
from which the person came, previous to his being admitted to
the rights of citizenship in the State to which he had
removed, the expression of an intention to return would be of
importance; but, as it is, it can have no bearing on the
case; the doctrine is not applicable to citizens of this
confederacy removing from one State and settling in another;
nor can it, in the present case, be considered as going to
establish inhabitancy in Massachusetts when the fact is
conceded that, at the time of the election, and for nearly
six years before, Mr. Bailey was actually an inhabitant of
the city of Washington, in the District of Columbia, and, by
the charter of the city, and the laws in force in the
District, was, to all intents and purposes, as much an
inhabitant thereof as though he had been born and resided
there during the whole period of his life; and the refusal to
exercise the rights of a citizen can be of no consequence in
the case. It is not the exercise of privileges that
constitutes a citizen; it is being a citizen that gives the
title to those privileges.''
If the former action of the House is to have any weight with us
now, this Bailey decision definitely disposes of the major contention
that a political status is the answer to inhabitancy. Mr. Madison was
then alive and vigorous, and no doubt watched with interest every
interpretation of the Constitution. Had this decision done any violence
to the intention of the framers, it would have been his nature to
protest. But no comment from him can be found. And no holding of the
House has ever reversed or modified the principles of interpretation
established in this report.
It is apparent that temporary absence from a regular habitation on
private or official business does not disqualify under this clause. The
same committee which reported the Bailey case, and at the same session,
in the Forsyth case, so held. But the presence of Mr. Beck in his home
in Washington can not stand on that exception. He purchased his home
here and moved into it from a full citizenship of the State of New York
some seven months before he became connected with a Government
position. He remained an inhabitant of the District of Columbia from
June, 1925, until July, 1926, with no official connection whatsoever,
before he rented the apartment in Philadelphia. And in this connection
let it be denied, as charged by him, that almost one-half the Senate
and a large number of the House who have homes here are in a similar
position to his.
The Members of Congress referred to, when elected, were bona fide
inhabitants of their respective States. Any home established here for
their use is incident to the discharge of public duty, temporary, and
does not destroy the status of inhabitancy they had when elected. He
seeks to reverse that order by having his real habitation in Washington
to begin with and attempting to create a fictitious abode in the State
of Pennsylvania for the purposes of qualification and not as an
incident to service after election. There is no
[[Page 1517]]
such wholesale condition of noninhabitancy prevailing, but if such were
the case the House would have all the more reason to check a flagrant
violation of the Constitution.
His former residence in Pennsylvania can not enter into this
consideration for the reason that, at least for 23 years, he was
completely severed and divorced from that State so far as any pretense
to habitation or voting privilege or citizenship is concerned. He
divested himself of every privilege of citizenship in Pennsylvania to
avail himself of the superior advantages he would have in moving to New
York. His claim must stand or fall on the facts developing after July,
1926. It will be observed from the record that Mr. Beck had but little
to do personally with the effort to qualify him under the State law for
voting. Undoubtedly he did not even familiarize himself with the legal
requirements for voting. While he was in Europe and two months before
he rented any apartment, he was entered on the assessment roll for a
voting tax out of the regular order and of date exactly six months
before the November election, the time required for returning to
citizenship in that State. He never regarded this assessment enough to
pay the 25-cent tax. He did not run for Congress that year because he
did not get the endorsement of the Vare organization. A brother-in-law
of Mr. Vare was nominated and elected.
The question then arose as to the legality of the election of Mr.
Vare to the Senate and his right to a seat therein, and Mr. Beck
because of counsel for him. He was assessed in the semiannual
assessment for 1926 and again ignored it. Twice in 1927 Mr. Beck's name
was placed on the assessors' list, once out of regular order which
assessment was again ignored by him, and Mr. Vare's office procured the
only tax receipt of any kind he has purchased in that State, 25 cents
each for him and Mrs. Beck and delivered it to him in said office. He
registered the next day and voted in the primary 10 days later, in
which the Member of Congress from that district was nominated for a
city office and immediately resigned his seat.
Thereupon the Vare organization, through Mr. Vare's secretary,
notified Mr. Beck that he would be nominated for Congress at a certain
time, and for him to be in waiting. He was called for at the designated
time, conducted to a hall, and was formally notified of and accepted
the nomination from the seven men present, who had nominated him, two
of whom he states he knows. He made no canvass whatever in this
district for the purpose of developing sentiment in his favor or for
expressing his views on national issues.
Mr. Beck only made three speeches in Philadelphia in the city-wide
campaign, in November, 1927, general election, at which time he was
elected, all on Friday or Saturday next before the election on Tuesday,
and then left immediately for his Washington home. He did not vote in
the said election the following Tuesday for the reason that he was at
home, and not in Pennsylvania. He had entertained anxiety that an
adverse city election for the Vare ticket would be construed as a
repudiation of his client, and his speeches had been made in an effort
to avert this.
In a day when a political machine can select any individual it
chooses to put into the House, there are multiplied dangers to those
the fathers knew
[[Page 1518]]
when they made this inhibition. Without reflecting in the least on the
personal desirability of Mr. Beck, it is clear that, if his contention
is to prevail, an all-powerful, though it be an unscrupulous, combine
in control of a district machine can select anyone they need for any
special purpose, and the House would be powerless to resist it. All
that would be required of their choice would be to establish what can
be termed a technical, constructive, fictitious, superficial, fly-by-
night residence and then go a-carpetbagging. This presages a radical
and serious departure from the fundamentals of representative
government as we know it.
This is not a case of simply thwarting the will of a constituency.
We consider that any constituency should have the right of choice, but
that choice must be within constitutional bounds. Our charter of
liberties, the Constitution, should stand above the aspirations of an
individual who would subvert it or the action of constituencies who
ignore it. If Mr. Beck is to retain his seat we view the precedent, not
as a part of the general ``erosion'' of the Constitution, but as a
frontal attack on it, a blasting process which is to weaken the
foundation of the great American dream of representative government.
Privileged resolution (H. Res. 283) agreed to by voice vote after
extended debate and after defeat (78 yeas to 247 nays with 3
``present'' of substitute declaring Member not entitled to a seat [70
Cong. Rec. 1351. 70th Cong. 2d Sess., Jan. 8, 1929; H. Jour. 98].
Sec. 6.5 Taylor v England, 6th Congressional District of West Virginia.
Pleadings.--Filing of brief by contestant after the legal time with
consent of contestee was permitted by an elections committee.
State election law requiring rejection of ballots not signed by
election officials was held not binding on the House where voter intent
was clear.
Ballots, rejected by election officials as not signed, were not
counted where contestant failed to sustain his allegations that the
election result would be changed.
Returns were not partially rejected where both parties failed to
sustain allegations of fraud with sufficient evidence.
Report for contestee, who retained his seat.
Report of Committee on Elections No. 3 submitted by Mr. Charles L.
Gifford, of Massachusetts, on Apr. 9, 1928, follows:
Report No. 1181
Contested Election Case, Taylor v England
statement of the case
On the 2d of November, 1926, a congressional election was held in
the sixth district of West Virginia, the nominees being Hon. E. T.
England, on the Republican ticket, and Hon. J. Alfred Taylor, on the
Democratic ticket.
[[Page 1519]]
When the returns from the various precincts had been certified, the
State officials canvassed the returns and issued a certificate of
election to Hon. E. T. England, the incumbent, based on the following:
Votes
1VotesMr. England.............................................. 45,898
Mr. Taylor..................................................... 45,681
--------
Majority given to Mr. England by the election officials.... 217
On the 26th day of January, 1927, the contestant, J. Alfred Taylor,
served notice of contest upon the contestee, E. T. England, setting
forth certain grounds of contest, the two upon which he later elected
to rely being briefly summarized as follows:
(a) That several hundred ballots were cast which did not
bear the signature of the clerks of election written in the
manner prescribed by the West Virginia statute governing
election procedure and which the election officials refused
to canvass, tabulate, or count, although said ballots
expressed the clear intent of the voter and consequently
should have been counted, his contention being that if the
ballots so rejected were to be counted they would give him a
majority of the votes cast.
(b) That fraud was exercised by the proponents of the
contestee in precinct No. 27, known as the Triangle precinct,
and that all the votes cast in said precinct, which gave a
majority therein of 385 for the contestee, should be
rejected.
On the 12th day of February, 1927, the contestee's answer and
counternotice of contest was served upon the contestant, J. Alfred
Taylor.
Evidence was taken by depositions, the contestee's brief was filed
on the 31st of December, 1927, and thereafter, to wit, on the 10th day
of February, 1928, the contestant filed his reply brief, said brief
being submitted after the expiration of the 30-day period prescribed
for the filing thereof, but being accepted by your committee with the
consent of the contestee.
proceedings of the committee
The testimony in the case having been printed and the same,
together with the printed briefs of both parties to the contest having
been transmitted to the committee, a public hearing was given the
parties on the 9th day of March, 1928, at which time oral arguments
were presented by the contestant, Hon. J. Alfred Taylor and his
counsel, John H. Connaughton, esq., and by Charles Ritchie, esq.,
counsel for the contestee, Hon. E. T. England, said arguments being
likewise printed and made a part of the records of the contest.
On the 4th day of April, 1928, your committee met for further
consideration of the case and it was the unanimous conclusion thereof
that-
[[Page 1520]]
I. The House of Representatives should not consider itself
obligated to follow the drastic statute of the State of West Virginia,
under the provisions of which all ballots not personally signed by the
clerks of election in strict compliance with the manner prescribed had
been rejected, but should retain the discretionary right to follow the
rule of endeavoring to discover the clear intent of the voter. However,
your committee further found that the contestant had not substantiated
his allegation that if all the votes which had been rejected by the
election officials on the ground stated were to be counted the result
would be a majority in his favor.
II. That neither the contestant nor the contestee had presented
sufficient evidence to establish their mutual contentions that fraud
had been practiced in various precincts, including the so-called
Triangle precinct, the rejection of the votes cast in which would have
been necessary if the contestant were to prevail, and that no votes
should be thrown out because of fraud.
conclusion
Your committee unanimously finds, therefore, that the contestant
has not sustained the contentions which were the basis of his contest
and begs to submit for adoption the following resolution:
Resolved, That E. T. England was duly elected a
Representative from the sixth district of West Virginia to
the Seventieth Congress, and is entitled to his seat therein.
Privileged resolution (H. Res. 161) agreed to by voice vote without
debate [69 Cong. Rec. 6298, 70th Cong. 1st Sess., Apr. 12, 1928; H.
Jour. 670].
Sec. 7. Seventy-first Congress, 1929-31
Sec. 7.1 Wurzbach v McCloskey, 14th Congressional District of Texas.
Returns were examined by an elections committee upon adoption by
the House of a privileged resolution authorizing subpena of returns and
election officials.
Fraud sufficient to change the election result was admitted by
contestee during pleadings.
Summary report for contestant, who was seated; contestee was
unseated.
On Jan. 7, 1930, Mr. Willis G. Sears, of Nebraska, offered as
privileged by direction of the Committee on Elections No. 3 the
following resolution:
Resolved, That Jack R. Burke, county clerk, or one of his deputies,
Perry Robertson, county judge, or one of his deputies, and Lamar
Seeligson, district attorney all of Bexar County, State of Texas, are
hereby ordered to appear before Elections Committee No. 3, of the House
of Representatives as required then and there to testify before said
committee in the contested-
[[Page 1521]]
election case of Harry M. Wurzbach, contestant, versus Augustus
McCloskey, contestee, now pending before said committee for
investigation and report; and that said county clerk or his deputy,
said county judge or his deputy, and said district attorney bring with
them all the election returns they and each of them have in their
custody, control, or/and possession, returned in the said county of
Bexar, Tex., at the general election held on November 6, 1928, and that
said county clerk also bring with him the election record book for the
said county of Bexar, Tex., showing the record of returns made in the
congressional election for the fourteenth congressional district of
Texas, for the said general election held on November 6, 1928, and to
that end that the proper subpoenas be issued to the Sergeant at Arms of
this House commanding him to summon all of said witnesses, and that
said county clerk, said county judge, and said district attorney to
appear with said election returns, as witnesses in said case, and said
county clerk with said election record book; and that the expense of
said witnesses and all other expenses under this resolution shall be
paid out of the contingent fund of the House; and that said committee
be, and hereby is, empowered to send for all other persons or papers as
it may find necessary for the proper determination of said controversy.
