[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 23. Election of Members]
[From the U.S. Government Publishing Office, www.gpo.gov]


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                    CHAPTER 23 - ELECTION OF MEMBERS

                              HOUSE PRACTICE

  Sec. 1.  In General
  Sec. 2.  Campaign Practices
  Sec. 3.  Certificates of Election
  Sec. 4.  Resignations; Deaths; Filling Vacancies
        Research References
          U.S. Const. art. I, Sec. 5, cl. 1
          1 Hinds Sec. Sec. 277-633
          6 Cannon Sec. Sec. 38-89
          Deschler Ch 8


  Sec. 1 . In General

                                 Generally

      Although Congress has enacted extensive legislation to protect the 
  right to vote and to secure the process against fraud, bribery, and 
  illegal conduct, the actual mechanism for conducting and holding 
  congressional elections has been left largely to the States. Deschler 
  Ch 8 Sec. Sec. 5, 7. However, under article I, section 5, clause 1 of 
  the Constitution, the ultimate validity of elections rests on 
  determinations by the House and Senate as final judges of the 
  elections and returns of their respective Members. Deschler Ch 8 
  Sec. 5. Therefore, where the conduct of election officials or of 
  candidates and their agents constitutes fraud or illegal control of 
  election machinery, the House or Senate may void an election and 
  refuse to administer the oath to a Member-elect. Deschler Ch 8 Sec. 7; 
  see Deschler Ch 8 for complete treatment of elections and election 
  campaigns.

                     Apportionment and Reapportionment

      Since the admission of Alaska and Hawaii to statehood, the total 
  membership of the House has remained fixed by statute at 435 seats. 
  Manual Sec. 227. By law, these 435 seats are automatically apportioned 
  among the States according to each decennial census. 2 USC Sec. 2a.
      Under this law, a statistical model known as the ``method of equal 
  proportions'' is used to determine the number of Representatives to 
  which each State is entitled. Although other methods for apportioning 
  House seats may be permitted, the equal proportions method chosen by 
  Congress has been

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  upheld under the Constitution and was plainly intended to reach as 
  close as practicable the goal of ``one person, one vote.'' 
  Massachusetts v. Mosbacher, 785 F. Supp. 230 (D. Mass. 1992), rev'd on 
  other grounds Franklin v. Massachusetts, 505 U.S. 788 (1992). The 
  courts also have recently upheld under Federal law and the 
  Constitution a counting methodology used by the Census Bureau in a 
  decennial census. This method, known as ``imputation,'' was held to be 
  different than ``sampling,'' a method prohibited under section 195 of 
  title 13, United States Code. Utah v. Evans, 536 U.S. 452 (2002). The 
  method of apportioning the seats in the House is vested exclusively in 
  Congress, and neither States nor courts may direct greater or lesser 
  representation than that allocated by statute. Deschler Ch 8 Sec. 1. 
  The States create their own congressional districts, which must be 
  redrawn after reapportionment so that each district is as equally 
  populated as practicable. Manual Sec. 229.
      Section 2a of title 2, United States Code, mandates the manner in 
  which a State must conduct an election after any apportionment but 
  before the State is redistricted. Section 2a addresses an election 
  where the number of Representatives has not changed, has increased, or 
  has decreased. The authority under section 2a(c) of title 2 for a 
  State to retain an at-large seat pending its redistricting should be 
  read in light of section 2c of title 2, which requires all States 
  entitled to more than one seat to elect representatives only from 
  single-Member districts. Manual Sec. 227.
      Reapportionment proposals have been considered in the House, but 
  have no privileged status under the Constitution and cannot interrupt 
  the regular proceedings of the House. Deschler Ch 8 Sec. 2. 
  Reapportionment legislation also has been considered in the Committee 
  of the Whole. Deschler Ch 8 Sec. 2.5. Under rule X clause 1(k), 
  proposals relating to apportionment are within the jurisdiction of the 
  Committee on the Judiciary.


  Sec. 2 . Campaign Practices

      The power of Congress to regulate the election process extends to 
  the regulation of campaign practices. Deschler Ch 8 Sec. 10. The 
  Federal Election Campaign Act established a new and comprehensive code 
  for campaign practices and expenditures, and contains provisions for 
  investigations and enforcement. 2 USC Sec. 431.
      The Federal Election Commission is the agency empowered with 
  primary jurisdiction over the administration, interpretation, and 
  civil enforcement of the Federal Election Campaign Act. Federal 
  Election Comm'n v. American Intern. Demographic Services, Inc., 629 F. 
  Supp. 317 (E.D. Va. 1986). However, the House itself has the power to 
  judge elections and to

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  determine whether a candidate was improperly elected to a seat. If 
  violations of the election campaign statutes are so extensive as to 
  render an election void, the House may deny the right to a seat. 
  Deschler Ch 8 Sec. 12.
      Under rule X clause 1(i), the Committee on House Administration 
  has jurisdiction over measures relating to the election of the 
  President, Vice President, or Members of Congress and over measures 
  relating to the raising, reporting, or use of campaign contributions 
  for House candidates. Investigations of specific elections or election 
  practices usually are undertaken by that committee. See, e.g., 105-2, 
  H. Res. 355, Feb. 12, 1998, p 453. Investigations of Members' 
  elections may be conducted under the statutory election-contest 
  procedures or offered on the floor of the House as questions of 
  privilege. Manual Sec. 701; see Election Contests and Disputes. 
  Formerly, investigations were undertaken by select committees created 
  to review election campaigns and proceedings, which were created by 
  privileged resolution reported from the Committee on Rules. Deschler 
  Ch 15 Sec. 1.3. Under the modern practice, investigations are 
  undertaken by the Committee on House Administration.
      A Member's resignation during an investigation effectively 
  terminates the investigation, because the Committee on House 
  Administration has no further jurisdiction in the matter thereafter. 
  95-1, May 4, 1977, p 13391.
      Under rule XIII clause 5, a resolution reported from the Committee 
  on House Administration relative to the right of a Member to his seat 
  is considered as privileged. Deschler Ch 8 Sec. 13.5.


