[Deschler's Precedents, Volume 2]
[Chapter 8.  Elections and Election Campaigns]
[B. Time, Place, and Regulation of Elections]
[§ 7. Time and Place; Procedure]
[From the U.S. Government Printing Office, www.gpo.gov]


[Page 876-883]
 
                               CHAPTER 8
 
                    Elections and Election Campaigns
 
              B. TIME, PLACE, AND REGULATION OF ELECTIONS
 
Sec. 7. Time and Place; Procedure

    Article I, section 4, clause 1 of the Constitution vests in the 
states the power to prescribe the times, places, and manner of holding 
elections for Senators and Representatives but allows Congress 
preemptive authority to supersede or change any such state 
regulation.(18) Although Congress has enacted extensive 
legislation to protect the right to vote and to secure the process 
against fraud, bribery and illegal conduct,(19) the actual 
mechanism for conducting congressional elections has been left largely 
to the states. And in judging the elections of their Members, the House 
and the Senate defer in great part to state law regarding elections and 
to state court opinions construing such election laws.(20)
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18. See United States v Mumford, 16 F 223 (Cir. Ct. Va. 1883). For a 
        general discussion of the delineation of power over the 
        regulation of elections, see Sec. 5, supra.
19. For legislation protecting the right to vote, see Sec. 6, supra. 
        See Sec. Sec. 10-14, infra, as to federal regulation of 
        campaign practices.
20. See Sec. 7.1, infra.
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    The place where elections shall be held is for the states to 
determine, qualified only by the requirement that Representatives must 
be chosen in congressional districts which comply with statutory and 
constitutional requirements.(1)
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 1. For districting requirements, see Sec. Sec. 3, 4, supra.
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    Poll facilities and functions of state officials at polling places 
are a matter of state regulation, but the House and Senate must often

[[Page 877]]

examine such state laws in order to determine the validity of the 
elections of their respective Members.(2) Unintentional 
maladministration of elections and erroneous conduct by state election 
officials at the polls do not usually invalidate elections; 
(3) but 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 
exclude a Member-elect, or expel a Member charged with such 
conduct.(4) And Congress has the power not only to enact 
laws providing for the enforcement of state provisions ensuring 
election regularity,(5) but also to establish federal 
systems for the supervision of voting and election registration 
procedures.(6)
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 2. See U.S. Const. art. I, Sec. 5, clause 1, vesting in the House and 
        the Senate the exclusive authority to judge the elections and 
        returns of their Members.
 3. See Sec. Sec. 7.6, 7.7, infra.
            Neither the due process clause of the Constitution nor the 
        requirement that Representatives be chosen by the people 
        guarantees a federal remedy for unintentional errors in the 
        administration of an election, where a petitioner has failed to 
        properly file for a fair and accurate state remedy which is 
        available. Powell v Power, 436 F2d 84 (2d Cir. 1970).
 4. See Sec. 7.8, infra.
 5. See In re Coy, 127 U.S. 731 (1888); United States v Gale, 109 U.S. 
        65 (1883); Ex parte Clarke, 100 U.S. 399 (1880); Ex parte 
        Siebold, 100 U.S. 371 (1880).
 6. See Ex parte Yarbrough, 110 U.S. 651 (1884); Ex parte Siebold, 100 
        U.S. 371 (1880).
            For a summary of recent federal voting rights legislation 
        establishing supervisory federal election officials. see 
        Sec. 6, supra.
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    The states may set general requirements for the placing of a 
candidate's name on the ballot where such requirements do not amount to 
qualifications in addition to those prescribed by the Constitution for 
Senators and Representatives.(7)
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 7. A state may, for example, require a filing fee for a candidate. 
        Fowler v Adams, 315 F Supp 592 (D. Fla. 1970), appeal 
        dismissed, 400 U.S. 986. For the qualifications of Members-
        elect to the House and Senate, and the lack of state power to 
        add to those requirements, see Ch. 7, supra.
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    Primaries to nominate candidates for congressional election are 
regulated by state law, and both the House and Senate construe 
individual state statutes to determine whether a Member-elect is 
entitled to his seat where allegedly not nominated in compliance with 
state law.(8)
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 8. See Sec. Sec. 7.3-7.5, infra.
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    The authority of Congress to supersede state election laws ex

