[Deschler's Precedents, Volume 2]
[Chapter 9.  Election Contests]
[M. Summaries of Election Contests, 1931-72]
[§ 48. Seventy-fourth Congress, 1935-36]
[From the U.S. Government Printing Office, www.gpo.gov]


[Page 1140-1146]
 
                               CHAPTER 9
 
                           Election Contests
 
               M. SUMMARIES OF ELECTION CONTESTS, 1931-72
 
Sec. 48. Seventy-fourth Congress, 1935-36

Sec. 48.1 Lanzetta v Marcantonio

[[Page 1141]]

    On June 19, 1936 (Calendar Day, June 20, 1936), Mr. Milton H. West, 
of Texas, submitted the unanimous report (4) from the 
Committee on Elections No. 1 in the contested election case brought by 
James J. Lanzetta against Vito Marcantonio from the 20th Congressional 
District of New York. The contestee, Marcantonio, had received a 
majority of 246 votes from the official tabulation of votes cast in the 
election held Nov. 6, 1934. Contestant had filed notice of his 
intention to contest on Dec. 31, 1934, with timely answer by contestee. 
More than 4,000 pages of testimony and exhibits were taken, but the 
testimony of contestant was not taken until after the expiration of the 
90-day period prescribed by 2 USC Sec. 203 (running from the time 
contestee's answer was filed).
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 4. H. Rept. No. 3084, 80 Cong. Rec. 10615, 74th Cong. 2d Sess.; H. 
        Jour. 689.
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    On Jan. 6, 1936, the Speaker had laid before the House a letter 
from the Clerk of the House (5) transmitting information 
that the notice of contest and reply thereto had been filed with his 
office and that the Clerk would forward to the Committee on Elections 
the testimony adduced on behalf of contestee within the time prescribed 
by law. No testimony had at that time been received on behalf of 
contestant. The Speaker referred the Clerk's communication to the 
Committee on Elections No. 1, and ordered it printed as a House 
document. The Clerk then permitted each party 30 days to file his brief 
with his office, pursuant to 2 USC Sec. 223. The Clerk did not order 
printed that portion of the testimony taken after the expiration of the 
time required by law and received by the Clerk after referral of his 
letter. The Committee on Elections No. 1, however, having found some 
justification for delay, considered all testimony, it being made 
available to the committee by the Clerk pursuant to 2 USC Sec. 223.
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 5. H. Doc. No. 383, 80 Cong. Rec. 98, 74th Cong. 2d Sess.; H. Jour. 
        24.
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    Contestant charged the violations by contestee ``of nearly all of 
the election laws including intimidation of voters, violation of the 
Corrupt Practices Act, illegal and excessive expenditure of money, 
failure to account for various contributions, inciting and leading 
riots,'' and other infractions. However, the committee found that none 
of the charges were sufficiently proven to warrant a committee 
recommendation that they be sustained. The committee concluded that it 
could not properly

[[Page 1142]]

decide the contest without causing further testimony to be taken, and 
that further testimony could not be taken due to the approach of 
adjournment sine die of the 74th Congress, second session.
    As the result of certain irregularities on the part of contestee 
and his attorneys during the taking of testimony and refusals to 
testify or ignoring of subpenas by witnesses, the committee 
recommended--

        . . . [T]hat the present election laws be amended and some 
    authority empowered to require witnesses to obey process and give 
    their testimony.
        The committee feels that by the action of the contestee's 
    attorneys and associates it has been denied the opportunity under 
    the existing law to properly inquire into the fraud and corruption 
    which was charged in this election.

    The committee called the attention of the House to actions of 
contestee's attorneys and witnesses as follows:
    (1) The attorneys for each side agreed to waive the requirement 
that witnesses sign testimony, and that stenographer transcripts would 
be sufficient; contestee's attorneys later refused to accept the agreed 
testimony (unsigned by witnesses), which necessitated further subpenas 
to witnesses, some of whom refused to respond or could not be found.
    (2) Contestee's law partner, the campaign fund treasurer, refused 
to testify on the ground that time for taking testimony had expired, 
despite substantiated charges that contestee had not reported certain 
contributions.
    House Resolution 560 (6) was called up by Mr. West at 
the time he submitted the report from the Committee on Elections No. 1, 
and was agreed to without debate and by voice vote on June 19, 1936 
(Calendar Day, June 20, 1936), the final day of the second session of 
the 74th Congress. House Resolution 560 provided as follows:
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 6. 80 Cong. Rec. 10615, 74th Cong. 2d Sess.; H. Jour. 690.
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        Resolved, That James J. Lanzetta is not entitled to a seat in 
    the House of Representatives of the Seventy-fourth Congress from 
    the Twentieth Congressional District of the State of New York; and 
    be it further
        Resolved, That Vito Marcantonio is entitled to a seat in the 
    House of Representatives of the Seventy-fourth Congress from the 
    Twentieth Congressional District of the State of New York

