The Federal Contested Election Act: Overview and Recent Contests in the House of Representatives

The Federal Contested Election Act: Overview and Recent Contests in the House of Representatives

Updated November 2, 2022
The Federal Contested Election Act: Overview and Recent
Contests in the House of Representatives
The Federal Contested Election Act (FCEA; 2 U.S.C.
“acts as a judicial tribunal” (Barry v. United States, 279
§§381-396), enacted in 1969, rests at the intersection of
U.S. 597, 616 (1929)). Consistent with these Supreme
federal election law and policy, legislative procedure, and
Court rulings, the House, in considering contested elections,
constitutional provisions regarding congressional authority
has at times accepted state counts, recounts, or other state
over House elections and membership. FCEA contests
determinations; at others it has conducted its own recounts
rarely change election results, as doing so typically requires
and made its own determinations and findings.
the House to overturn a state-certified election result.
Overview of the FCEA
The FCEA covers general election or subsequent runoff
Two key terms—contestant and contestee—are integral to
races for the U.S. House of Representatives (including
understanding the FCEA. The contestant is the candidate
elections for Delegate and Resident Commissioner).
who brings the complaint (2 U.S.C. §381(3)). The contestee
Pursuing a contest under the FCEA does not preclude a
is the responding candidate, typically the state-certified
candidate from pursuing other options available under state
winner (2 U.S.C. §381(4)).
law, through litigation, or by other methods prescribed by
the House. Specifically, although an election contest may
Contests must be filed with the Clerk of the House within
be initiated in other ways—for example, by a floor
30 days after the relevant state election authority (e.g., the
challenge to a Member’s right to be sworn in—in modern
secretary of state or a canvassing board) has declared the
practice, the FCEA is the primary method by which election
results, and must “state with particularity the grounds” for
contests come before the House. As such, other contest
contesting the election (2 U.S.C §382(b)). The FCEA
methods generally are not discussed here.
specifies five permissible methods of service of process and
requires that proof of service be made promptly to the Clerk
What is a Contested Election?
of the House. (2 U.S.C §382(c)). The contestee has 30 days
Generally, contested elections entail reexamining election
to respond, although failure to respond “shall not be
conduct, such as ballot-counting or other election and
deemed an admission of the truth” of the contest claims by
voting procedures, after an election jurisdiction has
the contestee (2 U.S.C. §385). Even before providing a
finalized, or certified, the results. Contests are distinct from
written answer, a contestee could raise several defenses to
the canvass process used to verify election results and from
the contest, for example, that the contestant lacks standing
recounts, audits, or other processes used to verify election
to bring a contest under the act (3 U.S.C. §383(b)).
accuracy, although investigations accompanying contests
can involve recounts or audits.
Even where there is little question of the outcome, FCEA’s
procedural timelines typically preclude the House from
Constitutional Framework
disposing of contests for at least the first few months of a
The Elections Clause of the U.S. Constitution empowers the
new Congress. More complicated contests, although rare,
states with the initial and principal authority to administer
can require substantial time to take depositions, conduct
the “Times, Places and Manner” of congressional elections
investigations, or seek assistance from state authorities or
within their jurisdictions (Art. 1, § 4, cl. 1). At the same
legislative support agencies (e.g., the Government
time, the Elections Clause provides Congress with
Accountability Office (GAO)) to conduct audits or
overriding authority to “make or alter” such state laws. The
recounts.
Constitution further provides that each house of Congress
has the express authority to be the final judge of the
Simply objecting to the election results is insufficient for a
“Elections, Returns and Qualifications” of its Members
successful FCEA claim. Rather, “the burden is upon
(Art. I, § 5, cl. 1). Thus, congressional election recounts,
contestant to prove that the election results entitle him to
audits, or other verifications are typically conducted at the
contestee’s seat” (2 U.S.C. §385). Therefore, the contestant
state level, which sometimes involves state courts, and
must demonstrate that, but for voting irregularities or acts
contests are presented to the House of Representatives,
of alleged fraud, the contestant would have prevailed. (See,
which serves as the final arbiter of such elections.
e.g., Pierce v. Pursell, H.Rept. 95-245 (1977).) In addition,
although the House has broad authority over its elections, a
The Supreme Court has held that, in judging congressional
state-issued election certificate generally provides prima
elections, Congress’s determination of the right to a seat is
facie evidence of the regularity and results of an election to
“a nonjusticiable political question,” resulting in “an
the House (Deschler’s Precedents of the United States
unconditional and final judgment” (Roudebush v. Hartke,
House of Representatives, H.Doc. 94-661, 94th Cong., 2nd
405 U.S. 15, 19 (1972)). The Court has also observed that
sess., (Washington: GPO, 1994) vol. 2, ch. 8, §15).
in the context of election contests, each house of Congress
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The Federal Contested Election Act: Overview and Recent Contests in the House of Representatives
House Rule X and the FCEA (2 U.S.C. §381(7)) assign the
(ballots without a marked choice in the congressional race)
Committee on House Administration (CHA) jurisdiction