The resolution (H. Res. 113) was agreed to by voice vote after a
response by the Speaker that the resolution was privileged [72 Cong.
Rec. 1187, 71st Cong. 2d Sess., Jan. 7, 1930; H. Jour. 117].
Report of Committee on Elections No. 3 submitted by Mr. Willis G.
Sears, of Nebraska, on Feb. 10, 1930, follows:
Report No. 648
Contested Election Case, Wurzbach v McCloskey
[To accompany H. Res. 149]
To the Speaker and the House of Representatives:
Your committee begs leave to report, that after a full hearing, we
find that Harry M. Wurzbach, contestant, is entitled to be seated as
Member of the House of Representatives, from the Fourteenth
congressional district of Texas, and that Augustus McCloskey is not
entitled to retain his seat in said body.
Subsequently, the following privileged resolution (H. Res. 149) was
agreed to after debate by voice vote [72 Cong. Rec. 3383, 71st Cong. 2d
Sess., Feb. 10, 1930; H. Jour. 249]:
Resolved, That Augustus McCloskey was not elected as Representative
in the Seventy-first Congress from the fourteenth congressional
district of Texas, and is not entitled to a seat as such
Representative.
Resolved, That Harry M. Wurzbach was elected as a Representative in
the Seventy-first Congress from the fourteenth district in the State of
Texas and is entitled to his seat as such Representative.
[[Page 1522]]
Sec. 7.2 Lawson v Owen, 4th Congressional District of Florida.
Contestant, an unsuccessful candidate in the general election, was
held not entitled to a seat where ballots cast for contestee with
questionable qualifications were not clearly void.
Qualifications of Member.--The seven-years' U.S. citizenship
requirement was held fulfilled in the case of a woman Member-elect, who
had forfeited her citizenship by marriage to a foreign alien and who
had later been naturalized less than seven years before the election.
The majority of an elections committee held that cumulative years
of citizenship satisfied the seven-year requirement of the U.S.
Constitution.
A minority of an elections committee construed the ``Cable Act'' to
reestablish contestee's required consecutive years of citizenship.
Report for contestee, who retained her seat.
Report of Committee on Elections No. 1 submitted by Mr. Carroll L.
Beedy, of Maine, on Mar. 24, 1930, follows:
Report No. 968
Contested Election Case, Lawson v Owen
The Committee on Elections No. 1, having had under consideration
the right of Mrs. Ruth Bryan Owen to her seat as a Representative in
the Seventy-first Congress from the fourth congressional district of
Florida, as submitted, the said committee, after consideration of the
same, respectfully submits this report to the House of Representatives.
the question involved
The question involved is whether Mrs. Ruth Bryan Owen on the 6th
day of November, 1928, on which date an election of a Representative to
the Federal House of Representatives from the fourth congressional
district of the State of Florida was held in said district and State,
had been seven years a citizen of the United States as required by, and
within the meaning of, paragraph 2 of section 2, Article I, of the
Constitution of the United States.
It was contended by the contestant, William C. Lawson, that Ruth
Bryan Owen had not been seven years a citizen of the United States next
preceding the said election, and that such a period of citizenship must
have next preceded the election in order to meet the qualifications for
a Representative to the House of Representatives, as set forth in
paragraph 2 of section 2, Article I of the Constitution; that he, the
said William C. Lawson, being more than 25 years of age, and having
been an American citizen for seven years next preceding such election,
was duly qualified to sit in the House of Representatives as a
Representative from the fourth congressional district of Florida for
the following reasons:
[[Page 1523]]
1. That in the aforesaid election of November 6, 1928, he, William
C. Lawson, received 36,288 duly qualified votes as a candidate for
Representative in the House of Representatives from the fourth
congressional district of Florida.
2. That Ruth Bryan Owen at said election on the 6th day of
November, 1928, although receiving 67,130 votes, had not been for seven
years next preceding the said election a citizen of the United States,
was not eligible or qualified for membership in the House of
Representatives, and that said votes so purporting to be cast for her
were a nullity.
3. That said William C. Lawson being duly eligible and qualified to
membership in the House of Representatives, received all the votes cast
for a candidate who was eligible and qualified to be a Representative
in the House of Representatives from the fourth congressional district
of Florida and should, therefore, be declared the only duly elected and
qualified Member of the House of Representatives from the said
congressional district.
There was no charge by the contestant of any fraud in the election
in question, and the eligibility of Ruth Bryan Owen revolved upon the
issue as to whether she had been an American citizen for seven years
within the meaning of paragraph 2 of section 2, Article I of the
Federal Constitution.
the facts
The contestee, Ruth Bryan Owen, was born in Jacksonville, III.,
United States of America, on October 2, 1885, and resided in the United
States of America until her marriage on May 3, 1910, to Reginald Altham
Owen, a British subject. On the day of her marriage, she left the
United States with her husband and resided in England with him for
approximately the next 10 years. On May 30, 1919, she returned to the
United States with her husband, and on the 1st day of September, 1919,
both Mr. and Mrs. Owen made their home in Florida where they resided
until the death of Mr. Owen which occurred on December 12, 1927. Mrs.
Owen still continues to reside in Florida.
On the 23d day of January, 1925, Mrs. Ruth Bryan Owen petitioned
the United States Federal Court for the Southern District of Florida
for naturalization, and on the 27th day of April, 1925, she was duly
declared a naturalized American citizen by Judge Rhydon M. Call, the
duly constituted judge of such court. A certificate of naturalization
was duly issued to Mrs. Owen on the said 27th day of April, 1925.
Mrs. Ruth Bryan Owen was a candidate on the Democratic ticket for
election to the office of Representative in Congress from the fourth
congressional district of Florida in the election duly held on the 6th
day of November, 1928. In that election it is conceded that 67,130
votes were cast for her by duly qualified voters of her district, and
in an election legally held. In the same election 36,288 votes were
cast by duly qualified voters in the said district for William C.
Lawson, who ran on the Republican ticket as a candidate for election to
the office of Representative in Congress from the fourth congressional
district of Florida.
[[Page 1524]]
the constitutional provision and federal laws affecting the case
Paragraph 2 of section 2, Article I of the Constitution reads as
follows:
No person shall be a Representative who shall not have
attained to the age of 25 years, and been 7 years a citizen
of the United States, and who shall not, when elected, be an
inhabitant of that State in which he shall be chosen.
Paragraph 1, section 3 of the Federal expatriation act of March 2,
1907, reads as follows:
That any American woman who marries a foreigner shall
take the nationality of her husband. At the termination of
the marital relation she may resume her American citizenship,
if abroad, by registering as an American citizen within one
year with a consul of the United States, or by returning to
reside in the United States, or, if residing in the United
States at the termination of the marital relation, by
continuing to reside therein.
The so-called Cable Act of September 22, 1922, reads as follows:
That the right of any woman to become a naturalized
citizen of the United States shall not be denied or abridged
because of her sex or because she is a married woman.
Sec. 2. That any woman who marries a citizen of the
United States after the passage of this act, or any woman
whose husband is naturalized after the passage of this act,
shall not become a citizen of the United States by reason of
such marriage or naturalization; but, if eligible to
citizenship, she may be naturalized upon full and complete
compliance with all requirements of the naturalization laws,
with the following exceptions: (a) No declaration of
intention shall be required; (b) in lieu of the 5-year period
of residence within the United States and the 1-year period
of residence within the State or Territory where the
naturalization court is held, she shall have resided
continuously in the United States, Hawaii, Alaska, or Puerto
Rico for at least one year immediately preceding the filing
of the petition.
Sec. 3. That a woman citizen of the United States shall
not cease to be a citizen of the United States by reason of
her marriage after the passage of this act, unless she makes
a formal renunciation of her citizenship before a court
having jurisdiction over naturalization of aliens: Provided,
That any woman citizen who marries an alien ineligible to
citizenship shall cease to be a citizen of the United States.
If at the termination of the marital status she is a citizen
of the United States she shall retain her citizenship
regardless of her residence. If during the continuance of the
marital status she resides continuously for two years in a
foreign State of which her husband is a citizen or subject,
or for five years continuously outside the United States, she
shall thereafter
[[Page 1525]]
be subject to the same presumption as is a naturalized
citizen of the United States under the second paragraph of
section 2 of the act entitled ``An act in reference to the
expatriation of citizens and their protection abroad,''
approved March 2, 1907. Nothing herein shall be construed to
repeal or amend the provisions of Revised Statutes 1999 or of
section 2 of the expatriation act of 1907 with reference to
expatriation.
Sec. 4. That a woman who, before the passage of this act,
has lost her United States citizenship by reason of her
marriage to an alien eligible for citizenship, may be
naturalized as provided by section 2 of this act: Provided,
That no certificate of arrival shall be required to be filed
with her petition if during the continuance of the marital
status she shall have resided within the United States. After
her naturalization she shall have the same citizenship status
as if her marriage had taken place after the passage of this
act.
Sec. 5. That no woman whose husband is not eligible to
citizenship shall be naturalized during the continuance of
the marital status.
Sec. 6. That section 1994 of the Revised Statutes and
section 4 of the expatriation act of 1907 are repealed. Such
repeal shall not terminate citizenship acquired or retained
under either of such sections nor restore citizenship lost
under section 4 of the expatriation act of 1907.
Sec. 7. That section S of the expatriation act of 1907 is
repealed. Such repeal shall not restore citizenship lost
under such section nor terminate citizenship resumed under
such section. A woman who has resumed under such section
citizenship lost by marriage shall upon the passage of this
act, have for all purposes the same citizenship status as
immediately preceding her marriage.
Note.--The italics in the foregoing act are the
committee's.
It was contended by the contestant, William C. Lawson, that
although Mrs. Owen was born an American citizen and resided here as
such until May 3, 1910 (a period of 24 years and 7 months) that under
the provisions of the expatriation act of Congress of March 2, 1907,
she lost her citizenship through her marriage to a British subject. It
is also contended that although she was admitted to American
citizenship on April 27, 1925, through naturalization proceedings under
the terms of the Cable Act of September 22, 1922, that nevertheless on
the date of her alleged election to Congress on November 6, 1928, she
had been an American citizen next preceding said election for a period
of only 3 years, 6 months, and 9 days. It was argued that although in
the present instance Mrs. Owen is, and always has been, loyal to and
familiar with our American system of Government and American
institutions, yet a term of seven years' citizenship next preceding the
date of a Federal election must be insisted upon in all cases in
accordance with the alleged intent of the drafters of the Constitution,
to insure proper
[[Page 1526]]
qualification in all cases, and to protect us against foreign influence
in the Federal Congress.
It was pointed out by contestant's counsel that if the citizenship
requirements of the Federal Constitution, as set forth in paragraph 2
of section 2, Article I of the Constitution, were to be construed as
cumulative and Mrs. Owen's term of American citizenship prior to her
marriage were to be added to her term of citizenship subsequent to her
naturalization, a dangerous precedent would be established and the true
intent of the constitutional requirement in question would be
subverted.
The contestant thereupon asked the committee to conclude that
inasmuch as Mrs. Owen was not a legally qualified candidate for
election to the House of Representatives in accordance with the
requirements of the Federal Constitution, all the votes cast for her
were a nullity, and that William C. Lawson, the contestant, being a
duly qualified candidate for election to the House of Representatives
in all respects, was by virtue of the 36,288 votes cast for him under
date of November 6, 1928, the only representative from the fourth
congressional district of Florida legally entitled to a seat in the
House of Representatives.
To substantiate his contention in this behalf, the contestant
submitted, among others, the following cases to the committee: State v.
Frear (144 Wis. 79), Gulick v. New (14 Ind. 93); State v. Bell (160
Ind. 61); Hoy v. State (168 Ind. 506).