  Sec. 3 . Certificates of Election

      Certificates of election are issued by each State after 
  congressional elections have been conducted and the results tabulated. 
  The certificates, also termed ``credentials,'' are sent to the Clerk 
  of the House for use in composing the Clerk's roll. Although the 
  certificate is not essential to the administration of the oath, any 
  Member or Member-elect has the right to object thereto, by delivering 
  a challenge either to the validity of the election or to the validity 
  of the certificate itself. Deschler Ch 8 Sec. 15. For a discussion of 
  challenging the administration of the oath, see Oaths.
      The House (and not the Speaker or other official) determines 
  whether a Member may be sworn in after an election certificate has 
  been challenged. If a challenge has been directed to a mere 
  irregularity in the form of the certificate, the House will ordinarily 
  seat the Member-elect and declare him finally entitled to the seat. 
  Deschler Ch 8 Sec. 17.1. However, if a certificate is challenged 
  through an election contest or by an allegation of election 
  irregularities, the House may authorize the Member-elect to be sworn 
  but

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  provide that his final right to the seat be referred to committee. 
  That procedure often is followed where a certificate is on file in 
  order not to deprive a State of representation in the House because of 
  protracted proceedings. Deschler Ch 8 Sec. 16.4. Another procedural 
  option that may be pursued by the House is to declare that neither 
  candidate be sworn and that the question of prima facie and final 
  right to the seat be referred to committee. Manual Sec. 204.
      A circumstance which may require the nullification of a 
  certificate is the intervening death or disappearance of the Member-
  elect named therein. Deschler Ch 2 Sec. Sec. 4.8, 4.9.
      The House does not always require a certificate in seating a 
  Member-elect. If he appears without a certificate but his election is 
  uncontested and unquestioned, the House may authorize him to be sworn 
  by unanimous consent. Manual Sec. 204. A photographic copy of the 
  original certificate has been accepted without invoking the unanimous-
  consent procedure. 106-1, June 8, 1999, p 3773. In some cases where a 
  certificate is delayed, the State represented will deliver informal 
  communications to the House attesting to the validity of the election 
  of the Member-elect. The House may accept such communications by 
  unanimous consent in the absence of a certificate. Deschler Ch 2 
  Sec. 3.3. Even where a Member-elect arrives without a certificate and 
  his election is disputed, the House may by resolution authorize him to 
  be sworn. Deschler Ch 8 Sec. 17.2.


  Sec. 4 . Resignations; Deaths; Filling Vacancies

      A Member properly submits his resignation to an official 
  designated by State law and simply informs the House of his doing so, 
  the latter communication being satisfactory evidence of the 
  resignation. Manual Sec. 19; 1 Hinds Sec. 567.
      Where a vacancy arises in the House by death, resignation, 
  declination, or action of the House, the vacancy must be officially 
  declared in order that a special election may be held. Usually, the 
  State executive declares the vacancy to exist, particularly in cases 
  of death, declination, or resignation. Deschler Ch 8 Sec. 9. The State 
  executive then issues a writ of election to fill the vacancy. U.S. 
  Const. art. I, Sec. 2, cl. 4. If a Governor does not recognize the 
  existence of a vacancy, such as in the case of a presumed death not 
  susceptible of proof, the House itself may initiate the action to have 
  the seat declared vacant. Deschler Ch 8 Sec. 9.5. Such a declaration 
  is proper where independent House action has created a vacancy by 
  expulsion or exclusion of a Member. Deschler Ch 8 Sec. 9. In such 
  cases, the House, by privileged resolution, directs the Speaker to 
  notify the State executive. Manual Sec. 22.

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   The State executive also is notified where the Member purports to 
  resign directly to the Speaker, rather than to the Governor of his 
  State as is customary.
      Under rule XX clause 5, in the case of the death of a Member, the 
  Speaker may lay before the House such documentation from Federal, 
  State, or local officials as he deems pertinent.
      A resolution declaring a seat vacant is used where a Member-elect 
  is unable to take the oath or to resign due to an incapacitating 
  illness. Manual Sec. 22. In one instance, a letter to the Speaker from 
  the attending physician was inserted in the Congressional Record to 
  document the physical condition of the Member-elect. The letter stated 
  that she was in a coma and would be unable to take the oath. Manual 
  Sec. 205. The House, by declaring the seat vacant by majority vote, 
  was in effect judging a constitutional qualification of the Member; 
  that is, the requirement that she take the the oath. The resolution 
  was not tantamount to an expulsion, which requires a two-thirds vote 
  to adopt.
      The House recently adopted a resolution expressing the sense of 
  the House that each State should examine its existing statutes, 
  practices, and procedures governing special elections so that, in the 
  event of a catastrophe, vacancies in the House may be filled in a 
  timely fashion. 107-2, H. Res. 559, Oct. 2, 2002, p ____.