[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 8. Elections and Election Campaigns]
[D. Certificates of Election]
[§ 15. In General; Form]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 945-951]
CHAPTER 8
Elections and Election Campaigns
D. CERTIFICATES OF ELECTION
Sec. 15. In General; Form
After congressional elections have been conducted and results
tabulated, the official returns are transmitted to the state executive,
or other official designated to receive them under state law, for the
issuance of a certificate of election.(3) These
certificates, also termed ``credentials,'' are sent to the Clerk of the
House for initial use in composing the Clerk's roll before the
convening of Congress.
[[Page 946]]
Once Congress meets, the certificate constitutes evidence of a prima
facie right to a congressional seat in the House.(4)
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3. The subject of this division is the issuance and form of election
certificates, substantive grounds for challenge to their
validity, and the practice of the House in determining whether
a Member-elect may be sworn on the strength of his certificate.
On occasion, challenges to the validity of an election or
to the satisfaction of qualifications (see Sec. Sec. 16.6,
16.7, infra) or to other matters are stated as challenges to
the credentials. Such challenges are treated elsewhere; see Ch.
2, supra (enrolling Members and administering the oath), Ch. 7,
supra (qualifications of Members), and Ch. 9, infra (election
contests).
4. The term ``certificate of election'' has been preferred herein to
``credentials'' since reference is to a specific document and
not to qualifications in general.
For the procedure of presenting credentials, the status of
Members-elect, and the functions of House officers at or before
the convening of Congress, see Ch. 2, supra.
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The certificate is neither binding on the House nor essential to
the administration of the oath, since the House is the sole and final
judge of the elections and returns of its Members.(5) Any
Member or Member-elect has the right to object to the administration of
the oath to another by delivering a challenge either to the validity of
the election or to the validity of the certificate
itself.(6)
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5. U.S. Const. art. I, Sec. 5, clause 1. Many Members-elect have been
sworn in absent a certificate of election (see Sec. 15.5,
infra).
6. For the form of challenges, and the procedure by which they are
made, see Ch. 2, supra.
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The certificate must show that the Representative-elect was
regularly elected in accordance with the laws of his state or the laws
of the United States.(7) Most state laws provide for the
Governor to issue the certificate under the seal of the state, although
some provide for the secretary of state to perform the
function,(8) and some require the concurrent action of
another body, such as an executive council.(9) A citizens'
group or party committee has no authority to issue a certificate based
on an election conducted by them, even if the regular election was
conducted in violation of state or federal law.(10)
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7. 2 USC Sec. 26. See also 2 USC Sec. 34 (referring to ``credentials
in due form of law'').
8. See Sec. Sec. 15.2, 15.7, infra
9. See Sec. 17.5, infra.
10. See Sec. 15.1, infra.
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The state Governor, or other official charged with the function,
has an affirmative duty to issue and deliver the credentials and cannot
reject the official results.(11) Where no regular election
is held, there being only one qualified candidate, the Governor may
proclaim him duly elected and thereafter issue a certificate of
election.(12)
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11. See Sec. 15.3, infra. See also 1 Hinds' Precedents Sec. 553
(administration of oath ordered by House, where Governor
declined to issue credentials for a Member-elect whose election
was unquestioned).
12. See Sec. 15.4, infra.
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A Member may be enrolled and even sworn by action of the House even
though a state court has enjoined the issuance of a certificate
[[Page 947]]
by the state executive.(13) Indeed, it is doubtful whether
state courts have jurisdiction to enjoin the issuance of a certificate,
most courts holding they do not since Congress is the sole judge of
elections and returns.(14)
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13. See Sec. Sec. 16.3, 16.4, infra.
14. See Sec. 15.2, infra.
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The certificate is sent, usually by certified mail, directly to the
Clerk of the House, who retains it for a period of four
years.(15) The certificate is not in contemporary practice
carried to the House by the Member-elect. At the convening of Congress,
the Clerk states that credentials have been received showing that the
persons named therein were elected in accordance with state and federal
law.(16)
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15. The certificates are retained for four years because those of the
Resident Commissioner are effective for that period (see
Sec. 15.6, infra). Subsequently they are delivered to the
National Archives.
16. See, i.e., 117 Cong. Rec. 9, 92d Cong. 1st Sess., Jan. 21, 1971.
For the Clerk's preliminary review of the certificate, see
Ch. 2, supra. The Clerk has declined to enroll some Members-
elect because their certificates were irregular.
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Although the form of the certificate is not specified by law, it
normally contains the following elements: signatures of both the
Governor and the secretary of state; stamp of the great seal of the
state; specification of the term to which the Member-elect was chosen;
and attestation to the validity of the election.(17)
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17. A further element of some credentials may be the attestation to the
death of a Member, where the credentials are for a Member-elect
to fill an unexpired term in such a case (see 1 Hinds'
Precedents Sec. 568).
