Order Code RL33780
Procedures for Contested Election Cases in the
House of Representatives
Updated February 20, 2008
Jack Maskell and L. Paige Whitaker
Legislative Attorneys
American Law Division
Jack Maskell
Legislative Attorney
L. Paige Whitaker
Legislative Attorney
November 4, 2010
Congressional Research Service
7-5700
www.crs.gov
RL33780
CRS Report for Congress
Prepared for Members and Committees of Congress
Procedures for Contested Election Cases in the House
of Representatives
Summary
Under the U.S. Constitution, each House of Congress has the express authority
to be the judge of
the “elections and returns” of its own Members (Article I, Section
5, clause 1). Although initial
challenges and recounts for the House are conducted
at the state level, under the state’s authority
to administer federal elections (Article
I, Section 4, cl. 1), continuing contests may be presented
to the House, which, as the
final arbiter, may make a conclusive determination of a claim to the
seat.
In modern practice, the primary way for an election challenge to be heard by the
House is by a
candidate-initiated contest under the Federal Contested Elections Act,
(FCEA, codified at 2
U.S.C. §§ 381-396). Under the FCEA, the candidate
challenging an election (the “contestant”),
must file a notice of an intention to contest
within 30 days of state certification of the election
results, stating “with particularity”
the grounds for contesting the election. The contestee then has
30 days after service
of the notice to answer, admitting or denying the allegations, and setting
forth any
affirmative defenses. The contestee may, before answering a notice, make a motion
to to
the committee for a “more definite statement,” pointing out the “defects” and the
“details
desired.” If this motion is granted by the committee, the contestant would
have 10 days to
comply. Under the FCEA, the “burden of proof” is on the party
challenging the election, and the
contestant must overcome the presumption of the
regularity of an election, and its results,
evidenced by the certificate of election
presented by the contestee. In this adversarial proceeding,
either party may take
sworn depositions, seek subpoenas for the attendance of witnesses and
production of
documents, and file briefs to include any material as an appendix that they wish to
put on the record before the committee. In accordance with the FCEA, the actual
election contest
“case” is heard by the committee, “on the papers, depositions and
exhibits” filed by the parties,
which “shall constitute the record of the case.”
On less frequent occasions, the House may refer the question of the right to a
House seat to the
Committee on House Administration for it to investigate and report
to the full House for
disposition. In lieu of a record created by opposing parties, the
committee may conduct its own
investigation, take depositions, and issue subpoenas
for witnesses and documents. Jurisdiction
may be obtained in this manner from a
challenge to the taking of the oath of office by a Member-electMemberelect, when the question of
the final right to the seat is referred to the committee. In the past, committees
committees investigating such questions have employed several investigative procedures,
including impounding election records and ballots, conducting a recount, performing
a physical
examination of disputed ballots and registration documents, and
interviewing and examining
various election personnel in the state and locality.
In election cases under Committee on House Administration jurisdiction by way
of either
procedure, the committee will generally issue a report and file a resolution
concerning the
disposition of the case, to be approved by the full House. The
committee may recommend, and
the House may approve by a simple majority vote,
a decision affirming the right of the contestee
to the seat, may seat the contestant, or
find that neither party is entitled to be finally seated and declare a vacancy.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
House Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Who May Challenge the Right to a Seat in the House . . . . . . . . . . . . . . . . . . . . . . 4
Federal Contested Elections Act (FCEA) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
House-Initiated Challenges and Contests . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Challenges Under the Federal Contested Elections Act (FCEA) . . . . . . . . . . . . . . 5
Standing To Initiate a Contest Under the FCEA . . . . . . . . . . . . . . . . . . . . . . 5
Filing of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Swearing In of Member-Elect Whose Election Is Contested
Under the FCEA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Significance of Certified Election Results . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Contents and Form of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Proof of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Response of Contestee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Taking of Depositions and Reimbursement of Fees . . . . . . . . . . . . . . . . . . . 9
Filing of Pleadings, Motions, Depositions, Appendices, and Briefs;
Record of Case of Election Contest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Challenges In the House Other than Under the
Federal Contested Elections Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Procedures To Bring Matter Before Committee . . . . . . . . . . . . . . . . . . . . . 10
Investigative Procedures by the Committee on House Administration
When Directed by the House To Investigate an Election . . . . . . . . . . 13
Ordering a Recount of Ballots Under FCEA and Otherwise . . . . . . . . . . . . . . . . 15
Application of State Law and State Court Decisions to Committee Actions . . . 17
Remedies Available to the Committee on House Administration
Under the FCEA and Otherwise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Disposition of Contested Election Cases in the House of Representatives . . . . . 19
Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Procedures for Contested Election Cases in
the House of Representatives
Introduction
Background
The U.S. Constitution provides at Article I, Section 5, clause 1, that each House
of Congress shall be the judge of the “elections, returns and qualifications” of their
own Members.1 Under the federal system, primary authority over the procedures and
the administration of elections to Congress within the several states is given
expressly to the states in the “Times, Places, and Manner” clause of the Constitution,
Article 1, Section 4, clause 1 (which also provides a residual, superceding authority
within the Congress to alter such regulations concerning congressional elections).2
Election recounts or challenges to congressional election results are thus initially
conducted at the state level, including in the state courts, under the states’
constitutional authority to administer federal elections, and are presented to the
House of Representatives as the final judge of such elections.3
Under these constitutional provisions and practice, the House essentially is the
final arbiter of the elections of its own Members. As noted by the House Committee
on Administration, once the final returns in any election have been ascertained, the
ultimate “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 article I, section 5 of the Constitution of the United States.”4
A noted 19th century expert on parliamentary and legislative assemblies, Luther
1
Each House may judge the constitutional “qualifications” of its Members (age, citizenship,
and inhabitancy in the state from which elected) and, in election challenges, may determine
if the Member is “duly elected.” See Powell v. McCormack, 395 U.S. 486, 550 (1969).
2
Congress generally allows the states to govern congressional election procedures within
their own jurisdictions, but has by law designated the date on which House elections are to
be held and has required that all votes for Representatives be by written or printed ballot or
by voting machine. 2 U.S.C. §§ 7, 9.
3
House committees hearing election contests have recommended dismissal, on occasion,
for failure of contestant to “exhaust his state remedies first,” in the case of certain preelection procedural irregularities, Huber v. Ayres, 2 Deschler’s Precedents of the United
States House of Representatives [hereinafter Deschler’s], Ch. 9, § 7.1, at 358, and in the
case of recounts of ballots, Carter v. LeCompte, 2 Deschler’s, Ch. 9, §§ 7.2, 57.1, finding
that candidate has exhausted remedies if no state recount allowed for congressional
elections.
4
In re William S. Conover, II, H.Rept. 92-1090 (1972), at 2.
CRS-2
Sterns Cushing, explained that the final and exclusive right to determine membership
in a democratically elected legislature “is so essential to the free election and
independent existence of a legislative assembly, that it may be regarded as a
necessary incident to every body of that description, which emanates directly from
the people.”5 In his historic work, Commentaries on the Constitution, Justice Joseph
Story analyzed the placing of the power and final authority to determine membership
within each House of Congress:
It is obvious that a power must be lodged somewhere to judge of the elections,
returns, and qualifications of the members of each house composing the
legislature; for otherwise there could be no certainty as to who were legitimately
chosen members, and any intruder or usurper might claim a seat, and thus
trample upon the rights and privileges and liberties of the people.... If lodged in
any other, than the legislative body itself, its independence, its purity and even
its existence and action may be destroyed, or put into imminent danger.6
In Roudebush v. Hartke, the U.S. Supreme Court held that under this provision
of the Constitution, the final determination of the right to a seat in Congress in an
elections case is not reviewable by the courts because it is “a non-justiciable political
question,” and that each House of Congress in judging the elections of its own
Members has the right under the Constitution to make “an unconditional and final
judgment.”7 Earlier, the Supreme Court had also found that each House of Congress
under Article I, Section 5, clause 1, “acts as a judicial tribunal” with many of the
powers inherent in the court system in rendering in such cases “a judgment which is
beyond the authority of any other tribunal to review.”8
Under the constitutional authority over the elections and returns of its own
Members, the House in its consideration of a challenged election may accept a state
count or recount or other such determination, or conduct its own recount and make
its own determinations and findings.9 While the House has broad authority in this
area, there is an institutional deference to, and a “presumption of the regularity” of
state election proceedings, results and certifications. An election certificate from the
authorized state official, generally referred to as the “credentials” presented by a
Member-elect, therefore, is deemed to be prima facie evidence of the regularity and
results of an election to the House.10 The consequences of this presumption of
regularity would generally result in the swearing in of a Member-elect presenting
such credentials to the House at the beginning of a new Congress, even in the face
5
Cushing, Law and Practice of Legislative Assemblies, at 54-55 (1856).
6
Story, Commentaries on the Constitution, Volume II, § 831, at 294-295.
7
Roudebush v. Hartke, 405 U.S. 15, 19 (1972).
8
Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 616 (1929).
9
Roudebush v. Hartke, supra, at 25-26.
10
2 Deschler’s, Ch.8, § 15, at 305: “Once Congress meets, the certificate constitutes
evidence of a prima facie right to a congressional seat in the House.”
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of a filed contest or challenge,11 and would create a “substantial” burden of proof on
the contestant to persuade the House to take action that, in substance, would amount
to “rejecting the certified returns of a state and calling into doubt the entire electoral
process.”12
House Jurisdiction
There are two general avenues by which the House obtains jurisdiction over an
election that is challenged or contested. In modern practice, the Federal Contested
Elections Act of 1969 (FCEA) is the primary method by which a congressional
election is contested in the House of Representatives. This contest is triggered by a
losing candidate filing a notice under the provisions of the FCEA. In addition, the
House has in the past, upon a challenge to the seating of a Member-elect, referred the
question of the right to a seat in the House to the committee of jurisdiction (now the
Committee on House Administration) for the committee to investigate and to report
to the House for disposition. As explained in Deschler’s Precedents:
The House acquires jurisdiction of an election contest upon the filing of a notice
of contest. Normally the papers relating to an election contest are transmitted by
the Clerk to the Committee on House Administration, pursuant to 2 USC §
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.13
The FCEA, codified at 2 U.S.C. §§ 381-396, governs contests for the seats in
the House of Representatives that are initiated by a candidate in the challenged
election.14 The FCEA essentially sets forth and details the procedures by which a
defeated candidate may contest a seat in the House of Representatives. The contest
under the FCEA is heard by the Committee on House Administration upon the record
provided and established by the parties to the contest. After the contest is heard by
the committee, the committee reports the results. After discussion and debate, the
whole House can dispose of the case by privileged resolution by a simple majority
vote.15
11
It appears that in the 103 contested election cases considered by the House since 1933, on
the first day of the new Congress the House failed to seat, even provisionally, only two
Members-elect who had presented valid credentials (see Roush or Chambers, 107 Cong.
Rec. 24 (January 3, 1961); McCloskey and McIntyre, 131 Cong. Rec. 380, 381-388 (January
3, 1985)).
12
Tunno v. Veysey, H.Rept. 92-626, citing Gormley v. Goss, H.Rept. 73-893. See 2
Deschler’s, Ch. 9, § 64, at 637-638.
13
2 Deschler’s, Ch. 9, § 4, at 344.
14
The Senate does not have codified provisions for its contested-election procedures.
15
Brown and Johnson, House Practice, A Guide to the Rules, Precedents and Procedures
of the House, 108th Cong. (2003) [hereinafter Brown and Johnson], at Ch. 22, §§ 4-6, at 477479.
CRS-4
On less frequent occasions in modern practice, a referral by the House to the
Committee on House Administration of the question of the right to a congressional
seat has been made after a challenge by one Member-elect to the taking of the oath
of office by another Member-elect. In such a circumstance, the Committee on House
Administration may investigate the matter itself or may rely substantially on the
evidence and materials provided by the interested parties/candidates following
similar procedures as in the statutory Federal Contested Elections Act.16
Who May Challenge the Right to a Seat in the House
Federal Contested Elections Act (FCEA)
In a contested election brought under the statutory procedures of the FCEA, only
losing candidates have standing to initiate a contest by filing a notice of intent to
contest a House election. The statute provides expressly that only “a candidate for
election in the last preceding election and claiming a right to such office” of
Representative in Congress may contest a House seat.17 The contestant must be a
candidate whose name was on the official ballot or who was a bona fide write-in
candidate.18
House-Initiated Challenges and Contests
In recent years, the Committee on House Administration has, on infrequent
occasions, obtained jurisdiction of an election contest by virtue of a challenge by one
Member-elect to the taking of the oath of office of another Member-elect on the first
day of a new Congress, and the subsequent adoption of a resolution instructing that
the question of the right to the seat be referred to the committee.19 In addition to a
House-initiated referral in this manner, it has also been noted that it is possible that
a petition from an elector of the congressional district in question, or from any other
person, might also be referred by the Speaker or the House to the committee for
investigation.20 According to Deschler’s, there are thus four ways for a challenge to
be brought before the House:
(1) an election contest initiated by a defeated candidate and instituted in
accordance with law [the FCEA]; (2) a protest filed by an elector of the district
16
In the matter of Dale Alford, H.Rept. 86-1172 (1959), 2 Deschler’s, at Ch. 9, § 17.4 at
385: “The committee report strongly recommended that in such cases proceedings be under
the provisions of the contested elections statute.”
17
2 U.S.C. §382(a).
18
Federal Contested Elections Act, H.Rept. 91-569 (1969), at 4.
19
2 Deschler’s, at Ch. 9, § 17.
20
2 Deschler’s, at Ch. 9, § 17, at 383-385. See also matter of Dale Alford, 105 Cong. Rec.
14 (January 7, 1959); 2 Deschler’s, Ch. 9, § 17.1; and Lowe v. Thompson, 2 Deschler’s, Ch.
9, at § 17.5.
