[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 22. Election Contests and Disputes]
[From the U.S. Government Publishing Office, www.gpo.gov]

[[Page 475]]


                              HOUSE PRACTICE

  Sec. 1. In General
  Sec. 2. Jurisdiction and Powers
  Sec. 3. Parties
  Sec. 4. Consideration and Disposition
  Sec. 5. -- Dismissal
  Sec. 6. -- Debate and Voting; Amendment
        Research References
          U.S. Const. art. I, Sec. 5
          1 Hinds Sec. Sec. 634-755
          6 Cannon Sec. Sec. 90-189
          Deschler Ch 9
          Manual Sec. Sec. 701, 724, 853

  Sec. 1 . In General

      Contests for seats in the House are governed by the Federal 
  Contested Elections Act. 2 USC Sec. 381. This statute, enacted in 
  1969, sets forth the procedure by which a defeated candidate may have 
  his claim to a seat adjudicated by the House. The Act provides for the 
  filing of notice of contest and other proceedings, for the taking of 
  testimony of witnesses, and for a hearing by the Committee on House 
  Administration on the depositions and other papers that have been 
  filed with the Clerk. 2 USC Sec. Sec. 381-396. Acting on committee 
  reports, the House then disposes of the case by resolution. See 
  Sec. 4, infra.
      The grounds for an election contest and the defenses available to 
  the contestee, as well as the process of taking testimony and other 
  procedures followed in determining the contest in committee, are 
  treated elsewhere. See Deschler Ch 9 and Ch 9 Appendix for complete 
  treatment of contested election cases from the 65th Congress (1917) 
  through the 92d Congress (1972).
      Notwithstanding the availability of the statutory election-contest 
  procedures discussed herein, some election disputes have been 
  presented directly to the House for consideration and committee 
  investigation. See, e.g., H.

[[Page 476]]

  Rept. 99-58. An investigation of a challenged election has been 
  initiated pursuant to:

     An action by the House in directly referring to the Committee 
         on House Administration the question of a Member-elect's right 
         to a seat. Deschler Ch 2 Sec. 6.
     A protest filed by an elector of the district concerned. 
         Deschler Ch 9 Sec. 17.1.
     A petition filed by another person challenging the 
         qualifications of the Member-elect. Deschler Ch 9 Sec. 17.3.

  The latter two procedures have rarely been invoked, however, and they 
  preceded the adoption of the modern contested election statute.

      The right to a seat in the House also may be affected by House 
  action on a motion to expel, where a sitting Member's behavior or 
  conduct is at issue. See Ethics; Committee on Standards of Official 

  Sec. 2 . Jurisdiction and Powers


      The Constitution authorizes each House to be the judge of the 
  elections, returns, and qualifications of its Members. U.S. Const. 
  art. I, Sec. 5. Thus, the House is entitled to judge contested 
  elections involving its seats, and is not bound by agreement of the 
  parties or decisions of State tribunals. 6 Cannon Sec. Sec. 90-92. The 
  determination by the House as to the right to a seat is final, being 
  considered a nonjusticiable political question. Roudebush v. Hartke, 
  405 U.S. 15 (1972).
      Pursuant to the contested election statute, the House acquires 
  jurisdiction of an election contest upon the filing of a notice of 
  contest by a candidate. Deschler Ch 9 Sec. 4.1. Ordinarily, the papers 
  relating to the contest are transmitted by the Clerk to the Committee 
  on House Administration (the committee with jurisdiction over 
  elections contests under rule X clause 1(i)). Such transmission is 
  pursuant to the statute and needs no formal referral or other action 
  by the House. 2 USC Sec. 393(b); Deschler Ch 9 Sec. 4. However, the 
  House itself 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. Deschler Ch 2 Sec. 6. The 
  House also may summarily dismiss a contest by resolution. Deschler Ch 
  9 Sec. Sec. 4.4, 4.5.
      Where two persons claim the same seat from the same district, the 
  House may refuse to permit either candidate to take the oath pending a 
  determination of their rights by the House. Deschler Ch 9 Sec. 4.3.