When the fact of a Member's death does not appear from his
successor's credentials, the House has inquired into the status
of the seat (see 2 Hinds' Precedents Sec. Sec. 1208,
1209). -------------------
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Issuance of Certificate by State Executive
Sec. 15.1 A citizens' group has no authority to issue certificates of
election.(18)
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18. Although by federal statute certificates of Senators-elect must be
issued by the Governor under the state seal and countersigned
by the secretary of state (2 USCA Sec. Sec. 1a and 1b), the
certificate of a Representative-elect must show only that he
was elected in accordance with state or federal law. 2 USCA
Sec. 26.
State statutes provide for the Governor, or in some cases,
the secretary of state, to issue the certificate for a
Representative-elect.
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[[Page 948]]
In the 73d Congress (19) and in the 89th Congress
(20) the House determined that a citizens' group could
neither call an election of its own nor issue a certificate of election
to a person allegedly chosen as Representative-elect in such an
election.
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19. 78 Cong. Rec. 1521, 73d Cong. 2d Sess., Jan. 29, 1934 (H. Res. 231
and H. Rept. No. 334, Committee on Elections).
20. 111 Cong. Rec. 24292, 89th Cong. 1st Sess., Sept. 17, 1965
(dismissal of election contest).
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Sec. 15.2 A state executive official has issued a certificate of
election notwithstanding an injunction against such issuance by the
state judiciary.(1)
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1. Since Congress is the judge of elections and returns, most courts
have refused to enjoin or prohibit the issuance of a
certificate. See Keogh v Horner, 8 F Supp 933 (D. Ill. 1934);
Odegard v Olson, 264 Minn. 439, 119 N.W. 2d 717 (1963);
Burchell v State Board of Election Commissioners, 252 Ky. 823,
68 S.W. 2d 427 (1934). Contra, People ex ref. Brown v Board of
Suprs. of Suffolk County, 216 N.Y. 732, 110 N.E. 776 (1915)
(see also Sec. 16.4, infra).
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On Jan. 3, 1949, the Clerk advised the House that he had placed on
the roll the name of Member-elect John C. Davies, from New York,
although the Clerk had been advised that a state court had issued an
order restraining the secretary of state from issuing the
certificate.(2)
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2. 95 Cong. Rec. 8, 81st Cong. 1st Sess. See also Sec. 16.4, infra,
wherein the House adopted a resolution authorizing the
administration of the oath to a Member-elect, a citizens' group
having obtained a state court injunction against the issuance
of a certificate by the state Governor.
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Sec. 15.3 A state Governor, pursuant to the finding of a state court
issued a certificate to a contestee based on an official canvass of
votes.
On Aug. 12, 1958,(3) Mr. Robert Hale, of Maine, was
declared entitled to the seat for the First Congressional District in
his state, the Governor having issued a certificate of election to him
based on a state court finding and on an official canvass of
votes.(4)
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3. 104 Cong. Rec. 17119, 85th Cong. 2d Sess.
4. See also H. Rept. No. 2482, 85th Cong. 2d Sess., Committee on House
Administration, to accompany H. Res. 676, relating to the
election contest of Oliver v Hale for the First Congressional
District of Maine.
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Sec. 15.4 In one instance, a Member was sworn without a certificate of
election but pursuant to a proclamation by the state Governor that
he was duly elected to fill a vacancy.
[[Page 949]]
On Oct. 18, 1965,(5) the oath was administered to Mr.
Edwin W. Edwards, of Louisiana, to fill a vacancy in a congressional
seat from his state. His certificate of election had not been sent to
the Clerk, but a proclamation from the state Governor declaring Mr.
Edwards to be duly elected to fill a vacancy was transmitted to the
Clerk's office. No general election had been held since Mr. Edwards had
won the Democratic primary election and was the only qualified
candidate to stand for general election to fill the vacancy.
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5. 111 Cong. Rec. 27171, 89th Cong. 1st Sess.
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Effect of Delay in Arrival of Certificate
Sec. 15.5 The oath is administered by unanimous consent to Members-
elect whose certificates of elections have not arrived, there being
no contest or question as to the validity of their
elections.(6)
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6. 115 Cong. Rec. 17622, 91st Cong. 1st Sess., June 27, 1969; 115
Cong. Rec. 11209, 91st Cong. 1st Sess., May 5, 1969; 115 Cong.
Rec. 8129, 91st Cong. 1st Sess., Apr. 1, 1969; 114 Cong. Rec.
4441, 90th Cong. 2d Sess., Feb. 28, 1968; 113 Cong. Rec. 36514,
90th Cong. 1st Sess., Dec. 14, 1967; 105 Cong. Rec. 9571, 86th
Cong. 1st Sess., June 2, 1959; 105 Cong. Rec. 3600, 86th Cong.
