[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9. Election Contests]
[M. Summaries of Election Contests, 1931-72]
[§ 55. Eighty-first Congress, 1949-50]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1189-1199]
CHAPTER 9
Election Contests
M. SUMMARIES OF ELECTION CONTESTS, 1931-72
Sec. 55. Eighty-first Congress, 1949-50
Sec. 55.1 Browner v Cunningham
Mr. Thomas B. Stanley, of Virginia, submitted the unanimous report
(5) of the Committee on House Administration on Aug. 11,
1949, in the contested election case of Browner v Cunningham from the
Fifth Congressional District of Iowa. (The report also contained
committee recommendations in the contested election cases of Fuller v
Davies, 35th Congressional District of New York, and of Thierry v
Feighan,
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5. H. Rept. No. 1252, 95 Cong. Rec. 11316, 81st Cong. 1st Sess.; H.
Jour. 831.
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[[Page 1190]]
20th Congressional District of Ohio.) The case had come to the
House (along with the other two cases above mentioned) on July 26,
1949, when the Speaker had laid before the House a letter from the
Clerk (6) transmitting a copy of contestee's answer (filed
for information only) and relating that no testimony had been received,
the time for such having long since expired. The letter, containing
as well the Clerk's opinion that the contest had abated, was referred
by the Speaker on July 26 to the committee, and ordered printed with
accompanying papers as a House document.
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6. H. Doc. No. 277, 95 Cong. Rec. 10248, 10249, 81st Cong. 1st Sess.;
H. Jour. 751.
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Contestee's answer filed with the Clerk alleged among other things
that contestant had not filed notice of intention to contest the
election within 30 days after determination of the result thereof as
required by statute, and that the 30-day state law requirement for
impounding election machines had expired, thus rendering the machines
themselves incompetent as evidence.
The summary and unanimous report from the Committee on House
Administration stated that:
Under the laws and committee rules governing contested-election
cases in the House of Representatives, more than 90 days elapsed
since the filing of notice to contest the elections of the
respective contestees in the above-entitled contested-election
cases, and no testimony of any character, kind, or nature of the
parties in the said contests having been received by the Clerk of
the House of Representatives in behalf of the contestants in
support of the allegations set forth in their notice of intention
to contest said election.
It is hereby respectfully submitted that notice of intention to
contest the election in the afore-mentioned cases be dismissed by
reason of failure to comply with the laws and committee rules
governing contested-election cases in the House of Representatives.
Accordingly, House Resolution 324 (7) was called up as
privileged by Mr. Stanley and agreed to without debate and by voice
vote on Aug. 11, 1949. House Resolution 324 provided:
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7. 95 Cong. Rec. 11294, 81st Cong. 1st Sess.; H. Jour. 830.
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Resolved, That the election contest of Vincent L. Browner,
contestant, against Paul Cunningham, contestee, Fifth Congressional
District of the State of Iowa, be dismissed, and that the said Paul
Cunningham is entitled to his seat as a Representative of said
district and State; be it further
Resolved, That the election contest of Hadwen C. Fuller,
contestant, against John C. Davies, contestee, Thirty-fifth
Congressional District of the State of New York, be dismissed and
that the said John C. Davies is entitled to his seat as a
Representative of said district and State; and be it further
[[Page 1191]]
Resolved, That the election contest of James F. Thierry,
contestant, against Michael A. Feighan, contestee, Twentieth
Congressional District of the State of Ohio, be dismissed and that
the said Michael A. Feighan is entitled to his seat as a
Representative of said district and State.
Note: Syllabi for Browner v Cunningham may be found herein at
Sec. 6.8 (items transmitted by Clerk); Sec. 24.2 (answer filed for in-
formation only); Sec. 27.1 (dismissal for failure to take testimony
within statutory period).
Sec. 55.2 Fuller v Davies
On Aug. 11, 1949, Mr. Thomas B. Stanley, of Virginia, submitted the
unanimous report (8) of the Committee on House
Administration in the contested election case of Fuller v Davies from
the 35th Congressional District of New York. The report also contained
committee recommendations in the contested election cases of Thierry v
Feighan, 20th Congressional District of Ohio, and Browner v Cunningham,
Fifth Congressional District of Iowa. The case had been presented to
the House (with the two other cases above mentioned) on July 26, 1949,
at which time the Speaker had laid before the House a letter from the
Clerk (9~) transmitting copies of contestant's notice and of
contestee's answer thereto, and containing the Clerk's statement that
the contest had abated, as no testimony had been received within the
time required by law. The Clerk's letter was referred to the Committee
on House Administration and ordered printed with accompanying papers.
