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




January 19, 2021
The Federal Contested Elections Act: Overview and Recent
Contests in the House of Representatives

The Federal Contested Elections 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. This CRS In Focus
determinations, whereas at others it has conducted its own
provides a brief overview of the FCEA and highlights
recounts and made its own determinations and findings.
recent contests initiated under the statute. FCEA contests
rarely change election results, as doing so typically requires
Overview of the FCEA
the House to overturn a state-certified election result.
Key Terms. Two key terms—contestant and contestee—are
integral to understanding the FCEA. The contestant is the
The FCEA covers general election or runoff races for the
candidate who brings the complaint (2 U.S.C. §381(3)). The
U.S. House of Representatives (including elections for
contestee is the responding candidate, typically the state-
Delegate and Resident Commissioner). Pursuing a contest
certified winner (2 U.S.C. §381(4)).
under the FCEA does not preclude other options that might
be available to candidates under state law, through
Filing a Contest. Contests must be filed with the Clerk of
litigation, or by other methods prescribed by the House.
the House within 30 days after the relevant state election
Specifically, although an election contest may be initiated
authority (e.g., the secretary of state or a canvassing board)
in other ways—for example, by a floor challenge to a
has declared the results, and must state “with particularity”
Member’s right to be sworn in—in modern practice, the
the grounds for contesting the election (2 U.S.C §382). The
FCEA is the primary method by which election contests
FCEA specifies various requirements for the contents of the
come before the House. As such, other contest methods
notice to contest and the service of notice on the contestee.
generally are not discussed here.
The contestee has 30 days to respond, although failure to
respond “shall not be deemed an admission of the truth” of
What is a Contested Election?
the contest claims by the contestee (2 U.S.C. §381(5)).
Generally, contested elections entail reexamining election
Even before providing a written answer, a contestee could
conduct, such as ballot-counting or other election and
raise several defenses to the contest, for example, that the
voting procedures, after an election jurisdiction has
contestant lacks standing to bring a contest under the act (3
finalized, or certified, the results. Contests are distinct from
U.S.C. §383).
the standard canvass process used to verify election results
and from recounts, audits, or other processes used to verify
Even where there is little question of the outcome, FCEA’s
election accuracy, although investigations accompanying
procedural timelines typically preclude the House from
contests can involve recounts or audits.
disposing of contests for at least the first few months of a
new Congress. More complicated contests, although rare,
Constitutional Framework
can require substantial time to take depositions, conduct
The Elections Clause of the U.S. Constitution empowers the
investigations, or seek assistance from state authorities or
states with the initial and principal authority to administer
legislative support agencies (e.g., the Government
the “Times, Places and Manner” of federal elections within
Accountability Office (GAO)) to conduct audits or
their jurisdictions (Art. 1, § 4, cl. 1). At the same time, the
recounts.
Elections Clause provides Congress with overriding
authority to “make or alter” such state laws. Thus,
Burden of Proof. Simply objecting to the election results is
congressional election recounts or challenges are typically
insufficient for a successful FCEA claim. Rather, “the
conducted at the state level, including in state courts, and
burden is upon contestant to prove that the election results
then presented to the House of Representatives.
entitle him to contestee’s seat” (2 U.S.C. §385). Therefore,
the contestant must demonstrate that, but for voting
Under the Constitution, each house of Congress has the
irregularities or acts of alleged fraud, the contestant would
express authority to be the final judge of the “Elections,
have prevailed. (See, e.g., Pierce v. Pursell, H.Rept. 95-245
Returns and Qualifications” of its Members (Art. I, § 5, cl.
(1977).) In addition, although the House has broad authority
1). The Supreme Court has held that, in so judging these
over its elections, a state-issued election certificate
elections, Congress’s determination of the right to a seat is
generally provides prima facie evidence of the regularity
“a nonjusticiable political question,” resulting in “an
and results of an election to the House (Deschler’s
unconditional and final judgment” (Roudebush v. Hartke,
Precedents of the United States House of Representatives,
405 U.S. 15, 19 (1972)). The Court has also observed that
H. Doc. 94-661, 94th Cong., 2nd sess., (Washington: GPO,
in the context of election contests, each house of Congress
1994) vol. 2, ch. 8, §15).
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The Federal Contested Elections Act: Overview and Recent Contests in the House of Representatives
Committee of Jurisdiction. House Rule X and the FCEA (2
whether voting machine malfunctions had affected the
U.S.C. §381(7)) assign the Committee on House
election outcome. In February 2008, the House confirmed
Administration jurisdiction over contests filed under the act.
Florida’s certification of Representative Buchanan’s victory