An examination of all the precedents cited by counsel for the
contestant reveals the fact that knowledge brought home to the voters
respecting the ineligibility of candidates for office and for which
candidates they voted despite their knowledge of ineligibility, are
limited to cases involving ineligibility based on a palpable physical
fact or on an established legal fact.
The Wisconsin case of State v. Frear embraced the following facts:
In a primary election and after the ballots therefor had been printed,
a candidate for the nomination as attorney general was drowned. The
fact of his death was widely published in letters, telegrams, and
newspapers throughout the State. Voters were urged to cast their
ballots for the deceased candidate on the ground that the State central
committee could fill the vacancy if he (the deceased candidate)
received the plurality of votes in the primary election. The court
rightly held that votes cast for a deceased person by voters who knew
of his decease, must be regarded as so much blank paper.
In this Wisconsin case, there was no question as to the death of
one of the candidates for attorney general. His death was a generally
known and physical fact. It involved no question, which under the
Constitution and the law, must be decided by that branch of the
Government legally authorized to pass upon the issue before the fact
itself could be established. The Frear case and others cited are
unquestionably good authority for the conclusion that even when a
majority of voters cast their votes for a person who can not in any
event take office, all votes so cast should be considered a nullity--
this on the theory that an election is held for the purpose of electing
a candidate to office, and not for the purpose of creating a vacancy.
As counsel for the contestant, William C. Lawson, stated, referring to
English cases which were not cited:
[[Page 1527]]
If a vote for a man known by the voter to be ``dead'' can
be counted, then ``a vote for a stick or stone'' or for ``the
man in the moon'' should also be counted.
The committee agrees with counsel for the contestant that the case
of State v. Frear and other cases cited in connection therewith are
good authority for the proposition that where the ineligibility of a
candidate is an established and unquestioned fact, and voters who with
knowledge, willfully insist upon voting for a candidate physically or
legally dead, they should lose their votes and that the remaining
candidate, although receiving only a minority of the votes cast, is in
fact elected.
It is the judgment of the committee that the above cases are not
applicable to the case of Mrs. Ruth Bryan Owen. The question of her
citizenship and her incidental eligibility or ineligibility was a
highly disputable question. It was not an established physical or legal
fact. True, Mrs. Owen had sought the opinion of some of the leading law
firms in Florida when she was a candidate for the nomination as
Representative to Congress from the fourth congressional district of
Florida in the 1926 primaries. These legal opinions supporting her
eligibility were reduced to a written statement over the signatures of
the various lawyers consulted. The statement was later printed and
freely circulated in the district in question during the primary
campaign of 1926. However, it did not reduce the question to a settled
fact.
Indeed Mrs. Owen's opponents took the opposite view respecting her
eligibility not only in the primary campaign of 1926, but also in the
primary campaign and the ensuing elections of 1928. Press statements as
to her eligibility were freely discussed and circulated, and the
question of her citizenship was conceded by both candidates to have
been in issue not only in her primary campaign of 1926, but in the
primary campaign and the ensuing elections of 1928.
Neither Mrs. Owen's attorneys nor the people of Florida had
authority to determine the question of citizenship involved. Her
citizenship status was defined by provisions both of the Federal
Constitution and of the Federal laws open to various constructions. The
power to settle the disputed question as to the citizenship status of
Mrs. Owen rests solely with the House of Representatives which, under
the provisions of paragraph 1 of section 5, Article I of the Federal
Constitution:
shall be the judge of the elections, returns, and
qualifications of its own members.
Not through any exercise of the right of suffrage by the people of
Florida, but only through action by the Federal Congress is the
citizenship status of Mrs. Owen to be removed from the realm of mere
contention and established in fact.
Your committee, therefore, concludes inasmuch as the voters of the
fourth congressional district of Florida cast a majority of votes for
Mrs. Owen in an election legally held, not in the face of an
established fact of ineligibility but rather in the face of an
opponent's contention as to ineligibility, that their votes were not
thrown away. It is the view of your committee that the
[[Page 1528]]
majority vote in question expressed a preference for Mrs. Owen, who was
physically able to take a seat in the House of Representatives, and who
could not legally be precluded therefrom except by action of the House
of Representatives.
Your committee proceeds from this conclusion to the next question
involved as to whether Mrs. Ruth Bryan Owen had on November 6, 1928,
been seven years a citizen of the United States within the meaning of
the Federal Constitution, as set forth in paragraph 2 of section 2,
Article I.
By a unanimous vote, your committee concludes that Mrs. Owen
measures up to the requirements of the Constitution as to seven years'
citizenship. Five members of the committee, namely, Representatives
Letts, Goodwin, Kading, Newhall, and Johnston, arrive at their
conclusion through a consideration of the constitutional provision
alone. They believe that the 7-year period of citizenship is
cumulative; that it was not the intent of the framers of the
Constitution, and that it is not now to be construed as meaning that
the seven years' citizenship qualification for a Representative in the
House of Representatives is to be limited to the seven years next
preceding the date of election.
They take the position that in construing any section of the
Constitution, the ordinary meaning should be ascribed to its language
and that when that meaning is apparent on the face of the instrument,
the language used must be accepted both by legislatures and by courts,
without adding to it or taking from it. Their view is that if the
framers had intended the seven years' citizenship to have been limited
to the seven years next preceding an election, they would have said so.
Their final conclusion is that inasmuch as Mrs. Ruth Bryan Owen had
been a citizen of the United States for 24 years and 7 months prior to
her marriage, and for 3 years and 6 months subsequent to her
naturalization, she enjoyed an American citizenship extending over a
period of 28 years and 1 month, and is, therefore, eligible to a seat
in the Federal House of Representatives.
The four remaining members of the committee, namely,
Representatives Beedy, Esliek, Hall, and Clark, base their conclusion
upon another line of reasoning. They reason that the 7-year period of
citizenship required of eligibles to a seat in the House of
Representatives must be construed as meaning seven years next preceding
the date of election. Their view is that while Mrs. Owen lost her
American citizenship under the expatriation act of March 2, 1907, by
her marriage to an alien on May 3, 1910, she nevertheless regained her
American citizenship through naturalization under the terms of the
Cable Act of September 22, 1922. They concede that the Cable Act was
not retroactive in the sense that its enactment, though it expressly
repealed section 3 of the expatriation act of 1907, restored lost
citizenship.
Their view is that the Federal Congress which had the power to
deprive Mrs. Owen of her American citizenship under the expatriation
act of 1907, also had the power to pass a law which set out the
procedure by means of which she could recover her American citizenship.
This she did when she became a naturalized American citizen under the
provisions of section 2 of the Cable Act. They hold that though Mrs.
Owen lost her United States citizenship under the expatriation act of
1907 by reason of her marriage to an
[[Page 1529]]
alien, she nevertheless regained it under the Cable Act which, in the
concluding sentence of section 3, declares that:
after her naturalization she shall have the same citizenship
status as if her marriage had taken place after the passage
of this act.
That status, say those of the committee who insist upon a 7-year
period of American citizenship next preceding the election, is clearly
set forth in the first sentence of section 3 of the Cable Act, which
declares that:
a woman citizen of the United States shall not cease to be a
citizen of the United States by reason of her marriage after
the passage of this act . . . .
They hold that the Cable Act passed subsequent to the adoption of
the nineteenth amendment, which gave the ballot to the American women,
should be viewed in the light of that amendment as but another step in
extending the rights and privileges of American women. Their view is
that it should be liberally construed as a measure intended to right an
injustice done American women by the act of 1907, and to place her upon
an equality with American men who never lost their American citizenship
through marriage with an alien.
Their conclusion is that Mrs. Ruth Bryan Owen, through
naturalization, enjoys the same status as an American woman who marries
an alien subsequent to the passage of the Cable Act, namely, the status
of one who never loses her citizenship. In the terms of the Cable Act
itself, hers is the status of a woman who:
does not cease to be a citizen of the United States by reason
of her marriage.
It is, therefore, the unanimous conclusions of your committee that
Ruth Bryan Owen meets the requirements of one eligible to a seat in the
House of Representatives, as set forth in paragraph 2 of section 2,
Article I of the Constitution.
For the above reasons, the committee unanimously recommends the
adoption of the following resolutions (H. Res. 241):
Resolved, That William C. Lawson was not elected a
Representative to the Seventy-first Congress from the fourth
congressional district of the State of Florida and is not
entitled to a seat therein.
Resolved, That Ruth Bryan Owen was duly elected a
Representative to the Seventy-first Congress from the fourth
congressional district of the State of Florida and is
entitled to retain her seat therein.
[[Page 1530]]
additional majority views
The undersigned members of the committee, constituting a majority
thereof, feel that they may very properly amplify the report of the
chairman by setting out the reasoning which leads them to their
conclusion.
It is to be regretted that the committee is not in harmony upon the
constitutional question involved. That question far outweighs the
consideration personal to Mrs. Owen, which is unanimously reached by
the committee.
The majority would concede that Mrs. Owen comes within the letter
and the spirit of the constitutional provision which requires that she
shall have been seven years a citizen of the United States. The
minority hold that she was not so qualified to be a candidate for a
seat in the House of Representatives because they conclude that the
seven years' citizenship required must have been the seven years next
preceding the election at which she was chosen to represent her Florida
district.
The minority think that her naturalization under the Cable Act
restored the citizenship which she had lost through expatriation by her
marriage to a British subject in 1910. They resort to the last sentence
in section 4 of the Cable Act, which provides: ``After her
naturalization she shall have the same citizenship status as if her
marriage had taken place after the passage of this act.'' They construe
this provision of the law to restore to her the American citizenship
which under the expatriation act was lost to her from the date of her
marriage to a British subject until the date of her naturalization in
1925. It is evident that less than seven years intervened between her
naturalization in 1925 and her election in 1928. The minority contend
that her naturalization under the Cable Act had the effect of
obliterating the citizenship which she enjoyed or resented as a British
subject from 1910 to 1925 and, in effect, hold that by virtue of her
naturalization under the Cable Act she has always been an American
citizen.
The majority say that the language of the Cable Act above quoted
only establishes her citizenship status after the date of her
naturalization. This seems to be the clear meaning of the provision, if
the words and language employed be given ordinarily accepted meaning.
If this reasoning is not conclusive, the majority think that the
language of section 7 of the Cable Act is not susceptible of
misinterpretation. That section provides in specific language for the
repeal of section 3 of the expatriation act and, in language just as
definite and specific, settles the question here in dispute. It
provides: ``Such repeal shall not restore citizenship lost under such
section. . . .''
To give the constitutional provision the construction asked by the
minority and to give the Cable Act the meaning ascribed to it by such
minority is to present an inconsistency. They give the constitutional
provision a strict interpretation, saying in effect that Mrs. Owen is
ineligible unless she was a citizen for the seven years next preceding
her election. They admit she did not enjoy American citizenship during
such seven years. They would, however, allow Congress to contravene
this constitutional requirement and supplement her citizenship of less
than four years, extending from 1925 to 1928, by ascribing American
citizenship to her during the period of her expatriation.
[[Page 1531]]
The majority say that the legal fiction may not be indulged. It is
contrary to considerations of public policy, logic, and reason. It is
abstractly impossible. It would make untrue an obvious, evident, and
known fact, to wit, that Mrs. Owen was a British subject from the year
1910 until her naturalization in 1925. Indeed, Mrs. Owen could not be
heard to dispute the fact, having applied for naturalization as a
British subject. When she received her certificate of naturalization
she forswore allegiance to the King of Great Britain.
Let us indulge in a few questions and answer them for ourselves.
Question. Who is the judge of the qualifications of Members of the
House of Representatives?
Answer. The Constitution provides that the House of Representatives
shall be such judge.
Question. Does the Senate have anything to say with respect to the
qualifications of a Member of the House?
Answer. No.
Question. Does the President have anything to say with respect to
the qualifications of a Member of the House?
Answer. No.
Question. Is the House of Representatives alone responsible for the
enactment of the Cable Act?
Answer. No. The Senate concurred in its enactment and it required
the signature of the President.