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concerned; (3) a protest filed by any other person; and (4) a motion of a Member
of the House.21
Although these other methods of obtaining jurisdiction, other than by means of a
filing under the statute, have been employed on occasion, the Committee on House
Administration, in one instance of a referral of a petition, noted “a strong preference”
for “determining disputed elections by following the procedures under the contested
election statute.”22
Challenges Under the Federal Contested
Elections Act (FCEA)
The current Federal Contested Elections Act (FCEA), enacted in 1969 and
codified at 2 U.S.C. §§ 381-396, sets forth procedures for contesting a seat in the
House. In modern practice, it is the primary method for a losing candidate to
challenge the results of a House election. The FCEA defines “contestant” as an
individual who contests the election of a Member of the House of Representatives
under the statute, and defines “contestee” as a Member of the House of
Representatives whose election is contested under the statute.23
Standing To Initiate a Contest Under the FCEA
In accordance with the FCEA, only a losing candidate in a general election for
a seat in the House of Representatives may contest a seat.24
Filing of Notice
The FCEA provides that a losing candidate shall file a notice of intention to
contest an election within 30 days after the election result is declared by the
appropriate state officer or Board of Canvassers authorized by law to make such a
declaration. Written notice must be filed with the Clerk of the House and be served
upon the contestee, that is, the Member-elect or Member certified as the winner of
the election.25
21
2 Deschler’s, at Ch. 9, § 17, at 383.
22
Matter of Dale Alford, H.Rept. 1172, 86th Congress (1959), and 2 Deschler’s, Ch. 9, §
17.1 at 384, § 17.4 at 385, and § 58 at 586.
23
2 U.S.C. § 381(3), (4).
24
See 2 U.S.C. 382(a).
25
See id. But see McLean v. Bowman (62nd Cong., 1912), 6 Cannon’s Precedents § 98
(finding that the contested elections statute, in effect prior to the FCEA, limiting the time
within which notice of contest of election may be served, “is merely directory and may be
disregarded for cause”).
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Swearing In of Member-Elect Whose Election
Is Contested Under the FCEA
Once a notice of an election contest is filed by a losing candidate with the Clerk
of the House, and notice served upon the contestee, the House of Representatives and
the appropriate committee (now the Committee on House Administration) formally
obtain jurisdiction over the matter. For the House to be able to finally “judge” the
election of one of its Members whose election has been contested under the FCEA,
there need not be any further action or motions presented to or adopted by the House
on the first day of Congress with regard to the election, or concerning the Memberelect whose seat is being challenged. With the filing of an election contest, the
Committee on House Administration may later hear the matter, recommend a
particular action or resolution to the House, and the House may, by a simple majority
vote, determine finally who has the right to the seat in question, regardless of whether
or not the Member-elect had been sworn in on the first day of the new Congress.26
As stated by Parliamentarians to the House of Representatives, Brown and Johnson,
“[t]he seating of a Member-elect does not prejudice a contest pending under the
Federal Contested Elections Act (FCEA) over final right to the seat.”27
On occasion, the House has asked certain Members-elect to “step aside” or
remain seated when the oath of office is given collectively to the other Memberselect.28 If an election contest has been filed, and the Member-elect whose election
is being contested is asked to “step aside,” then that Member-elect may, after the
other Members-elect have taken the oath of office, merely be administered the oath
with no further direction, instruction, or comment by the House.29 In at least one
instance, another Member-elect has made a parliamentary inquiry of the Speaker
concerning the swearing in of a Member-elect whose election has been contested
under the statute, to clarify that the swearing in of such Member-elect is without
prejudice to the House’s authority to resolve the election contest, and to finally
determine who was “duly elected.”30
26
Brown and Johnson, supra, Ch. 22, §§ 4-6, at 477-479; Ch. 33, § 3, at 635, and Ch. 58,
§ 28.
27
Id., at Ch. 33, § 3, at 635.
28
Of the 103 election contests considered by the House since 1993, it appears that Memberselect have been asked to “step aside” in 15 instances. See CRS Report 98-194, Contested
Election Cases in the House of Representatives: 1933 to 2005 Election Cases: 1933 to
2005, by L. Paige Whitaker.
29
In 11 of the 15 cases where a Member-elect has been asked to “step aside,” it appears that
an election contest under the FCEA had been filed, and the resolution offered to swear in
the challenged Member-elect merely provided that the Member-elect “be now permitted”
to take the oath of office, with no specific reference to final determination of the right to the
seat nor any express reference to a filed election contest. See CRS Report 98-194.
30
See Morgan M. Moulder, 107 Cong. Rec. 12 (January 3, 1961)(in response to a
parliamentary inquiry as to whether adoption of the resolution to administer the oath of
office to the challenged Member-elect would “preclude and foreclose any further contest of
these elections before the Committee on House Administration,” the Speaker stated that the
(continued...)
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Significance of Certified Election Results
In the 1934 contested elections case of Gormley v. Goss, the House Elections
Committee declared that the official election returns are prima facie evidence of the
“regularity and correctness of official action,” that election officials are presumed to
have performed their duties loyally and honestly, and that the burden of coming
forward with evidence to meet or resist these presumptions rests with the
contestant.”31 In other words, the certification of election returns by the appropriate
governor or secretary of state is generally accepted by the House.
Contents and Form of Notice
The FCEA requires that the notice of intention to contest “shall state with
particularity the grounds upon which contestant contests the election,” and shall state
that an answer to the notice must be served upon the contestant within 30 days after
service of the notice. In addition, the notice of intention to contest must be signed
by the contestant and verified by oath or affirmation.32
Proof of Service
The FCEA provides that service of the notice of intention to contest shall be
made by one of the following methods: (1) personal delivery of copy to contestee, (2)
leaving a copy at contestee’s house with a “person of discretion” of at least 16 years
old, (3) leaving a copy at contestee’s principal office or place of business with a
person in charge, (4) delivering a copy to an agent authorized to receive such notice,
or (5) mailing a copy by registered or certified mail addressed to contestee at
contestee’s residence or principal office or place of business. Service by mail is
considered complete upon the mailing of the notice of intention to contest. Proof of
service by a person is achieved upon the verified return of the person servicing such
notice setting forth the time and manner of the service; proof of service via registered
or certified mail is achieved by the return post office receipt. Proof of service is
required to be made to the Clerk of the House of Representatives “promptly and in
any event within the time during which the contestee must answer the notice of
contest.” The FCEA further provides that failure to make proof of service, however,
“does not affect the validity of the service.”33
Response of Contestee
Within 30 days after receiving service of a notice of intention to contest, in
accordance with the FCEA, the contestee must serve upon the contestant a written
answer to the notice of contest admitting or denying the averments contained in the
30
(...continued)
“gentleman would have all rights he would have under the law”). Id.
31
Gormley v. Goss, H.Rept. 73-893 (1934).
32
2 U.S.C. § 382(b).
33
2 U.S.C. § 382(c).
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notice. The answer must set forth affirmatively any defenses in law or in fact on
which the contestee relies and shall be signed and verified by the contestee by oath
or affirmation.34
The contestee also has the option of making certain defenses by motion prior to
his or her answer to the contestant. The FCEA expressly provides that any such
motion would alter the time for serving an answer on the contestant.35 At the option
of the contestee, the following defenses may be made by motion, served upon the
contestant prior to the contestee’s answer: (1) insufficiency of service of notice of
contest, (2) lack of standing of contestant, (3) failure of notice of contestant to state
grounds sufficient to change the result of election, and (4) failure of contestant to
claim right to contestee’s seat.36 Upon such a motion to dismiss, the burden of proof
is on the contestant to present sufficient evidence that he or she is entitled to the
House seat in question. The purpose of a motion to dismiss is to require the
contestant, at the outset of the contest, to present sufficient evidence of a prima facie
case, prior to the formal submission of testimony, so that the committee can
determine whether to conduct exhaustive hearings and investigations.37
If the notice of contest is so vague or ambiguous that the contestee “cannot
reasonably be required to frame a responsive answer,” the FCEA also provides that
the contestee may move for a more definitive statement before interposing an
answer.38 Such a motion must specify the defects of the notice and note the details
required. If the committee grants the motion for a more definite statement and if the
contestant does not comply with the order of the committee within 10 days after
notice of such order, the committee may dismiss the case or make such other order
as it deems appropriate.39 The FCEA expressly states that the failure of a contestee
to answer the notice of contest or otherwise defend shall not be deemed to be an
admission of truth of the averments contained in the notice of contest.
34
2 U.S.C. § 383(a).
35
Section 383(d) provides: “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.”
36
2 U.S.C. § 383(b).
37
See Tunno v. Veysey, H.Rept. 92-626, supra.
38
2 U.S.C. § 383(c).
39
2 U.S.C. § 383(d). For comparison, note that in Senate contested election cases, the
contestant may be asked by the Senate Rules and Administration Committee to file a
supplemental petition setting forth any specific charges of fraud or irregularities if the
petition to contest is too general or ambiguous, see Bursum v. Bratton and Wilson v. Ware,
S.Rept. 71-447 at 1 (1930). The Senate contestee may also request that the contestant file
a bill of particulars or a statement of specific amendments, see Hurley v. Chavez, S.Rept.
83-1081 at 284 (1954), and may file a denial or demurrer, as well as a petition for dismissal
of the contest.
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Notwithstanding such failure, “the burden is upon contestant to prove that the
election results entitle him to contestee’s seat.”40
Taking of Depositions and Reimbursement of Fees
The FCEA allows for the contestant and the contestee to take testimony by
deposition of any person for the purpose of discovery and for use as evidence in the
contested election proceeding.41 The total time permitted for the taking of testimony
is 70 days. Upon application by any party, a subpoena for attendance at a deposition
and for the production of documents shall be issued by judges or clerks of the federal,
state, and local courts of record.42 For witnesses who willfully fail to appear or
testify, a fine of $100 to $1,000 or imprisonment for 1 to 12 months may be
imposed.43
Each judge or clerk who issues a subpoena or takes a deposition shall be entitled
to receive from the party for whom the service was performed such fees as are
allowed for similar services in the U.S. district courts.44 Witnesses who are deposed
shall be entitled to receive, from the party for whom the witness appeared, the same
fees and travel allowances paid to witnesses subpoenaed to appear before House
committees.45 From applicable House accounts, the committee may reimburse any
party for reasonable expenses of the case, including reasonable attorneys fees, upon
application by such party accompanied by an expense accounting and other
supporting documentation.46
Filing of Pleadings, Motions, Depositions, Appendices,
and Briefs; Record of Case of Election Contest
The FCEA requires all pleadings, motions, depositions, appendices, briefs, and
other papers to be filed with the Clerk of the House, and copies of such documents
may also be mailed by registered or certified mail to the Clerk.47 The record of the
contested election case shall be composed of the papers, depositions, and exhibits
filed with the Clerk of the House. Both the contestant and the contestee are required
to print, as an appendix to his or her brief, those portions of the record that he or she
wishes the committee to consider in order to decide the case.48
40
2 U.S.C. § 385.
41
2 U.S.C. § 386.
42
2 U.S.C. § 388.
43
2 U.S.C. § 390.
44
2 U.S.C. § 389(a).
45
2 U.S.C. § 389(b).
46
2 U.S.C. § 396.
47
2 U.S.C. § 393.
48
2 U.S.C. § 392(a),(b),(c).
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The contestant has 45 days, after the time for both parties to take testimony has
expired, in which to serve on the contestee his or her printed brief of the facts and
authorities relied on for the grounds of the case. The contestee then has 30 days,
from the time he or she is served with contestant’s brief, in which to serve on the
contestant a brief of the relied upon facts and authorities. After service of contestee’s
brief, the contestant has 10 days to serve a reply brief upon the contestee.49
Burden of Proof
Under the FCEA, the party challenging the election, the contestant, has the
burden of proving that “the election results entitle him to contestee’s seat.”50 As an
election certificate from the authorized state official is deemed to be prima facie
evidence of the regularity and results of an election to the House, it is a presumption
that generally allows for the swearing in of a Member-elect holding such certificate,
and is a presumption that must be rebutted by a contestant to “change the result” of
the election as certified by the state. In other words, the contestant must show that
but for the voting irregularities or acts of fraud, the results of the election would have
been different and the contestant would have prevailed.51 Since enactment of the
FCEA, most House contested election cases have been dismissed due to failure by
the contestant to sustain the burden of proof necessary to overcome a motion to
dismiss.52
Challenges In the House Other than Under the
Federal Contested Elections Act
Procedures To Bring Matter Before Committee
As noted earlier, although in modern practice the Federal Contested Elections
Act is the primary and (according to the Committee on House Administration) the
preferred procedure to challenge an election in the House of Representatives, the
committee of jurisdiction — now the Committee on House Administration — may
obtain jurisdiction of an election challenge by way of a referral to the committee by
the House upon a challenge by any Member or Member-elect of the House to the
taking of the oath of office by another Member-elect.53 It is possible, although
unusual, that jurisdiction may be obtained by the committee because of a “protest”
49
2 U.S.C. § 392(d),(e),(f).
50
2 U.S.C. § 385.
51
See, e.g., Pierce v. Pursell, H.Rept. 95-245 (1977).
52
See generally CRS Report 98-194, supra.