[[Page 878]]

tends to primaries, since they are an integral part of the election 
process.(9)
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 9. See United States v Classic, 313 U.S. 299 (1941); United States v 
        Wurzbach, 280 U.S. 396 (1930). Authority to the contrary, 
        Newberry v United States, 256 U.S. 232 (1921), was overruled by 
        the decisions 
        above.                          -------------------
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State Authority to Prescribe Election Regulations

Sec. 7.1 Congress, in judging the elections of its Members, will follow 
    state law as to the time, place and manner of holding elections, in 
    the absence of a controlling federal law.(10)
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10. For state authority generally, see U.S. Const. art. I, Sec. 4, 
        clause 1, discussed in Sec. 5, supra.
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    On Jan. 20, 1934, a committee on elections submitted House 
Resolution 231 and Report 334, declaring null and void an election and 
denying the seat to either of two contestants, one with a certificate 
of election from the governor and one with a certificate of election 
from a citizens' committee.
    The resolution read as follows:

        Resolved, That there was no valid election for Representative 
    in the House of Representatives of the Seventy-third Congress from 
    the Sixth Congressional District of the State of Louisiana on the 
    5th day of December, or the 27th day of December 1933, and that 
    neither Mrs. Bolivar E. Kemp nor J. Y. Sanders, Jr., is entitled to 
    a seat therein; and be it further
        Resolved, That the Speaker communicate to the Governor of the 
    State of Louisiana that there is a vacancy in the representation of 
    the State in the Sixth Congressional District 
    thereof.(11)
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11. 78 Cong. Rec. 1035, 73d Cong. 2d Sess. On Jan. 3, 1934, the House 
        had denied the right to be sworn to either contestant and had 
        referred the matter to the Elections Committee. 78 Cong. Rec. 
        11, 12, 73d Cong. 2d Sess.
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    The committee had determined (see Report 334), after examining the 
relevant state law, that: the election to fill the vacancy, held 
pursuant to the governor's proclamation, was invalid because held prior 
to expiration of the preliminary time period required by state law; 
although the election was invalid, a party committee could not itself 
nominate a candidate and hold an election to choose him as a 
Representative to Congress.
    After debate,(12) the House adopted the resolution 
declaring the election null and void.(13)
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12. 78 Cong. Rec. 1108-11, 73d Cong. 2d Sess., Jan. 22, 1934; 78 Cong. 
        Rec. 1510-21, 73d Cong. 2d Sess., Jan. 29 1934.
13. 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934.
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Primary Nominations

Sec. 7.2 On the recommendation of a committee, the House re

[[Page 879]]

    fused to deprive a properly nominated Member of his seat for 
    irregularity in the nomination of his opponent.

    On June 14, 1967, the Committee on House Administration submitted 
Report No. 365 to accompany House Resolution 541, denying the petition 
of a citizen that the seat of Mr. Fletcher Thompson, of Georgia, be 
vacated, based upon the nomination of his opponent in alleged 
contradiction of state law.(14)
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14. 113 Cong. Rec. 15848, 90th Cong. 1st Sess.
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    The House considered the resolution on July 11, 1967. Mr. Robert T. 
Ashmore, of South Carolina, summarized the background of the election 
contest and urged the adoption of the resolution, since no precedent 
existed for depriving a seated Member of his seat for the irregular or 
illegal nomination of his opponent. Mr. Charles E. Goodell, of New 
York, stated that a Georgia court had dismissed a petition urging that 
Mr. Thompson's opponent be enjoined from entering the race because of 
his allegedly illegal nomination.(15)
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15. 113 Cong. Rec. 18290, 18291, 90th Cong. 1st Sess.
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    The House then agreed to the resolution dismissing the election 
contest and denying the petition.(16)
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16. Id. at p. 18291.
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Sec. 7.3 Where state law requires the nomination of candidates by 
    direct primary elections called by party committees, but permits 
    such committees to themselves nominate candidates where the party 
    has no nominee for any position named in the call of the committee, 
    the nomination of a candidate by a committee which had not first 
    called a primary election is invalid.