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8. H. Rept. No. 1252, 95 Cong. Rec. 11316, 81st Cong. 1st Sess.; H.
Jour. 831.
9. H. Doc. No. 278, 95 Cong. Rec. 10249, 81st Cong. 1st Sess.; H.
Jour. 751.
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Contestant's notice contained 11 forms of fraud, irregularity, and
discrepancy alleged to have occurred in certain wards within the
district, sufficient to annul the 138-vote majority received by
contestee. Contestee's answer denied these allegations severally.
The summary and unanimous report from the Committee on House
Administration stated that:
Under the laws and committee rules governing contested-election
cases in the House of Representatives, more than 90 days elapsed
since the filing of notice to contest the elections of the
respective contestees in the above-entitled contested-election
cases, and no testimony of any character, kind, or nature of the
parties in the said contests having been received by the Clerk of
the House of Representatives in behalf of the contestants in
support of the allegations set forth in their notice of intention
to contest said election.
[[Page 1192]]
It is hereby respectfully submitted that notice of intention to
contest the election in the afore-mentioned cases be dismissed by
reason of failure to comply with the laws and committee rules
governing contested-election cases in the House of Representatives.
Accordingly, House Resolution 324 (10) was called up as
privileged by Mr. Stanley and agreed to without debate and by voice vote
on Aug. 11, 1949. House Resolution 324 declared:
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10. 95 Cong. Rec. 11294, 81st Cong. 1st Sess.; H. Jour. 830.
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Resolved, That the election contest of Vincent L. Browner,
contestant, against Paul Cunningham, contestee, Fifth Congressional
District of the State of Iowa, be dismissed, and that the said Paul
Cunningham is entitled to his seat as a Representative of said
district and State; be it further
Resolved, That the election contest of Hadwen C. Fuller,
contestant, against John C. Davies, contestee, Thirty-fifth
Congressional District of the State of New York, be dismissed and
that the said John C. Davies is entitled to his seat as a
Representative of said district and State; and be it further
Resolved, That the election contest of James F. Thierry,
contestant, against Michael A. Feighan, contestee, Twentieth
Congressional District of the State of Ohio, be dismissed and that
the said Michael A. Feighan is entitled to his seat as a
Representative of said district and State.
Sec. 55.3 Stevens v Blackney
The contested election case of Stevens v Blackney, from the Sixth
Congressional District of Michigan, was presented to the House on Sept.
22, 1949, at which time the Speaker laid before the House and referred
to the Committee on House Administration a letter from the
Clerk.(11) The Clerk's letter, which was ordered printed by
the Speaker as a House document, recited that, agreed upon or proper
testimony had been ordered printed by the Clerk, and, together with
notice of contest and answer, and briefs, had been sealed and was ready
for referral to the Committee on House Administration.
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11. H. Doc. No. 336, 95 Cong. Rec. 13177, 81st Cong. 1st Sess.; H.
Jour. 917.
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On Mar. 6, 1950, Mr. Burr P. Harrison, of Virginia, submitted the
committee report (12) to accompany the recommended committee
resolution declaring contestee entitled to his seat. Part II of the
report contained the views of Mr. Wayne L. Hays, of Ohio, and of Mr.
Anthony Cavalcante, of Pennsylvania.
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12. H. Rept. No. 1735, 96 Cong. Rec. 2898, 81st Cong. 2d Sess.; H.
Jour. 186.
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The majority report set forth three issues in the contest as
follows:
(1) Whether contestant without evidence is entitled to a recount
[[Page 1193]]
under the supervision of the House committee?