53
2 Deschler’s, Ch. 9, § 4, at 344: “[T]he 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.”
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or petition filed by an elector of the district in question, or by any other person.54
Although these procedures for the committee to obtain jurisdiction over an election
challenge are not common, it appears that in the 103 contested election cases
considered in the House since 1933, election challenges have come before the
committee of jurisdiction in the House by means other than the statutory provisions
of the contested elections statute on a total of at least six occasions.55
A member-elect to a new Congress whose proper “credentials” (the formal
election certificate from the appropriate state executive authority) have been
transmitted to the Clerk of the House is placed by the Clerk on the role of the
Representatives-elect.56 A Member-elect is not a Member of Congress, however,
until he or she takes the oath of office and is seated by the House. Any single
Member-elect, on the first day of the new Congress and before the Members-elect are
to be sworn (that is, at the time when the Speaker asks the Members-elect to rise to
take the oath of office), may object to the taking of the oath of office by another
Member-elect based upon the objecting Member-elect’s own “responsibility as a
Member-elect” and/or upon “facts and statements” that the Member-elect “considers
reliable.”57 The Member-elect about whom the objection is made is generally then
asked to stand aside, step aside, or to remain seated, while the other Members-elect
rise to be collectively administered the oath of office.58
54
2 Deschler’s, Ch. 9, § 17, at 383. Two instances have been cited for the committee
obtaining jurisdiction in this manner, in 1959 concerning Member-elect Dale Alford (2
Deschler’s, Ch. 9, §§ 17.1, 17.4, 58.1) where, based on a petition from a single voter, a
Member-elect objected to the taking of the oath by Alford, and the House, seating Alford,
referred the question of his final right to the committee; and in 1967 in Lowe v. Thompson,
where the losing candidate did not file under the statute, and the committee considered, but
then denied the petition brought by a primary candidate. 2 Deschler’s, Ch. 9, § 17.5, § 62.1,
at 624-625. In another instance, a petition challenging the qualifications of a Member-elect
(but not whether a Member-elect was “duly elected,” and thus not an elections contest), was
transmitted “to the Speaker, who in turn laid it before the House and referred it to the
Committee on Elections.” In re Ellenbogen, 1933, 2 Deschler’s, Ch. 9, §§ 17.3, 47.5.
55
In five instances, the House referred the matter to the committee by resolution: Sanders
v. Kemp, 78 Cong. Rec. 12 (January 3, 1934) (nullifying results of improper special
elections); Dale Alford, 105 Cong. Rec. 14 (January 7, 1959); Mackay v. Blackburn, 113
Cong. Rec. 14, 27 (January 10, 1967); Roush or Chambers, 107 Cong. Rec. 24 (January 3,
1961); McCloskey and McIntyre, 131 Cong. Rec. 380, 381-388 (January 3, 1985). In one
other case, in 1967, in the elections investigation of Lowe v. Thompson, the losing candidate
did not file under the statute, but the committee directly considered, and then dismissed on
the merits, the petition brought by a primary candidate. 2 Deschler’s, Ch. 9, § 62.1, at 624625.
56
2 U.S.C. § 26 (Roll of Representatives-elect).
57
1 Deschler’s, Ch. 2, § 6, at 130 and Ch. 2, § 6.2, at 133-134; Brown and Johnson, Ch. 33,
§ 3, at 634-635: “The fact that the challenging party has not himself been sworn is no bar
to his right to invoke this procedure,” citing 1 Hinds § 141. See also 1 Deschler’s, supra at
Ch. 2, § 5, at 117.
58
Brown and Johnson, supra at Ch. 33, § 3, at 634; Deschler’s supra at Ch. 2, § 6. It
appears, in relation to election challenges and contests, that Members-elect have been asked
to step aside in 15 instances since 1933. See generally, CRS Report 98-194, Contested
(continued...)
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Because the possession of proper “credentials” by a Member-elect to the House
is considered prima facie evidence of one’s right to the seat, and provides a
presumption of the regularity of the returns of that election, the possession of the
election certificate generally results in the taking of the oath of office by the Memberelect, even in the face of a challenge by another Member-elect and a request to
initially “step aside” while the other Members-elect are sworn. As noted by the
Committee on House Administration, it is only in “the most extraordinary of
circumstances” that a Member-elect holding a certificate of election would be denied
the opportunity to take the oath of office on the first day of the new Congress, that
is, where “irregularities and inconsistencies in the state process are so manifest that
the result is not entitled to deference.”59
There are, it should be noted, however, three different procedures that could
possibly be followed with regard to one Member-elect challenging the taking of the
oath of office by another Member-elect: First, the House could agree to a resolution
to seat the Member at that time, and to determine then both “his prima facie as well
as final right to the seat.”60 Second, with regard to a Member-elect who presents
valid credentials and is qualified to be a Member, a resolution may be offered to seat
the Member-elect provisionally or conditionally (even though those words are not
expressly used) based on his or her prima facie right to the seat, by resolving to seat
the Member-elect but to refer the question of the final disposition of his or her
entitlement to the seat to the appropriate committee of jurisdiction (now the
Committee on House Administration).61 Since 1933, it appears that an explicit
provisional seating of a Member-elect, with express referral by the House of the
question of the final right to a seat to the committee of jurisdiction, has occurred in
only two instances.62 Third, the resolution may refer both the prima facie right to the
seat, as well as the final right to the seat, to the committee without authorizing the
swearing in (and seating) of anyone.63 As noted, it would be under only the most
exceptional circumstances for the House to refuse to seat, even provisionally, a
Member holding valid election credentials from the state, and it appears that this third
58
(...continued)
Election Cases in the House of Representatives: 1933 to 2005, by L. Paige Whitaker.
59
McCloskey and McIntyre, H.Rept. 99-58 (1985), at 3.
60
1 Deschler’s supra at Ch. 2, § 6, at 131.
61
1 Deschler’s, supra at Ch. 2, § 6, at 131-132.
62
See Dale Alford, 105 Cong. Rec. 14 (January 7, 1959); and Mackay v. Blackburn, 113
Cong. Rec. 14, 27 (January 10, 1967). In most of the 15 cases where a Member-elect has
been asked to “step aside,” it appears that an election contest under the FCEA has been
filed, and the resolution offered to swear in the challenged Member-elect merely provided
that the Member-elect “be now permitted” to take the oath of office, with no specific
reference to final determination of the right to the seat nor any express reference to a filed
election contest. See generally, CRS Report 98-194, supra. As stated by Brown and
Johnson, supra at Ch. 33, § 3, at 635: “The seating of a Member-elect does not prejudice a
contest pending under the Federal Contested Elections Act (FCEA) over final right to the
seat.”
63
1 Deschler’s supra at Ch. 2, § 6, at 132.
CRS-13
option has happened since 1933 only two times on the first day of the new Congress,
and once during the Congress concerning a special election.64
If the House decides to propose a resolution not to seat, or to seat a Memberelect provisionally, and to refer the question of the initial and/or final right to a seat
to the committee to investigate, the House resolution is then put to a vote. In the case
of the adoption of a resolution not to seat anyone, the adoption would effectively
nullify a certificate of election that was previously issued by the executive authority
of the state. In either case, the adoption of the House resolution referring the matter
to the committee places the responsibility on the committee to determine the results
of the challenged election and report them back to the full House.65
Investigative Procedures by the Committee on
House Administration When Directed by the
House To Investigate an Election
The House resolution by its own terms is referred to the committee and becomes
a matter within the jurisdiction of the committee. Once the committee is organized
in the new Congress, a motion to investigate may be made and, depending on the
nature of the dispute, may include express authority to conduct a recount of the
ballots, if deemed necessary or advisable.66 The committee then may proceed to
conduct an investigation and to hold hearings, not only in Washington, D.C., but also
in the congressional district of the election contest site, at which the contestant and
contestee, as well as other pertinent parties, may be called to testify. After the
completion of its investigation, the committee may file a report and offer to the
House for its consideration and vote a privileged resolution recommending generally
the seating of a certain candidate whom the committee has determined to have won
the election, or the committee could recommend the seating of no candidate, thus
declaring a vacancy.
The committee has in the past, at an early stage of the contested election
proceedings, examined and analyzed pertinent sections of the state election laws
relevant to matters that may be in dispute, including state laws and regulations on
64
See Sanders v. Kemp, 78 Cong. Rec. 12 (January 3, 1934)(concerning results of
apparently improper special elections); Roush or Chambers, 107 Cong. Rec. 24 (January 3,
1961); and McCloskey and McIntyre, 131 Cong. Rec. 380-388 (January 3, 1985).
65
See, e.g., McCloskey and McIntyre, H.Rept. 99-58 (1985) at 1-4; Roush or Chambers,
H.Rept. 87-513 (1961) at 3-4. In McCloskey and McIntyre, the House adopted H.Res. 1,
refusing to seat either candidate and referring the case to the Committee on House
Administration to investigate and report back to the House on the question of who was duly
elected. H.Res. 1, 99th Cong. 1st Sess., 131 Cong. Rec. 381 (January 3, 1985).
66
An example of such a motion to investigate reads as follows:
That the Committee on House Administration, pursuant to House Resolution 1,
adopted on January 3, 1961, investigate the election of November 8, 1960, in the
Fifth District of Indiana to determine whether J. Edward Roush or George O.
Chambers was duly elected, and the said investigation, including a recount of the
ballots, if found advisable in the judgment of the committee, be completed at the
earliest possible time. H.Rept. 87-513, supra, at 5.
CRS-14
voting procedures, counting of ballots, and recounts. If necessary, the committee
may move to impound records, ballots, tally sheets, ballot stubs, poll books, ballot
boxes, voting machines or other electronic voting systems, and irregular or defective
paper and absentee ballots, although the committee may be satisfied with the security
state or local officials have provided and may merely request state, local, or county
auditors to retain and preserve ballots and other papers in an election contest case.67
Where state law requires destruction of ballots after an election, the committee may
notify the state election officials to preserve the ballots despite the state law. The
committee, with its counsel and the General Accounting Office (GAO) (now the
Government Accountability Office) auditors, may choose go to the site of an election
contest case and take custody of the ballots, voting machines, and electronic voting
systems, as well as other related materials to investigate the contested election.68
Motions adopted in the committee may direct an examination and recount of
disputed ballots.69 The committee may direct counsel and GAO auditors to aid state
officials in the examination and recount of ballots. The committee may also meet in
executive session within the District of Columbia, or in the congressional district, to
do such things as establish criteria for classifying ballots to be examined and
recounted by GAO auditors under the supervision of the committee.70
In McCloskey and McIntyre in the 99th Congress, the Chairman of the House
Administration Committee appointed a three-member Task Force composed of two
Democrats and one Republican to investigate the election.71 The task force initially
took the steps necessary to secure all of the ballots by requesting by telegram that all
county clerks protect and keep safe for six months “... all originals and copies of
books, records, correspondence, memoranda, papers, and documents ...” pertaining
to the contested general election “...including but not limited to all ballots,
certifications, poll books and tally sheets....”72 The committee task force then set out
procedures and operating rules for canvassing votes and examining and counting
ballots.73 The committee noted that while it sought to follow the state election
statutes regarding the counting of ballots, it was not bound to follow state law,
because the final power of judging the whole question of returns and elections must
reside in the House of Representatives, whose objective, over and above following
mere technicalities of state or local regulation, is to determine the will of the
67
See McCloskey and McIntyre, H.Rept. 99-58, supra, at 12-13.
68
McCloskey and McIntyre, H.Rept. 99-58, supra, at 12-43. 2 Deschler’s, Ch. 9, §§ 5.7, 5.8,
5.9, at 350-351 (1977).
69
McCloskey and McIntyre, H.Rept. 99-58, supra, at 12-17; 2 Deschler’s Ch. 9, § 5.10 at
351, noting Oliver v. Hale, H.Rept. 85-2482 (1958), concerning the power of the committee
to examine and recount ballots in a House contested election case.
70
Roush v. Chambers, H.Rept. 87-513, supra, at 7.
71
H.Rept. 99-58, supra, at 12.
72
H.Rept. 99-58, supra, at 12-13, 14-15.
73
H.Rept. 99-58, supra, at 15-32.
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electorate.74 In addition to the examination of ballots, the committee aided by GAO
auditors may, and has in the past, examined other related documents such as (1)
voters’ poll list; (2) absentee applications and absentee ballot envelopes; (3) precinct
tally sheets; (4) precinct certificates and memoranda of votes cast; (5) precinct
registration certificates of error; (6) precinct registered voters affidavits of change of
name; (7) precinct affidavits, challenges and counter-challenges; and (8) unopened
absentee ballots and applications which were rejected.75
In sum, the Committee on House Administration, pursuant to the House’s
constitutional authority under Article I, Section 5, clause 1, has broad power and
authority to conduct an examination of an election, election procedures, and ballots
in a contested election case, and to establish uniform standards and guidelines for the
counting of ballots to determination voters’ intentions. This authority is independent
of and not related to any proceedings under the FCEA. An investigation by the
committee, referred to the committee by the House, could take several different
procedural routes, depending on the circumstances of the case and the matters before
it. The committee, within its discretion, could decide not to conduct any
investigation of its own and to proceed based on the pleadings, arguments, and
evidence introduced by counsel or the parties. The committee could conduct a
preliminary investigation or a limited recount to determine whether there are
sufficient grounds to warrant a full-scale investigation and/or recount. In addition,
if warranted, the committee could order a full-scale investigation, including a
recount, an examination of alleged vote fraud in the balloting process, or an inquiry
into other matters brought before it to resolve the underlying questions and issues
presented in the challenge.
Ordering a Recount of Ballots Under
FCEA and Otherwise
The parties to an election contest case may, by stipulation, agree to the conduct
a state recount, 76 or may conduct their own recount, if permitted, which may then
become the basis of a stipulation upon which the House may act.77 However, a
contestant on his or her own accord generally may not conduct a recount without the
supervision of the committee after an election contest has been initiated.78 A motion
for a recount in an FCEA-initiated election contest may be granted by the committee
if there is sufficient evidence to raise at least a presumption of fraud or irregularity.
A recount would not necessarily be ordered by the committee on the mere assertion
74
H.Rept. 99-58, supra, at 16, 22-26.
75
Roush or Chambers, H.Rept. 87-513, supra, at 10-11.
76
Moreland v. Schuetz, H.Rept. 78-1158 (1943). See generally, 2 Deschler’s, Ch. 9, §§ 3941, at 437-444.
77
Sullivan v. Miller, H.Rept. 78-180 (1943).
78
Stevens v. Blackney, H.Rept. 81-1735 (1950).