    On Jan. 20, 1934, a committee on elections submitted a report and 
resolution recommending that the House declare an election null and 
void, because the regular election had been held at an improper time 
and because the contestant had been elected and certified by a party 
committee in contravention of Louisiana law.(17) The House 
adopted the resolution on Jan. 29, 1934, thereby determining that the 
nomination of a candidate by a party committee which had not first 
called a primary election was invalid, state law requiring nomination 
of party candidates in direct primary elections, but allowing 
committees to themselves nominate candidates where the party ``shall 
have no nominee . . . for any position

[[Page 880]]

named in the call of the committee.''
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17. 78 Cong. Rec. 1035, 73d Cong. 2d Sess. (H. Res. 231 and H. Rept. 
        No. 334).
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    The resolution read as follows:

        Resolved, That there was no valid election for Representative 
    in the House of Representatives of the Seventy-third Congress from 
    the Sixth Congressional District of the State of Louisiana on the 
    5th day of December, or the 27th day of December 1933, and that 
    neither Mrs. Bolivar E. Kemp nor J. Y. Sanders, Jr., is entitled to 
    a seat therein; and be it further
        Resolved, That the Speaker communicate to the Governor of the 
    State of Louisiana that there is a vacancy in the representation of 
    that State in the Sixth Congressional District 
    thereof.(18)
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18. 78 Cong. Rec. 1521, 73d Cong. 2d Sess. For debate on the 
        resolution, see 78 Cong. Rec. 1108-11, Jan. 22, 1934; 78 Cong. 
        Rec. 1510-21, Jan. 29, 1934.
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Sec. 7.4 The House refused to overturn an election in a state with a 
    ``county unit'' primary election system, where less populous 
    counties were entitled to a disproportionately large electoral vote 
    for nominees.

    On Apr. 27, 1948, the House adopted without debate House Resolution 
553, dismissing the Georgia election contest of Lowe v Davis:

        Resolved, That the election contest of Wyman C. Lowe, 
    contestee, against James C. Davis, contestee, Fifth Congressional 
    District of Georgia, be dismissed and that the said James C. Davis 
    is entitled to his seat as a Representative of said District and 
    State.(19)
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19. 94 Cong. Rec. 4902, 80th Cong. 2d Sess.
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    Parliamentarian's Note: The House thereby refused to invalidate the 
Georgia ``county unit'' system for primaries, requiring use of county 
electoral votes rather than popular votes for choosing nominees. Under 
the system each candidate was required to receive a majority of county 
unit votes for nomination, and unit votes were allotted in favor of 
less populous counties rather than strictly by 
population.(20)
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20. See the elections committee report in the case, H. Rept. No. 1823, 
        80th Cong. 2d Sess. The Supreme Court later invalidated the use 
        of the ``county unit'' system. Gray v Sanders, 372 U.S. 368 
        (1963).
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Sec. 7.5 Where a Senator was elected to a full six-year term by a 
    ``write-in'' vote, following the death of his predecessor at a time 
    too late for a new nominating primary, he announced his resignation 
    to permit nomination of a candidate in a regular primary election 
    in which he would be a candidate.

    On Mar. 6, 1956,(1) Senator James Strom Thurmond, of 
South

[[Page 881]]

Carolina, inserted in the Record an announcement he had made in his 
home state on the subject of his resignation from the Senate. He had 
been elected by a ``write-in'' vote at a general election held two 
months after the death of his predecessor in the Senate. He had pledged 
to the people of his state that he would resign after election to the 
Senate by a write-in vote to permit the nomination of a Senator in a 
regular primary election. Mr. Thurmond announced his candidacy for the 
unexpired term created by the vacancy.
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 1. 102 Cong. Rec. 3991, 84th Cong. 2d Sess.
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Conduct of Poll Officials

Sec. 7.6 Statutory functions of election and poll officials are 
    directory in nature, and errors in election administration at the 
    polls, absent fraud, do not normally invalidate ballots or 
    elections.