[[Page 477]]

      Election contests may be investigated by a special committee, by a 
  subcommittee of the Committee on House Administration, or by ad hoc 
  panels. Deschler Ch 9 Sec. Sec. 5.2-5.4.

                             Recounts of Votes

      To obtain an order from the House for a recount of votes in an 
  election contest, the contestant should show that he has exhausted 
  remedies to secure a recount under State law and that evidence and 
  testimony have been taken in the matter. Deschler Ch 9 Sec. Sec. 41.1, 
  41.3. Although the committee with jurisdiction has authority to 
  require a recount of votes for a contested seat in the House, the 
  committee may decline to order such a recount where the highest court 
  of the State has conducted a recount and where the contestant has not 
  demonstrated that a recount would change the result of the election. 
  96-2, Mar. 4, 1980, pp 4490, 4491.

  Sec. 3 . Parties

      Under the controlling statute, ``a candidate for election'' to the 
  House ``in the last preceding election'' is given the right to 
  initiate a contest by filing the notice required by law. 2 USC 
  Sec. 382(a). The statute defines ``candidate'' to mean one whose name 
  was on the official ballot or who received write-in votes under 
  certain conditions. 2 USC Sec. 381(2). Thus, a candidate in the 
  primary whose name was not on the ballot in the general election lacks 
  the requisite standing to initiate a contest, and this was true even 
  under the predecessor contested election statute. Deschler Ch 9 
  Sec. 19.01. Similarly, the House has dismissed a contest filed by one 
  who was a candidate in a special election to fill a vacancy but was 
  not a candidate in a succeeding run-off election. 95-1, Oct. 27, 1977, 
  p 35408.
      A lack of standing of a contestant to initiate the contest is a 
  defense that may be raised at the option of the contestee by motion. 2 
  USC Sec. 383(b).

  Sec. 4 . Consideration and Disposition

                         Precedence and Privilege

      Under article I, section 5 of the Constitution and rule IX, the 
  consideration of a contested election case constitutes a question of 
  privilege. 3 Hinds Sec. Sec. 2579, 2580, 2626. It takes precedence 
  over the consideration of veto messages from the President (5 Hinds 
  Sec. Sec. 6641, 6642), special orders (3 Hinds Sec. 2554), and 
  business in order on Calendar Wednesday (8 Cannon Sec. 2276).

[[Page 478]]

                          Reports and Resolutions

      The House generally disposes of election contests by acting on a 
  resolution, which under the modern practice is reported from the 
  Committee on House Administration. Manual Sec. 724. A resolution is 
  used to dispose of the case even where dismissal has been stipulated 
  by the parties. Deschler Ch 9 Sec. 52.5.
      Under rule XIII clause 5, committee reports relating to the right 
  of Members to their seats are privileged and are so reported from the 
  floor. Manual Sec. 853. Resolutions disposing of an election contest 
  also are questions of privilege and may be called up any time. 105-2, 
  Feb. 12, 1998, p ____. However, unreported resolutions are subject to 
  the notice requirement of rule IX. Manual Sec. 701; Deschler Ch 9 
  Sec. Sec. 42.3, 42.4.
      The resolution may:

     Declare one of the parties entitled to the seat. Deschler Ch 9 
         Sec. Sec. 42.2, 62.2.
     Declare one of the parties not competent to bring the contest. 
         Deschler Ch 8 Sec. 13.1.
     Declare that neither party be seated pending a committee 
         investigation. Deschler Ch 9 Sec. 42.15.
     Declare the seat vacant. Deschler Ch 9 Sec. Sec. 42.11, 42.12.
     Dispose of the contest upon expiration of a specified day. 
         Manual Sec. 701.
     Dismiss the contest. See Sec. 5, infra.
     Provide for payment or reimbursement from the contingent fund 
         for costs incurred in the contest or its investigation. 
         Deschler Ch 8 Sec. 13.4; Deschler Ch 9 Sec. Sec. 45.1-45.6; see 
         also 2 USC Sec. 396, permitting the committee to allow any 
         party reimbursement for reasonable expenses in the case.