CRS-16
of fraud or irregularity.79 A party to a contested election case who would claim that
the state recount of the ballots was in error would have the burden of proof to
establish such error before the committee would order a recount.80 The burden would
be on the contestant to prove to the committee that a recount would
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show substantial fraud and irregularity,
change the result of the election, and
make him or her the winner.81
Moreover, a contestant arguably should exhaust state remedies in obtaining a
recount under state election laws or through the state courts before requesting the
committee to conduct such a recount. Although the committee has the power to
undertake a recount outside of state recount proceedings when it deems it necessary,
it may wait until the contestant has exhausted state remedies including state court
actions.82 The committee, after voting for a recount, may reconsider its action and
determine that such a recount is not necessary.83
Should the committee decide that a recount, limited or districtwide, is necessary,
a set of stipulations is generally agreed upon by counsel for the parties subject to the
approval of the committee, and the committee may issue a set of rules that would
govern the recount. Stipulations made by the parties or a motion or House resolution
stipulating certain ground rules could include, inter alia, such matters as
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controlling House precedents;
controlling statutory and/or constitutional provisions relating to
recounts, ballots; conduct of election, etc.;
disputes over qualifications of voters;
scope of recount;
procedure by which committee counsel, auditors, or staff are to
examine ballots, ballot boxes, tally sheets, and records and other
pertinent documents and materials;
procedure for counting ballots;
decision on presence of press during counting;
designation of election (counting) judges;
comparison of registration books and poll books,
counting of spoiled and mutilated ballots;
determination of fraud and any irregularities;
criteria for proper marking of ballots to determine clear intention of
the voter; and
79
Swanson v. Harrington, H.Rept. 76-1722 (1940); see also Stevens v. Blackney, supra, in
which the committee and House declined to order a recount because the contestant offered
no evidence to indicate that the official returns were invalid.
80
Roy v. Jenks, H.Rept. 75-1521 (1937).
81
Moreland v. Schuetz, supra; Peterson v. Gross, H.Rept. 89-1127 (1965).
82
Swanson v. Harrington, supra.
83
McAndrews v. Britten, H.Rept. 73-1298 (1934).
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allowing counsel to file objections and evidence at any stage of the
recount proceedings.84
Application of State Law and State Court Decisions
to Committee Actions
Under the U.S. Constitution, there is a division of authority with respect to
elections to federal office, whereby the states have significant administrative
authority over the procedures of federal elections, that is, authority over the “Times,
Places and Manner” of federal elections (unless Congress designates otherwise).85
Article I, Section 5, Clause 1 of the Constitution expressly provides, however, that
each House of Congress is the judge of the elections of its own Members, and thus
the House has sole and exclusive jurisdiction to make an unconditional and final
judgment determining the right to a seat in the House.86 In light of such power, the
committee is not bound to follow state law or state court decisions concerning the
procedures of a House election, and may make its own determinations independently.
Although state court decisions and state laws are not binding on the committee, they
may be used to aid the committee in its determination of a House contested election
case when they are consistent with the committee’s notions of justice and equity.87
In 1917 the Committee on Elections explained:
Your committee maintains that the authority of the House of Representatives to
judge of the elections and qualifications of its members is infinite. Since the
formation of the Government the House has often signified its willingness to
abide by the construction given by the State court, in good faith, to its statutes.
But the decisions of a State court are not necessarily conclusive on the House,
and will only guide and control it when such decisions commend themselves to
its favorable consideration.88
In short, the House has the final say over House contested election cases.89
Generally, the committee and the House “seek[ ] to follow state law” and state
court decisions in resolving House election contests, but in certain instances, this has
84
See McCloskey and McIntyre, H.Rept. 99-58, supra at 27-30 (1985), and Roush v.
Chambers, H.Rept. 87-513, supra, at 21-22 (1961).
85
U.S. CONST., Art. I, § 4, cl. 1.
86
Each House of Congress has the “sole authority under the Constitution to judge of the
elections, returns and qualifications of its members,” and “to render a judgment which is
beyond the authority of any other tribunal to review,” Barry v. Cunningham, supra at 613,
616, and to make “an unconditional and final judgment,” Roudebush v. Hartke, 405 U.S. 15,
19 (1972).
87
See McCloskey and McIntyre, H.Rept. 99-58, supra, at 22-26, citing Brown v. Hicks, 64th
Cong., 1917, at 6 Cannon’s, § 143, at 261; McKenzie v. Braxton, H.Rept. 42-4 (1872), 1
Hinds’, § 639, at 850; and Carney v. Smith, 1914, 6 Cannon’s, § 91, at 146.
88
Brown v. Hicks, 64th Cong., 1917, at 6 Cannon’s, § 143, at 261.
89
In re William S. Conover, II, H.Rept. 92-1090, supra, at 2.
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not been the case, particularly with regard to the validity of the ballots where the
intentions of the voters are clear but that have been declared invalid for failure to
follow certain “technicalities” required by state law for marking ballots.90 For
example, in a 1902 House contested election case, the House Elections Committee
refused to reject ballots merely because they had not been marked according to the
technical requirements of a state election law. The committee ruled that it would
accept those ballots where the intention of the voter was clear, regardless of a state
election statute that required that ballots had to be marked strictly within the
designated space.91 Thus, the Committee on House Administration has noted that “in
addition to the fact that the House is not legally bound to follow state law, there are
instances where it is in fact bound by justice and equity to deviate from it,”92 such as
to ensure that “the will of the voters should not be invalidated” by mere technicalities
of state law or regulation in instances where voters’ “obvious intent” may be
discerned.93 In addition, the committee has noted that the “House has chosen
overwhelmingly in election cases throughout its history not to penalize voters for
errors and mistakes on election officials.”94 That is, in the absence of fraud, and
where the honest intent of the voters’ may be determined, “the House has counted
votes ... rather than denying the franchise to any individual due to malfeasance of
election officials.”95
Remedies Available to the Committee on House
Administration Under the FCEA and Otherwise
In the course of its investigation, the Committee on House Administration has
a number of remedies available, including
90
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a recommendation of dismissal upon a motion to dismiss by the
contestee,
!
a recommendation on the seating of a certain candidate on the
grounds that he or she received a majority of the valid votes cast,
!
a recommendation to seek a recount and to investigate any fraud or
irregularities in the voting process in various precincts,
See McCloskey and McIntyre, H.Rept. 99-58, supra, at 22-26.
91
Moss v. Rhea, H.Rept. 5-625 (1902), 2 Hinds’, § 1121, at 695-696. See also Sessinghaus
v. Frost, H.Rept. 57-1959 (1883), 2 Hinds’, § 976, at 316; McKenzie v. Braxton, H.Rept.
42-4 (1872), 1 Hinds’, § 639, at 850; and Lee v. Rainey, H.Rept. 44-578 (1876), 1 Hinds’,
§ 641, at 853.
92
McCloskey and McIntyre, H.Rept. 99-58, supra, at 23.
93
Id., citing In re Dale Alford, 2 Deschler’s, Ch. 9, § 38.5, and Kyros v. Emery, 94th Cong.
(1975), H.Rept. 94-760, at 5.
94
McCloskey and McIntyre, H.Rept. 99-58, supra, at 24.
95
Id., citing McKenzie v. Braxton, 42nd Cong. 2nd Sess. (1872), 1 Hinds’ § 639, at 850.
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a recommendation to order the seating of a certain candidate after
the committee has conducted a recount and investigation, and
!
a recommendation that the returns from the election be rejected and
that the seat be declared vacant and a new election be held.96
However, in the 1985 case of McCloskey and McIntyre, the committee noted that the
House of Representatives has been “very hesitant” to declare a seat vacant, preferring
instead to “measure the wrong and correct the returns,” when possible. The
committee reiterated the general principle that, “[n]othing 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 ... necessarily go
unrepresented for a long period of time.”97 Indeed, the committee in McCloskey and
McIntyre characterized setting aside an election and declaring a House seat vacant
as a “drastic action” that it recommended against “in nearly every instance.”98
Disposition of Contested Election Cases in the
House of Representatives
If a contested election case is not resolved by motion, such as a motion to
dismiss by the contestee, or by other prior committee proceedings, it is generally
disposed of pursuant to a House resolution following consideration and debate on the
House floor.99 A resolution disposing of a contested election case is privileged and
can be called up at any time for consideration by the House.100 The resolution, along
with the committee report on a House contested election case, may be called up as
privileged and be agreed to by voice vote and without debate.101
In some cases, the parties to an election contest have been permitted to be
present during the debate, although the parties generally have not participated.102 In
96
See Wilson v. McLaurin, H.Rept. 54-566 (1896). See also Tunno v. Veysey, H.Rept. 92626 (1971).
97
McCloskey and McIntyre, H.Rept. 99-58, supra, at 44, citing McCrary, G.W., A Treatise
on The American Law of Elections, R.B. Ogden, 1880, at 489.
98
Id.
99
2 Deschler’s, Ch. 9, 42, at 444-450. See also Deschler and Brown, Procedure In The U.S.
House of Representatives, [hereinafter Deschler and Brown] Ch. 9, §§ 3 and 4, App. B.
100
Deschler and Brown, supra, at § 4.1, at 76.
101
2 Deschler’s, Ch. 9, § 42.5, at 445.
102
Id., § 42.6 at 446. Parties were permitted to insert remarks in the Congressional Record
supporting their positions. III Cong. Rec. 24285, 24286, 89th Cong., 1st Sess. (Sept. 17,
1965).
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a situation where the contestee is a Member, he or she may be permitted to
participate in the debate on the House resolution disposing of the contest.103
After floor consideration and debate, the adoption by the House of a resolution
disposing of an election contest, whether by declaring that one of the parties is
entitled to a seat in the House or by declaring a vacancy with appropriate notice to
the governor of the state, essentially ends the contested election case. With respect
to the former, the prevailing party is administered the oath of office and seated in the
House.104
Executive Summary
Under the express provisions of the U.S. Constitution, each House of Congress
is the final judge of the “elections and returns” of its own Members. Article I,
Section 5, clause 1. Typically, election recounts or challenges to congressional
election results are initially conducted at the state level, including in the state courts,
under the states’ authority to administer federal elections (Article I, Section 4, clause
1), and are presented to the House of Representatives as the final judge of such
elections. As noted by the Supreme Court, the House or Senate may accept a state
count or recount, or other such determination, or conduct its own recount and make
its own determinations, Roudebush v. Hartke, 405 U.S. 15, 26-27 (1972), although
there is an institutional deference to, and a presumption of the regularity of state
election proceedings, results and certifications.
There are two possible avenues by which an election may be challenged or
contested in the House. In modern practice, the primary method for contesting a
congressional election in the House is for a losing candidate in the election to initiate
a contest by filing a “notice of contest” under the provisions of the Federal Contested
Election Act of 1969 (FCEA), as amended, which is then heard by the Committee
on House Administration upon the record provided by the parties to the contest.
Secondly, the House may refer the question of the right (either the prima facie right
and/or the final right) to a seat in the House to the proper committee of jurisdiction
(now the Committee on House Administration) for the committee to investigate and
to report to the House for disposition.
With reference to a candidate-initiated contest under the FCEA, the candidate
challenging the results of that election (the “contestant”) must, within 30 days after
the result of the election was certified by the state, file a written notice of an intention
to contest the election with the Clerk of the House and provide a copy of the notice
to the “contestee” (that is, the Member-elect or Member certified as the winner of the
election). 2 U.S.C. § 382. This notice must state “with particularity” the grounds for
contesting the election. 2 U.S.C. § 382(b). The contestee then has 30 days after such
service to answer the notice, admitting or denying the allegations and averments in
the notice, and setting forth any affirmative defenses, including the “failure of notice
103
Id. at § 42.7.
104
See Kunz v. Granata, Deschler’s, Ch. 9, § 42.7 at 446.
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of contest to state grounds sufficient to change the result of the election.” 2 U.S.C.
§ 383(a) and (b). If the original notice of contest is vague or too general, the
contestee may make a motion to the Committee on House Administration for a “more
definite statement” before answering, pointing out the “defects” and the “details
desired”; if the motion is granted by the committee, the contestant would have 10
days to obey the order, or the committee may dismiss the contest or “make such order
as it deems just.” 2 U.S.C. § 383(c).
Under the FCEA, the “burden of proof” is on the party challenging the election;
that is, “the burden is upon contestant to prove that the election results entitle him to
contestee’s seat.” 2 U.S.C. § 385. An election certificate from the authorized state
official is deemed to be prima facie evidence of the regularity and results of an
election to the House — a presumption that generally allows the swearing in of a
Member-elect holding such certificate, and a presumption that must be rebutted by
a contestant to “change the result” of that election as certified by the state.
In this adversarial proceeding under the FCEA, either party may take sworn
depositions for the purpose of discovery within the time frames provided, and may
seek subpoenas for the attendance of witnesses and production of documents. 2
U.S.C. §§ 386-391. Under the statutory provisions of the FCEA, the actual election
contest “case” is heard by the committee “on the papers, depositions and exhibits”
filed by the parties, which “shall constitute the record of the case,” including the
briefs filed by either party. 2 U.S.C. § 392. The briefs may contain an appendix of
any portion of the record which the party “desires the committee to consider.” 2
U.S.C. § 392(b). The decision of the committee is made upon this record.
Concerning an election contest that is directed to the Committee on House
Administration by the House, the committee may, in lieu of a record created by the
opposing parties (such as under the FCEA), conduct its own investigation, take
depositions, and issue subpoenas for the appearance of witnesses and the production
of documents. In recent years, the committee has on infrequent occasions obtained
jurisdiction of an election contest in this manner by virtue of a challenge by a
Member-elect to the taking of the oath of office of another Member-elect on the first
day of a new Congress, prior to time all the Members-elect rise to take the oath of
office, and the subsequent adoption of a resolution provisionally seating the Memberelect and directing that the question of the final right to the seat be referred to the
committee. The committees that have investigated contested elections in the past
under these conditions have employed a number of different investigative procedures
and devices, including an impoundment of the election records, ballots, tally sheets
and poll books; conducting a recount and re-canvass of the ballots and returns; a
physical examination of disputed ballots; an examination of registration documents;
and interviews and formal examinations of various election officials, administrators,
watchers, and parties.