Question. Have we then permitted the Senate and the President to
take from the House its exclusive right to judge the qualifications of
its Members?
In our view the minority sets up a man of straw and then proceeds
to rough it with him. They read into the constitutional provision a
requirement that the seven years' citizenship shall be next preceding
the election. Having read this requirement into the constitutional
provision, they find it necessary to resort to mental acrobatics to
avoid what they have done and to give Mrs. Owen the seat which she
claims. This they do by giving the Cable Act a meaning which the
language does not warrant and which is in direct conflict with the
plain language in section 7 thereof.
Obedience to conscience and duty requires us to give consideration
to the constitutionality of the Cable Act. That no court has declared
the Cable Act unconstitutional is of no moment. For the purposes here
considered the constitutionality of the Cable Act can only be
determined by the House of Representatives. There is no other forum in
which such constitutional question may be debated and no other body
which can decide the question. The Constitution provides that the House
of Representatives shall be the judge of the election and
qualifications of its members. We must face that responsibility. We
assumed such duty in full measure when, as individuals, we subscribed
to the oath of office, the chief and central obligation of which
requires us to support and defend the Constitution of the United
States.
If the Cable Act may be interpreted and made available for Mrs.
Owen, as the minority contend, it must follow as the night the day that
Congress may, if it wishes, provide that an alien shall, after his
naturalization, have
[[Page 1532]]
the status and enjoy the privileges of a natural born citizen, making
him eligible for the office of President of the United States, contrary
to the letter and spirit of the constitutional inhibition in that
regard; and making him eligible immediately after his naturalization,
as far as citizenship is concerned, for the office of Representative in
Congress.
We of the majority think, if we accept the constitutional provision
as written by the fathers, it is free from difficulty; that doubt only
arises when we seek to change it by writing into it something not said
by the framers. A review of the debates and proceedings of the
Constitutional Convention convinces us that the omission of words, such
as the minority would read into the provision, was not a matter of
inadvertence.
The framers of the Constitution sought to avoid language or
phraseology which is complex and shunned any hidden meaning. They
employed language which is clear, simple, and easy of understanding.
The ordinary rules of construction are natural. They forbid the adding
of any intent not reasonably within the meaning of the language.
The fathers sought to place in the Constitution only principles
fundamental in government. They undertook the task with imagination,
with a large vision of things to come. By deliberate design they stated
fundamental principles broadly expressive of the purposes sought to be
accomplished. It was recognized that progress, incident to the
development of the country and the working out of our political
destinies, would present to future generations concrete problems not
foreseen by them. They wished to express the genius of a new
government, one ``of laws and not of men.'' They wisely provided the
skeleton which would support the living organism of a great republic,
instituted for the government of free men. It was their desire to leave
to Congress as fully as possible the opportunity and the responsibility
of passing upon the qualifications of members. They deemed it wise that
a Representative should have passed the ordinary period of education
and should be possessed of mature judgment. They, therefore, provided
that he shall have attained his twenty-fifth year. They considered it
appropriate that a Representative should reflect the sentiment and
views of his neighbors. To assure this they required that he shall be
an inhabitant of the State in which he is chosen. The only other
qualification was as to citizenship. The fathers very earnestly desired
that Representatives in Congress should know our history and our
institutions; understand our political hopes and aspirations and be in
sympathy with them.
It is recognized that the obvious danger sought to be avoided was
that of foreign influences. In requiring seven years' citizenship as a
qualification for the office of Representative in Congress, it was
hoped to guard against this danger, but nothing was said in the
Constitution about foreigners or with reference to foreign influences.
The fathers met this situation as they did all others. They sought a
general principle which would effectuate their purpose. As a compromise
of opinion and judgment, seven years citizenship was agreed upon as the
length of time which might reasonably produce in the mind and character
of a citizen the attitude and qualities deemed desirable for a
Representative in Congress. The delegates preferred flexibility which
would yield to the judgment of future generations and were content with
a
[[Page 1533]]
statement of the qualifications mentioned, leaving the matter of
qualification in other respects to the House.
Privileged resolution (H. Res. 241) was agreed to by voice vote
after debate [H. Jour. 653, 71st Cong. 2d Sess.].
Sec. 7.3 Lawrence v Milligan, 3d Congressional District of Missouri.
Ballots were partially recounted by an elections committee upon
adoption by the House of a resolution authorizing subpoena of certain
election officials, ballots, and ballot boxes.
Report for contestee, who retained his seat.
On June 3, 1930, Mr. Randolph Perkins, of New Jersey, by direction
of the Committee on Elections No. 2, submitted the following
resolution:
Resolved, That Boude Crossett, county clerk of Clay County, Mo.,
be, and he is hereby ordered, by himself or by his deputy, to appear
before the Committee on Elections No. 2 of the House of Representatives
forthwith, then and there to testify before said committee in the
contested-election case of H. F. Lawrence, contestant, against J. L.
Milligan, contestee, now pending before said committee for
investigation and report; and that said Crossett or his deputy bring
with him the ballot box of Liberty North East precinct, Clay County,
Mo., and all of the ballots contained therein, and all contents of the
ballot box, and all papers in his possession which were used in said
precinct at the general election held in the third congressional
district of the State of Missouri on November 6, 1928. That said ballot
box, ballots, and all contents of said box and papers in connection
therewith be brought to be examined and counted by and under the
authority of said Committee on Elections No. 2 in said case, and to
that end the proper subpoena be issued to the Sergeant at Arms of this
House, commanding him to summon said Crossett or his deputy to appear
with such ballot box, ballots, and all contents of said box and papers
in connection therewith, as witness in said case; and that the expense
of said witness and all other expenses under this resolution shall be
paid out of the contingent fund of the House; and that the aforesaid
expense be paid on the requisition of the chairman of said committee
after the auditing and allowance thereof by said Committee on Elections
No. 2.
Privileged resolution (H. Res. 235) was agreed to by voice vote
without debate [72 Cong. Rec. 9960, 71st Cong. 2d Sess., June 3, 1930;
H. Jour. 634].
Report of Committee on Elections No. 2, submitted by Mr. Randolph
Perkins, of New Jersey, on June 6, 1930, follows:
[[Page 1534]]
Report No. 1814
Contested Election Case, Lawrence v Milligan
The Committee on Elections No. 2, having under consideration the
contest of H. F. Lawrence v. Jacob L. Milligan, from the third
congressional district of Missouri, report that in this ease the notice
of contest was duly and lawfully given. The contestee, Jacob L.
Milligan, answered said notice, making the issues submitted to this
committee. Proof was taken.
This contest was regularly heard. Both the contestant, H. F.
Lawrence, and his counsel, and the contestee, or sitting Member, Jacob
L. Milligan, and his counsel, were present. The matters in issue were
thoroughly investigated. Arguments of counsel were heard.
After the regular hearing of this ease upon the record and the
argument of counsel it was apparent that the controversy turned largely
on the vote cast in the northeast precinct of Liberty, Clay County,
Mo., the contestant insisting that Jacob L. Milligan, the sitting
Member and contestee, had been accredited with 125 more votes than he
was entitled to in said precinct; the contestant insisting that the
correct vote in this precinct as shown by return of precinct election
officers was 173 votes for contestant and 345 votes for the contestee
but that the returns certified by the county canvassing board of Clay
County showed 173 votes for the contestant and 470 votes for the
contestee.
The committee of its own motion directed that said original ballot
box and ballots in said precinct be brought before the committee, that
the count of the same might be made by said committee, which was
accordingly done, and by said count as made by the committee it showed
170 ballots were cast for the contestant and 474 ballots were cast for
the contestee.
The returns as originally certified showed that in said election
the contestant received 32,626 legal votes and contestee received
32,665 legal votes. As shown by the recount and the change as above set
out the contestant received 32,623 legal votes and the contestee
received 32.669 legal votes, or a clear majority of 46 legal votes.
The contestee received his commission from the Governor of the
State of Missouri and the oath of office was duly administered to him
as a Representative in the Seventy-first Congress.
Your committee therefore unanimously report that the contest of H.
F. Lawrence is without merit and that the contestee, Jacob L. Milligan,
should retain his seat as a Member of the Seventy-first Congress.
Resolved, That H. F. Lawrence was not elected a Member of the House
of Representatives in the Seventy-first Congress from the third
congressional district of the State of Missouri and is not entitled to
a seat herein.
Resolved, That Jacob L. Milligan was duly elected a Member of the
House of Representatives in the Seventy-first Congress from the third
congressional district of the State of Missouri and entitled to retain
his seat herein.
[[Page 1535]]
Privileged resolution (H. Res. 252) agreed to by voice vote without
debate [72 Cong. Rec. 10652, 71st Cong. 2d Sess., June 13, 1930; H.
Jour. 685].
Sec. 7.4 Hill v Palmisano, 3d Congressional District of Maryland.
Ballots were partially examined and recounted by an elections
committee upon adoption by the House of a resolution authorizing
subpena of certain election officials, ballots, and ballot boxes.
Points of order against the filing of an elections committee report
(on grounds that inconsistent committee actions did not authorize the
report and that the report was not timely filed) were reserved but not
insisted upon.
Minority views were filed against the validity of the majority
report.
On Feb. 19, 1930, Mr. Bird J. Vincent, of Michigan, by direction of
the Committee on Elections No. 2, submitted the following privileged
resolution:
Resolved, That Robert B. Ennis, president of the board of
supervisors of election of Baltimore city, Bernard J. Flynn, member of
the board of supervisors of election of Baltimore city; and Alexander
McK. Montell, member of the board of supervisors of election of
Baltimore city, individually and collectively as said board, and Gen.
Charles D. Gaither, police commissioner of Baltimore city, all of the
State of Maryland, be, and they are hereby, ordered, by themselves or
by their deputy, to appear before the Committee on Elections No. 2 of
the House of Representatives forthwith, then and there to testify
before said committee in the contested-election ease of John Philip
Hill, contestant, v. Vincent L. Palmisano, contestee, now pending
before said committee for investigation and report; and that said
persons or their deputy bring with them the ballot box and all the
ballots contained therein, and all contents of the ballot box, and all
papers in their possession which were used in the fourth precinct of
the third ward of the city of Baltimore, Md., at the general election
held in the third congressional district of the State of Maryland on
November 6, 1928. That said ballot box, ballots, and all contents of
said box, and papers in connection therewith, and also the registration
books for said precinct, be brought to be examined and counted by and
under the authority of said Committee on Elections No. 2 in said ease,
and to that end that the proper subpoena be issued to the Sergeant at
Arms of this House, commanding him to summon said persons or their
deputy to appear with such ballot box, ballots, and all contents of
said box and papers in connection therewith, and the registration books
in said precinct, as witnesses in said case; and that the expense of
said witnesses, and all other expenses under this resolution, shall be
paid out of the contingent fund of the House; and that the aforesaid
expense be paid on the requisition of the chairman of the said
committee after the auditing and allowance thereof by said Committee on
Elections No. 2.
[[Page 1536]]
Privileged resolution (H. Res. 159) was agreed to by voice vote
without debate [72 Cong. Rec. 3939, 71st Cong. 2d Sess., Feb. 19, 1930;
H. Jour. 284].
On June 14, 1930, Mr. Randolph Perkins, of New Jersey, submitted
the report of the Committee on Elections No. 2. On presentation of the
report for filing, Mr. Malcolm C. Tarver, of Georgia, made the
following point of order:
The report has not been authorized. Now, Mr. Speaker, if I may be
permitted to go on, I will state that on June 6, 1930, the Committee on
Elections No. 2 held the last meeting it has held, and on that day
voted 5 to 3 against seating contestant, John Philip Hill, and it voted
5 to 3 against throwing out the returns from the fourth precinct of the
third ward in the city of Baltimore. The copy of the report that I hold
in my hand is directly at variance with the action taken by the
committee, in that the report finds that the returns from the fourth
precinct in the third ward should be thrown out, when the committee
voted that they should not be, and further finds that the contestant,
if this is done, would be entitled to his seat in the House, whereas
the committee voted to the contrary.