    In ruling on election contests, House election committees have 
followed the general rule that violations by state poll and election 
officials of their functions under state statutes do not vitiate 
ballots or void elections, in the absence of fraud, since laws 
prescribing the duties of the officials are directory in 
nature.(2) Committees have determined that failure to 
provide at the polls proper instruments to mark ballots do not 
invalidate ballots;(3) that failure of precinct or poll 
clerks to initial ballots is not a crucial error;(\4\) that 
distribution of stickers at polling places to be used on ballots is 
allowable, where state law is uncertain as to sticker votes but the 
state executive and judiciary permit their use;(5) and that 
violation of state laws regarding poll procedure and disposition of 
absentee ballots, envelopes and applications is not fatal to the 
validity of the absentee ballots.(6)
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 2. Laws directing the manner in which ballots are to be marked are 
        mandatory and noncompliance therewith may invalidate ballots 
        (see Sec. 8.11, infra).
 3. Report No. 513, submitted June 13, 1961, 87th Cong. 1st Sess.; see 
        107 Cong. Rec. 10186.
 4. Id.
 5. Report No. 1172, submitted Sept. 8, 1959, 86th Cong. 1st Sess.; see 
        105 Cong. Rec. 18610.
 6. Report No. 2482, submitted Aug. 6, 1958, 85th Cong. 2d Sess.; see 
        104 Cong. Rec. 16481.
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Voting Facilities

Sec. 7.7 The Senate refused to void an election where in various 
    counties no voting booths were provided, where there were no 
    officials present to aid incapacitated voters, and where question

[[Page 882]]

    able ballots were destroyed by court order.(7)

    On Mar. 23, 1954, the Senate rejected the following resolution, 
reported from the Subcommittee on Privileges and Elections of the 
Committee on Rules and Administration:
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 7. For House decisions on the validity of ballots, see Sec. 8.11, 
        infra.
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        Resolved, That it is the judgment of the Senate in the November 
    4, 1952, general election, in and for the State of New Mexico, no 
    person was elected as a Member of the Senate from that state, and 
    that a vacancy exists in the representation of that state in the 
    Senate.
        The Secretary of the Senate is directed to submit a copy of 
    this resolution to the Governor of the State of New 
    Mexico.(8)
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 8. 100 Cong. Rec. 3732, 3733, 83d Cong. 2d Sess.

The resolution was predicated on the failure of New Mexico election 
authorities to provide voting secrecy by providing booths in all 
counties, the absence of officials to help blind and incapacitated 
persons in voting, and the destruction of ballots by court 
order.(9)
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 9. For debate on the resolution and remarks describing the errors and 
        irregularities in the New Mexico election, see 100 Cong. Rec. 
        3696-732, 83d Cong. 2d Sess.
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    In urging the rejection of the resolution, Senator Walter F. 
George, of Georgia, cited the rule laid down by the Senate in judging 
past elections of its Members:

        It will be noted that, according to this statement of the rule, 
    the irregularity or error does not of itself create a situation 
    where it must be shown that the result was not affected. In order 
    to set aside an election there must be not only proof of 
    irregularities and errors, but, in addition thereto, it must be 
    shown that such irregularities or errors did affect the 
    result.(10)
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10. Id. at p. 3731.
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Illegal Control of Election Machinery

Sec. 7.8 In the 77th Congress, the Senate failed to expel, by the 
    necessary two-thirds vote, a Senator whose election had been 
    challenged on various grounds, including his alleged illegal 
    control of election procedure.

    On Jan. 3, 1941, at the convening of the 77th Congress, Mr. William 
Langer, of North Dakota, took the oath of office, despite charges from 
the citizens of the state recommending that he be denied a 
congressional seat because of campaign fraud and of conduct involving 
moral turpitude.(11)
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11. 87 Cong. Rec. 3, 4, 77th Cong. 1st Sess.
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    The petition against Mr. Langer alleged, among other charges, con

[[Page 883]]

trol of election machinery, casting of illegal election ballots, and 
destruction of legal election ballots.(12)
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12. 88 Cong. Rec. 2077-81, 77th Cong. 2d Sess., Mar. 9, 1942.
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    After determining that a two-thirds vote was necessary for 
expulsion,(13) the Senate voted not to expel Senator 
Langer.(14)
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13. Id. at p. 3064.
14. Id. at p. 3065. See Sec. Sec. 6.3-6.5, supra, for instances in 
        which election results were challenged for control of election 
        machinery so as to deny voting rights.
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