The committee may then issue a report and file a resolution concerning the
disposition of the case, to be approved by the full House. The committee may
recommend, and the House may approve by a simple majority vote, a decision
affirming the right of the contestee to the seat, may seat the contestant, or may find
that neither party is entitled to be finally seated and declare a vacancy.
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It should be noted that each House of Congress is expressly entitled to adopt its
own rules for proceeding, under Article I, Section 5, cl. 2 of the U.S. Constitution,
and even when such procedural rules are adopted by way of statute under the House’s
rule making authority, the House may change such procedural rules by resolution,
and adopt and apply others. Similarly, although various legislative precedent is
extremely important in an ordered, democratic institution, such precedent followed
by, for example, committees in the past, are not necessarily binding in a legal sense
upon a later committee of the House, as long as the committee is acting within the
scope of its authority.
declare a vacancy.
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Procedures for Contested Election Cases in the House of Representatives
Contents
Introduction ................................................................................................................................1
Background ..........................................................................................................................1
House Jurisdiction.................................................................................................................2
Who May Challenge the Right to a Seat in the House..................................................................3
Federal Contested Elections Act (FCEA)...............................................................................3
House-Initiated Challenges and Contests...............................................................................3
Challenges Under the Federal Contested Elections Act (FCEA)...................................................4
Standing To Initiate a Contest Under the FCEA.....................................................................4
Filing of Notice.....................................................................................................................4
Swearing In of Member-Elect Whose Election Is Contested Under the FCEA........................5
Significance of Certified Election Results .............................................................................6
Contents and Form of Notice.................................................................................................6
Proof of Service ....................................................................................................................6
Response of Contestee ..........................................................................................................7
Taking of Depositions and Reimbursement of Fees................................................................8
Filing of Pleadings, Motions, Depositions, Appendices, and Briefs; Record of Case of
Election Contest.................................................................................................................8
Burden of Proof ....................................................................................................................9
Challenges In the House Other than Under the Federal Contested Elections Act ..........................9
Procedures To Bring Matter Before Committee .....................................................................9
Investigative Procedures by the Committee on House Administration When Directed
by the House To Investigate an Election ........................................................................... 11
Ordering a Recount of Ballots Under FCEA and Otherwise....................................................... 13
Application of State Law and State Court Decisions to Committee Actions................................ 15
Remedies Available to the Committee on House Administration Under the FCEA and
Otherwise .............................................................................................................................. 16
Disposition of Contested Election Cases in the House of Representatives .................................. 17
Executive Summary .................................................................................................................. 17
Contacts
Author Contact Information ...................................................................................................... 19
Congressional Research Service
Procedures for Contested Election Cases in the House of Representatives
Introduction
Background
The U.S. Constitution provides at Article I, Section 5, clause 1, that each House of Congress shall
be the judge of the “elections, returns and qualifications” of their own Members.1 Under the
federal system, primary authority over the procedures and the administration of elections to
Congress within the several states is given expressly to the states in the “Times, Places, and
Manner” clause of the Constitution, Article 1, Section 4, clause 1 (which also provides a residual,
superceding authority within the Congress to alter such regulations concerning congressional
elections). 2 Election recounts or challenges to congressional election results are thus initially
conducted at the state level, including in the state courts, under the states’ constitutional authority
to administer federal elections, and are presented to the House of Representatives as the final
judge of such elections. 3
Under these constitutional provisions and practice, the House essentially is the final arbiter of the
elections of its own Members. As noted by the House Committee on Administration, once the
final returns in any election have been ascertained, the ultimate “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 article I, section 5 of the Constitution of the United States.”4 A
noted 19th century expert on parliamentary and legislative assemblies, Luther Sterns Cushing,
explained that the final and exclusive right to determine membership in a democratically elected
legislature “is so essential to the free election and independent existence of a legislative assembly,
that it may be regarded as a necessary incident to every body of that description, which emanates
directly from the people.”5 In his historic work, Commentaries on the Constitution, Justice Joseph
Story analyzed the placing of the power and final authority to determine membership within each
House of Congress:
It is obvious that a power must be lodged somewhere to judge of the elections, returns, and
qualifications of the members of each house composing the legislature; for otherwise there
could be no certainty as to who were legitimately chosen members, and any intruder or
usurper might claim a seat, and thus trample upon the rights and privileges and liberties of
the people.... If lodged in any other, than the legislative body itself, its independence, its
purity and even its existence and action may be destroyed, or put into imminent danger.6
1
Each House may judge the constitutional “qualifications” of its Members (age, citizenship, and inhabitancy in the
state from which elected) and, in election challenges, may determine if the Member is “duly elected.” See Powell v.
McCormack, 395 U.S. 486, 550 (1969).
2
Congress generally allows the states to govern congressional election procedures within their own jurisdictions, but
has by law designated the date on which House elections are to be held and has required that all votes for
Representatives be by written or printed ballot or by voting machine. 2 U.S.C. §§ 7, 9.
3
House committees hearing election contests have recommended dismissal, on occasion, for failure of contestant to
“exhaust his state remedies first,” in the case of certain pre-election procedural irregularities, Huber v. Ayres, 2
Deschler’s Precedents of the United States House of Representatives [hereinafter Deschler’s], Ch. 9, § 7.1, at 358, and
in the case of recounts of ballots, Carter v. LeCompte, 2 Deschler’s, Ch. 9, §§ 7.2, 57.1, finding that candidate has
exhausted remedies if no state recount allowed for congressional elections.
4
In re William S. Conover, II, H.Rept. 92-1090 (1972), at 2.
5
Cushing, Law and Practice of Legislative Assemblies, at 54-55 (1856).
6
Story, Commentaries on the Constitution, Volume II, § 831, at 294-295.
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Procedures for Contested Election Cases in the House of Representatives
In Roudebush v. Hartke, the U.S. Supreme Court held that under this provision of the
Constitution, the final determination of the right to a seat in Congress in an elections case is not
reviewable by the courts because it is “a non-justiciable political question,” and that each House
of Congress in judging the elections of its own Members has the right under the Constitution to
make “an unconditional and final judgment.”7 Earlier, the Supreme Court had also found that
each House of Congress under Article I, Section 5, clause 1, “acts as a judicial tribunal” with
many of the powers inherent in the court system in rendering in such cases “a judgment which is
beyond the authority of any other tribunal to review.”8
Under the constitutional authority over the elections and returns of its own Members, the House
in its consideration of a challenged election may accept a state count or recount or other such
determination, or conduct its own recount and make its own determinations and findings.9 While
the House has broad authority in this area, there is an institutional deference to, and a
“presumption of the regularity” of state election proceedings, results and certifications. An
election certificate from the authorized state official, generally referred to as the “credentials”
presented by a Member-elect, therefore, is deemed to be prima facie evidence of the regularity
and results of an election to the House. 10 The consequences of this presumption of regularity
would generally result in the swearing in of a Member-elect presenting such credentials to the
House at the beginning of a new Congress, even in the face of a filed contest or challenge, 11 and
would create a “substantial” burden of proof on the contestant to persuade the House to take
action that, in substance, would amount to “rejecting the certified returns of a state and calling
into doubt the entire electoral process.”12
House Jurisdiction
There are two general avenues by which the House obtains jurisdiction over an election that is
challenged or contested. In modern practice, the Federal Contested Elections Act of 1969 (FCEA)
is the primary method by which a congressional election is contested in the House of
Representatives. This contest is triggered by a losing candidate filing a notice under the
provisions of the FCEA. In addition, the House has in the past, upon a challenge to the seating of
a Member-elect, referred the question of the right to a seat in the House to the committee of
jurisdiction (now the Committee on House Administration) for the committee to investigate and
to report to the House for disposition. As explained in Deschler’s Precedents:
The House acquires jurisdiction of an election contest upon the filing of a notice of contest.
Normally the papers relating to an election contest are transmitted by the Clerk to the
Committee on House Administration, pursuant to 2 USC § 393(b), without a formal referral
7
Roudebush v. Hartke, 405 U.S. 15, 19 (1972).
Barry v. United States ex rel. Cunningham, 279 U.S. 597, 613, 616 (1929).
9
Roudebush v. Hartke, supra, at 25-26.
10
2 Deschler’s, Ch.8, § 15, at 305: “Once Congress meets, the certificate constitutes evidence of a prima facie right to a
congressional seat in the House.”
11
It appears that in the 103 contested election cases considered by the House since 1933, on the first day of the new
Congress the House failed to seat, even provisionally, only two Members-elect who had presented valid credentials (see
Roush or Chambers, 107 Cong. Rec. 24 (January 3, 1961); McCloskey and McIntyre, 131 Cong. Rec. 380, 381-388
(January 3, 1985)).
12
Tunno v. Veysey, H.Rept. 92-626, citing Gormley v. Goss, H.Rept. 73-893. See 2 Deschler’s, Ch. 9, § 64, at 637638.
8
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Procedures for Contested Election Cases in the House of Representatives
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.13
The FCEA, codified at 2 U.S.C. §§ 381-396, governs contests for the seats in the House of
Representatives that are initiated by a candidate in the challenged election.14 The FCEA
essentially sets forth and details the procedures by which a defeated candidate may contest a seat
in the House of Representatives. The contest under the FCEA is heard by the Committee on
House Administration upon the record provided and established by the parties to the contest.
After the contest is heard by the committee, the committee reports the results. After discussion
and debate, the whole House can dispose of the case by privileged resolution by a simple majority
vote.15
On less frequent occasions in modern practice, a referral by the House to the Committee on
House Administration of the question of the right to a congressional seat has been made after a
challenge by one Member-elect to the taking of the oath of office by another Member-elect. In
such a circumstance, the Committee on House Administration may investigate the matter itself or
may rely substantially on the evidence and materials provided by the interested parties/candidates
following similar procedures as in the statutory Federal Contested Elections Act.16
Who May Challenge the Right to a Seat in the
House
Federal Contested Elections Act (FCEA)
In a contested election brought under the statutory procedures of the FCEA, only losing
candidates have standing to initiate a contest by filing a notice of intent to contest a House
election. The statute provides expressly that only “a candidate for election in the last preceding
election and claiming a right to such office” of Representative in Congress may contest a House
seat.17 The contestant must be a candidate whose name was on the official ballot or who was a
bona fide write-in candidate. 18
House-Initiated Challenges and Contests
In recent years, the Committee on House Administration has, on infrequent occasions, obtained
jurisdiction of an election contest by virtue of a challenge by one Member-elect to the taking of
the oath of office of another Member-elect on the first day of a new Congress, and the subsequent
13
14
2 Deschler’s, Ch. 9, § 4, at 344.
The Senate does not have codified provisions for its contested-election procedures.
15
Brown and Johnson, House Practice, A Guide to the Rules, Precedents and Procedures of the House, 108th Cong.
(2003) [hereinafter Brown and Johnson], at Ch. 22, §§ 4-6, at 477-479.
16
In the matter of Dale Alford, H.Rept. 86-1172 (1959), 2 Deschler’s, at Ch. 9, § 17.4 at 385: “The committee report
strongly recommended that in such cases proceedings be under the provisions of the contested elections statute.”
17
2 U.S.C. §382(a).
18
Federal Contested Elections Act, H.Rept. 91-569 (1969), at 4.
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Procedures for Contested Election Cases in the House of Representatives
adoption of a resolution instructing that the question of the right to the seat be referred to the
committee. 19 In addition to a House-initiated referral in this manner, it has also been noted that it
is possible that a petition from an elector of the congressional district in question, or from any
other person, might also be referred by the Speaker or the House to the committee for
investigation.20 According to Deschler’s, there are thus four ways for a challenge to be brought
before the House:
(1) an election contest initiated by a defeated candidate and instituted in accordance with law
[the FCEA]; (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.21
Although these other methods of obtaining jurisdiction, other than by means of a filing under the
statute, have been employed on occasion, the Committee on House Administration, in one
instance of a referral of a petition, noted “a strong preference” for “determining disputed elections
by following the procedures under the contested election statute.”22
Challenges Under the Federal Contested Elections
Act (FCEA)
The current Federal Contested Elections Act (FCEA), enacted in 1969 and codified at 2 U.S.C. §§
381-396, sets forth procedures for contesting a seat in the House. In modern practice, it is the
primary method for a losing candidate to challenge the results of a House election. The FCEA
defines “contestant” as an individual who contests the election of a Member of the House of
Representatives under the statute, and defines “contestee” as a Member of the House of
Representatives whose election is contested under the statute.23
Standing To Initiate a Contest Under the FCEA
In accordance with the FCEA, only a losing candidate in a general election for a seat in the House
of Representatives may contest a seat.24
Filing of Notice
The FCEA provides that a losing candidate shall file a notice of intention to contest an election
within 30 days after the election result is declared by the appropriate state officer or Board of
Canvassers authorized by law to make such a declaration. Written notice must be filed with the
19
2 Deschler’s, at Ch. 9, § 17.
20
2 Deschler’s, at Ch. 9, § 17, at 383-385. See also matter of Dale Alford, 105 Cong. Rec. 14 (January 7, 1959); 2
Deschler’s, Ch. 9, § 17.1; and Lowe v. Thompson, 2 Deschler’s, Ch. 9, at § 17.5.
21
2 Deschler’s, at Ch. 9, § 17, at 383.
22
Matter of Dale Alford, H.Rept. 1172, 86th Congress (1959), and 2 Deschler’s, Ch. 9, § 17.1 at 384, § 17.4 at 385, and
§ 58 at 586.
23
2 U.S.C. § 381(3), (4).
24
See 2 U.S.C. 382(a).