There has been no meeting of the committee since then, and no
resolution approved by the committee, although I presume that one that
has been reported by the gentleman who is acting for the committee,
except that the first portion of a resolution dealing with the rights
of the contestant was approved by the committee by a vote of 5 to 3,
finding that he was not entitled to his seat and had not been elected.
The second part of the resolution was never placed before the
committee, but the members of the committee were unable to agree upon
its verbiage, and the statement was made that another meeting of the
committee would be held in order that its verbiage might be agreed
upon. Notwithstanding that, the gentleman purports to report to the
House this morning a report which includes, I presume, a resolution
which was not acted upon by the committee as to the rights of the
contestee.
Mr. Bertrand H. Snell, of New York, objected that the point of
order was not properly presented at this time.
The Speaker entertained the point of order and decided:
Under the circumstances the Chair thinks the fair thing to do, he
not being apprised of all the facts in connection with the matter, is
to permit the report now to be printed, and the gentleman from Georgia
may reserve his point of order, and if the case is called up the Chair
will give the matter consideration.
The Chair will permit the report to be received and printed at this
time, but the gentleman from Georgia will have his full rights in the
matter in case the report is called up.
[[Page 1537]]
Thereupon, Mr. Fiorello H. LaGuardia, of New York, submitted the
further point that the report was not in order for the reason that it
was presented in violation of paragraph 47 of Rule XI.
The Speaker announced:
The gentleman from New York reserves a point of order.
The following minority views were submitted by Mr. Lindsay C.
Warren, of North Carolina; Mr. John J. Douglass, of Massachusetts; and
Mr. Malcolm C. Tarver, of Georgia:
As a premise for what we shall say, the following actions of the
committee should be called to the attention of the House:
First, at its meeting on June 6, 1930, the committee unanimously
decided that aside from charges pertaining to the fourth precinct of
the third ward in the city of Baltimore, there was nothing in the
record authorizing interference with the result of the election as
certified by the proper officials of the State of Maryland.
Second, by a vote of 5 to 3, the committee decided that the
evidence did not justify throwing out the returns of said precinct.
Third, the effect of these findings being necessarily a conclusion
that the contestant did not receive a majority of the votes cast at the
election, the committee voted, 5 to 3, that the contestant was not
elected and is not entitled to a seat in this House.
Fourth, a motion then being offered to the effect that the
contestee was not elected and is not entitled to a seat in the House,
two members of the majority indicated their inability to support such a
motion, and while no vote was taken, these members, with the minority
members, constituted a majority of the committee.
Fifth, a motion then being offered to the effect that the contestee
is not entitled to a seat in the House, was adopted, 5 to 3, and it was
agreed to ask for an extension of time from the House in which to agree
upon the form of resolution to be reported and upon the contents of the
majority report.
These recitals are sufficient to indicate that five members of the
committee feel that Mr. Palmisano was elected; that of these, two feel
that, although elected, he ought not to be seated, and that, combining
the last two named with three who feel that he was not elected,
produces a combination of two minorities to constitute a majority who
are willing to report that he is not entitled to his seat. There is,
therefore, no view of the ease which may properly be referred to as a
majority view; there are three minority views; and it is fair to assume
that the troubles of the majority in reconciling their views would be
further accentuated if the beloved chairman of the committee had not
been prevented from attending its session by illness. This statement is
justified from remarks made by the chairman appearing in the hearings,
the first of which, upon the opening of the ease, we quote:
The Chairman. My own impression is that there is a great
deal in the record that is not very material to the
determination of the
[[Page 1538]]
issue, which is, which of these gentlemen was elected by the
majority of the legal ballots. (Hearings, p. 1.)
If the chairman is correct in the position stated, and we insist
that he unquestionably is, then we respectfully insist that a majority
of the committee has determined that question in favor of the
contestee; and it has been possible to change this situation only by
combining with the minority of three who did not believe Palmisano
elected two gentlemen who felt justified in voting not to seat him,
although elected. Since the majority report would not have been
possible without them, we address ourselves first to their viewpoint.
The following additional minority views were submitted by Mr. John
J. Douglass, of Massachusetts; Mr. Lindsay C. Warren, of North
Carolina; and Mr. Malcolm C. Tarver, of Georgia:
Report No. 1901, Part 2
Contested Election Case, Hill v Palmisano
Under permission granted by the House on June 14, 1930, the
undersigned members of the Committee on Elections No. 2 respectfully
submit the following additional minority views in the contested
election case of John Philip Hill v. Vincent L. Palmisano, third
congressional district of Maryland.
In filing our original views, we could not anticipate that,
notwithstanding the committee had voted 5 to 3 in favor of a resolution
declaring that ``John Philip Hill was not elected, and is not entitled
to the seat,'' a report would be submitted containing no such
recommendation.
Nor could we have anticipated that, notwithstanding the committee
had voted 5 to 3 against discarding the returns from the fourth
precinct of the third ward in the city of Baltimore, a report would be
submitted recommending that the returns from the precinct mentioned be
discarded.
Far less reason did we have to assume that the report would in
effect recommend the seating of the contestant, directly at variance
with the action of the committee. That a formal resolution to this
effect was not reported is immaterial. No resolution was reported, not
even the one providing that Hill was not elected and should not be
seated, which was approved by the committee. The report, omitting this
usual feature of a report in such a case, is so drawn as to form the
proper basis for a resolution of no other character than that the
contestant was elected and should be seated, and the contestee was not
elected and should not retain his seat. In view of these facts, and in
view of the fact that there is, or should be, in the possession of the
acting chairman of the committee, two roll calls taken by him upon the
questions detailed above, showing the action of the committee to be
directly contrary to the report, we have preserved a point of order
against the alleged report, upon the ground that it was not authorized
by the committee; and by filing minority views, we do not waive nor
intend to waive our right to insist thereupon.
[[Page 1539]]
We judge from the statement of the acting chairman when the point
of order was made that he does not question the facts above stated, but
takes the position that the report is not susceptible of the
construction we have placed upon it. It is only necessary to point
out--
1. That the report entirely omits to report the action of the
majority of the committee upon the resolution finding that Hill was not
elected and is not entitled to the seat.
2. That the report finds that if the fourth precinct of the third
ward is thrown out, Hill was elected, and then proceeds to find that
the count from this precinct should be disregarded. It is impossible to
gather from this any other meaning than that the report is in favor of
seating Hill, directly in opposition to the action of the committee.
We know of no case in the history of this House where action of so
unfair a character in the preparation and submission of a report has
ever been resorted to.
Returns.--Partial rejection of returns for fraud and irregularities
by election officials and party workers that were sufficient to change
the election result, and for fraud (insufficient to change the result)
by contestee, was recommended by an elections committee majority.
The report of an elections committee majority recommended the
unseating of contestee but was not accompanied by a resolution.
Minority views were filed recommending a resolution that contestee
retain his seat and that contestant be held not entitled to the seat.
There was no House disposition of the contest, and contestee
retained his seat.
Report No. 1901
At the general election held on the 6th day of November, 1928 in
the third congressional district of the State of Maryland, the
contestant, who was the candidate for Representative in Congress of the
Republican Party, was credited with, according to the official returns,
27,047 votes, and the contestee, who was the candidate of the
Democratic Party, was credited with, according to the official returns
27,377 votes.
Thus, according to the official returns, the contestee had a
majority of 330 votes, and it was upon this majority, so found, that
the certificate of election was issued to the contestee, and he was
seated in the House of Representatives. . . .
The decision of the case hinges very largely upon two questions,
the first of which is the conduct of the election and the canvass in
the fourth precinct of the third ward of the city of Baltimore, and
second, the personal knowledge and conduct of the contestee, Palmisano.
The election board returns from the fourth precinct of the third
ward gave Palmisano 416 votes and Hill 61 votes, a difference of 355
votes, an amount greater than Palmisano's apparent plurality upon the
total official returns.
[[Page 1540]]
If the returns from this precinct be counted, it will give a
majority to the contestee. If the vote be thrown out, it will result in
giving a majority to the contestant.
the conduct of the election and the canvass of votes in the fourth
precinct of the third ward of baltimore, palmisano's home precinct
. . . This committee finds that the election board in the fourth
precinct of the third ward flagrantly disregarded every provision of
the election laws of the State of Maryland with respect to the taking
the ballots from the box; the counting, recording, and certification of
the ballots in that precinct.
No attempt whatever was made by the election board to follow the
law as to counting, recording, or certifying the vote in this precinct.
The certificate of the election board was made out and signed in
blank by the election officers before the polls were closed. No
reliance can be placed upon such a certificate. Later, the figures were
filled in over the signatures of the members and indicated that
Palmisano received 416 votes, and Hill received 61 votes. In fact, this
is not a certificate. It is merely a paper signed in blank. The filling
in of the figures over the signatures to make it appear to be a
certificate of return did not make it such. The election officers
opened the door to a fraudulent return when they signed the blank
certificate.
In every important particular this election board set itself above
the laws and conducted the count and tally in a manner to suit
themselves, and without reference to the rights of the voter.
In the total of the vote upon which the certificate of election of
the contestee was based, the 416 votes given him in this certificate
furnished more than his entire plurality in the whole election
district. We do not consider that any reliance can be placed on this
return, especially in view of the way the votes were not counted or
tallied in accordance with the law.
The law is clear in its provision that the judges shall open the
ballots and that the ballots shall be canvassed separately by them, one
by one. This was not done. The ballot box was opened and unauthorized
persons dipped their hands into the box and took out ballots in
bunches. In fact, one witness, who was not a member of the election
board, says that he took all of the ballots out of the box in bunches.
It is perfectly clear that the law requires that the judges shall
withdraw the ballots one by one and that the ballots shall be read
separately when taken out of the box, and that the tallies shall be
made as the ballots are read. No such thing was done. Four or five of
Mr. Palmisano's ward workers came into the polling place immediately
after the closing of the ballot box, and they acted as though they were
members of the election board. That is, they participated in
withdrawing the ballots from the boxes, distributing them around the
room, arranging and rearranging their order, counting or pretending to
count them, and announcing results or imaginary results from the
ballots.
The ballots were distributed around the room, in which, as stated,
at least four unauthorized persons were assuming to participate in the
duties of the election board. The judges did not call out each name and
the office for which it was designated and no tallies made from reading
of the ballots (ex
[[Page 1541]]
cept possibly the so-called split ballots), but on the contrary,
separate piles of ballots were made in various parts of the room. Some
ballots were placed on a small table, which one witness says was only
about 24 by 24 inches, other ballots were placed on chairs and some
witnesses says ballots were placed on the floor. There was apparently
general confusion in the room caused by the election officers or some
of them, and the four Palmisano ward workers, while sorting or
shuffling of the ballots took place. This was done before any ballots
was counted, and continued after the alleged counting began. Protests
were made by some of the election officers against this method of
handling the ballots, but the protests were unheeded by the judges of
election.
This general assorting, assembling, and segregating of ballots was
said to be done with the avowed purpose of separating the ballots into
separate piles or packages of what were supposed to be straight
Democratic ballots, straight Republican ballots, and split ballots.
This took place in a small and crowded room and was participated in
with a great deal of activity on the part of outsiders, who had no
right to touch the ballots. It is impossible for your election
committee to know whether or not the ballots eventually assorted into
piles of so-called straight ballots and split ballots, were the ballots
actually cast by the voters in the ballot box, or ballots largely
substituted by the unauthorized and overzealous and active ward workers
of the contestee. There is no doubt that there was ample opportunity
for the substitution of ballots. The opportunity was there. All it
needed was the desire to substitute ballots. Of those participating in
this illegal proceeding were at least four ward workers of Palmisano,
who during practically the entire election were drumming up votes for
him. Their job was to get votes for Palmisano, and when they assumed
the job of assisting in the arranging, segregating, and counting of the
ballots, there is no reason to believe that they laid aside their
partisanship, and that they instantly ceased to be anxious for
Palmisano's election, and that their assiduity was instantly chastened,
so that they would carefully guard the rights of Palmisano's opponent.