The report indicated that the contestant had, on Feb. 10, 1949,
applied to the Committee on House Administration to send its agents to
conduct a recount, prior to contestant's taking of any testimony during
the time prescribed by statute. On Feb. 15, 1949, the
Subcommittee on Elections informed contestant 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'' (citing House precedents). The committee
rationale in support of this unanimous subcommittee recommendation was
that the probability of error should first be shown, that a Member
whose election has been certified should not be subjected to ``fishing
expeditions,'' that the committee would be overburdened with
``frivolous contests,'' that an unwise precedent would be set, and that
there is no proof that a House-conducted recount would be more
accurate. The minority report did not contest this conclusion, but did
point out in connection with another communication that on the date of
the communication (Mar. 2, 1949) ``there was nothing before the
subcommittee or the House except contestant's notice and contestee's
answer thereto.'' These papers and all testimony were in the custody of
the Clerk until Sept. 22, 1949, on which date the contest was presented
to the House.
(2) Whether contestant, of his own accord and without evidence, is
entitled to conduct a recount without any supervision?
The facts as presented in the ``chronological chart of events''
contained in the minority report, indicate that contestant did on two
separate occasions cause a subpena duces tecum to be issued directing
the election officials to deliver up the original ballots and voting
machines to a notary public of contestant's own selection. On Feb. 3,
1949, the contestant had caused such subpena duces tecum to be issued,
and on Feb. 10, contestee had obtained a restraining order against such
subpena from a local chancery court. On Feb. 14, a local election
official appeared before the notary public but refused to bring with
him the ballots, etc., on the basis of the restraining order, which the
chancery court had issued based on contestee's argument that such a
recount had not been ordered by the House or by its committee. On Feb.
25, on removal to the United States district court, the contest-
[[Page 1194]]
ant succeeded in obtaining an order dissolving the chancery court
restraining order.
On Mar. 2, 1949, contestant again caused to be served a subpena
duces tecum on the local election official, who, on Mar. 8, again
refused to produce the requested ballots, tally sheets, and statements.
The election official based this second refusal on a
communication, dated Mar. 2, which he had received from the
Subcommittee on Elections of the Committee on House Administration.
Signed by Burr P. Harrison, of Virginia, its Chairman, the
communication read as follows:
The Subcommittee on Elections has ruled that a recount of the
ballots at this time is premature and irrelevant. There is no
process under Federal law whereby a notary public can be directed
to take possession of ballots in an election contest.
I do not know whether under the law of your State a notary
public has the power to issue a subpoena duces tecum and as to
this, and as to whether the subpoena has been issued in accordance
with the law of the State, you are referred to your own attorney.
Precedents of the House of Representatives clearly establish
that in a contested election case ballots should be inspected and
preserved in strict conformity with State law so that their
inviolability is unquestioned. No action should be taken by either
contestant or contestee with reference to ballots that does not
follow the law of the State.
The official count of the ballots is presumed correct, and I am
certain that this presumption will not be brought into question by
any unauthorized recount which is made contrary to State law or
under circumstances which do not give full protection to both
contestant and contestee.
On Mar. 15, 1949, the Subcommittee on Elections ``sustained the
action of the election official who had refused to comply with such
subpena duces tecum.'' To this decision and to the communication above,
the minority report took strong exception. The minority contended that
the notary public was an ``officer'' of the House by virtue of 2 USC
Sec. 206 and the Supreme Court case of In re Loney (1890), 134 U.S.
372, which stated that ``any one of the officers designated by Congress
to take the depositions of such witnesses (whether he is appointed by
the United States . . . Or by a State, such as a . . . notary public)
performs this function, not under any authority derived from the State,
but solely under the authority conferred upon him by Congress. . . .''
The minority again pointed out that at the time of the
communication from the chairman of the subcommittee, the election
contest had not been presented to the House. The minority cited several
[[Page 1195]]
House election cases wherein it had been held that a notary public was
a proper official of the House before whom testimony could be taken,
and before whom ballots may be examined and a report submitted to the
House. Taking further exception to Mr. Harrison's communication, the
minority contended that a notary public acting in such capacity derived
his authority from the federal election laws and the rules of the House,
and that a notary public so appointed need not inspect the ballots in
strict conformity with state law, as the power to examine ballots
vested in the House is infinite.