1st Sess., Mar. 9, 1959; 104 Cong. Rec. 10164, 85th Cong. 2d
Sess., June 4, 1958; 104 Cong. Rec. 1072, 85th Cong. 2d Sess.,
Jan. 27, 1958; 104 Cong. Rec. 669, 85th Cong. 2d Sess., Jan.
20, 1958; 102 Cong. Rec. 2383, 84th Cong. 2d Sess., Feb. 8,
1956; 97 Cong. Rec. 11481, 82d Cong. 1st Sess., Sept. 17, 1951;
97 Cong. Rec. 9316, 82d Cong. 1st Sess., Aug. 1, 1951; 92 Cong.
Rec. 1852, 79th Cong. 2d Sess., Mar. 4, 1946.
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Certificates of Delegates and Resident Commissioner
Sec. 15.6 Certificates of election for Delegates to the House,
effective for two years, and for the Resident Commissioner,
effective for four years, are transmitted to the
House.(7)
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7. In former practice, the Resident Commissioner was appointed rather
than elected, and his certificate of appointment was
transmitted to the House by the President of the United States.
80 Cong. Rec. 2053, 74th Cong. 2d Sess., Feb. 14, 1936. See
also 90 Cong. Rec. 7102, 78th Cong. 2d Sess., Aug. 18, 1944.
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At the convening of the 93d Congress, the Clerk addressed the
House, after the call of the roll, to state that certificates of
election had been received for the Delegates from Guam, the Virgin
Islands, and the District of Columbia, and for the Resident
Commissioner of Puerto Rico, the latter for a term of four
years.(8)
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8. 119 Cong. Rec. 11-15, 93d Cong. 1st Sess., Jan. 3, 1973.
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[[Page 950]]
Sec. 15.7 Where a territorial act passed by Congress required the
Governor to declare the election result and to deliver the
certificate to the Delegate but allowed the territorial legislature
power over election laws, a territory law requiring the secretary
thereof to declare and certify election results was held
controlling in an election contest.
On May 21, 1936, a committee on elections submitted House
Resolution 521 and Report 2736 in the contested election case of
McCardless v King for the seat of Delegate from the territory of
Hawaii.(9)
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9. 80 Cong. Rec. 7765, 74th Cong. 2d Sess. The House passed the
resolution, without debate, on June 2, 1936, 80 Cong. Rec.
8705, 74th Cong. 2d Sess.
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The proposed resolution declared Mr. Samuel Wilder King to be duly
elected as Delegate. The report also construed the Hawaiian Organic
Act, passed by Congress, to determine whether contest had been filed
within the 30 days required by law. The act required the territorial
Governor to declare elected and to deliver a certificate of election to
the Delegate, but also provided that the election be conducted in
conformity with the general laws of the territory and permitted the
territory legislature to amend the election laws.
The committee held that a law of the Hawaiian territorial
legislature which required the secretary of the territory to declare
and certify election results was controlling as to the question as to
whether the contestant had filed notice of contest within the time
required by law.(10)
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10. H. Rept. No. 2736, Committee on Elections No. 2, 74th Cong. 2d
Sess.
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Senate Certificates
Sec. 15.8 At the convening of Congress, the Vice President announces
the receipt of certificates of election for Senators-elect,
indicates whether they are regular in form, and causes them to be
printed in the Record.
On Jan. 21, 1971, the convening date of the Senate in the 92d
Congress,(11) Vice President Spiro T. Agnew announced as
follows:
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11. 117 Cong. Rec. 3, 92d Cong. 1st Sess.
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The Chair lays before the Senate the credentials of 33 Senators
elected for 6-year terms beginning January 3, 1971.
All certificates, the Chair is advised, are in the form
suggested by the Senate, except the ones from Pennsylvania
[[Page 951]]
and Massachusetts which use the word ``Commonwealth'' instead of
``State,'' and five others in various State forms.
If there be no objection, the reading of the 28 certificates in
the form recommended by the Senate will be waived and they will be
printed in full in the Record.
No objection was heard and the certificates were printed in full in
the Congressional Record.(12)
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12. 117 Cong. Rec. 3-5, 92d Cong. 1st Sess. 2 USC Sec. Sec. 1a and 1b
require a certain form for Senate certificates.
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Sec. 15.9 On one occasion, the Senate ordered the return to a state of
a certificate of appointment to fill a vacancy in that body on
receipt of a telegraphic request from the Governor, who advised the
Senate that the appointee had declined to serve.
On June 21, 1956,(13) acting President pro tempore
William R. Laird 3d, of West Virginia, laid before the Senate two
communications from the Governor of Kentucky, one certifying the
appointment of a Senator-elect to fill a vacancy, and one to request
the return of the certificate, since the appointee had declined to
serve. The Senate ordered the certificate returned to the Governor.
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13. 102 Cong. Rec. 10769, 84th Cong. 2d Sess.
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