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Procedures for Contested Election Cases in the House of Representatives
Clerk of the House and be served upon the contestee, that is, the Member-elect or Member
certified as the winner of the election.25
Swearing In of Member-Elect Whose Election Is Contested Under
the FCEA
Once a notice of an election contest is filed by a losing candidate with the Clerk of the House, and
notice served upon the contestee, the House of Representatives and the appropriate committee
(now the Committee on House Administration) formally obtain jurisdiction over the matter. For
the House to be able to finally “judge” the election of one of its Members whose election has
been contested under the FCEA, there need not be any further action or motions presented to or
adopted by the House on the first day of Congress with regard to the election, or concerning the
Member-elect whose seat is being challenged. With the filing of an election contest, the
Committee on House Administration may later hear the matter, recommend a particular action or
resolution to the House, and the House may, by a simple majority vote, determine finally who has
the right to the seat in question, regardless of whether or not the Member-elect had been sworn in
on the first day of the new Congress. 26 As stated by Parliamentarians to the House of
Representatives, Brown and Johnson, “[t]he seating of a Member-elect does not prejudice a
contest pending under the Federal Contested Elections Act (FCEA) over final right to the seat.”27
On occasion, the House has asked certain Members-elect to “step aside” or remain seated when
the oath of office is given collectively to the other Members-elect. 28 If an election contest has
been filed, and the Member-elect whose election is being contested is asked to “step aside,” then
that Member-elect may, after the other Members-elect have taken the oath of office, merely be
administered the oath with no further direction, instruction, or comment by the House.29 In at
least one instance, another Member-elect has made a parliamentary inquiry of the Speaker
concerning the swearing in of a Member-elect whose election has been contested under the
25
See id. But see McLean v. Bowman (62nd Cong., 1912), 6 Cannon’s Precedents § 98 (finding that the contested
elections statute, in effect prior to the FCEA, limiting the time within which notice of contest of election may be
served, “is merely directory and may be disregarded for cause”). For example, in Tataii v. Abercrombie (H.Rept. 11168), the Committee on House Administration found that the certificates of election were signed by the state’s chief
election officer on November 24, 2008, and therefore, in order to be timely pursuant to Section 382(a) of the FCEA, the
contestant would have had to file a notice of contest by December 24, 2008. The contestant filed a notice of contest on
January 16, 2009. However, due to an elections contest filed by the contestant in the state supreme court, the certificate
of election was not delivered by the state to the U.S. House of Representatives until December 16, 2008, when the court
made a final determination. Noting that the FCEA expressly provides that a notice of contest must be filed within 30
days of elections results being declared, the committee announced that the contestant’s notice of contest was untimely.
Nonetheless, acknowledging that the contestant may have received inaccurate advice on timely filing, the committee
decided to evaluate the contestant’s claims on the merits.
26
Brown and Johnson, supra, Ch. 22, §§ 4-6, at 477-479; Ch. 33, § 3, at 635, and Ch. 58, § 28.
27
Id., at Ch. 33, § 3, at 635.
28
Of the 107 election contests considered by the House since 1933, it appears that Members-elect have been asked to
“step aside” in 15 instances. See CRS Report 98-194, Contested Election Cases in the House of Representatives: 1933
to 2009, by L. Paige Whitaker.
29
In 11 of the 15 cases where a Member-elect has been asked to “step aside,” it appears that an election contest under
the FCEA had been filed, and the resolution offered to swear in the challenged Member-elect merely provided that the
Member-elect “be now permitted” to take the oath of office, with no specific reference to final determination of the
right to the seat nor any express reference to a filed election contest. See CRS Report 98-194, Contested Election Cases
in the House of Representatives: 1933 to 2009.
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statute, to clarify that the swearing in of such Member-elect is without prejudice to the House’s
authority to resolve the election contest, and to finally determine who was “duly elected.”30
Significance of Certified Election Results
In the 1934 contested elections case of Gormley v. Goss, the House Elections Committee declared
that the official election returns are prima facie evidence of the “regularity and correctness of
official action,” that election officials are presumed to have performed their duties loyally and
honestly, and that the burden of coming forward with evidence to meet or resist these
presumptions rests with the contestant.”31 In other words, the certification of election returns by
the appropriate governor or secretary of state is generally accepted by the House.
Contents and Form of Notice
The FCEA requires that the notice of intention to contest “shall state with particularity the
grounds upon which contestant contests the election,” and shall state that an answer to the notice
must be served upon the contestant within 30 days after service of the notice. In addition, the
notice of intention to contest must be signed by the contestant and verified by oath or
affirmation. 32
Proof of Service
The FCEA provides that service of the notice of intention to contest shall be made by one of the
following methods: (1) personal delivery of copy to contestee, (2) leaving a copy at contestee’s
house with a “person of discretion” of at least 16 years old, (3) leaving a copy at contestee’s
principal office or place of business with a person in charge, (4) delivering a copy to an agent
authorized to receive such notice, or (5) mailing a copy by registered or certified mail addressed
to contestee at contestee’s residence or principal office or place of business. Service by mail is
considered complete upon the mailing of the notice of intention to contest. Proof of service by a
person is achieved upon the verified return of the person servicing such notice setting forth the
time and manner of the service; proof of service via registered or certified mail is achieved by the
return post office receipt. Proof of service is required to be made to the Clerk of the House of
Representatives “promptly and in any event within the time during which the contestee must
answer the notice of contest.” The FCEA further provides that failure to make proof of service,
however, “does not affect the validity of the service.”33
30
See Morgan M. Moulder, 107 Cong. Rec. 12 (January 3, 1961)(in response to a parliamentary inquiry as to whether
adoption of the resolution to administer the oath of office to the challenged Member-elect would “preclude and
foreclose any further contest of these elections before the Committee on House Administration,” the Speaker stated that
the “gentleman would have all rights he would have under the law”). Id.
31
Gormley v. Goss, H.Rept. 73-893 (1934).
32
2 U.S.C. § 382(b).
33
2 U.S.C. § 382(c).
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Response of Contestee
Within 30 days after receiving service of a notice of intention to contest, in accordance with the
FCEA, the contestee must serve upon the contestant a written answer to the notice of contest
admitting or denying the averments contained in the notice. The answer must set forth
affirmatively any defenses in law or in fact on which the contestee relies and shall be signed and
verified by the contestee by oath or affirmation. 34
The contestee also has the option of making certain defenses by motion prior to his or her answer
to the contestant. The FCEA expressly provides that any such motion would alter the time for
serving an answer on the contestant.35 At the option of the contestee, the following defenses may
be made by motion, served upon the contestant prior to the contestee’s answer: (1) insufficiency
of service of notice of contest, (2) lack of standing of contestant, (3) failure of notice of contestant
to state grounds sufficient to change the result of election, and (4) failure of contestant to claim
right to contestee’s seat.36 Upon such a motion to dismiss, the burden of proof is on the contestant
to present sufficient evidence that he or she is entitled to the House seat in question. The purpose
of a motion to dismiss is to require the contestant, at the outset of the contest, to present sufficient
evidence of a prima facie case, prior to the formal submission of testimony, so that the committee
can determine whether to conduct exhaustive hearings and investigations.37
If the notice of contest is so vague or ambiguous that the contestee “cannot reasonably be
required to frame a responsive answer,” the FCEA also provides that the contestee may move for
a more definitive statement before interposing an answer. 38 Such a motion must specify the
defects of the notice and note the details required. If the committee grants the motion for a more
definite statement and if the contestant does not comply with the order of the committee within 10
days after notice of such order, the committee may dismiss the case or make such other order as it
deems appropriate.39 The FCEA expressly states that the failure of a contestee to answer the
notice of contest or otherwise defend shall not be deemed to be an admission of truth of the
averments contained 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.”40
34
2 U.S.C. § 383(a).
Section 383(d) provides: “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.”
36
2 U.S.C. § 383(b).
37
See Tunno v. Veysey, H.Rept. 92-626, supra.
38
2 U.S.C. § 383(c).
35
39
2 U.S.C. § 383(d). For comparison, note that in Senate contested election cases, the contestant may be asked by the
Senate Rules and Administration Committee to file a supplemental petition setting forth any specific charges of fraud
or irregularities if the petition to contest is too general or ambiguous, see Bursum v. Bratton and Wilson v. Ware,
S.Rept. 71-447 at 1 (1930). The Senate contestee may also request that the contestant file a bill of particulars or a
statement of specific amendments, see Hurley v. Chavez, S.Rept. 83-1081 at 284 (1954), and may file a denial or
demurrer, as well as a petition for dismissal of the contest.
40
2 U.S.C. § 385.
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Taking of Depositions and Reimbursement of Fees
The FCEA allows for the contestant and the contestee to take testimony by deposition of any
person for the purpose of discovery and for use as evidence in the contested election
proceeding.41 The total time permitted for the taking of testimony is 70 days. Upon application by
any party, a subpoena for attendance at a deposition and for the production of documents shall be
issued by judges or clerks of the federal, state, and local courts of record. 42 For witnesses who
willfully fail to appear or testify, a fine of $100 to $1,000 or imprisonment for 1 to 12 months
may be imposed. 43
Each judge or clerk who issues a subpoena or takes a deposition shall be entitled to receive from
the party for whom the service was performed such fees as are allowed for similar services in the
U.S. district courts.44 Witnesses who are deposed shall be entitled to receive, from the party for
whom the witness appeared, the same fees and travel allowances paid to witnesses subpoenaed to
appear before House committees.45 From applicable House accounts, the committee may
reimburse any party for reasonable expenses of the case, including reasonable attorneys fees,
upon application by such party accompanied by an expense accounting and other supporting
documentation. 46
Filing of Pleadings, Motions, Depositions, Appendices, and Briefs;
Record of Case of Election Contest
The FCEA requires all pleadings, motions, depositions, appendices, briefs, and other papers to be
filed with the Clerk of the House, and copies of such documents may also be mailed by registered
or certified mail to the Clerk.47 The record of the contested election case shall be composed of the
papers, depositions, and exhibits filed with the Clerk of the House. Both the contestant and the
contestee are required to print, as an appendix to his or her brief, those portions of the record that
he or she wishes the committee to consider in order to decide the case. 48
The contestant has 45 days, after the time for both parties to take testimony has expired, in which
to serve on the contestee his or her printed brief of the facts and authorities relied on for the
grounds of the case. The contestee then has 30 days, from the time he or she is served with
contestant’s brief, in which to serve on the contestant a brief of the relied upon facts and
authorities. After service of contestee’s brief, the contestant has 10 days to serve a reply brief
upon the contestee.49
41
2 U.S.C. § 386.
2 U.S.C. § 388.
43
2 U.S.C. § 390.
44
2 U.S.C. § 389(a).
45
2 U.S.C. § 389(b).
46
2 U.S.C. § 396.
47
2 U.S.C. § 393.
48
2 U.S.C. § 392(a),(b),(c).
49
2 U.S.C. § 392(d),(e),(f).
42
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Burden of Proof
Under the FCEA, the party challenging the election, the contestant, has the burden of proving that
“the election results entitle him to contestee’s seat.”50 As an election certificate from the
authorized state official is deemed to be prima facie evidence of the regularity and results of an
election to the House, it is a presumption that generally allows for the swearing in of a Memberelect holding such certificate, and is a presumption that must be rebutted by a contestant to
“change the result” of the election as certified by the state. In other words, the contestant must
show that but for the voting irregularities or acts of fraud, the results of the election would have
been different and the contestant would have prevailed. 51 Since enactment of the FCEA, most
House contested election cases have been dismissed due to failure by the contestant to sustain the
burden of proof necessary to overcome a motion to dismiss. 52
Challenges In the House Other than Under the
Federal Contested Elections Act
Procedures To Bring Matter Before Committee
As noted earlier, although in modern practice the Federal Contested Elections Act is the primary
and (according to the Committee on House Administration) the preferred procedure to challenge
an election in the House of Representatives, the committee of jurisdiction—now the Committee
on House Administration—may obtain jurisdiction of an election challenge by way of a referral to
the committee by the House upon a challenge by any Member or Member-elect of the House to
the taking of the oath of office by another Member-elect.53 It is possible, although unusual, that
jurisdiction may be obtained by the committee because of a “protest” or petition filed by an
elector of the district in question, or by any other person.54 Although these procedures for the
committee to obtain jurisdiction over an election challenge are not common, it appears that in the
103 contested election cases considered in the House since 1933, election challenges have come
before the committee of jurisdiction in the House by means other than the statutory provisions of
the contested elections statute on a total of at least six occasions. 55
50
2 U.S.C. § 385.
See, e.g., Pierce v. Pursell, H.Rept. 95-245 (1977).
52
See generally CRS Report 98-194, Contested Election Cases in the House of Representatives: 1933 to 2009, supra.
53
2 Deschler’s, Ch. 9, § 4, at 344: “[T]he 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.”
54
2 Deschler’s, Ch. 9, § 17, at 383. Two instances have been cited for the committee obtaining jurisdiction in this
manner, in 1959 concerning Member-elect Dale Alford (2 Deschler’s, Ch. 9, §§ 17.1, 17.4, 58.1) where, based on a
petition from a single voter, a Member-elect objected to the taking of the oath by Alford, and the House, seating Alford,
referred the question of his final right to the committee; and in 1967 in Lowe v. Thompson, where the losing candidate
did not file under the statute, and the committee considered, but then denied the petition brought by a primary
candidate. 2 Deschler’s, Ch. 9, § 17.5, § 62.1, at 624-625. In another instance, a petition challenging the qualifications
of a Member-elect (but not whether a Member-elect was “duly elected,” and thus not an elections contest), was
transmitted “to the Speaker, who in turn laid it before the House and referred it to the Committee on Elections.” In re
Ellenbogen, 1933, 2 Deschler’s, Ch. 9, §§ 17.3, 47.5.
55
In five instances, the House referred the matter to the committee by resolution: Sanders v. Kemp, 78 Cong. Rec. 12
(January 3, 1934) (nullifying results of improper special elections); Dale Alford, 105 Cong. Rec. 14 (January 7, 1959);
(continued...)