We hold that in a hotly contested election, like the one under
consideration, opportunity to substitute ballots, coupled with a
reasonable degree of probability of desire to substitute ballots, is
sufficient justification for the committee to believe that some
substitutions actually took place, and if the other acts of the
election board are open to question and suspicion, and contrary to the
plain provisions of the statute, the committee is justified in refusing
to condone the election officers' violation of law. This necessitates
disregarding the certificate of the election board, and a refusal in
this ease to credit the contestee with 355 votes over his opponent in
this precinct.
The count was not made by examining the ballots and ascertaining
for whom the votes were cast, as required by the election law. After
the sorting and shuffling of the ballots, the so-called straight
Republican and straight Democratic ballots were placed in piles and
counted by fingering over and counting the edges of the ballots, one
after the other, and a count made of the number of ballots in each
particular pile, and announcement made by election officers or ward
workers, as the case might be, ``So many straight
[[Page 1542]]
ballots for So-and-So.'' In doing this, the names on the ballots were
not examined, or read by the judges, nor were they called off, but it
was announced in a general way, such as ``100 straight Democratic
ballots,'' or ``10 straight Republican ballots,'' or whatever the
supposed count might be. While this was going on, there was an effort
made to actually count the split ballots. That is to say, to count the
split ballots for the top of the ticket. It is perfectly clear from the
evidence that persons were attempting to call off the names on the
split ballots while other persons were shuffling or sorting, or
apparently segregating straight ballots.
That the election officers in this district were guilty of the
grossest kind of fraud on the electorate, is demonstrated by the fact
that on the ballot there was a State constitutional provision to be
voted ``for'' or ``against.'' No count whatever was made by anyone, of
the votes for this provision or against it. The election officers did
not even examine the ballots for the vote on this question. They were
not interested in the subject. The fact that the fundamental law of the
State of Maryland was proposed to be changed, and that the rights of
the people of the entire State affected, did not impress this election
board sufficiently to cause them to count the votes either for or
against the constitutional amendment. Those who were conducting the
count, including the four unauthorized ward workers of Palmisano, were
so interested in the top of the ticket, including Mr. Palmisano's
election, that they not only refused to count the votes for and against
the constitutional amendment, but actually entered into a fraudulent
agreement to make a false return with respect to them, and did make a
false return and certify them as a certain per cent for and against.
On the ballot also were two propositions for amendments to the city
ordinances of Baltimore. These received exactly the same kind of
treatment as did the proposed amendment to the constitution of the
State. No election officer counted one vote for the amendment, or for
the ordinances, and no election officer counted one vote against them.
What they did was to actually enter into a conspiracy by which they
agreed to report false and arbitrary figures on the amendment and
ordinances and falsely certified that the result of the election in
that precinct was 40 votes for the constitutional amendment and 15
against, and 30 votes for ordinance No. 539 and 20 votes against, and
35 votes for ordinance No. 538 and 25 against, and this without
counting a single vote for or against the constitutional amendment, or
for or against either ordinance. And under this return, acknowledged by
themselves to be false and fabricated this election board signed a
certificate as follows:
We do certify that the above statement is correct in all
respects, with this our hands and seals this 6th day of
November, 1928.
With this acknowledged false certificate and false return
confronting your committee, it can not place any reliance upon the
action of this election board nor rely upon the integrity of the
ballots it placed on a string and deposited in the ballot box after the
alleged count.
[[Page 1543]]
We hold that where election officers are so derelict in their duty
and so easy of conscience as to enter into an arrangement not to count
the votes for a constitutional amendment or for city ordinances, but on
the contrary, agree to put down a false return on these votes, that
their returns are entirely unreliable, so far as the balance of the
tickets is concerned.
The election officers in their count were so eager to make some
sort of showing on the top of the ticket that they failed to pay
attention to the Socialist vote, and did not count or correctly record
it.
The conduct of the election board was undoubtedly largely
influenced by the four unauthorized ward workers of Mr. Palmisano, who
were unlawfully participating in the count, and the result of their
participation was in some degree, to intimidate at least one or two of
the Republican election officers. There is evidence that Republican
members of the board were denied inspection of some of the ballots
being counted by contestee's ward workers. Protests of election
officers on the Republican side were disregarded by a majority of the
election officers, and one election officer was so far intimidated that
she was afraid to enter a protest.
This committee holds that the conduct of the election board in this
precinct with respect to the custody, count, tally, and certification
of ballots was in total disregard of and disobedient to the provisions
of the laws of the State of Maryland. That the certificate of return of
416 votes for Palmisano and 61 for Hill, is unreliable and incorrect
and untrustworthy. That the tally sheets in this precinct are false and
fraudulent tally sheets. That the count of the vote is unreliable and
uncertain, and participated in by Palmisano's workers and is tainted
with fraud. That the election officers were guilty of false and
fraudulent returns in respect to the Socialist vote, the vote for and
against the constitutional amendment and the vote for and against the
city ordinances. That the ballots were not counted by the election
officers in accordance with the law, and by reason of the false and
fraudulent and illegal conduct of the election board and other
unauthorized persons participating in the count, that this committee is
not justified in giving Mr. Palmisano 355 votes in excess of Hill's
vote in this precinct
We can not and do not place the seal of approval on the conduct of
this election board in this precinct nor accept the ballots and returns
as genuine, and this, when taken in connection with the personal
conduct and knowledge of Palmisano hereinafter considered, requires us
to report that he was not elected and should not retain his seat in
this House.
the personal knowledge and conduct of the contestee, palmisano
Palmisano resided at 320 High Street, Baltimore, in the precinct
dealt with above in this report.
He was the Democratic executive in the ward and was conversant with
this precinct and its voters. He spent a large part of election day,
1928, in and about the fourth precinct of the third ward, and near the
end of the day, he supervised his ward workers from that polling place,
sending them out to bring in votes. There were registered from
Palmisano's house in this precinct, his brother-in-law Vincent Fermes,
and his wife Anna Fermes. The
[[Page 1544]]
undisputed fact is that both Vincent and Anna Fermes resided in
Hagerstown, Md., and had resided there for several years and were
voters there.
The names of both Vincent and Anna Fermes were voted on from
Palmisano's residence at the election on November 6, 1928. Vincent's
name was voted on just before the polls closed, being the next to the
last vote cast, and while Palmisano was at the polling place.
Palmisano knew that his brother-in-law and sister-in-law were not
entitled to vote in his precinct and knew that they were not residing
in his home. He knew that they actually lived in Hagerstown.
These votes so cast on the names of Vincent and Anna Fermes were
illegal and fraudulent, and in the judgment of your committee, were
cast with the knowledge, consent, and approval of the contestee,
Palmisano.
The efforts of contestee's attorney to explain away the voting on
the names of Vincent and Anna Fermes only got the contestee into deeper
water.
In the first hearing before the committee, counsel for contestee
questioned the authenticity of the markings on the registration and
poll lists showing that contestee's brother-in-law and wife had voted
from contestee's home, by innuendo and finally, direct accusation,
accused the agents of the contestant with being responsible for the
record and having changed the same for the purpose of casting suspicion
upon contestee. Upon opening the ballot box, an examination of the
ballots and poll books therein contained it was conclusively
demonstrated that the questioned votes had in fact been cast as shown
by the records questioned by the contestee. At the final hearing of
this case, contestee's counsel was questioned as to what his position
then was under the evidence as disclosed by the ballot boxes.
We find as a fact, that the evidence shows conclusively that the
contestee participated in the voting activities of the day in his
precinct and had knowledge of the fraudulent voting on the names of
Anna and Vincent Fermes, and another; and that his workers were in
large part responsible for the illegal and fraudulent conduct at the
polling place after the ballot box was opened for counting the vote.
It may be contended that if fraud was committed it was purged by
the recount of the ballots in this box by the committee. We hold that
inasmuch as the recount proved conclusively the fraudulent voting on
the name of Anna Fermes and Vincent Fermes, close relatives of the
contestee, registered from his house, as well as others, the count by
the committee can not be taken to purge the fraud and give the
contestee a seat in this body. Those who perpetrate fraud always make
an effort to have the results appear to be genuine. It may be that the
votes taken from the box by the committee and counted were in large
part actually cast by voters in that precinct; but the committee does
not know whether they were or not and does not find that they were, and
it is impossible for anyone to find out whether they were or not.
Having first determined that the conduct of the count, tally, and
the certificate of the election officers was entirely contrary to law
and that opportunity had been afforded by the election officers for
partisan workers of the contestee to not only participate in the
handling of the ballots, but in the
[[Page 1545]]
removing from the ballot box, sorting, shuffling, and pretended count
thereof, we have come to the conclusion that we can say that the
ballots counted by the committee were genuine ballots cast by the
voters. For this reason, and in view of the committee's findings that
Palmisano was personally chargeable with fraud, we find that he was not
elected, and that he should not be permitted to retain his seat in the
House.
The following is from the initial minority views submitted by Mr.
Lindsay C. Warren, of North Carolina; Mr. John J. Douglass, of
Massachusetts; and Mr. Malcolm C. Tarver, of Georgia.
Two of the Members constituting the majority contend:
. . . that acts of fraud in connection with the election in the
fourth precinct, third ward, were committed with the knowledge of the
contestee, which, while not sufficient to change the result, or to
authorize throwing out the precinct, yet should disqualify the
contestee from occupying a seat in this House.
We respectfully submit that the issue raised by the notice of
contest in this case was simply whether or not the contestant or the
contestee had been elected. No question of the contestee's unfitness to
occupy his seat was raised thereby, and, under the law and repeated
decisions of the House, no issue not raised by the contestant in
accordance with settled procedure in contested-elections cases was
before the committee for consideration.
The Constitution points out the mode, and we submit that it is the
only mode, for unseating a Member who for any cause is unfit or
unworthy to hold his seat. The Constitution provides that the House may
``with the concurrence of two-thirds expel a Member.'' (Constitution,
Art. I, sec. 5, par. 2.)
If the issue had been properly raised, we submit that there is no
case among the hundreds of precedents in the House of Representatives
where any sitting Member has been unseated because of alleged
participation in isolated acts of alleged fraud, insufficient, if true,
to have affected the result of the election. . . .
We have no fault to find with the conclusions of the three members
who felt that because of gross fraud, rendering the ascertainment of
the correct result at that precinct impossible, the fourth precinct of
the third ward should be thrown out, provided the House finds that the
evidence in the record justifies such a finding, which we most
earnestly deny; but we do insist that the position of those who feel
that the sitting Member should be denied his seat, although the
precinct should not be thrown out, and although with it considered the
contestee was elected, is untenable. With all votes which could
possibly be attacked for illegality considered as votes for the
contestee, when the evidence entirely fails to show for whom they were
cast, and excluded from the count, a difference of not exceeding half a
dozen votes could be made in the return, where as the contestee was
elected by a majority of 330. If the entire fourth precinct of the
third ward should be thrown out, a majority of 25 votes for the
contestant would be established, but only three members of the
committee thought this course justified.
[[Page 1546]]
We now approach a discussion of the evidence alleged to support the
findings relative to fraud in the fourth precinct, third ward,
participated in by the contestee; but before doing so we desire to call
the attention of the House to the manner in which at least one member
of the majority approached a consideration of this question, and to
submit to the House the question of whether or not, after considering
the evidence in the case, they would not be justified in believing that
his viewpoint must have impressed his colleagues. It will probably
prove surprising to most of the membership of the House to know that at
least one member of the majority of the committee believed that when a
charge of fraud is made by the contestant in an election case, the
burden does not rest upon him to prove it, but at once shifts to the
contestee to show that it is not true. . . .
At this point, we desire to indicate our severe disapproval of the
action of the contestant in this case in making numerous serious
allegations against the contestee and election officials of the city of
Baltimore, which, it is not insisted, so far as we have been advised,
by any member of the committee, are supported by any evidence at all.
