[Deschler's Precedents, Volume 2, Chapters 7 - 9] [Chapter 9. Election Contests] [K. Inspection and Recount of Ballots] [§ 41. Procedure] [From the U.S. Government Publishing Office, www.gpo.gov] [Page 1081-1083] CHAPTER 9 Election Contests K. INSPECTION AND RECOUNT OF BALLOTS Sec. 41. Procedure Exhaustion of State Remedies Sec. 41.1 To obtain an order from the House for a recount of votes in an election contest, contestant should show that he has exhausted state court remedies to obtain a recount under state law. In Swanson v Harrington (Sec. 50.4, infra), a 1940 Iowa contest, contestant claimed that certain votes had been cast by persons only temporarily within the district, and therefore unqualified, and sought an order from the [[Page 1082]] House that would require a recount of the total vote. The Committee on Elections found that contestant had not exhausted his remedy of obtaining a recount through the state courts, as permitted by the Iowa code, prior to appealing to the committee to order a recount. The committee rejected contestant's argument that he had been precluded from invoking state court aid as the courts had not construed the relevant state election contest laws as they applied to House seats. Although the committee claimed the power to order a recount, in its discretion, without reference to state proceedings, it indicated it would not order a recount until contestant had exhausted state court remedies. [Compare Carter v LeCompte (Sec. 57.1, infra), a 1957 Iowa contest in which the committee expressly rejected Swanson v Harrington.] Recounts Permitted by State Law Sec. 41.2 A recount of votes may be sought pursuant to a statute requiring the secretary of state to conduct a recount at the request of either candidate. In the 1938 New Hampshire election contest of Roy v Jenks (Sec. 49.1, infra), the original official returns from the Nov. 3, 1936, election gave Alphonse Roy 51,370 votes and Arthur B. Jenks 51,920 votes, a plurality of 550 votes for Mr. Jenks. On Nov. 9, Mr. Roy applied to the secretary of state of New Hampshire for a recount, pursuant to state law making it mandatory upon that official to conduct a recount upon request of either candidate. Production of Evidence Justifying a Recount as Prerequisite Sec. 41.3 The Subcommittee on Elections informed a contestant that the House would not order a recount without evidence and before testimony had been taken. In the 1949 Michigan contested election case of Stevens v Blackney (Sec. 55.3, infra), the Subcommittee on Elections responded on Feb. 15, 1949, to a letter from a contestant, informing him that the House could, ``on recommendation from the committee, order a recount after all testimony had been taken, in precincts where the official returns were impugned by such evidence.'' [Emphasis supplied.] Joint Applications for Recount Sec. 41.4 Joint applications for a recount received by the [[Page 1083]] Clerk of the House are communicated by him to the Speaker together with accompanying papers, and are then referred to a committee. In the 1943 Missouri election contest of Sullivan v Miller (Sec. 52.5, infra), the two parties to an election contest filed a joint application proposing that the House order the Missouri Board of Election Commissioners to conduct a recount. The Clerk received this application and communicated it to the Speaker in a letter with accompanying papers from the parties. The Speaker then referred the materials to an elections committee. Use of Auditors Sec. 41.5 The actual counting and auditing of returns, on a recount of ballots by the Subcommittee on Elections of the Committee on House Administration, may be conducted by auditors from the General Accounting Office assigned to the committee. In the 1961 Indiana investigation of the right of Roush or Chambers to a seat in the House (Sec. 59.1, infra), the Committee on House Administration passed a motion directing the Subcommittee on Elections to conduct a recount of the ballots. The Subcommittee on Elections then proceeded to Indiana where the actual recount was performed by 13 auditors assigned to the committee from the General Accounting Office. The elections subcommittee prescribed the procedures that the auditors followed in conducting the recount. Reconsideration of Action Ordering a Recount Sec. 41.6 An elections committee may reconsider its action in ordering a recount of ballots and determine that such recount is not justified. In McAndrews v Britten (Sec. 47.12, infra), a 1934 Illinois contest, an elections committee voted to order a recount of ballots, and funds were sought to defray the expense thereof. Subsequently, however, the committee reconsidered and decided against such a recount based on a rehearing at which contestee's objections to the recount were presented. [[Page 1084]]