The majority report, however, resolved issue (2) by deciding that
the power of an officer (notary public) to require the production of
``papers'' (under 2 USC Sec. 219) pertaining to the election did not
require the production of ``ballots.'' This decision of the majority of
the committee was contrary to previous precedents of the House, i.e.,
Greevy v Scull (2 Hinds' Precedents Sec. 1044) and Kunz v Granata (6
Cannon's Precedents Sec. 186) which held that ballots are among the
``papers'' of which the officer taking testimony in an election case
may demand the production. The minority also cited Rinaker v Downing (2
Hinds' Precedents Sec. 1070), in which the majority report coincided
with the above precedents, but where ``the majority report referred to
was rejected by the House and the resolution of the minority
substituted.'' The majority report in Stevens v Blackney stated that
the accepted procedure was that the House itself should order a
recount, and provide the subpena power and payment of the expenses
thereof.
The majority rationale for their construction of the word
``papers'' was based upon certain practical considerations, such as the
difficulty of submitting certified copies of such ``official papers''
to the Clerk, payment to officials for making such copies, inclusion of
voting machines as official papers. Further, the majority cited the
problem of deciding which count would be accepted by the House, that of
contestant's notary public or that of the bipartisan officials who
first conducted the count, should contestant be permitted to conduct a
recount on his own motion. The alternative that the House could then
conduct a third count, related the majority, would not overcome the
dilemma, as the inviolability of the ballots would then have been
destroyed. The option of authorizing the contestee to name a second
notary to attend
[[Page 1196]]
the hearings would not resolve the question of which notary would
have custody of the ballots overnight.
Citing early cases, the majority report quoted the ``accepted
uniform rule'' in holding that a magistrate taking testimony ``was not
a person or a tribunal authorized to try the merits of the election and
had no authority under the
law of Pennsylvania or of Congress to order those boxes to be broken
open. . . . The committee were of the opinion that such an application
should be founded upon some proof sufficient at least to raise a
presumption of mistake, irregularity, or fraud in the original count,
and ought not to be granted upon the mere suggestion of possible error.
The contestant failed to furnish such proof.''
(3) Did the evidence in this case justify a recount of the ballots?
Of the 207 precincts in the congressional district, the evidence
showed, according to the majority report, that election officials in
four of those precincts had erroneously counted ballots, which had been
marked as straight party ballots and also marked for the congressional
candidate of another party, as votes for both candidates. Those errors
were corrected by the official canvassers and were not reflected in the
official returns. The report related that from the statement of one of
the election officials that the same erroneous method of counting could
have been followed in other precincts, contestant was urging that a
total recount be conducted. Contestant accompanied this contention with
evidence attacking the returns of three precincts. Contestant submitted
no evidence, however, that the law of Michigan had been violated either
in the appointment of bipartisan election officials or in allowing
challengers of contestant's party to be present in any of the remaining
200 precincts. Thus, the majority of the committee applied a principle
of evidence to presume that the failure of contestant to produce party
election officials and challengers from any of the 200 precincts as
witnesses must have been ``because their testimony would show an honest
and fair count.''
On this issue, the minority report contended that, as the recount
in seven precincts had reduced contestee's plurality from 1,217 votes
to 784 votes, that it was reasonable to assume that a complete recount
would overcome contestee's plurality. Citing Galvin v O'Connell (6
Cannon's Precedents Sec. 126) the minority contended that ``if it is
reasonable to suppose there was error in
[[Page 1197]]
judgment in counting ballots cast in a portion of the precincts in
the district, it is equally reasonable to assume there was error in
judgment in counting the ballots in the remaining precincts.''
On May 23, 1950, Mr. Harrison called up as privileged House
Resolution 503,(13) and immediately
yielded to Mr. Cavalcante, who offered a substitute (14)
resolution which:
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13. 96 Cong. Rec. 7544, 81st Cong. 2d Sess.; H. Jour. 434, 435.
14. Id.
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Resolved, That the contested-election case of George D. Stevens
v. William W. Blackney from the Sixth Michigan Congressional
District (Eighty-first Congress, election of November 2, 1948) be
recommitted to the Committee on House Administration with
instructions (1) to allow, under the rules of the subcommittee on
elections and the precedents established by the House of
Representatives, the contestant and his attorney to inspect the
poll lists, registration books, ballot boxes, ballots, tally
sheets, and statements of returns pertaining to this contested
election, and (2) that after said inspection, to direct the parties
to this contest, under such rules as the committee may determine,
to take testimony and return the same, as required by the rules of
the subcommittee on elections and laws (2 U.S. Code 201-226)
governing contested-election cases and the precedents established
by the House of Representatives (Stolbrand v. Aiken (Hinds' I,
719); Goodwyn v. Cobb (Hinds' I, 720); Greevy v. Scull (Hinds' II,
1044); Steele v. Scott (Cannon's VI, 126); Galvin v. O'Connell
(Cannon's VI, 146); Kunz v. Granata (Cannon's VI, 186)).