    Prior to the adoption of the above resolution, Mr. James P. 
Buchanan, of Texas, had, on June 19, 1936 (Calendar Day, June 20, 
1936), asked unanimous consent for the immediate consideration of House 
Joint Resolution 641 (7)

[[Page 1143]]

which he introduced at that time from the floor and sent to the Clerk's 
desk, and which made ``appropriations for the payment of expenses 
incurred in the election contest for a seat in the House of 
Representatives from the Twentieth Congressional District of the State 
of New York'' as follows:
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 7. 80 Cong. Rec. 10253, 74th Cong. 2d Sess.; H. Jour. 653.
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        Resolved, etc., That the following sums, respectively, are 
    hereby appropriated, out of any money in the Treasury not otherwise 
    appropriated, for payment to the contestant and the contestee for 
    expenses incurred in the contested-election case of Lanzetta 
    against Marcantonio, Twentieth Congressional District of the State 
    of New York, as audited and recommended by the Committee on 
    Elections No. 1 of the House of Representatives, namely:
        To James J. Lanzetta, contestant, $2,000.
        To Vito Marcantonio, contestee, $1,739.83.

        The foregoing sums to be disbursed by the Clerk of the House of 
    Representatives.

    The joint resolution was passed without debate and by voice vote, 
passed by the Senate on the same day, and approved as Public Resolution 
No. 122.
    Note: Syllabi for Lanzetta v Marcantonio may be found herein at 
Sec. Sec. 27.7, 27.9 (extensions of time for taking testimony); 
Sec. 28.1 (unsigned transcript of deposition by witness); Sec. 30.2 
(noncompliance with subpena); Sec. 45.3 (payments from Treasury 
authorized by joint resolution).

Sec. 48.2 McCandless v King

    On May 21, 1936, Mr. Joseph A. Gavagan, of New York, submitted the 
report (8) from the Committee on Elections No. 2 in a 
contested election case brought by Lincoln L. McCandless against Samuel 
W. King, Hawaii Territory. According to the official tabulation of 
votes, contestee (Mr. King) received 31,487 votes and contestant (Mr. 
McCandless) received 29,630, a majority of 1,857 for contestee. 
Contestant served and filed notice of contest on Dec. 15, 1934, with 
timely answer by contestee. The Clerk of the House transmitted the 
original testimony, papers, and documents to the Speaker on Jan. 6, 
1936,(9) on which date the contested election case was 
referred to the committee. These documents accompanied the Clerk's 
letter, which the Speaker laid before the House and ordered printed.
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 8. H. Rept. No. 2736, 80 Cong. Reg. 7765, 74th Cong. 2d Sess.; H. 
        Jour. 482.
 9. H. Doc. No. 384, 80 Cong. Reg. 98, 99, 74th Cong. 2d Sess.; H. 
        Jour. 24.
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    The committee dismissed contestant's contentions of intimidation 
and coercion of voters by contestee, having found no com

[[Page 1144]]

petent evidence of such actions on the record.
    The contestee moved to dismiss the contest as not having been 
timely commenced, i.e., ``notice of contest not filed within 30 days 
after the result of the election (has) been determined by the officer 
or board of canvassers authorized by law to determine the same,'' as 
required by 2 USC Sec. 201.
    On Nov. 10, 1934, the Governor of the Territory of Hawaii issued a 
certificate of election to contestee; on Nov. 17, 1934, the Secretary 
of the Territory canvassed the vote and made a certification thereon. 
Section 85 of the Hawaiian Organic Act provided, regarding election of 
a Delegate to the U.S. House of Representatives:

        . . . [T]he conduct of the election shall be in conformity to 
    the general laws of the Territory; that the person receiving the 
    greatest number of votes shall be declared by the Governor duly 
    elected, and a certificate shall be given accordingly.

    The general elections laws of the Territory of Hawaii in effect at 
the time of the election provided that the secretary of the territory 
declare and certify election results. For this reason, the committee 
reported that the certificate issued by the Governor was without legal 
effect, that the proper certification was that issued by the secretary, 
that the contestant had therefore filed notice of contest (on Dec. 15, 
1934) within the 30 days required by 2 USC Sec. 201, and denied the 
contestee's motion to dismiss.
    Contestant's third point of contention cited excessive campaign 
expenditures and contestee's failure to comply with the Corrupt 
Practices Act by filing with the Clerk of the House the required forms 
setting forth his campaign expenditures. The committee found that 
contestee had, within the 30-day period imposed by the act, written a 
letter to the Clerk of the House itemizing expenditures totaling 
$2,473.90 and stating that he would file the required forms upon 
arrival in Washington. The committee suggested that censure of 
contestee for his one-year delay in filing the forms might be in order; 
but the committee did not regard such delay as a sufficient basis for 
forfeiture of his seat, in the light of all the circumstances. 
Contestee's incomplete knowledge of the election laws and procedures, 
and the fact that the Clerk of the House had not mailed the required 
forms to contestee in Hawaii, were factors considered by the committee. 
The report then stated--