Out of 30 specifications of charges, only 3, dealing with alleged
irregularities in the fourth precinct of the third ward in the city of
Baltimore, appear to be held to be worthy of consideration by the
majority of the committee . . . In addition to the above, which are
only instances of the unsupported charges made by the contestant, we
can not allow this case to pass into history without calling attention
to the baseless, unnecessary, and gratuitous attack made by him upon
the contestee (see pp. 3, 13, and 14 of contestant's brief, and also
see evidence in record), on account of his having been once, as a young
man, more than a score of years ago, charged with a violation of the
naturalization laws, the contestant also making other bitter personal
charges against him which could in no way, if true (and they are not
sustained by the proof) affect the merits of this case. These attacks
appear to have been made largely for the purpose of calling the
attention of the Congress to the contestee's foreign birth, and with
the intent to prejudice his cause by extraneous matter. . . .
Sitting as a court, exercising judicial functions, let us find out
what the record shows with reference to the charges of fraud in the
fourth precinct, third ward, and the contestee's participation therein,
which are now as we understand it, the only charges relied upon by
contestant. We will not include a summary of the evidence of the
multitudinous witnesses who knew nothing but who were nevertheless
subpoenaed and testified, but we shall clearly demonstrate to any
Member of the House who will take the trouble to make an examination of
the record that these charges, in so far as they involve any
culpability of the contestee, are not only not proven by any evidence,
but that the rule laid down by Mr. Eaton has been met, and they have
been most emphatically disproven.
It will be observed that these charges are not stated in the notice
of contest except in a vague, general, and indefinite way as to some of
them, while some of them are not referred to in that notice at all. We
do not believe that, over the protest of the contestee as set out in
his reply to the notice of contest, these charges so vaguely and
indefinitely made form, under the precedents and procedure of the
House, a proper basis for the consideration of the
[[Page 1547]]
evidence introduced. In most cases, it is necessary to look to the
evidence introduced to determine what the charges are, when they should
be ascertainable from the notice of contest. But, assuming that the
House may look to the evidence to ascertain the charges, and may not
require that only charges made in the notice of contest be considered,
we shall take them up as far as we have been able to ascertain them.
First, with reference to the charges of illegal registration from
the contestee's house, the record discloses that each and every voter
registered from the contestee's house was entitled so to register at
the time registration was had. That some of them afterwards moved away
and were not living there at the time of the election can in no way
affect the question of their right to register at the time they did.
Second, with regard to the voting of some two or three of these
persons who, before the election, had removed temporarily or otherwise,
as one may be inclined to view the evidence, to other parts of the city
of Baltimore, it is undisputed that many scores of Republican voters
who had formerly resided in this precinct, or in other precincts of the
district, upon changing their residences had been permitted to retain
their registration in the precincts from which they removed, and voted
in those precincts in the election herein referred to. This appears to
have been quite a general practice, recognized as legitimate by both
the Republican and Democratic Parties. As to whether it is permissible
under the laws of Maryland, we do not undertake to say, while we have
been furnished with an opinion of the attorney general of that State
holding, in effect, that it is; but in any event, the voting of two or
three people under these circumstances for the contestee, when so many
voted under similar circumstances for the contestant, is a long way
from constituting fraud, either vitiating the election, or tainting the
contestee with personal corruption. If desired, the votes may be
discarded, without even remotely affecting the result.
Third, with regard to the votes of Anna and Vincent Fermes, sister-
in-law and brother-in-law of the contestee, which were cast by some
other persons voting in their names, it should only be necessary to
quote from the record of hearings the following statement of the
contestant himself with reference to this matter:
Mr. Tarver. I understand your point is that not only were
they [i.e., Vincent and Anna Fermes] falsely registered, but
that you were charging Mr. Palmisano with fraud in that he
was present when they voted?
Mr. Hill. No; only that he knew that they registered.
Notwithstanding that the contestant expressly disclaimed any charge
of fraudulent knowledge on the part of the contestee, the majority of
the committee feel justified in assuming it from the evidence; and this
evidence shows nothing more than that the person voting in the name of
Vincent Fermes voted a minute or two before the polls closed, and that
Palmisano had been in the voting place at a period of time variously
estimated by contestant's witnesses at from 5 to 15 minutes prior to
closing. For whom the person voted, is not shown; that Palmisano was
present, or, if present, had
[[Page 1548]]
his attention called to the person voting, is not shown. Another
remarkable circumstance is that the knowledge that some person voted in
the name of Vincent Fermes comes from the contestant, who has failed to
give the source from which he derived the information. Who gave him
that information? How did that person know it? Is it not fair to assume
that the person who detected the impersonation of Fermes would have
been called, if his testimony would have been helpful? If Palmisano had
been concerned in voting somebody under another person's name, it would
be more probable that he would select one of the numerous other
registered voters as shown by the evidence who had not appeared to
vote, rather than his own brother-in-law, as the person whose name was
to be voted. In the entire absence of any legal evidence that Palmisano
in any way participated in the fraudulent voting of the persons who
voted under the names of Vincent and Anna Fermes, or benefited thereby,
there occurs to us no reason why the committee or the House should make
and insist upon a charge which the contestant himself disclaimed any
intention of making.
Fourth, the only evidence with reference to alleged repeating in
the fourth precinct of the third ward or elsewhere is that of the
witness, Max Steiner, who is shown by the record beyond reasonable
question to be entirely unworthy of belief. His evidence, however, if
believed, casts in no way any reflection upon Mr. Palmisano, or
connects him with the alleged irregularities, or shows whether he or
Mr. Hill benefited thereby, if they occurred. Steiner claims to have
been acting upon the direction of one Jack Pollack, and admits that he
did not talk at all with Palmisano, and only saw him once at a distance
on the day of the election. The attorney for the contestant made in his
argument the following statement:
Mr. Tarver. Is there anything in this record and, if so,
I would like to have you point it out to me, showing that
Palmisano had anything to do with Pollack or his activities?
Mr. Ruzicka. No, there is not.
In the face of this admission, it seems a useless waste of time to
consider the evidence as to what Steiner did under Pollack's direction,
but if it is considered, it is not shown that he knows the name of a
single voter whom he charges with repeating; nor that he saw any voter
vote twice; nor whom any such voter voted for; nor are any other facts
set out which, if believed, and if Palmisano had been directly
responsible therefor, instead of being expressly absolved by the
contestant's attorney from all culpability, would in any way constitute
a reason for setting aside the result of this election, either in the
fourth precinct of the third ward or elsewhere.
Fifth, the only other evidence of irregularity in the fourth
precinct of the third ward which the committee appeared to deem worthy
of consideration, and it is to be presumed that it will so appear in
the majority report, was the evidence with reference to the handling of
the ballots after the polls closed. There is some evidence that
unauthorized persons, present in the polling booth, in the presence of
the election judges and clerks, lifted the ballots or part of them from
the boxes and laid them on tables to be counted. The committee,
desiring to know whether the irregularities complained of
[[Page 1549]]
had resulted in a fraudulent count, procured the passage of a proper
resolution by the House and sent for the ballot boxes in this precinct.
When produced they were properly sealed in accordance with the laws of
Maryland and their custody since the election was properly accounted
for. No question exists as to these facts. Upon opening the boxes and
recounting the votes, it was found that whereas the officials' return
had showed a total of 507 votes cast, the committee's count showed 501;
that the officials' return showed 416 for Palmisano and 61 for Hill,
whereas the committee's count showed 405 for Palmisano and 62 for Hill.
There were 26 blanks in the congressional vote and two spoiled ballots.
The difference between the count and the official returns was therefore
inconsiderable, and such as may easily have resulted from a difference
in the interpretation by the election officials and by the committee of
what constituted a spoiled ballot, or a ballot upon which the voter had
indicated no preference for a candidate for Congress.
It was seriously insisted in the beginning of the case that there
were 70 blank ballots in these boxes which had been counted, and that
claim was supported by some evidence of a witness who had testified to
other irregularities, and the failure to find these alleged blank
ballots throws light on the credibility of the remainder of the
evidence of this witness. A claim was also seriously insisted upon to
the effect that in the removal of the ballots from the boxes and
counting them, ballots for Palmisano could have been substituted for
ballots for Hill. We regard this contention as entirely untenable.
Aside from the fact that all the Republican officials of the precinct
were present and participating in the count, and that nobody testifies
to such a substitution, it appears that each of the ballots was
initialed at the time of its delivery to a voter by the Republican
judge, Daniel Wolf, the initials D. W. being written on each and every
ballot. The committee examined each ballot carefully to ascertain if
these initials appeared on every one. They did so appear. It is
apparent that to have substituted ballots in the presence of the
Republican officials, bearing initials written thereon by the
Republican judge, or even by any other election official present by his
authority, as it was insisted might have been done, would have been an
impossibility. . . .
Aside from the questions discussed, the following is submitted:
The committee did not feel justified on account of the alleged
irregularities in throwing out the box, and voted against so doing,
therefore they must have found that the result at that box was legally
ascertainable, and under the decisions of all courts that we have
examined and all precedents of this House, under such conditions effect
will be given to the properly ascertained result. It can not be
stressed too strongly, however, that the evidence fails entirely to
show that the contestee had anything to do with the irregularities
complained of.
The issue involved in this ease should not only not be regarded as
a partisan issue, but even if it should be so regarded, the evidence
fails to show that the contestant in his campaign stressed his
allegiance to the Republican Party, and, singularly enough, does show
that he failed to announce his support of the candidacy of the standard
bearer of that party when repeatedly challenged to do so. The statement
is made because a considerable
[[Page 1550]]
part of the record is devoted to evidence relative to this subject
matter, as well as to the efforts of the contestant and contestee each
to convince a ``wet'' constituency that he was the ``wetter'' of the
two.
As indicating the absence of fraud affecting the result in the
fourth precinct of the third ward, attention is called to the fact that
although only 32 Republicans were registered Mr. Hill received 62
votes. . . .
The premises considered, we propose the following resolution as a
substitute for the resolution recommended by the majority of the
committee:
Resolved, That John Philip Hill was not elected as
Representative in the Seventy-first Congress from the third
congressional district of Maryland, and is not entitled to
the seat as such Representative.
Resolved, That Vincent Palmisano was elected as such
Representative in the Seventy-first Congress from the third
congressional district of the State of Maryland and is
entitled to his seat as such Representative.
The following is from the additional minority views submitted by
Mr. John J. Douglass, of Massachusetts; Mr. Lindsay C. Warren, of North
Carolina; and Mr. Malcolm C. Tarver, of Georgia:
An examination of the alleged majority report discloses that the
minority report heretofore filed, in so far as it discusses the
evidence before the committee, covers a broader field than the majority
report, and it is now necessary to add very little to the previous
minority report.
The majority report still insists upon the allegation that
Palmisano knew of and was concerned in the fraudulent voting of two
people under the names of Vincent and Anna Fermes, although the
contestant, before the committee, expressly disclaimed such a
contention, and did not make it in his notice of contest. (Hearings, p.
90.)
The report further sets up as one of the principal reasons assigned
for discarding the returns from the fourth precinct of the third ward
that the certificate of the election board was signed before the
numbers of votes received by the respective candidates were filled in.
The contestant made no such charge in his notice of contest, in which
the law, as well as the practice and procedure of the House, requires
him to ``specify particularly the grounds upon which he relies in the
contest.'' (U.S.C., title 2, ch. 7, sec. 201, p. 13.)
If the benefit is given to him, however, of a charge not made in
the manner provided by law, it will at once appear that the practice of
election officials in signing returns in blank, afterwards filling in
the blanks in accordance with the facts, while an irregularity, yet
where it is clearly shown, as in this case, that it was done without
fraudulent intent, participated in alike by the officials of both
parties, and resulted in no fraudulent miscount or return is too
inconsiderable a technicality to result in depriving the voters of this
precinct of their votes, and thereby declare elected a man whom no
reasonable man can believe from reading the evidence in the record was
elected.
[[Page 1551]]
The statement in the majority report that ``the election board in
the fourth precinct of the third ward flagrantly disregarded every
provision of the election laws of the State of Maryland with respect to
the taking of the ballots from the box, the counting, recording,
certification of the ballots in that precinct'' expands without limit
the already indefinite charges made by the contestant and is in itself
too indefinite in character to require comment. We shall, however, in
so far as we have not already done so, refer specifically to every
definite charge made.