Mr. Cavalcante thereupon yielded to Mr. Harrison, who immediately moved
the previous question on the substitute resolution, which was rejected
by voice vote.
House Resolution 503 was then agreed to without debate and by voice
vote. House Resolution 503 declared:
Resolved, That William W. Blackney was elected a Representative
in the Eighty-first Congress from the Sixth Congressional District
of the State of Michigan and is entitled to a seat as such
Representative.
Note: Syllabi for Stevens v Blackney may be found herein at
Sec. 7.7 (magistrates' authority to open ballot boxes); Sec. 29.3
(ballots as ``papers'' required to be produced); Sec. 34.2 (necessity
of producing evidence); Sec. 36.8 (effect of absence of witnesses for
contestant); Sec. 39.3 (unsupervised recount); Sec. 40.2 (justification
for recount); Sec. 40.4 (burden of showing fraud, irregularity or
mistake); Sec. 41.3 (production of evidence justifying a recount as
prerequisite) Sec. 42.18 (substitute resolutions); Sec. 43.9 (minority
reports).
Sec. 55.4 Thierry v Feighan
On Aug. 11, 1949, Mr. Thomas B. Stanley, of Virginia, submitted
[[Page 1198]]
the unanimous report (15) of the Committee on House
Administration in the contested election case of Thierry v Feighan from
the 20th Congressional District of Ohio. The report also contained
committee recommendations in the contested election cases of Browner v
Cunningham, Fifth Congressional District of Iowa, and of Fuller v
Davies, 35th Congressional District of New York. Contestee's answer,
filed with the Clerk for information only, had been contained in the
Clerk's letter (16) transmitted to the Speaker on July 26,
1949, and laid before the House on that date. The letter recited that
no testimony had been received during the period required by statute,
and that the contest appeared abated. The Clerk's letter, upon being
referred, was ordered printed with accompanying papers.
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15. H. Rept. No. 1252, 95 Cong. Rec. 11316, 81st Cong. 1st Sess.; H.
Jour. 831.
16. H. Doc. No. 279, 95 Cong. Rec. 10248, 81st Cong. 1st Sess.; H.
Jour. 751.
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The summary and unanimous report from the Committee on House
Administration stated that:
Under the laws and committee rules governing contested-election
cases in the House of Representatives, more than 90 days elapsed
since the filing of notice to contest the elections of the
respective contestees in the above-entitled contested-election
cases, and no testimony of any character, kind, or nature of the
parties in the said contests having been received by the Clerk of
the House of Representatives in behalf of the contestants in
support of the allegations set forth in their notice of intention
to contest said election.
It is hereby respectfully submitted that notice of intention to
contest the election in the afore-mentioned cases be dismissed by
reason of failure to comply with the laws and committee rules
governing contested-election cases in the House of Representatives.
Accordingly, House Resolution 324 (17) was called up as
privileged by Mr. Stanley and agreed to without debate and by voice
vote on Aug. 11, 1949. House Resolution 324 declared:
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17. 95 Cong. Rec. 11294, 81st Cong. 1st Sess.; H. Jour. 830.
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Resolved, That the election contest of Vincent L. Browner,
contestant, against Paul Cunningham, contestee, Fifth Congressional
District of the State of Iowa, be dismissed, and that the said Paul
Cunningham is entitled to his seat as a Representative of said
district and State; be it further
Resolved, That the election contest of Hadwen C. Fuller,
contestant, against John C. Davies, contestee, Thirty-fifth
Congressional District of the State of New York, be dismissed and
that the said John C. Davies is entitled to his seat as a
Representative of said district and State; and be it further
Resolved, That the election contest of James F. Thierry,
contestant, against
[[Page 1199]]
Michael A. Feighan, contestee, Twentieth
Congressional District of the State of Ohio, be dismissed and that
the said Michael A. Feighan is entitled to his seat as a
Representative of said district and State.