and voting equipment in Sarasota County. Ms. Jennings
over contests filed under the act. The CHA may establish
contested the state-certified results of the open-seat race.
task forces or subcommittees to assist it in its work.
The House seated Mr. Buchanan while considering the
contest. A CHA Task Force directed GAO to investigate
Legislative Procedure and the FCEA
whether voting machine malfunctions had affected the
While election contests are pending, the House may
election outcome. In February 2008, the House confirmed
provisionally seat the contestee. In rare instances, the House
Florida’s certification of Representative Buchanan’s victory
has directed that a seat remain vacant pending the outcome
and dismissed the contest (H.Res. 989; see also H.Rept.
of an investigation (Charles W. Johnson, John V. Sullivan,
110-528, 110th Cong.).
Thomas J. Wickham, Jr., Precedents of the United States
House of Representatives, Svol. 1, H.Doc. 115-62, 115th
Dornan-Sanchez: 105th Congress. Then-Representative
Cong., 1st sess. (Washington: GPO, 2018), ch. 2, §§, 2.0,
Robert Dornan filed an FCEA contest to Representative-
2.3, pp. 174, 177-178).
elect Loretta Sanchez’s certified victory in the 46th District
of California in 1996. The House seated Ms. Sanchez while
Resolutions disposing of election contests are privileged for
considering the contest. A CHA Task Force determined that
consideration under House rules and debate on such a
more than 700 votes had been improperly cast in the
resolution is under the Hour Rule, with extensions of time
election, but that the number was insufficient to change the
permitted by unanimous consent. Such resolutions might
election results. Congressional consideration of the contest,
resolve the case in various ways, including dismissing the
which paralleled state and federal investigations, lasted
contest; declaring one of the parties entitled to the seat; or
until February 1998. The House dismissed the contest
directing the returns from the election be rejected, that the
(H.Res. 355; see also H.Rept. 105-416, 105th Cong.).
seat be declared vacant, and that a new election be held. If
not a sitting Member, the contestant in an election contest
Non-FCEA Contests and Other Disputes
may be permitted on the floor during the consideration of
Since Congress enacted the FCEA in 1969, this method
the case in the House but must abide by the rules of proper
appears to be the most common for contesting House
decorum. Such an individual may not participate in debate.
election results. There are, however, other options, separate
A sitting Member may debate, may insert remarks in the
from the FCEA, to bring contests within the House (in
Record, and may vote on the resolution disposing of the
addition to litigation or state processes). In particular, a
contest (Charles W. Johnson, John V. Sullivan, Thomas J.
Member-elect may challenge the right of another to be
Wickham, Jr., House Practice, A Guide to the Rules,
sworn in, usually when the House convenes for a new
Precedents and Procedures of the House (Washington:
Congress. The most prominent such example in recent
GPO, 2017), ch. 22, §6, p. 495).
history concerned the 1984 election in Indiana’s 8th District.
This contest, between candidates McCloskey and McIntyre,
Selected Contests Brought Under the FCEA
was perhaps the most contentious in modern House history.
House candidates who lose an election according to state-
The Indiana Secretary of State certified Mr. McIntyre as
certified results rarely prevail under the FCEA. As
Representative-elect after a recount reversed incumbent
discussed above, the burden of proof is on the contestant to
McCloskey’s 72-vote election-day lead. Neither candidate
show entitlement to the seat, and contestants fail to
was sworn in, pending an investigation of the contest. A
overcome motions to dismiss in most contests. Selected
CHA Task Force found various inconsistencies in state
examples of prominent and recent contests appear below.
election practices and ordered a GAO-administered recount
that yielded a four-vote victory for Mr. McCloskey. The
Most recent contests: During the 117th Congress, two
House seated Representative McCloskey and dismissed the
FCEA contests were filed. In the Iowa 2nd District open seat
contest in May 1985 (H.Res. 146; see also H.Rept. 99-58,
race, candidate Rita Hart contested the election of certified
99th Cong.).
winner Mariannette Miller-Meeks. After CHA
consideration, Ms. Hart eventually withdrew the contest. In
Even high-profile election disputes do not necessarily result
the Illinois 14th District, challenger Jim Oberweis contested
in contests that the House considers. For example, after an
the certified victory of Representative Lauren Underwood.
investigation of absentee ballot practices in North Carolina
The House dismissed the contest after the CHA determined,
in 2018, the State Board of Elections ordered a new election
in part, that the vote margin in question would not affect the
for the 9th District House seat. The CHA noted that it was
outcome of the election (H.Res. 379; see also H.Rept. 117-
monitoring developments in the case. However, no FCEA
28).
contest was filed.
Before the 117th Congress, the House had not considered
R. Sam Garrett, Specialist in American National
FCEA contests since the 113th Congress. At that time, the
Government
House dismissed contests to 2012 election results in
L. Paige Whitaker, Legislative Attorney
California (H.Res. 278), Tennessee (H.Res. 277), and Texas
Christopher M. Davis, Analyst on Congress and the
(H.Res. 127).
Legislative Process
Jennings-Buchanan: 110th Congress. The FCEA contest to
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the 2006 Florida 13th District race focused on “undervotes”

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The Federal Contested Election Act: Overview and Recent Contests in the House of Representatives

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