51
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A member-elect to a new Congress whose proper “credentials” (the formal election certificate
from the appropriate state executive authority) have been transmitted to the Clerk of the House is
placed by the Clerk on the role of the Representatives-elect. 56 A Member-elect is not a Member of
Congress, however, until he or she takes the oath of office and is seated by the House. Any single
Member-elect, on the first day of the new Congress and before the Members-elect are to be sworn
(that is, at the time when the Speaker asks the Members-elect to rise to take the oath of office),
may object to the taking of the oath of office by another Member-elect based upon the objecting
Member-elect’s own “responsibility as a Member-elect” and/or upon “facts and statements” that
the Member-elect “considers reliable.”57 The Member-elect about whom the objection is made is
generally then asked to stand aside, step aside, or to remain seated, while the other Members-elect
rise to be collectively administered the oath of office. 58
Because the possession of proper “credentials” by a Member-elect to the House is considered
prima facie evidence of one’s right to the seat, and provides a presumption of the regularity of the
returns of that election, the possession of the election certificate generally results in the taking of
the oath of office by the Member-elect, even in the face of a challenge by another Member-elect
and a request to initially “step aside” while the other Members-elect are sworn. As noted by the
Committee on House Administration, it is only in “the most extraordinary of circumstances” that
a Member-elect holding a certificate of election would be denied the opportunity to take the oath
of office on the first day of the new Congress, that is, where “irregularities and inconsistencies in
the state process are so manifest that the result is not entitled to deference.”59
There are, it should be noted, however, three different procedures that could possibly be followed
with regard to one Member-elect challenging the taking of the oath of office by another Memberelect: First, the House could agree to a resolution to seat the Member at that time, and to
determine then both “his prima facie as well as final right to the seat.”60 Second, with regard to a
Member-elect who presents valid credentials and is qualified to be a Member, a resolution may be
offered to seat the Member-elect provisionally or conditionally (even though those words are not
expressly used) based on his or her prima facie right to the seat, by resolving to seat the Memberelect but to refer the question of the final disposition of his or her entitlement to the seat to the
appropriate committee of jurisdiction (now the Committee on House Administration).61 Since
1933, it appears that an explicit provisional seating of a Member-elect, with express referral by
the House of the question of the final right to a seat to the committee of jurisdiction, has occurred
(...continued)
Mackay v. Blackburn, 113 Cong. Rec. 14, 27 (January 10, 1967); Roush or Chambers, 107 Cong. Rec. 24 (January 3,
1961); McCloskey and McIntyre, 131 Cong. Rec. 380, 381-388 (January 3, 1985). In one other case, in 1967, in the
elections investigation of Lowe v. Thompson, the losing candidate did not file under the statute, but the committee
directly considered, and then dismissed on the merits, the petition brought by a primary candidate. 2 Deschler’s, Ch. 9,
§ 62.1, at 624-625.
56
2 U.S.C. § 26 (Roll of Representatives-elect).
57
1 Deschler’s, Ch. 2, § 6, at 130 and Ch. 2, § 6.2, at 133-134; Brown and Johnson, Ch. 33, § 3, at 634-635: “The fact
that the challenging party has not himself been sworn is no bar to his right to invoke this procedure,” citing 1 Hinds §
141. See also 1 Deschler’s, supra at Ch. 2, § 5, at 117.
58
Brown and Johnson, supra at Ch. 33, § 3, at 634; Deschler’s supra at Ch. 2, § 6. It appears, in relation to election
challenges and contests, that Members-elect have been asked to step aside in 15 instances since 1933. See generally,
CRS Report 98-194, Contested Election Cases in the House of Representatives: 1933 to 2009, by L. Paige Whitaker.
59
McCloskey and McIntyre, H.Rept. 99-58 (1985), at 3.
60
1 Deschler’s supra at Ch. 2, § 6, at 131.
61
1 Deschler’s, supra at Ch. 2, § 6, at 131-132.
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in only two instances.62 Third, the resolution may refer both the prima facie right to the seat, as
well as the final right to the seat, to the committee without authorizing the swearing in (and
seating) of anyone. 63 As noted, it would be under only the most exceptional circumstances for the
House to refuse to seat, even provisionally, a Member holding valid election credentials from the
state, and it appears that this third option has happened since 1933 only two times on the first day
of the new Congress, and once during the Congress concerning a special election. 64
If the House decides to propose a resolution not to seat, or to seat a Member-elect provisionally,
and to refer the question of the initial and/or final right to a seat to the committee to investigate,
the House resolution is then put to a vote. In the case of the adoption of a resolution not to seat
anyone, the adoption would effectively nullify a certificate of election that was previously issued
by the executive authority of the state. In either case, the adoption of the House resolution
referring the matter to the committee places the responsibility on the committee to determine the
results of the challenged election and report them back to the full House.65
Investigative Procedures by the Committee on House
Administration When Directed by the House To Investigate an
Election
The House resolution by its own terms is referred to the committee and becomes a matter within
the jurisdiction of the committee. Once the committee is organized in the new Congress, a motion
to investigate may be made and, depending on the nature of the dispute, may include express
authority to conduct a recount of the ballots, if deemed necessary or advisable. 66 The committee
then may proceed to conduct an investigation and to hold hearings, not only in Washington, D.C.,
but also in the congressional district of the election contest site, at which the contestant and
contestee, as well as other pertinent parties, may be called to testify. After the completion of its
investigation, the committee may file a report and offer to the House for its consideration and
vote a privileged resolution recommending generally the seating of a certain candidate whom the
62
See Dale Alford, 105 Cong. Rec. 14 (January 7, 1959); and Mackay v. Blackburn, 113 Cong. Rec. 14, 27 (January
10, 1967). In most of the 15 cases where a Member-elect has been asked to “step aside,” it appears that an election
contest under the FCEA has been filed, and the resolution offered to swear in the challenged Member-elect merely
provided that the Member-elect “be now permitted” to take the oath of office, with no specific reference to final
determination of the right to the seat nor any express reference to a filed election contest. See generally, CRS Report
98-194, Contested Election Cases in the House of Representatives: 1933 to 2009, supra. As stated by Brown and
Johnson, supra at Ch. 33, § 3, at 635: “The seating of a Member-elect does not prejudice a contest pending under the
Federal Contested Elections Act (FCEA) over final right to the seat.”
63
1 Deschler’s supra at Ch. 2, § 6, at 132.
64
See Sanders v. Kemp, 78 Cong. Rec. 12 (January 3, 1934)(concerning results of apparently improper special
elections); Roush or Chambers, 107 Cong. Rec. 24 (January 3, 1961); and McCloskey and McIntyre, 131 Cong. Rec.
380-388 (January 3, 1985).
65
See, e.g., McCloskey and McIntyre, H.Rept. 99-58 (1985) at 1-4; Roush or Chambers, H.Rept. 87-513 (1961) at 3-4.
In McCloskey and McIntyre, the House adopted H.Res. 1, refusing to seat either candidate and referring the case to the
Committee on House Administration to investigate and report back to the House on the question of who was duly
elected. H.Res. 1, 99th Cong. 1st Sess., 131 Cong. Rec. 381 (January 3, 1985).
66
An example of such a motion to investigate reads as follows:
That the Committee on House Administration, pursuant to House Resolution 1, adopted on January 3, 1961, investigate
the election of November 8, 1960, in the Fifth District of Indiana to determine whether J. Edward Roush or George O.
Chambers was duly elected, and the said investigation, including a recount of the ballots, if found advisable in the
judgment of the committee, be completed at the earliest possible time. H.Rept. 87-513, supra, at 5.
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Procedures for Contested Election Cases in the House of Representatives
committee has determined to have won the election, or the committee could recommend the
seating of no candidate, thus declaring a vacancy.
The committee has in the past, at an early stage of the contested election proceedings, examined
and analyzed pertinent sections of the state election laws relevant to matters that may be in
dispute, including state laws and regulations on voting procedures, counting of ballots, and
recounts. If necessary, the committee may move to impound records, ballots, tally sheets, ballot
stubs, poll books, ballot boxes, voting machines or other electronic voting systems, and irregular
or defective paper and absentee ballots, although the committee may be satisfied with the security
state or local officials have provided and may merely request state, local, or county auditors to
retain and preserve ballots and other papers in an election contest case. 67 Where state law requires
destruction of ballots after an election, the committee may notify the state election officials to
preserve the ballots despite the state law. The committee, with its counsel and the General
Accounting Office (GAO) (now the Government Accountability Office) auditors, may choose go
to the site of an election contest case and take custody of the ballots, voting machines, and
electronic voting systems, as well as other related materials to investigate the contested election. 68
Motions adopted in the committee may direct an examination and recount of disputed ballots. 69
The committee may direct counsel and GAO auditors to aid state officials in the examination and
recount of ballots. The committee may also meet in executive session within the District of
Columbia, or in the congressional district, to do such things as establish criteria for classifying
ballots to be examined and recounted by GAO auditors under the supervision of the committee. 70
In McCloskey and McIntyre in the 99th Congress, the Chairman of the House Administration
Committee appointed a three-member Task Force composed of two Democrats and one
Republican to investigate the election.71 The task force initially took the steps necessary to secure
all of the ballots by requesting by telegram that all county clerks protect and keep safe for six
months “... all originals and copies of books, records, correspondence, memoranda, papers, and
documents ...” pertaining to the contested general election “...including but not limited to all
ballots, certifications, poll books and tally sheets....”72 The committee task force then set out
procedures and operating rules for canvassing votes and examining and counting ballots.73 The
committee noted that while it sought to follow the state election statutes regarding the counting of
ballots, it was not bound to follow state law, because the final power of judging the whole
question of returns and elections must reside in the House of Representatives, whose objective,
over and above following mere technicalities of state or local regulation, is to determine the will
of the electorate. 74 In addition to the examination of ballots, the committee aided by GAO
auditors may, and has in the past, examined other related documents such as (1) voters’ poll list;
(2) absentee applications and absentee ballot envelopes; (3) precinct tally sheets; (4) precinct
67
See McCloskey and McIntyre, H.Rept. 99-58, supra, at 12-13.
McCloskey and McIntyre, H.Rept. 99-58, supra, at 12-43. 2 Deschler’s, Ch. 9, §§ 5.7, 5.8, 5.9, at 350-351 (1977).
69
McCloskey and McIntyre, H.Rept. 99-58, supra, at 12-17; 2 Deschler’s Ch. 9, § 5.10 at 351, noting Oliver v. Hale,
H.Rept. 85-2482 (1958), concerning the power of the committee to examine and recount ballots in a House contested
election case.
70
Roush v. Chambers, H.Rept. 87-513, supra, at 7.
71
H.Rept. 99-58, supra, at 12.
72
H.Rept. 99-58, supra, at 12-13, 14-15.
73
H.Rept. 99-58, supra, at 15-32.
74
H.Rept. 99-58, supra, at 16, 22-26.
68
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certificates and memoranda of votes cast; (5) precinct registration certificates of error; (6)
precinct registered voters affidavits of change of name; (7) precinct affidavits, challenges and
counter-challenges; and (8) unopened absentee ballots and applications which were rejected. 75
In sum, the Committee on House Administration, pursuant to the House’s constitutional authority
under Article I, Section 5, clause 1, has broad power and authority to conduct an examination of
an election, election procedures, and ballots in a contested election case, and to establish uniform
standards and guidelines for the counting of ballots to determination voters’ intentions. This
authority is independent of and not related to any proceedings under the FCEA. An investigation
by the committee, referred to the committee by the House, could take several different procedural
routes, depending on the circumstances of the case and the matters before it. The committee,
within its discretion, could decide not to conduct any investigation of its own and to proceed
based on the pleadings, arguments, and evidence introduced by counsel or the parties. The
committee could conduct a preliminary investigation or a limited recount to determine whether
there are sufficient grounds to warrant a full-scale investigation and/or recount. In addition, if
warranted, the committee could order a full-scale investigation, including a recount, an
examination of alleged vote fraud in the balloting process, or an inquiry into other matters
brought before it to resolve the underlying questions and issues presented in the challenge.
Ordering a Recount of Ballots Under FCEA and
Otherwise
The parties to an election contest case may, by stipulation, agree to the conduct a state recount, 76
or may conduct their own recount, if permitted, which may then become the basis of a stipulation
upon which the House may act.77 However, a contestant on his or her own accord generally may
not conduct a recount without the supervision of the committee after an election contest has been
initiated. 78 A motion for a recount in an FCEA-initiated election contest may be granted by the
committee if there is sufficient evidence to raise at least a presumption of fraud or irregularity. A
recount would not necessarily be ordered by the committee on the mere assertion of fraud or
irregularity. 79 A party to a contested election case who would claim that the state recount of the
ballots was in error would have the burden of proof to establish such error before the committee
would order a recount.80 The burden would be on the contestant to prove to the committee that a
recount would
•
show substantial fraud and irregularity,
•
change the result of the election, and
75
Roush or Chambers, H.Rept. 87-513, supra, at 10-11.
Moreland v. Schuetz, H.Rept. 78-1158 (1943). See generally, 2 Deschler’s, Ch. 9, §§ 39-41, at 437-444.
77
Sullivan v. Miller, H.Rept. 78-180 (1943).
78
Stevens v. Blackney, H.Rept. 81-1735 (1950).
76
79
Swanson v. Harrington, H.Rept. 76-1722 (1940); see also Stevens v. Blackney, supra, in which the committee and
House declined to order a recount because the contestant offered no evidence to indicate that the official returns were
invalid.
80
Roy v. Jenks, H.Rept. 75-1521 (1937).
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•
make him or her the winner. 81
•
Moreover, a contestant arguably should exhaust state remedies in obtaining a
recount under state election laws or through the state courts before requesting the
committee to conduct such a recount. Although the committee has the power to
undertake a recount outside of state recount proceedings when it deems it
necessary, it may wait until the contestant has exhausted state remedies including
state court actions.82 The committee, after voting for a recount, may reconsider its
action and determine that such a recount is not necessary.83
•
Should the committee decide that a recount, limited or districtwide, is necessary,
a set of stipulations is generally agreed upon by counsel for the parties subject to
the approval of the committee, and the committee may issue a set of rules that
would govern the recount. Stipulations made by the parties or a motion or House
resolution stipulating certain ground rules could include, inter alia, such matters
as
•
controlling House precedents;
•
controlling statutory and/or constitutional provisions relating to recounts, ballots;
conduct of election, etc.;
•
disputes over qualifications of voters;
•
scope of recount;
•
procedure by which committee counsel, auditors, or staff are to examine ballots,
ballot boxes, tally sheets, and records and other pertinent documents and
materials;
•
procedure for counting ballots;
•
decision on presence of press during counting;
•
designation of election (counting) judges;
•
comparison of registration books and poll books,
•
counting of spoiled and mutilated ballots;
•
determination of fraud and any irregularities;
•
criteria for proper marking of ballots to determine clear intention of the voter;
and
•
allowing counsel to file objections and evidence at any stage of the recount
proceedings.84
81
Moreland v. Schuetz, supra; Peterson v. Gross, H.Rept. 89-1127 (1965).