The committee may establish task forces or subcommittees
and dismissed the contest (110th Cong., H.Res. 989; see also
to assist it in its work.
H.Rept. 110-528).
Legislative Procedure and the FCEA
Dornan-Sanchez: 105th Congress. Then-Representative
While election contests are pending, the House may
Robert Dornan filed an FCEA contest to Representative-
provisionally seat the contestee. In rare instances, the House
elect Loretta Sanchez’s certified victory in the 46th District
has directed that a seat remain vacant pending the outcome
of California in 1996. The House seated Ms. Sanchez while
of an investigation (Charles W. Johnson, John V. Sullivan,
considering the contest. A Committee on House
Thomas J. Wickham, Jr., Precedents of the United States
Administration Task Force determined that more than 700
House of Representatives, Vol. 1, House Doc. 115-62, 115th
votes had been improperly cast in the election, but that the
Cong., 1st sess. (Washington: GPO, 2018), ch. 2, §§, 2.0,
number was insufficient to change the election results.
2.3, pp. 174, 177-178).
Congressional consideration of the contest, which
paralleled state and federal investigations, lasted until
Resolutions disposing of election contests are privileged for
February 1998. The House dismissed the contest (105th
consideration under House rules and debate on such a
Cong., H.Res. 355; see also H.Rept. 105-416).
resolution is under the Hour Rule, with extensions of time
permitted by unanimous consent. Such resolutions might
Non-FCEA Contests and Other Disputes
resolve the case in various ways, including dismissing the
Since Congress enacted the FCEA in 1969, this method
contest; declaring one of the parties entitled to the seat; or
appears to be the most common for contesting House
directing the returns from the election be rejected, that the
election results. There are, however, other options, separate
seat be declared vacant, and that a new election be held. If
from the FCEA, to bring contests within the House (in
not a sitting Member, the contestant in an election contest
addition to litigation or state processes). In particular, a
may be permitted on the floor during the consideration of
Member-elect may challenge the right of another to be
the case in the House but must abide by the rules of proper
sworn in, usually when the House convenes for a new
decorum. Such an individual may not participate in debate.
Congress. The most prominent such example in recent
A sitting Member may debate, may insert remarks in the
history concerned the 1984 election in Indiana’s 8th District.
Record, and may vote on the resolution disposing of the
This contest, between candidates McCloskey and McIntyre,
contest (Charles W. Johnson, John V. Sullivan, Thomas J.
was perhaps the most contentious in modern House history.
Wickham, Jr., House Practice, A Guide to the Rules,
The Indiana Secretary of State certified Mr. McIntyre as
Precedents and Procedures of the House (Washington:
Representative-elect after a recount reversed incumbent
GPO, 2017), ch. 22, §6, p. 495).
McCloskey’s 72-vote election day lead. Neither candidate
was sworn in, pending an investigation of the contest. A
Selected Contests Brought Under the FCEA
Committee on House Administration Task Force found
House candidates who lose an election according to state-
various inconsistencies in state election practices and
certified results rarely prevail under the FCEA. As
ordered a GAO-administered recount that yielded a four-
discussed above, the burden of proof is on the contestant to
vote victory for Mr. McCloskey. The House seated
show entitlement to the seat, and contestants fail to
Representative McCloskey and dismissed the contest in
overcome motions to dismiss in most contests. Selected
May 1985 (99th Cong., H.Res. 146; see also H.Rept. 99-58).
examples of prominent and recent contests appear below.
Even high-profile election disputes do not necessarily result
Most recent contests: As of this writing media reports
in contests that the House considers. In some cases,
suggest that two FCEA contests have been filed in the 117th
candidates choose to contest election results under state
Congress. One concerns the Iowa 2nd District; the other
law, or circumstances outside Congress might render a
concerns the Illinois 14th District. Before the current
potential contest moot. For example, after an investigation
Congress, the House has not considered FCEA contests
of absentee ballot practices in North Carolina in 2018, the
since the 113th Congress (2013-2014). At that time, the
State Board of Elections ordered a new election for the 9th
House dismissed contests to 2012 election results in
District House seat. The Committee on House
California (H.Res. 278), Tennessee (H.Res. 277), and Texas
Administration noted that it was monitoring developments
(H.Res. 127).
in the case. However, no FCEA contest was filed.
Jennings-Buchanan: 110th Congress. The FCEA contest to
R. Sam Garrett, Specialist in American National
the 2006 Florida 13th District race focused on “undervotes”
Government
(ballots without a marked choice in the congressional race)
L. Paige Whitaker, Legislative Attorney
and voting equipment in Sarasota County. Ms. Jennings
Christopher M. Davis, Analyst on Congress and the
contested the state-certified results of the open-seat race
Legislative Process
under the FCEA. The House seated Mr. Buchanan while
considering the contest. A Committee on House
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Administration Task Force directed GAO to investigate


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


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