        . . . Furthermore, when analyzed, the contestee's statement 
    shows no im

[[Page 1145]]

    proper or excessive expenditure. Your committee believes, 
    therefore, that a strict interpretation of the requirements of law, 
    under the circumstances of this case, might result in a wrong and 
    injustice to the contestee and cloud a distinguished and honorable 
    career. Considering that the contestee's failure to comply with the 
    requirements of law in no way affected the rights of the 
    contestant, your committee recommends that the issues raised by the 
    contestant's third contention be dismissed.

    Mr. Gavagan called up as privileged House Resolution 521 
(10) on June 2, 1936, which incorporated the language 
recommended in the committee report as follows:
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10. 80 Cong. Rec. 8705, 74th Cong. 2d Sess.: H. Jour. 538.
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        Resolved, That Lincoln Loy McCandless was not elected a 
    Delegate from the Territory of Hawaii to the House of 
    Representatives at the general election held November 6, 1934; and
        Resolved, That Samuel Wilder King was elected a Delegate from 
    the Territory of Hawaii to the House of Representatives at the 
    general election held on November 6, 1934, and is entitled to his 
    seat.

    The previous question was ordered without debate, and the 
resolution was agreed to by voice vote.
    Note: Syllabi for McCandless v King may be found herein at 
Sec. Sec. 10.2, 10.5 (Corrupt Practices Act); Sec. 20.4 (notice of 
contest filed late).

Sec. 48.3 Miller v Cooper

    On Mar. 5, 1936, Mr. John H. Kerr, of North Carolina, submitted the 
unanimous committee report 11 in the contested election case 
brought by Locke Miller against John G. Cooper, 19th Congressional 
District of Ohio.
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11. H. Rept. No. 2131, 80 Cong. Rec. 3337, 74th Cong. 2d Sess.; H. 
        Jour. 215.
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    According to the official tabulation of votes as certified by the 
Governor of Ohio, contestant had received 52,023 votes (27,335 of those 
votes having come from Mahoning County, one of three counties in the 
congressional district); whereas contestee had received a total of 
56,200 votes (29,512 from Mahoning County); thus leaving a plurality of 
4,177 votes for contestee in the district. Contestant filed timely 
notice of contest, with proper answer by contestee.
    On Jan. 6, 1936, the Speaker laid before the House a letter from 
the Clerk of the House (l2) transmitting the information 
that notice of contest and reply thereto had been filed with his 
office, and transmitting therewith ``original testimony, papers, and 
documents relating thereto.'' The Speaker referred the Clerk's letter 
to the Committee on Elections No. 3 on
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12. H. Doc. No. 385, 80 Cong. Rec. 99.
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[[Page 1146]]

Jan. 6, 1936, and ordered the letter printed as a House document.

    Contestant alleged that certain irregularities and frauds had 
occurred in Mahoning County, but not in the other two counties of the 
district. The committee, after considering all referred testimony and 
hearing arguments of counsel, found--

        . . . [S]ome irregularities, from the evidence, in respect to 
    the destruction of the ballots, tabulations of the votes cast, and 
    the method of conducting the election in Mahoning County, still, 
    there was no evidence whatsoever connecting the contestee with 
    these acts. And even if the committee should disregard entirely the 
    election in Mahoning County and cast these ballots out, still it 
    would not affect enough votes to change the result of this 
    election; for the reason that in the other two counties in which 
    the voting was not impeached, the contestee received a majority of 
    2,000 votes (though the unimpeached votes were not a majority of 
    all votes cast in the district).

    The committee recommended the adoption of the following resolution:

        Resolved, That Locke Miller is not entitled to a seat in the 
    House of Representatives of the Seventy-fourth Congress from the 
    Nineteenth District of the State of Ohio.
        Resolved, That John G. Cooper is entitled to a seat in the 
    House of Representatives of the Seventy-fourth Congress from the 
    Nineteenth District of the State of Ohio.

    On Mar. 13, 1936, Mr. Kerr called up as privileged House Resolution 
438 (13) which embodied the language recommended by the 
committee in its report. The previous question was immediately ordered 
without debate, and House Resolution 438 thereupon agreed to by voice 
vote. Mr. Cooper was thereby held entitled to his seat.
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13. 80 Cong. Rec. 3740, 74th Cong. 2d Sess.; H. Jour. 236.
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    Note: Syllabi for Miller v Cooper may be found herein at Sec. 12.2 
(balloting irregularities); Sec. 39.5 (significance of number of 
disputed ballots).