Swanson v. Harrington, supra.
83
McAndrews v. Britten, H.Rept. 73-1298 (1934).
84
See McCloskey and McIntyre, H.Rept. 99-58, supra at 27-30 (1985), and Roush v. Chambers, H.Rept. 87-513,
supra, at 21-22 (1961).
82
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Application of State Law and State Court Decisions
to Committee Actions
Under the U.S. Constitution, there is a division of authority with respect to elections to federal
office, whereby the states have significant administrative authority over the procedures of federal
elections, that is, authority over the “Times, Places and Manner” of federal elections (unless
Congress designates otherwise).85 Article I, Section 5, Clause 1 of the Constitution expressly
provides, however, that each House of Congress is the judge of the elections of its own Members,
and thus the House has sole and exclusive jurisdiction to make an unconditional and final
judgment determining the right to a seat in the House. 86 In light of such power, the committee is
not bound to follow state law or state court decisions concerning the procedures of a House
election, and may make its own determinations independently. Although state court decisions and
state laws are not binding on the committee, they may be used to aid the committee in its
determination of a House contested election case when they are consistent with the committee’s
notions of justice and equity. 87 In 1917 the Committee on Elections explained:
Your committee maintains that the authority of the House of Representatives to judge of the
elections and qualifications of its members is infinite. Since the formation of the Government
the House has often signified its willingness to abide by the construction given by the State
court, in good faith, to its statutes. But the decisions of a State court are not necessarily
conclusive on the House, and will only guide and control it when such decisions commend
themselves to its favorable consideration.88
In short, the House has the final say over House contested election cases.89
Generally, the committee and the House “seek[ ] to follow state law” and state court decisions in
resolving House election contests, but in certain instances, this has not been the case, particularly
with regard to the validity of the ballots where the intentions of the voters are clear but that have
been declared invalid for failure to follow certain “technicalities” required by state law for
marking ballots.90 For example, in a 1902 House contested election case, the House Elections
Committee refused to reject ballots merely because they had not been marked according to the
technical requirements of a state election law. The committee ruled that it would accept those
ballots where the intention of the voter was clear, regardless of a state election statute that
required that ballots had to be marked strictly within the designated space.91 Thus, the Committee
85
U.S. CONST., Art. I, § 4, cl. 1.
Each House of Congress has the “sole authority under the Constitution to judge of the elections, returns and
qualifications of its members,” and “to render a judgment which is beyond the authority of any other tribunal to
review,” Barry v. Cunningham, supra at 613, 616, and to make “an unconditional and final judgment,” Roudebush v.
Hartke, 405 U.S. 15, 19 (1972).
87
See McCloskey and McIntyre, H.Rept. 99-58, supra, at 22-26, citing Brown v. Hicks, 64th Cong., 1917, at 6
Cannon’s, § 143, at 261; McKenzie v. Braxton, H.Rept. 42-4 (1872), 1 Hinds’, § 639, at 850; and Carney v. Smith,
1914, 6 Cannon’s, § 91, at 146.
88
Brown v. Hicks, 64th Cong., 1917, at 6 Cannon’s, § 143, at 261.
89
In re William S. Conover, II, H.Rept. 92-1090, supra, at 2.
90
See McCloskey and McIntyre, H.Rept. 99-58, supra, at 22-26.
86
91
Moss v. Rhea, H.Rept. 5-625 (1902), 2 Hinds’, § 1121, at 695-696. See also Sessinghaus v. Frost, H.Rept. 57-1959
(1883), 2 Hinds’, § 976, at 316; McKenzie v. Braxton, H.Rept. 42-4 (1872), 1 Hinds’, § 639, at 850; and Lee v. Rainey,
H.Rept. 44-578 (1876), 1 Hinds’, § 641, at 853.
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Procedures for Contested Election Cases in the House of Representatives
on House Administration has noted that “in addition to the fact that the House is not legally
bound to follow state law, there are instances where it is in fact bound by justice and equity to
deviate from it,”92 such as to ensure that “the will of the voters should not be invalidated” by mere
technicalities of state law or regulation in instances where voters’ “obvious intent” may be
discerned. 93 In addition, the committee has noted that the “House has chosen overwhelmingly in
election cases throughout its history not to penalize voters for errors and mistakes on election
officials.”94 That is, in the absence of fraud, and where the honest intent of the voters’ may be
determined, “the House has counted votes ... rather than denying the franchise to any individual
due to malfeasance of election officials.”95
Remedies Available to the Committee on House
Administration Under the FCEA and Otherwise
In the course of its investigation, the Committee on House Administration has a number of
remedies available, including
•
a recommendation of dismissal upon a motion to dismiss by the contestee,
•
a recommendation on the seating of a certain candidate on the grounds that he or
she received a majority of the valid votes cast,
•
a recommendation to seek a recount and to investigate any fraud or irregularities
in the voting process in various precincts,
•
a recommendation to order the seating of a certain candidate after the committee
has conducted a recount and investigation, and
•
a recommendation that the returns from the election be rejected and that the seat
be declared vacant and a new election be held.96
•
However, in the 1985 case of McCloskey and McIntyre, the committee noted that
the House of Representatives has been “very hesitant” to declare a seat vacant,
preferring instead to “measure the wrong and correct the returns,” when possible.
The committee reiterated the general principle that, “[n]othing 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 ... necessarily
go unrepresented for a long period of time.”97 Indeed, the committee in
McCloskey and McIntyre characterized setting aside an election and declaring a
92
McCloskey and McIntyre, H.Rept. 99-58, supra, at 23.
93
Id., citing In re Dale Alford, 2 Deschler’s, Ch. 9, § 38.5, and Kyros v. Emery, 94th Cong. (1975), H.Rept. 94-760, at
5.
94
McCloskey and McIntyre, H.Rept. 99-58, supra, at 24.
Id., citing McKenzie v. Braxton, 42nd Cong. 2nd Sess. (1872), 1 Hinds’ § 639, at 850.
96
See Wilson v. McLaurin, H.Rept. 54-566 (1896). See also Tunno v. Veysey, H.Rept. 92-626 (1971).
97
McCloskey and McIntyre, H.Rept. 99-58, supra, at 44, citing McCrary, G.W., A Treatise on The American Law of
Elections, R.B. Ogden, 1880, at 489.
95
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Procedures for Contested Election Cases in the House of Representatives
House seat vacant as a “drastic action” that it recommended against “in nearly
every instance.”98
Disposition of Contested Election Cases in the
House of Representatives
If a contested election case is not resolved by motion, such as a motion to dismiss by the
contestee, or by other prior committee proceedings, it is generally disposed of pursuant to a
House resolution following consideration and debate on the House floor.99 A resolution disposing
of a contested election case is privileged and can be called up at any time for consideration by the
House. 100 The resolution, along with the committee report on a House contested election case,
may be called up as privileged and be agreed to by voice vote and without debate.101
In some cases, the parties to an election contest have been permitted to be present during the
debate, although the parties generally have not participated. 102 In a situation where the contestee
is a Member, he or she may be permitted to participate in the debate on the House resolution
disposing of the contest.103
After floor consideration and debate, the adoption by the House of a resolution disposing of an
election contest, whether by declaring that one of the parties is entitled to a seat in the House or
by declaring a vacancy with appropriate notice to the governor of the state, essentially ends the
contested election case. With respect to the former, the prevailing party is administered the oath
of office and seated in the House. 104
Executive Summary
Under the express provisions of the U.S. Constitution, each House of Congress is the final judge
of the “elections and returns” of its own Members. Article I, Section 5, clause 1. Typically,
election recounts or challenges to congressional election results are initially conducted at the state
level, including in the state courts, under the states’ authority to administer federal elections
(Article I, Section 4, clause 1), and are presented to the House of Representatives as the final
judge of such elections. As noted by the Supreme Court, the House or Senate may accept a state
count or recount, or other such determination, or conduct its own recount and make its own
determinations, Roudebush v. Hartke, 405 U.S. 15, 26-27 (1972), although there is an institutional
deference to, and a presumption of the regularity of state election proceedings, results and
certifications.
98
Id.
2 Deschler’s, Ch. 9, 42, at 444-450. See also Deschler and Brown, Procedure In The U.S. House of Representatives,
[hereinafter Deschler and Brown] Ch. 9, §§ 3 and 4, App. B.
100
Deschler and Brown, supra, at § 4.1, at 76.
101
2 Deschler’s, Ch. 9, § 42.5, at 445.
102
Id., § 42.6 at 446. Parties were permitted to insert remarks in the Congressional Record supporting their positions.
III Cong. Rec. 24285, 24286, 89th Cong., 1st Sess. (Sept. 17, 1965).
103
Id. at § 42.7.
104
See Kunz v. Granata, Deschler’s, Ch. 9, § 42.7 at 446.
99
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Procedures for Contested Election Cases in the House of Representatives
There are two possible avenues by which an election may be challenged or contested in the
House. In modern practice, the primary method for contesting a congressional election in the
House is for a losing candidate in the election to initiate a contest by filing a “notice of contest”
under the provisions of the Federal Contested Election Act of 1969 (FCEA), as amended, which
is then heard by the Committee on House Administration upon the record provided by the parties
to the contest. Secondly, the House may refer the question of the right (either the prima facie right
and/or the final right) to a seat in the House to the proper committee of jurisdiction (now the
Committee on House Administration) for the committee to investigate and to report to the House
for disposition.
With reference to a candidate-initiated contest under the FCEA, the candidate challenging the
results of that election (the “contestant”) must, within 30 days after the result of the election was
certified by the state, file a written notice of an intention to contest the election with the Clerk of
the House and provide a copy of the notice to the “contestee” (that is, the Member-elect or
Member certified as the winner of the election). 2 U.S.C. § 382. This notice must state “with
particularity” the grounds for contesting the election. 2 U.S.C. § 382(b). The contestee then has
30 days after such service to answer the notice, admitting or denying the allegations and
averments in the notice, and setting forth any affirmative defenses, including the “failure of notice
of contest to state grounds sufficient to change the result of the election.” 2 U.S.C. § 383(a) and
(b). If the original notice of contest is vague or too general, the contestee may make a motion to
the Committee on House Administration for a “more definite statement” before answering,
pointing out the “defects” and the “details desired”; if the motion is granted by the committee, the
contestant would have 10 days to obey the order, or the committee may dismiss the contest or
“make such order as it deems just.” 2 U.S.C. § 383(c).
Under the FCEA, the “burden of proof” is on the party challenging the election; that is, “the
burden is upon contestant to prove that the election results entitle him to contestee’s seat.” 2
U.S.C. § 385. An election certificate from the authorized state official is deemed to be prima facie
evidence of the regularity and results of an election to the House—a presumption that generally
allows the swearing in of a Member-elect holding such certificate, and a presumption that must be
rebutted by a contestant to “change the result” of that election as certified by the state.
In this adversarial proceeding under the FCEA, either party may take sworn depositions for the
purpose of discovery within the time frames provided, and may seek subpoenas for the attendance
of witnesses and production of documents. 2 U.S.C. §§ 386-391. Under the statutory provisions
of the FCEA, the actual election contest “case” is heard by the committee “on the papers,
depositions and exhibits” filed by the parties, which “shall constitute the record of the case,”
including the briefs filed by either party. 2 U.S.C. § 392. The briefs may contain an appendix of
any portion of the record which the party “desires the committee to consider.” 2 U.S.C. § 392(b).
The decision of the committee is made upon this record.
Concerning an election contest that is directed to the Committee on House Administration by the
House, the committee may, in lieu of a record created by the opposing parties (such as under the
FCEA), conduct its own investigation, take depositions, and issue subpoenas for the appearance
of witnesses and the production of documents. In recent years, the committee has on infrequent
occasions obtained jurisdiction of an election contest in this manner by virtue of a challenge by a
Member-elect to the taking of the oath of office of another Member-elect on the first day of a new
Congress, prior to time all the Members-elect rise to take the oath of office, and the subsequent
adoption of a resolution provisionally seating the Member-elect and directing that the question of
the final right to the seat be referred to the committee. The committees that have investigated
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Procedures for Contested Election Cases in the House of Representatives
contested elections in the past under these conditions have employed a number of different
investigative procedures and devices, including an impoundment of the election records, ballots,
tally sheets and poll books; conducting a recount and re-canvass of the ballots and returns; a
physical examination of disputed ballots; an examination of registration documents; and
interviews and formal examinations of various election officials, administrators, watchers, and
parties.
The committee may then issue a report and file a resolution concerning the disposition of the
case, to be approved by the full House. The committee may recommend, and the House may
approve by a simple majority vote, a decision affirming the right of the contestee to the seat, may
seat the contestant, or may find that neither party is entitled to be finally seated and declare a
vacancy.
It should be noted that each House of Congress is expressly entitled to adopt its own rules for
proceeding, under Article I, Section 5, cl. 2 of the U.S. Constitution, and even when such
procedural rules are adopted by way of statute under the House’s rule making authority, the
House may change such procedural rules by resolution, and adopt and apply others. Similarly,
although various legislative precedent is extremely important in an ordered, democratic
institution, such precedent followed by, for example, committees in the past, are not necessarily
binding in a legal sense upon a later committee of the House, as long as the committee is acting
within the scope of its authority.
Author Contact Information
Jack Maskell
Legislative Attorney
jmaskell@crs.loc.gov, 7-6972
Congressional Research Service
L. Paige Whitaker
Legislative Attorney
lwhitaker@crs.loc.gov, 7-5477
19