In our original minority views we have discussed the question of
some persons or person, according as one views the evidence, lifting
some of the ballots out of the box in the presence of all of the
officials, both Democratic and Republican, and laying them on a table
and chair.
Criticism is now made that the judges did not read the ballots one
by one, but placed straight Democratic and straight Republican ballots
in separate piles, counting only the number of ballots in these piles,
but counted and tallied one by one the split ballots. We call attention
to the fact that in a number of precincts carried overwhelmingly by the
contestant, the same method of procedure in the counting and tallying
of the votes was followed. It was the method followed in first precinct
of the eighth ward, which was carried by the contestant by 229 majority
(see record, pp. 552-553); in the thirty-fourth precinct of the eighth
ward, which gave the contestant a majority of 125 (see record, p. 556);
in the thirteenth precinct of the eighth ward, which gave the
contestant 87 majority (see record, p. 561); and appears to have been a
matter of quite general practice in the district. That the following of
this method should be ``fraud'' when it occurs in a district carried by
the contestee, but ignored when it occurs in districts or precincts
carried overwhelmingly by the contestant, seems to be inconsistent. If
the explanation be that the contestee made no counter charges with
regard to the precincts carried by the contestant where this method of
count was used, it occurs to us that if the contestant is not
restricted to the charges made in his notice of contest, there is no
reason why the gates should not be opened wide and every feature of the
election developed by the evidence considered. We do not feel, however,
that charges not made by the contestant should be considered, but we do
feel that, with regard to this particular charge, the practice in other
precincts carried by the contestant should be considered as
illustrating the allegations of willful fraud in the fourth precinct of
the third ward.
It is interesting to note that wherever in the majority report the
activities of the Democratic workers at the polls are criticized, they
are referred to as ``workers of the contestee.'' They appear from the
record to have worked far more efficiently for the Democratic
presidential candidate, who received a majority of 427 in the fourth
precinct of the third ward, and for the Democratic candidate for the
Senate, who received a majority of 402, as against Palmisano's majority
of 355. In fairness, these workers can not properly be referred to as
``workers of the contestee.'' But no matter whose workers they were, no
provision of the law of Maryland is quoted by the majority which made
illegal their presence in the polling booth while the count was going
on. And in so far as they or either of them may have participated with
Re
[[Page 1552]]
publican officials, who, according to their own evidence, were doing
the same thing, in lifting ballots out of the box and placing them on a
table and chair to be counted, their acts, and the acts of the
officials, Democratic and Republican, who participated, were a
violation of directory, not mandatory, provisions of the Maryland law,
and will not invalidate the return from the precinct in question, if it
is possible, notwithstanding those acts, to ascertain the correct legal
vote.
The view of the majority of the committee, as reported to the
House, to the effect that on account of the counting of the ballots in
the method described by some of the witnesses, it is impossible to
correctly ascertain the vote in the congressional race at the fourth
precinct of the third ward, and that the recount had by the committee
should be disregarded because of this alleged fraud, is not logical.
The majority of the committee, as well as the minority, knew of the
alleged irregularities in the count before the ballots were ever sent
for. If it was felt that the evidence justified rejecting the returns
from this precinct and that the committee could not know whether the
ballots in the boxes were the ballots east by the voters or not, as now
stated by the majority, why were the ballots sent for? Is it possible
that the majority of the committee were expecting to find in the box
corroboration of the evidence of contestant's witness, Yospi, that
there were 70 blank ballots in it, and, since the box disclosed that
this evidence was untrue, felt that sending for it in the first place
was ill-advised? Shall evidence be regarded as of value until it is
found not to support the position assumed, and then discarded as
untrustworthy? The suggestion that there might have been any
substitution of ballots is so unreasonable under the evidence in this
ease as to hardly require comment, and especially is this true when it
is remembered that each ballot bore in his own handwriting the initials
of the Republican judge, Daniel Wolf. We say ``in his own
handwriting,'' because repeated insistences by a member of the
committee who now signs this minority report that Wolf be sent for to
show the contrary if there was any question in the minds of the
committee about it were declined.
Whatever the irregularities in the method of counting the ballots,
when the House comes to the question of discarding the committee count,
we feel assured it will not agree with what is said in the alleged
majority report, and when it is remembered that it would only be
necessary to find that this Democratic candidate for Congress received
a majority of as much as 26 in a precinct where 507 votes were cast and
where only 32 Republicans were registered, and where other Democratic
candidates received majorities in excess of 400, in order to find that
he was elected, we shall continue to believe that the tide of
partisanship has not arisen; and never will arise, to the height in
this House necessary to unseat contestee until the House itself by its
action shall convince us to the contrary.
No resolution was offered to accompany the majority report. There
was no House disposition of the contest and contestee therefore
retained his seat.
[[Page 1553]]
Sec. 7.5 Updike v Ludlow, 7th Congressional District of Indiana.
The time required by House rules for filing of an elections
committee report was extended by the House by adoption of a resolution.
Qualifications of Member.--The constitutional requirement of
inhabitancy in the state when elected was held fulfilled where the
Member maintained an ``ideal'' or intended residence in the state as
evidenced by voting and tax payments, though his actual residence was
in another jurisdiction.
Report for contestee, who retained his seat.
On June 25, 1930, Mr. Carroll L. Beedy, of Maine, submitted the
following resolution by unanimous consent:
Resolved, That the Committee on Elections No. 1 shall have until
January 20, 1931, in which to file a report on the contested election
case of Updike v. Ludlow, notwithstanding the provisions of clause 47
of Rule XI.
The resolution (H. Res. 270) was agreed to by voice vote without
debate [72 Cong. Rec. 11701, 71st Cong. 2d Sess., June 25, 1930; H.
Jour. 737].
Report of Committee on Elections No. 1 submitted by Mr. Carroll L.
Beedy, of Maine, on Dec. 20, 1930, follows:
Report No. 2139
Contested Election Case, Updike v Ludlow
[To accompany H. Res. 326]
In May, 1928, Louis L. Ludlow was the successful nominee in the
primary elections for Representative in the National Congress on the
Democratic ticket from the seventh district of Indiana. In November of
that year, Mr. Ludlow is conceded to have received a majority of 6,380
votes for Representative to Congress from the seventh district of
Indiana. His election, however, was contested by Ralph E. Updike, of
the seventh district of Indiana, who was the nominee for Representative
to Congress from the district in question on the Republican ticket in
the November elections of 1928.
Mr. Updike contested Mr. Ludlow's election on two grounds--first,
upon the ground that Mr. Ludlow was not an inhabitant of the State of
Indiana within the meaning of article 1, section 2, of the
Constitution, which provides among other things that, ``No one shall be
a Representative who shall not . . . be an inhabitant of that State in
which he shall be chosen''; second, upon the ground that the November
elections in question were tainted by fraud and corruption.
In the course of the contest, the allegation of fraud and
corruption was abandoned and the issue finally turned upon the question
as to whether Mr. Ludlow was an inhabitant of the State of Indiana in
November, 1928, within the meaning of the constitutional provision
above cited.
[[Page 1554]]
It appeared that Mr. Ludlow was born in Indiana and resided there
until the fall of 1901, at which time he came to Washington to serve as
a newspaper correspondent for an Indianapolis newspaper. From that
time, Mr. Ludlow continued to represent various Indiana and other
newspapers until the 4th of March, 1929. His family, however, continued
to reside in Indianapolis until 1915, coming to Washington with him
only for short stays. At that time he sold the house in which he and
his family had resided and which was located at the corner of Ritter
and University Avenues in the city of Indianapolis.
From 1915 Mr. Ludlow, with his family, resided in Washington, D.C.,
but his family made frequent visits to their relatives in Indianapolis.
During his residence in Washington, D.C., Mr. Ludlow, with his family,
attended the Union Methodist Church. In fact, Mr. Ludlow was a trustee
of that church. From the time his family took up its residence in
Washington, his four children, who, prior to their removal from
Indiana, were educated in the public schools of Indianapolis, were
educated in Washington, D.C.
It also appeared in evidence that Mr. Ludlow had engaged to some
limited degree in the purchase and sale of real estate in Indianapolis.
With the exception, however, of one piece of property to which I shall
presently refer, Mr. Ludlow disposed of all his real estate holdings
within the seventh district of Indiana in 1925.
In 1918 Mr. Ludlow purchased from his wife's sister her portion of
a farm, formerly owned by Mrs. Ludlow's father. Mrs. Ludlow meanwhile
had inherited a one-third interest in the farm in question. This
property of Mr. and Mrs. Ludlow, which comprised land without a
dwelling house thereon, was continuously held by them and is now held
by them. It was the undisputed testimony of Mr. Ludlow that it had been
held for years with the express intention on the part of Mrs. Ludlow
and himself of returning to Indianapolis in their old age to build a
permanent home.
It also appeared in evidence that Mr. Ludlow had for many years
paid his poll tax in Indiana. He had also paid his income tax in
Indiana, notwithstanding the fact that residents of Washington, D.C.,
make their payment and returns of income taxes in Baltimore, Md.
Mr. Ludlow testified that he had voted regularly in Indianapolis,
Ind., having failed to do so only on two occasions. In 1924 he
purchased the home in which he and his family now reside at 1822 H
Street NW., Washington, D.C.
In the course of the hearings, the word ``residence'' is broadly
employed. No distinction is made between ``legal residence'' and
``actual residence.'' The fact is that one's legal residence may be
merely ideal following his inhabitancy. His ``actual residence,''
however, must be substantial and constitute an abode or dwelling place
for a fixed and permanent time, as contradistinguished from a mere
temporary locality of existence. It is a well recognized principle of
law that one may abide or have a residence in one State or county and
yet retain his legal residence or inhabitancy in another State or
county.
It is the view of the committee that the term ``inhabitant'' as
employed in section 2, article 1 of the Constitution, embraces the idea
of legal resi
[[Page 1555]]
dence as contradistinguished from actual residence. In other words, it
is the view of the committee that one's inhabitancy is where he
maintains his ideal residence.
It is commonly accepted that an actual resident may not be entitled
to all the privileges or subject to all the duties of an inhabitant.
This is clearly so when the individual goes to the trouble of paying
his taxes and insisting upon his right to vote in the place of his
birth which he claims as his ideal residence. In such a case, one
continues to be an inhabitant where he maintains his right to vote,
irrespective of his actual residence. In other words, the inhabitancy
of the individual is to be determined by his intention as evidenced by
his acts in support thereof.
In the case of Mr. Ludlow, it develops that he was excused from
jury duty in the District of Columbia, when he made the frank statement
to the court that he voted in Indiana. In other words, the court took
the view that the actual residence of Mr. Ludlow did not subject him to
the ordinary obligations of citizenship, but that those obligations
attached where the rights were reserved, namely, in Mr. Ludlow's case,
in the State of Indiana.
It is the view of the committee that irrespective of Mr. Ludlow's
actual residence in the District of Columbia at the time he ran for
election as a Representative to Congress from the seventh district of
Indiana, his course of action for years was such as to indicate his
intention to retain his ideal residence, namely, his inhabitancy with
all the incidental rights of citizenship, in the city of his birth,
Indianapolis, Ind.
It is, therefore, the unanimous conclusion of your committee that
Ralph E. Updike was not elected a Representative to the Seventy-first
Congress from the seventh congressional district of the State of
Indiana and is not entitled to a seat therein, and that Louis L. Ludlow
was duly elected a Representative to the Seventy-first Congress from
the seventh congressional district of the State of Indiana and is
entitled to retain his seat therein.
Resolved, That Ralph E. Updike was not elected a
Representative to the Seventy-first Congress from the seventh
congressional district of the State of Indiana and is not
entitled to a seat therein.
Resolved, That Louis L. Ludlow was duly elected a
Representative to the Seventy-first Congress from the seventh
congressional district of the State of Indiana and is
entitled to retain his seat therein.
Reported privileged resolution (H. Res. 326) was agreed to by voice
vote without debate [74 Cong. Rec. 1312, 71st Cong. 3d Sess., Dec. 20,
1930; H. Jour. 111].