  Sec. 5 . -- Dismissal

      A motion to dismiss will lie under the Federal Contested Elections 
  Act to permit the contestee to interpose certain defenses to the 
  contestant's claim or notice of contest. 2 USC Sec. 383(b). Such a 
  motion may be acted on by the House pursuant to a privileged 
  resolution reported from the Committee on House Administration. Manual 
  Sec. Sec. 850, 853.
      Under this statute, the burden of proof is on the contestant to 
  present sufficient evidence, even before the formal submission of 
  testimony, to overcome the motion to dismiss. Deschler Ch 9 Sec. 35.7. 
  A motion to dismiss will lie where the contestant has not adduced 
  evidence or forwarded testimony in the manner prescribed by law or has 
  failed to demonstrate that there is some documentable basis for his 
  allegations. Deschler Ch 9 Sec. Sec. 25.1-25.5. Under the statute, the 
  contestant has the burden of proving sufficient evidence to show that 
  the result of the election would be changed or that the House should 
  conduct a complete recount. 95-1, May 9, 1977, p 13954; 99-

[[Page 479]]

  1, Oct. 2, 1985, p 25665. Evidence that the contestant received more 
  votes than the contestee in a prior election is insufficient. 95-1, 
  Oct. 27, 1977, p 35408. Merely suggesting the probability of error in 
  the tabulation of votes, without offering evidence of a change in the 
  election result, is likewise insufficient. 95-1, May 9, 1977, p 13954. 
  Where the number of illegal votes shown by clear and convincing 
  evidence to have been cast in an election is less than the total 
  margin of victory of the contestee, the House may adopt the 
  recommendation of the Committee on House Administration dismissing the 
  election contest. The clear and convincing standard was used rather 
  than a proportionate reduction methodology that would have allocated 
  the illegal votes scientifically between the parties. 105-2, Feb. 12, 
  1998, p ____.

  Sec. 6 . -- Debate and Voting; Amendment


      Resolutions disposing of election contests have been determined by 
  voice vote and without debate. Deschler Ch 9 Sec. 42.5. Normally, 
  however, debate on the resolution is under the hour rule, with 
  extensions of time permitted by unanimous consent. The debate may be 
  divided among certain Members, with the previous question considered 
  as ordered at the conclusion thereof. Deschler Ch 9 Sec. Sec. 42.9, 
  59.1. The Member supporting the recommendation of the committee in the 
  contest is entitled to close debate. Deschler Ch 9 Sec. 42.8.
      The resolution may be subject to a demand for a division of the 
  question if its form permits (Deschler Ch 9 Sec. 42.14) and to a 
  motion to recommit with instructions (Deschler Ch 9 Sec. 42.16). If 
  the manager of the resolution yields for an amendment, he loses the 
  floor to the proponent of the amendment. Deschler-Brown Ch 29 
  Sec. 30.8. The resolution is not subject to amendment unless the 
  Member controlling the time for debate yields for that purpose or the 
  previous question is voted down. Deschler Ch 9 Sec. 42.17. Where the 
  previous question is ordered on both the resolution of dismissal and 
  on the preamble, the preamble is not separately voted on or amended 
  except as part of a motion to recommit. 105-2, Feb. 12, 1998, p ____.

                       Participation by the Parties

      If not a sitting Member, the contestant in an election contest may 
  be permitted on the floor under rule IV clause 2 during the 
  consideration of the case in the House but must abide by the rules of 
  proper decorum. Manual Sec. 622; Deschler Ch 4 Sec. 4.5; Deschler Ch 9 
  Sec. 42.6. Furthermore, such

[[Page 480]]

  contestant is not allowed to participate in the debate absent an order 
  of the House. 1 Hinds Sec. Sec. 662, 666.
      A contestee, if a sitting Member, may participate in debate on the 
  resolution disposing of the contest or insert remarks in the 
  Congressional Record. Deschler Ch 9 Sec. Sec. 42.6, 42.7; 105-2, Feb. 
  12, 1998, p ____. Such contestee also may vote on the resolution. 99-
  1, Oct. 2, 1985, p 25670.